Case 1:12-cv-22958-PAS Document 1 Entered on FLSD Docket 08/14/2012 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

United States of America, Plaintiff;
v. Secretary, Florida Department of Corrections; and Florida Department of Corrections,
Defendants.

No. 1:12-cv-22958 COMPLAINT

THE UNITED STATES OF AMERICA hereby files this Complaint and alleges upon information and belief:
INTRODUCTION 1. By refusing to offer kosher meals, the Florida Department of Corrections (“FDC”) forces
hundreds of its prisoners to violate their core religious beliefs on a daily basis, in violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (“RLUIPA”). 2. Keeping kosher is a central tenet of Judaism and other religious traditions observed by prisoners incarcerated at FDC facilities. FDC’s refusal to provide kosher meals to these prisoners substantially burdens their religious exercise. 3. FDC’s dietary policy is an outlier among American correctional institutions. The Federal Bureau of Prisons (“BOP”) and most state departments of correction offer kosher meal options to all prisoners with a religious basis for keeping kosher. 4. FDC itself offered kosher meals until late 2007, when it discontinued its kosher food program over the objections of its own Study Group commissioned to evaluate the kosher

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food program. Indeed, FDC disregarded the Study Group’s warning that ending the kosher food program would violate RLUIPA. 5. Moreover, since 2010 FDC has voluntarily provided kosher meals to approximately one dozen prisoners per day through its pilot kosher program in a south Florida facility. While the pilot program accommodates only a small fraction of the 250 prisoners previously enrolled in FDC’s statewide kosher program, it demonstrates that FDC can provide kosher meals consistent with its compelling interests. 6. The United States seeks declaratory and injunctive relief to remedy Defendants’ violations of the law, and to ensure that FDC implements sustainable reforms that guarantee the religious freedoms protected by RLUIPA.
DEFENDANTS 7. Defendant Secretary of the Florida Department of Corrections is the ultimate decision-
maker with authority to approve all FDC policies, including its dietary policies. The current Secretary of FDC is Kenneth S. Tucker, who is sued in his official capacity. 8. Defendant Florida Department of Corrections incarcerates over 100,000 prisoners in 146 facilities across the state of Florida, including 68 prisons, 40 work camps, and 33 work release centers. FDC has an annual budget of approximately $2.4 billion and employs 25,000 people. 9. FDC receives federal funding and is an “institution” within the meaning of 42 U.S.C. § 2000cc-1(a) and 42 U.S.C. § 1997.
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JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1345. 11. The United States is authorized to initiate this action against Defendants under RLUIPA,
42 U.S.C. § 2000cc-2(f). 12. The declaratory and injunctive relief sought by the United States is authorized by 42
U.S.C. § 2000cc-2(f) and 28 U.S.C. §§ 2201 and 2202. 13. Venue is proper in the Southern District of Florida pursuant to 28 U.S.C. § 1391(b).
Defendants operate approximately 20 facilities in the Southern District of Florida, including the South Florida Reception Center that contains the pilot kosher program; Defendants incarcerate in the Southern District of Florida dozens of Jewish prisoners desiring to keep kosher, including ten prisoners named in this Complaint; and virtually all of the events, actions, or omissions giving rise to this claim occurred in Florida.
FACTUAL ALLEGATIONS 14. FDC’s refusal to provide kosher meals violates the federal rights of hundreds of
prisoners. FDC’s dietary policies force prisoners with a religious basis for consuming kosher meals to violate their core religious beliefs on a daily basis. 15. The substantial burden that FDC’s dietary policies impose on these prisoners is not necessary to achieve any compelling state interest. Indeed, the Federal Bureau of Prisons and most state departments of correction offer kosher meals while achieving interests that are indistinguishable from FDC’s. 16. FDC further demonstrates that it can provide kosher meals consistent with its interests by voluntarily operating a pilot kosher food program in one of its facilities.
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I. FDC Does Not Provide Kosher Meals 17. FDC does not provide kosher meals to its prisoners. The only exception to FDC’s
blanket refusal to offer kosher meals is the handful of prisoners eligible for the “pilot” kosher program in the South Florida Reception Center. 18. FDC’s pilot program has the capacity to serve approximately one dozen out of the hundreds of FDC prisoners who possess a religious basis for keeping kosher. Moreover, most FDC prisoners are not eligible for assignment to the kosher program, as the program admits only prisoners who are at least 59 years old or are eligible for assignment to a work squad. 19. Instead of providing kosher meals, FDC offers two mainline dining options for most meals – a meat entrée and non-meat entrée. In addition to these options, prisoners may request vegan meals by submitting a request to the food service director. 20. FDC also provides a variety of therapeutic diets, including a prenatal diet, liquid diet, puree diet, mechanical dental diet, mental health diet, low residue diet, fat intolerance diet, calorie regulated diet, and a renal diet. 21. None of the meal options offered by FDC is kosher. 22. Keeping kosher requires adherence to the laws of kashruth, which prescribe religiously acceptable sources of food and methods of food preparation. 23. To be kosher, a food item must derive from religiously-acceptable sources, be stored in kosher containers, prepared in a particular manner, and served on tableware that has not contacted non-kosher food. In addition, meat and dairy products may not be mixed. 24. While most correctional institutions in the United States offer kosher meals consistent with these requirements, Florida prisoners desiring to keep kosher cannot do so.
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II. FDC Previously Offered Kosher Meals, But Discontinued Its Kosher Food Program Against the Advice of Its Own Study Group
25. Until August 2007, FDC – like BOP and most state correctional institutions – offered kosher meals to all prisoners who passed a religious sincerity test.
26. Under that program, known as the “Jewish Dietary Accommodation Program” (“JDA Program”), FDC assigned eligible prisoners to 1 of 13 FDC facilities equipped to offer kosher meals. These facilities had the capacity to serve kosher meals to 900 prisoners per day, easily sufficient to accommodate the JDA Program’s average enrollment of 250 prisoners per day.
27. In April 2007, FDC commissioned a Study Group to review the JDA Program. The Study Group’s report (“the Report”) noted several challenges associated with offering kosher meals, but recommended that FDC “[r]etain a kosher dietary program,” with participation limited to “those inmates who have been expertly appraised or vetted by a rabbi as eligible to participate.”
28. Indeed, the Study Group concluded that RLUIPA requires FDC to provide kosher meals. The Report explained that a prisoner desiring to keep kosher “is substantially burdened” by the denial of kosher food “because the regulations [denying kosher food] leave him with no meaningful choice. He may either eat the non-kosher food and fail to obey his religious laws or not eat the non-kosher food and starve.”
29. The Report further posited that “it is improbable that [FDC] can satisfy a court’s inquiry into whether the department is furthering a compelling interest, let alone that denying inmates’ religious accommodation is the least restrictive means available.”
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30. Despite the Study Group’s recommendation to continue providing kosher meals to eligible prisoners, FDC terminated the JDA Program on August 16, 2007. III. FDC’s Denial of Kosher Food Unlawfully Burdens Religious Exercise
31. FDC’s denial of kosher meals substantially burdens the religious exercise of prisoners desiring to keep kosher, as consuming a kosher diet is a fundamental tenet of Judaism and other religions practiced by FDC prisoners.
32. FDC’s dietary policies substantially burden the religious exercise of hundreds of prisoners. For example: a. Prisoner 1 is a 54-year-old prisoner housed in the minimum security unit of the Tomoka, C.I. facility. Prisoner 1 is a sincere adherent of Judaism and has requested a transfer to the South Florida Reception Center so that he can participate in the pilot kosher program. To date, FDC has not granted his request, forcing Prisoner 1 to violate his religious beliefs by consuming non-kosher food. b. Prisoner 2 is a 50-year-old Jewish prisoner incarcerated in the Suwanee C.I. Annex. Prisoner 2 has submitted several lengthy requests for kosher meals that explain how his religious beliefs compel him to eat properly prepared kosher foods. In December 2011, FDC denied Prisoner 2’s request by stating simply that its vegetarian meal option “allows the majority of religious groups . . . to meet the basic tenets of their belief systems.” FDC’s dietary policies continue to force Prisoner 2 to violate his religious beliefs daily by consuming non-kosher food. c. Prisoner 3 is a 52-year-old Jewish prisoner incarcerated in the Charlotte, C.I. facility in Punta Gorda, Florida. Prisoner 3, who desires to keep kosher as part of his religious practice, participated in the JDA Program until its termination in
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2007. FDC has not allowed Prisoner 3 to participate in the kosher pilot program, forcing him to consume non-kosher food in violation of his sincere religious beliefs. d. Prisoner 4 is a Jewish prisoner who has been incarcerated at FDC since 1999. He is currently housed in the Everglades Correctional Institution. Prisoner 4 was raised by two Jewish parents and has been a sincere adherent to the Jewish faith his entire adult life. FDC’s refusal to provide a kosher diet forces Prisoner 4 to violate his religious conviction that his faith requires him to keep kosher. e. Prisoner 5 is a Jewish prisoner incarcerated in the Everglades Correctional Institution. Prisoner 5 was raised by two Jewish parents and has been a sincere adherent to the Jewish faith his entire adult life. He believes his faith requires him to keep kosher. FDC’s dietary policies force Prisoner 5 to violate his religious convictions on a daily basis. f. Prisoner 6 is a Jewish prisoner incarcerated at the FDC since 2009. Prisoner 6 is currently housed in the Everglades Correctional Institution. Prisoner 6’s mother was Jewish by birth, and he has been a sincere adherent of the Jewish faith throughout his adult life. Prisoner 6 believes that keeping kosher is a core aspect of his religious practice. FDC’s refusal to provide kosher meals substantially burdens Prisoner 6’s religious exercise. g. Prisoner 7 is a 48-year-old Jewish prisoner serving a life sentence. Prisoner 7 is incarcerated in the South Bay, C.F. facility. Prisoner 7 believes that keeping kosher is a core part of his religious faith. FDC’s refusal to provide kosher meals
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substantially burdens Prisoner 7’s religious exercise, and will continue to do so for the remainder of his life sentence. h. Prisoner 8 is a 68-year-old Jewish prisoner who has been incarcerated at FDC for the past 10 years. Prisoner 8 is currently housed in the South Bay, C.F. facility, where he is serving a life sentence. Prisoner 8 believes that consuming exclusively kosher food is an important part of his religious practice. FDC’s dietary policies substantially burden Prisoner 8’s religious exercise, and will continue to do so for the duration of his life sentence. i. Prisoner 9 is a 52-year-old Jewish prisoner serving a life sentence. Prisoner 9 is currently housed in the South Bay, C.F. facility, where he does not have access to kosher meals. Prisoner 9 believes such meals are important to exercising his Jewish faith. FDC’s dietary policies force Prisoner 9 to violate his religious beliefs on a daily basis by consuming non-kosher food. j. Prisoner 10 is a 22-year-old prisoner incarcerated in the Dade Correctional Institution. Prisoner 10 is a sincere adherent of the Jewish faith, which he believes compels him to keep kosher. FDC’s dietary policies substantially burden Prisoner 10’s religious exercise, and will continue to do so until his release, which is not scheduled until 2034. k. Prisoner 11 is a 58-year-old minimum security prisoner incarcerated in the Dade Correctional Institution. Prisoner 11 is a sincere adherent of the Jewish faith, which he believes compels him to consume kosher food. FDC’s dietary policies substantially burden Prisoner 11’s religious exercise.
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l. Prisoner 12 is a 35-year-old minimum security prisoner housed in the Okeechobee Correctional Institution. Prisoner 12 is a sincere adherent of the Jewish faith who believes that keeping kosher is an important aspect of his religious practice. FDC’s dietary practices substantially burden Prisoner 12’s religious exercise.
m. Prisoner 13 is a 49-year-old prisoner serving a life sentence. Prisoner 13 is currently housed in the Okeechobee Correctional Institution. He is a sincere adherent of the Jewish faith who believes keeping kosher is an important part of his religious exercise. FDC’s dietary policies substantially burden Prisoner 13’s religious exercise.
33. FDC’s dietary policies likewise burden the religious exercise of hundreds of other prisoners.
34. From 2004 to 2007, the JDA Program served kosher meals to 784 prisoners, with an average daily enrollment of 250. IV. Providing A Kosher Diet Is Consistent With FDC’s Compelling Government Interests
35. FDC is capable of providing kosher meals to prisoners consistent with its compelling government interests.
36. From 2004 to 2007, FDC provided kosher meals to all prisoners deemed eligible by a screening process that measured the sincerity of their religious convictions. During this period, FDC’s kosher food program enrolled an average of 250 prisoners per day.
37. In 2007, a Study Group commissioned by the FDC Secretary recommended that FDC continue to make kosher meals available to prisoners deemed eligible by the religious
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sincerity screening. FDC rejected the advice of its own Study Group and discontinued its kosher program. 38. FDC’s termination of its kosher food program was not supported by any studies or analysis other than the Study Group Report, which recommended that FDC maintain the program. FDC did not consider numerous alternative ways to provide kosher meals consistent with its compelling interests. 39. Most states and the federal government offer kosher diets to prisoners, and FDC itself operates a pilot kosher program at the South Florida Reception Center. 40. FDC’s voluntary operation of the pilot program demonstrates that it can provide kosher food consistent with its compelling interests. 41. FDC initiated the pilot program on August 16, 2010, at the South Florida Reception Center. FDC invested $11,668 to establish a kosher kitchen at that facility and spends approximately $4.70 per day to provide kosher meals to prisoners in the program. 42. After initially authorizing the program to run for 6 months, FDC has continued it for the past 18 months. 43. FDC’s decision to voluntarily establish and continue the pilot program demonstrates that providing kosher food is consistent with FDC’s compelling interests. 44. Nevertheless, the pilot program cannot accommodate most FDC prisoners who desire to keep kosher. The program started with 11 prisoners in 2010 and its enrollment has dropped to as few as 8 prisoners. From 2004-2007 the enrollment in FDC’s Jewish Dietary Program averaged 250 individuals. 45. For the hundreds of prisoners unable to participate in the pilot program, FDC’s dietary policies unlawfully burden religious exercise that RLUIPA protects.
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CLAIM FOR RELIEF: DEFENDANTS’ DENIAL OF KOSHER MEALS VIOLATES RLUIPA
The United States incorporates by reference the allegations set forth in Paragraphs 1 – 45 as if fully set forth herein. 46. Defendants do not provide kosher meals to prisoners in their custody who request the meals in accordance with their religious beliefs. 47. Defendants’ denial of kosher meals constitutes a substantial burden on the religious exercise of prisoners in their custody, and denial of kosher meals is not the least restrictive means of furthering any compelling government interest. 48. Accordingly, FDC’s refusal to provide kosher meals violates RLUIPA, 42 U.S.C. § 2000cc.
PRAYER FOR RELIEF RLUIPA authorizes the United States to seek injunctive and declaratory relief for Defendants’ failure to provide a kosher diet to prisoners in their custody who desire such a diet to exercise their religious beliefs. WHEREFORE, the United States prays that the Court: a. Declare that Defendants have violated RLUIPA by failing to offer kosher
meals to prisoners in their custody who desire a kosher diet to exercise their religious beliefs; b. Order Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with
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them to provide prisoners in their custody with nutritionally sufficient kosher meals; and c. Order such other relief as the interests of justice may require.

Respectfully submitted for the United States of America,

WIFREDO A. FERRER United States Attorney Southern District of Florida VERONICA HARRELL-JAMES Assistant United States Attorney Southern District of Florida
DATED: August 14, 2012

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
TIMOTHY D. MYGATT Special Counsel Special Litigation Section
s/ Michael J. Songer MICHAEL J. SONGER Special Florida Bar # A5501751 Attorney United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-6255 michael.songer@usdoj.gov

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Miami Division

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

) Case No. 1:12-cv-22958-PAS

)

SECRETARY, FLORIDA DEPARTMENT )

OF CORRECTIONS, and FLORIDA,

)

DEPARTMENT OF CORRECTIONS, )

)

Defendants.

)

)

)

)

REGINALD E. ROSE, VERNON

)

ALEXANDER, JEFFREY MILLER,

)

OMAR SHARIFF JONES, Individually and )

on behalf of a Class of All Others Similarly )

Situated,

)

)

Applicants for

)

Intervention.

)

)

)

MOTION TO INTERVENE With incorporated
MEMORANDUM OF LAW And attached
PLEADING OF APPLICANTS FOR INTERVENTION Reginald E. Rose, and other similarly situated Muslim inmates (hereinafter “Applicants” or “Applicants for Intervention”), move for good cause shown to intervene as of right, pursuant to Rule 24(a)(2), Federal Rules of Civil Procedure, or alternatively, move for permissive inter-
{07074722;3}

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vention, pursuant to Rule 24(b)(2), to receive a halal meal or, alternatively, a kosher meal, and attach pursuant to Rule 24(c), the pleading of the Applicants for Intervention, and in support state:
1. Applicants for Intervention seek to intervene as a matter of right, or alternatively, seek permissive intervention, as a class of Plaintiffs-Intervenors. Applicants have a direct and substantial interest in this matter. Applicants for Intervention are devout and sincere adherents to the Muslim faith.
2. Applicants’ efforts to obtain religious parity with other religions in order to abide by Islamic dietary requirements have been years in the making and have included a prior lawsuit captioned Reginald Rose, et al. v. McCrae, et al., Case No. 3:06-cv-01071-TJC-HTS (M.D. Fla.).1 For example, Defendants had long provided Jewish inmates with a kosher meal when requested. Rule 33-204.003(5), Florida Administrative Code (2006). Accordingly, in 2004, Applicants began requesting through the required inmate grievance procedure that they be given an Islamic halal meal, or in the alternative, a kosher meal as the two religious diets are similar.
3. The response of the Defendants was to state that if the Muslim inmates would convert to Judaism, they could receive a kosher meal; otherwise Defendants denied the Muslim inmates’ request for a halal meal, or in the alternative a kosher meal. Rose DE 8-3.
4. After fully exhausting the required inmate grievance process, on December 7, 2006, Applicants filed a class action lawsuit requesting that Defendants provide them and all other similarly situated Muslim prisoners with nutritionally-sufficient halal meals or, in the alternative,
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kosher meals. (Rose DE 1). The complaint from the 2006 lawsuit alleged that Defendants’ conduct violated the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution and the Religious Land Use and Institutionalized Persons Act of 2000 (hereinafter “RLUIPA”) and abridged the freedom of religion to which all inmates are entitled by denying Muslim inmates the right to adhere to the tenets of their faith by refusing to provide halal meals (or, in the alternative, kosher meals), in accordance with the commands of the Quran, while at the same permitting those with other dietary religious beliefs to adhere to the tenets of their faiths. A copy of the complaint in Reginald Rose, et al. v. McCrae, et al., Case No. 3:06cv-01071-TJC-HTS (M.D. Fla.) is attached hereto as Exhibit 1.
5. Defendants then filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment alleging that these same applicants had failed to exhaust their administrative remedies and the case was moot. Rose DE 8. Defendants’ Motion was denied. Rose DE 33. Defendants then filed yet another Motion for Summary Judgment. Rose DE 35. It was denied as moot and an extension of time was granted to respond or reply to the complaint. Rose DE 41. On or about April 26, 2007, the Defendant Secretary announced the appointment of the Religious Dietary Study Group. In conjunction with the formation of the Study Group, the Secretary placed a hold on inmate participation in the Jewish Dietary Accommodation Program (hereinafter “JDA” Program) at participation levels as of that date, permitting no new enrollment until the Study Group completed its work. The Study Group was charged with conducting a review of religious dietary meal requirements:
1References to documents previously filed in Rose, et al. v. McCrae, et al., Case No. 3:06-cv-01071-TJC-HTS (M.D. Fla.) will be referred to as (Rose DE __). References to docu-
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• To conduct an analysis of the requirements of the religious dietary laws of the major faith groups represented in the Department of Corrections’ inmate population which have dietary requirements as part of the tenets of the faith.
• To review and analyze the impact of an additional influx of participants to the religious dietary accommodation program and how the department may be able in the future to accommodate the religious dietary requirements of various faiths.
• To conduct an analysis of religious meal accommodations within the parameters of an institutional prison setting in federal, state, and private prison systems.
• To review the religious meal programs currently provided by the Department of Corrections pursuant to Florida Administrative Rules and pursuant to the Jewish Dietary Accommodations Procedure Number 503.005, reviewing, among other things, data in regard to food purchase and preparation, physical plant requirements, security and classification issues, administrative matters, utilization and participation, and cost.
6. On July 26, 2007, the Study Group returned its report and recommendations to the
Secretary. DE 55-8. The Study Group recommended: “Based on the findings presented and dis-
cussed by the Religious Dietary Study Group during the course of its meetings, as set forth in
this report, the following are the Study Group’s recommendations to Secretary McDonough:
• Eliminate all pork and pork products from the Department of Corrections’ food service menus.
• Retain a kosher dietary program, but limit the participants to those inmates who have been expertly appraised or vetted by a rabbi as eligible to participate.
• Eliminate the JDA Program kitchens currently used if vetting of inmates who claim to be Jewish, as recommended above, significantly reduces the officially recognized Jewish inmate population, replacing the kosher meals prepared in the JDA kitchens with purchased pre-packaged meals.
• If an inmate misses ten percent or more of the kosher meals purchased or prepared for him/her in the course of one month, that inmate be removed from the kosher dietary program.”
ments filed in the case at bar will be referred to as DE ___. -4-

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DE 55-8. 7. On August 20, 2007, the Defendant Secretary filed Notice to the Court of the Action
of the Secretary on Recommendations of the Religious Dietary Study Group. Rose DE 38 and 38-1; Exh. 2. The Secretary never filed a copy of and informed the court of the Recommendations of the very Religious Dietary Study Group he had appointed. Instead, the Defendant Secretary rejected the recommendations of his Religious Dietary Study Group by letter dated August 15, 2007 to the Chairman of the Religious Dietary Study Group:
 The Jewish Dietary Accommodation (JDA) Program will be discontinued as of August 16, 2007.
 The JDA kitchen and utensils will be kept clean and maintained pending further direction from the Office of the Secretary.
 All pork and pork products will be eliminated from the Department of Corrections’ food service immediately.
 The vegan and no-meat alternative entrée meal patterns which are currently provided for all inmates, as set forth in the administrative rules of the department, will continue to be available to all inmates who wish to observe the dietary laws of their respective religions.
Rose DE 38-2; Exh. 4. 8. In roundly rejecting the recommendations of his own Religious Dietary Study Group
to maintain the JDA and to reject the Rose Plaintiffs’ requests for either a halal meal or to be allowed to partake in the kosher meal as an alternative, the Defendant Secretary refused to offer religious dietary meals to both Muslim and Jewish inmates alike.
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9. Therefore, on September 19, 2007, the Rose Plaintiffs filed a Stipulation of Dismissal and subsequently an Order of Dismissal without prejudice was entered on September 24, 2007. Rose DEs 45 and 46.
10. Unbeknownst to the 2006 Rose Plaintiffs, and without filing a notice of a rule change as required by the Florida Administrative Code, the Defendant Secretary reinstituted the JDA as a “pilot program” at South Florida Reception Center sometime in 2010 as can best be determined. DE 1 at ¶ 5. Indeed, it was not until the matter at bar was filed and publicity occurred that the Rose Plaintiffs learned of the JDA “pilot” kosher meal program.
11. Thereafter, the Plaintiff USA filed the lawsuit at bar, and the FDOC engaged in mediation and discovery was stayed. After an impasse on mediation and the discovery stay was lifted, the Plaintiff USA filed a Motion for a Preliminary Injunction in this action. DE 29. A hearing on the Motion is now set for June 4, 2013.
12. While the pleadings from the USA request a kosher meal for inmates, it is not clear whether the USA is also advancing that a halal meal must be provided to Muslim inmates as well. It appears from the pleadings that only a kosher meal is being requested. Moreover, it is unclear whether the relief sought would provide a kosher meal to those Muslim inmates desiring a kosher meal as a reasonable alternative.
13. Pursuant to the Prison Litigation Reform Act and despite that they had grieved this very matter unsuccessfully once before in 2006, the Rose applicants at bar over the past several months have just now completed the formal grievance process a second time to request that they be allowed to have a halal meal or in the alternative a kosher meal. As anticipated, Applicants
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for Intervention’s grievances have either been denied or not responded to at the institutional and Departmental levels.
14. While the Defendant Secretary is to be commended for reoffering kosher meals to Jewish inmates as a pilot program, in the interest of fairness if nothing else, he should have certainly provided Muslim inmates with a halal meal or in the alternative made kosher meals available during the “pilot program.” Instead, he did neither, thereby placing Muslim inmates in the exact same situation as they were when they filed the Rose class action complaint on December 7, 2006.
15. While the decision of the United States to file the matter at bar is also to be commended, its complaint on information and belief is filed on behalf of Jewish inmates, not Muslim inmates. Nowhere in the complaint is there any mention of Muslim inmates not being provided a halal meal, or in the alternative a kosher meal. The complaint fails to specifically seek the same relief as is being sought here, namely to either be provided a halal meal, or in the alternative a kosher meal. Unlike Applicants’ attached proposed complaint, the one at bar does not even mention seeking religious meal parity for Muslim inmates by either providing a halal meal or alternatively a kosher meal.
16. The Applicants for Intervention are so situated that disposition of this action, as a practical matter, may impede or impair their ability to protect their constitutional and legal right to receive a halal meal, or in the alternative a kosher meal. If this matter goes forward without the interests of the Muslim inmates being represented, the Applicants will suffer two grievous losses. First, from a timing standpoint, whatever relief is sought by the Plaintiff may not include Muslim inmates, for as is readily apparent from the complaint, no relief for observing the dietary
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laws of Muslim inmates was sought or even contemplated. None of the inmates listed in the
complaint at bar on information and belief are known to be Muslim. DE 1 ¶¶ 32(a)-(m). Sec-
ond, if intervention is denied, the Muslim inmates will have to file yet another class action
should this action be resolved by either mediation or settlement, or by trying the matter to judg-
ment, and not providing Muslim inmates with a halal meal or an alternative kosher meal.
17. Attached hereto as Exhibit 5 is Applicants for Intervention’s proposed pleading.
18. Certificate of Counsel. Plaintiff United States of America does not oppose the in-
tervention of the Applicants. Defendants oppose the granting of this Motion to Intervene.
MEMORANDUM OF LAW Rule 24, Federal Rules of Civil Procedure, in relevant part, provides that:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
I. Intervention as a Matter of Right A party seeking to intervene as of right must show "(1) his application to intervene is
timely; (2) he has an interest relating to the property or transaction which is the subject of the
action; (3) he is so situated that disposition of the action, as a practical matter, may impede or
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impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit." Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302 (11th Cir. 2008) (citing Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989)). When the applicant makes the required showing, intervention must be permitted. Stone v. First Union Corp., 371 F.3d 1305 (11th Cir. 2004); U.S. v. State of Ga., 19 F.3d 1388 (11th Cir. 1994). The Applicants’ motion for intervention meets each of these criteria identified in Fox and Chiles. Accordingly, the Applicants' motion for intervention should be granted.
A. The Motion to Intervene is Timely. The Applicants’ motion for intervention is timely in that this litigation is in its infancy, having only been filed on Aug. 14, 2012 and stayed until April 19, 2013. Furthermore, Applicants only recently completed the lengthy grievance process which took several months, and which is required prior to bringing potential claims against the Defendant.
Perhaps the most complete examination of the factors to be used to judge timeliness is found in Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977). There the former Fifth Circuit held that: “Timeliness is not limited to chronological considerations but ‘is to be determined from all the circumstances’.” 558 F.2d at 263. In Georgia v. U.S. Army Corps of Engineers, 302 F.3d 1242 (11th Cir. 2002), the court emphasized that: "Timeliness is not a word of exactitude or of precisely measurable dimensions. The requirement of timeliness must have accommodating flexibility toward both the court and the litigants if it is to be successfully employed to regulate intervention in the interest of justice.'" 302 F.3d at 1259 (quoting McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970). Stallworth identified four factors as possibly relevant to the issue of timeliness.
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Case 1:12-cv-22958-PAS Document 59 Entered on FLSD Docket 05/30/2013 Page 10 of 16
The first factor, “[t]he length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene,” was rejected as not relevant. Stallworth, 558 F.2d at 265. The second factor, “[t]he extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as he actually knew or reasonably should have known on his interest in the case” turns on whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Id. The issue is “not how much prejudice would result from allowing intervention, but rather how much prejudice would result from the would-be intervenor's failure to request intervention as soon as he knew or should have known of his interest in the case.” Id.
Permitting intervention in the instant case will not delay or prejudice the adjudication of the rights of the original parties. The litigation is in its infancy. While a Motion for a Preliminary Injunction was recently filed, no dispositive motions are pending, discovery has only recently begun and trial is not scheduled until March 2014. Furthermore, Applicants have promptly pursued their administrative remedies and filed the instant motion seeking to intervene after they exhausted.
The third factor, “[t]he extent of the prejudice that the would-be intervenor may suffer if his petition for leave to intervene is denied,” clearly dictates that the Applicants for Intervention should be allowed to intervene. Id. at 265-66. The history of this litigation makes clear that the Defendant Secretary is unwilling to expand the availability of special religious diets to Muslim inmates. Furthermore, the United States’ complaint and motion for injunctive relief does not adequately represent the interests of Muslim inmates and does not clearly seek relief on their be-
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Case 1:12-cv-22958-PAS Document 59 Entered on FLSD Docket 05/30/2013 Page 11 of 16
half, as none are listed in the complaint. Thus, the litigation at bar may be resolved favorably to Jewish inmates, but any such settlement may exclude relief for Muslim inmates.
The fourth factor, “[t]he existence of unusual circumstances militating either for or against a determination that the application is timely” should dictate favorable consideration of the motion to intervene, given the prior lawsuit by the Applicants in 2006. Although timeliness is really not at issue here, where intervention is delayed, “a court should look to the purpose for which intervention is sought, the necessity for intervention as a means of preserving the applicant's rights, and the improbability of prejudice to those already parties in the case.” F.T.C. v. Am. Legal Dist., Inc., 890 F.2d 363, 365 (11th Cir. 1989). Therefore, a consideration of the relevant factors plainly demonstrates that this application is timely.
B. An Interest Relating to the Transaction Which is the Subject of the ActionError! Bookmark not defined. This element only requires the intervenor to demonstrate that they have a legally protectable interest. United States v. South Fla. Water Mgmt. Dist., 922 F.2d 704, 707 (11th Cir. 1991). There is no simple formula, and the interests that will suffice can only be determined on a case by case basis.
In this case, the Applicants have a legal interest in protecting their rights under the United States Constitution and RLUIPA. The Eleventh Circuit recently reaffirmed the rights of inmates to receive special religious diets under RLUIPA in Rich v. Secretary of Florida Department of Corrections et al., Case No. 12-11735, 2013 WL 1953526 (11th Cir. May 14, 2013). Courts have permitted a party to intervene under similar circumstances. Some examples of interests similar to those advanced by the Applicants include cases where courts have concluded that a party has a right to intervene in disputes challenging regulatory schemes. See, e.g., Fiandaca v.
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Case 1:12-cv-22958-PAS Document 59 Entered on FLSD Docket 05/30/2013 Page 12 of 16
Cunningham, 827 F.2d 825 (1st Cir. 1987) (male patients permitted to intervene in a suit by female patients at a state mental hospital seeking equivalent services since granting relief to the female patients might impair the interests of the male patients); United States v. Oregon, 839 F.2d 635 (9th Cir. 1988) (residents of state mental health facility permitted to intervene in civil rights action brought by United States); County of Fresno v. Andrus, 622 F.2d 436 (9th Cir. 1980) (permitting an organization that represented small farmers and which had instigated a regulatory procedure to intervene in an action challenging the validity of the regulations).
C. Disposition Of The Action, As A Practical Matter, May Impede Or Impair The Applicant for Intervention's Ability To Protect Their Interests. The test of practical impairment is a flexible one, United States v. Texas E. Transmission Corp., 923 F.2d 410 (5th Cir. 1991), which can be met in a variety of contexts. See Fleming v. Citizens for Albermarle, Inc., 577 F.2d 236 (4th Cir. 1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 842, 59 L.Ed.2d 37 (1979) (citizens and taxpayers allowed to intervene in rezoning action alleging that plan would contaminate county water supply); Natural Res. Def. Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977) (manufacturers' allowed to intervene in action brought to require rule making which would regulate the manufacturers' industries); United States v. Oregon, 839 F.2d 635 (9th Cir. 1988) (residents of state mental health facility permitted to intervene in civil rights action brought by United States). Because the United States is not seeking relief on behalf of the Applicants for Intervention, they would be prejudiced if they are not permitted to intervene. Indeed, the United States does not oppose intervention by the Applicants. As a practical matter, if the United States is successful, Muslim inmates would also be entitled to similar relief, and it would be inefficient to force them to pursue their rights separately in another law suit and result in unnecessary delay.
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Case 1:12-cv-22958-PAS Document 59 Entered on FLSD Docket 05/30/2013 Page 13 of 16
D. The Applicants for Intervention's Interests Are Represented Inadequately By The Existing Parties To The Suit. It appears, although not without some dispute, that the Applicants bear the burden of proof to demonstrate inadequate representation, although the burden is usually described as “minimal.” Chiles, 865 F.2d at 1214. Inadequate representation will most commonly be found when the interests of the existing parties are adverse to, or different from, those of the applicant for intervention. Thurman v. FDIC, 889 F.2d 1441 (5th Cir. 1989). See Stone v. First Union Corp., 371 F.3d 1305, 1312 (11th Cir. 2004) (“Although all of the plaintiffs allege to have been subject to the same plan of age discrimination, the manner in which they were discriminated against may not be identical.”). However, “[a]ny doubt concerning the propriety of allowing intervention should be resolved in favor of the proposed intervenors because it allows the court to resolve all related disputes in a single action.” Federal Sav. & Loan v. Falls Chase Sp. Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993).
Here, the rights of Muslim inmates are not adequately represented because the United States has not stated that they are pursuing the rights of Muslim inmates or requested relief for Muslim inmates, no Muslim inmates were included in the complaint at bar, and the Defendant Secretary has not demonstrated a willingness to accommodate Muslim inmates’ requests for halal meals, or in the alternative, kosher meals.
II. Permissive Intervention Alternatively, an applicant for permissive intervention must show “(1) his application to intervene is timely; and (2) his claim or defense and the main action have a question of law or fact in common.” Chiles, 865 at 1213. The Applicants’ application meets these criteria.
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Case 1:12-cv-22958-PAS Document 59 Entered on FLSD Docket 05/30/2013 Page 14 of 16
A. Timely. This application is timely for the reasons advanced in support of intervention as a matter of right. The only impediment to the Applicants filing sooner than now, was due to the exhaustion requirement of filing grievances as required by the Prison Litigation Reform Act; otherwise, this Motion would have been filed much sooner. Moreover, the parties were well aware for the past several months this Motion would be filed as soon as exhaustion was completed, as they were so informed by Applicants’ counsel.
B. Common Questions of Law or Fact. Applicants’ efforts to obtain religious parity with other religions in order to abide by Islamic dietary requirements shares common questions of fact and law with the claims being pursued by the United States on behalf of Jewish inmates. Furthermore, a generalized economic interest in sustaining the challenged action is generally enough to satisfy this requirement. Champ v. Atkins, 128 F.2d 601 (D.C. Cir. 1942) (judgment holder allowed to intervene in action by taxi cab owners to invalidate procedure whereby their licenses could be suspended for non-payment, suspension was likely to induce payment and the applicant's economic interest in that inducement justified intervention); Brooks v. Flagg Bros., Inc., 63 F.R.D. 409 (S.D.N.Y. 1974) (trade association allowed to intervene in action challenging lien statute because of generalized economic interest in sustaining such statutes, nationwide).
Like the groups in Champ and Brooks, the Applicants have an interest in sustaining the rights pursued by the United States, including the right to abide by Islamic dietary requirements. They should be permitted to intervene to do so.
WHEREFORE, Applicants for Intervention respectfully requests permission to intervene as a party Co-Plaintiff.
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Case 1:12-cv-22958-PAS Document 59 Entered on FLSD Docket 05/30/2013 Page 15 of 16
Respectfully submitted,
FLORIDA JUSTICE INSTITUTE, INC.
Randall C. Berg, Jr., Esq. Fla. Bar No. 318371 Dante Trevisani, Esq. Fla. Bar No. 72912
3750 Miami Tower 100 South East Second Street Miami, Florida 33131-2309 305-358-2081 305-358-0910 fax Email: RBerg@FloridaJusticeInstitute.org DTrevisani@FloridaJusticeInstitute.org
CARLTON FIELDS, P.A.
John A. Camp, Esq. Florida Bar No. 848115 Jennifer Christianson, Esq. Florida Bar No. No. 589950
4000 Miami Tower 100 South East Second Street Miami, FL 33131-9101 305-539-7228 305-530-0055 fax Email: jcamp@carltonfields.com
Attorneys for the Applicants for Intervention
__s/ Randall C. Berg, Jr.____________ By: Randall C. Berg, Jr., Esq. Florida Bar No. 318371
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed today, May 30, 2013, the foregoing with
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Case 1:12-cv-22958-PAS Document 59 Entered on FLSD Docket 05/30/2013 Page 16 of 16
the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all persons registered for this case on the following service list, including all opposing counsel.
__s/ Randall C. Berg, Jr.____________ By: Randall C. Berg, Jr., Esq.
By CM/ECF Susan A. Maher Chief Assistant Attorney General Office of the Attorney General The Capitol – PL01 Tallahassee, FL 32399 Susan.Maher@myfloridalegal.com Attorney for Defendants Michael J. Songer Special Florida Bar #A5501751 Attorney United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 michael.songer@usdoj.gov Attorney for Plaintiff United States of America
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 </s> UN ITED STA TE S D ISTR ICT C O U R T SO U TH ERN D ISTR IC T O F FLO R IDA CA SE N O .12-22958-ClV -SEITZ/S1M ON TO N UN ITED STATES O F A M ERICA , Plaintiff,
VS.
SECRETA RY,FLOR ID A DEPA RTM EN T O F CO RRECTIO N S,etal.,
D efendants. /
O R D ER DEN YIN G M O TIO N T O IN TER V EN E
THISM ATTER isbeforetheCourtontheM otiontolntervene(DE-591,filedby
ReginaldRoseandotherM uslim prisonerscurrentlyincarceratedintheFloridaDepartm entof
Corrections.TheUnitedStateshasfiledaresponse(DE-66J,Defendantshavefiledopposition gDE-65j,andM ovantsfiledareply(DE-691. TheUnitedStatesbroughtthisactionallegingthat
D efendantsarein violation oftheReligiousLand U seand lnstitutionalized PersonsActof2000
(RI,UIPAIIbecausetheydonotsel'vekosherm ealstothoseprisonerswhosereligiousbeliefs requirekoshermeals.TheMuslim prisoners'(Movants)proposedcomplaintisaputativeclass
action seeking halalor,in thealtenmtive,kosherm ealsforM uslim prisonersw ho observehalal dietarylaws.Becausethem otionisuntim elyandtheGovem mentwilladequatelyrepresentthe
interestsofanyonewhoseeksakoshermealasaresultofareligiousbelietlitisdenied.
l'rhisactionwasfiledpursuantto 42U .S.C.j2000cc-2(9,whichgivestheDepartment ofJusticetheauthoritytoenforcecompliancewith j2000cc-1byeitheranactionforinjunctive
reliefordeclaratoryreliefon behalfoftheU nited Stateswho hasan obligatory interestin protectingthereligiousliberty ofallprisoners.

TH E M O TIO N TO INT ERV EN E
M ovantsseektointelwenepursuanttoFederalRuleofCivilProcedure24.Rule24states
in pertinentpart:
(a)lnterventionofRight.Ontimelym otion,thecourtmustperm itanyonetointervene
who:
(2)claimsaninterestrelatingtothepropertyortransactionthatisthesubjectof
theaction,andissosituatedthatdisposingoftheaction mayasapracticalmatter im pairorimpedethemovant'sabilitytoprotectitsinterest,unlessexistingparties adequately representthatinterest.
(b)Perm issiveIntervention. (1)InGeneral.Ontim elymotion,thecourtmaypermitanyonetointervenewho:
#++
(B)hasaclaim ordefensethatshareswiththemainactionacommon
question oflaw or fact.
M ovantsseektointerveneunderRule24(a)(2)or,inthealternative,underRule24(b)(1)(B).
A . Intervention ofR ight
DefendantsarguethatM ovantsshouldnotbeperm ittedto intervenebecausetheydonot
m eettherequirementsnecessaryforinterventionasofright.lnorderto interveneasofright
M ovantsmustshow:(1)theirapplicationtointerveneistimely;(2)theyhaveaninterestrelating
tothepropertyortransactionwhichisthesubjectoftheaction;(3)theyaresosituatedthat
disposition ofthe action,asapracticalm atter,m ay im pedeorim pairtheirability to protectthat
interest;and(4)M ovants'interestisrepresentedinadequatelybytheexistingpartiestothesuit.
Chilesv.Thornburgh,865F.2d 1197,1213(11thCir.1989).DefendantsarguethatM ovants'
motionisnottimely,theM ovants'interestsdonotrelatetothesubjectofthisaction,denialof interventionwillnotprejudicetheM ovants,andPlaintiftltheGovemment,willadequately

representwhateverinteresttheM ovantshave.Assetoutbelow,M ovantscnnnotm eeta11ofthe requirem entsforintervention.
TheGovernmentWillAdequately RepresentM ovants M ovantsseekahalalorkosherm ealfora11M uslim prisonerswhodesireone.The Governm ent'scomplaintseeksreliefforallprisonerswhosereligiousbeliefsrequireakosher m eal.ThereliefsoughtbytheGovernmentisnotlimitedtoreliefforJewishprisonersonly. W hilethecomplaintclearlyreliesontheexperiencesofJewishprisonerstodem onstratethe Defendants'continueddenialofkosherm eals,itclearly seeksreliefforal1prisonerswhose religiousbeliefsrequireakosherm eal.TheGovernm enthasreiteratedthisin itsResponsetothe
M otiontoIntervene(DE-66at3J,whereintheGovernmentstatestdtotheextentthatMuslim
prisoners- orprisonersofany otherfaith - haveasincerereligiousbasisforconsum ingakosher diet,theirclaim forsuch adietisrepresentedbytheUnitedStatesinthislitigation.''M oreover,
theallegationsintheGovernment'scomplaint(DE-Iat!!2& 14,prayerforrelietlunderscores
thattheGovenunentisseekingtohaveDefendantsprovidekosherm ealstoprisonersofal1faiths who haveareligiousbasisforconsum ing kosherfood. Thus,whiletheG overnm entdoesnot seekexactlythesamereliefasM ovants,theGovernm entseeksbroaderreliefthanM ovantsand thatbroadreliefencompassesthereliefsoughtbyM ovants.Accordingly,theM ovants'interests areadequatelyrepresented bytheG overnm ent.
TheM otiontoInterveneI'IW.&Untimely M ovantsassertthattheirm otion istim ely. A courtconsidersfourfactorsindeterm ining
timeliness:(1)thelengthoftimedtzringwhichthewould-beintervenorknew orreasonably shouldhaveknown ofhisinterestinthecasebeforehepetitionedforleaveto intervene;(2)the

extentofprejudicetotheexistingpartiesasaresultofthewould-beintervenor'sfailuretoapply assoonasheknew orreasonablyshouldhaveknownofhisinterest;(3)theextentofprejudiceto thewould-beintervenorifhispetitionisdenied;and(4)theexistenceofunusualcircumstances
m ilitatingeitherfororagainstadeterm inationthattheapplication istim ely.UnitedStatesv.
JeffersonCounty,720F.2d1511,1316(11thCir.1983).Thesefactorsweighagainstfinding
thattheM ovants'm otion w astim ely. Thisaction w asfiled on August14,2012.O n A ugust16,2012,an online new ssite
posted an article aboutthesuit. See Ex.2 to D efendants'Response. Further,a Googlesearch indicatesthattherew assignificantpresscoverageofthe suitin the daysfollow ing the filing of thecomplaint.On January 15,2013,M ovantsemailedcounselin thism atteraboutintervention. M ovants'counselstatesintheirreplythathelearnedofthecaseinlate2012.However,the m otion wasnottiled untilM ay 30,2013,m ore than ninem onthsafterthe com plaintw asfiled. M ovantsassertthattheycouldnothaveûledmuch earlierbecausetheyfirsthadtoexhausttheir administrativerem edies.However,accordingtotheirreply,M ovantsdidnotevenbeginthe adm inistrativeclaim sprocess,aprocessthatthey state requiresm orethan tw o m onthsto com plete,untilsometim eafterM arch 13,2013,nearlysevenmonthsafterthiscasehadbeen filed.M ovantsdonotexplaintheirdelayinstartingtheadministrativeclaim sprocessorin learning ofthesuit.z
zM ovantsalsopointtotheStayenteredbytheCourtonJanuary23,2013,whichstayed thism atterfrom January23,2013untilA pril19,2013,asreason forthetim ing oftheirm otion. H owever,the existenceoftheStay doesnotexplain why M ovantsw aited untilM arch to begin thegrievanceprocessorwhyM ovantsdidnotseek tointerveneinthetsvem onthspriortothe Stay.
4

Movantsassertthatnoprejudicewillresultfrom intervention.Defendants,however, arguethatinterventionwillresultinprejudicebecauseitwillcomplicatetheresolutionofthe pendingpreliminaryinjunctionmotion.Thepreliminaryinjunctionmotionhasbeenfullybriefed
andtheCourtheldanevidentiaryhearingonJune4and5,2013.Atthetim eofthehearing,
M ovants'motionwasnotyetripe,havingbeenfledjustdaysbeforethehearing.M ovants'
proposed com plaintraisesseveraltheoriesofrecovery notaddressed by the Governm ent's
complaintandnotaddressedatthepreliminaryinjunctionhearing.Thus,allowingintervention
would furtherdelayaresolutionofthism atten3 M ovants'interests,however,willnotbe
prejudicedbecausetheyarefreetofileaseparatesuitandbecause,assetoutabove,their
interestsareadequately represented bytheG ovenzm ent. Finally,M ovantshavenotpresented any evidenceofunusualcircum stances. W hile
M ovantssuggestthattheirpriorsuitcreatesunusualcircum stancesw eighing in favorof intervention,theyhavenotexplainedwhythepriorsuitcreatesunusualcircum stancesfavoring intervention. W eighing allofthefactors,theCourtfindsthatM ovants'm otion isuntim ely. B. Perm issive Intervention
Inthealternative,M ovantsseekpermissiveintervention. However,cmeofthe considerationsforperm issiveinterventioniswhethertheapplicationistim ely.Stallworthv.
M onsantoCo.,558F.2d257,263(5thCir.1977).4Assetoutabove,M ovants'motionisnot
3M ovants'proposedclaimsincludearequestforclasscertificationunderFederalRuleof CivilProcedure 23. Rule23 classcertification w illraiseissuesthatwillfurtherdelay the determ ination ofthiscase.
4In Bonnerv. Cityofprichard,661F.2d1206,1209(11thCir.1981)(enbanc),the
EleventhCircuitadoptedasbindingprecedentthedecisionsoftheform erFifthCircuithanded down priorto O ctober1,1981.

timely.Evenifitwere,theCourthasdiscretionunderRule24(b)todenyintervention.

Consequently,themotiontointervenepursuanttoRule24(b)isdenied.Forthereasons
discussed above,theCourtw illexerciseitsdiscretion and denythem otion to intervene.

Accordingly,itis

ORDERED thattheM otiontolntervene(DE-59qisDENIED.
DONE andORDERED inM iami,Florida,this L dayofseptember, 2013,

e-

.

CC* A 11CounselofRecord

PATR ICIA A .SEITZ UN ITED STA TES D ISTRICT JU D GE

 </s> UNITED STATESDISTRICT CO URT SO U TH ER N DISTRIC T O F FL O R ID A CASE N O.12-22958-C1V-SElTZ/S1M ON TON
U N ITED STATES OF A M ERICA ,
Plaintiff,
VS.
SECRETARY,FLORIDA DEPARTM ENT OF CORRECTION S,c/al.,
D efendants. /
O RDER DENYING M O TION TO DISM ISS OR .IN THE ALTERNATIVE.M OTION TO TR AN SFER V ENU E
THIS M ATTER isbeforetheCourton Defendant'sM otiontoDism issor,inthe
Alternative,toTransferVenue(DE-9)andtheUnitedStates'response(DE-I1).Defendants
havenotiledareply.TheUnitedStates'com plaintallegesthatDefendantshaveviolatedthe
ReligiousLand UseandlnstitutionalizedPersonsActof2000,42U .S.C.j2000cc(RI,UIPA),by
failingtoprovidekoshermealstoJewish prisonersinDefendants'custody.TheUnitedStates
seeksdeclaratoryandinjunctiverelief.Defendant,KennethTucker,SecretaryoftheFlorida Departm entofCorrections(FDOC),m ovestodismissthiscase,pursuanttoFederalRuleof CivilProcedure12(b)(3),ortotransfervenuetotheNorthernDistrictofFlorida,pursuantto28 U.S.C.j1404(a).BecausevenueisproperintheSouthernDistrictofFloridaandDefendants
havenotshownthattheUnited States'choiceofforum isoutweighedbyotherconsiderations,
theM otionisdenied.

1. FactualBackground TheUnitedStatesallegesthatDefendantsviolateRLUIPA on adailybasisbyrefusingto
providekosherm ealstohundredsofprisonerswhoobservethereligiouspracticeofkashruth. A saresulttheprisoners'corereligiousbeliefsare violated.K eeping kosherisa centraltenantof Judaism andotherreligioustraditionsobservedbyprisonersincarceratedinDefendant's
facilities. lnthepast,Defendantsofferedkosherm eals.However,in late2007,Defendants
discontinuedtheirkosherfoodprogrnm .Since2010,Defendantshavevoluntarilyprovided kosherm ealstoapproximatelyonedozenprisonersperdaythroughtheirpilotkosherprogram at onefacility,theSouthFloridaReceptionCenter.Thispilotprogram accomm odatesonlyasm all fractionofthe250prisonerspreviouslyenrolledinDefendants'statew idekosherprogram .
TheU nited StatesallegesthatD efendants'policiesforceprisonersw ith areligiousbasis forconsum ingkoshermealstoviolatetheircorereligiousbeliefsonadailybasis.Thisburden ontheprisonersisnotnecessary to achieve any com pelling state interest.Thus,D efendantsare inviolationofRLUIPA .Thecomplaintgivesthirteen exam plesofindividualprisonerswho havebeendeniedkoshermealsbyDefendantsandhave,thus,beenforcedtoconsum ernonkosherfoodandviolatetheirreligiousbeliefs. Ofthesethirteenstenarehousedin facilities located in the SouthernD istrictofFlorida. Il.A nalysis
A.VenueisProperintheSouthernDistrictofFlorida Defendantsmovetodism issthecom plaintunderRule12(b)(3)becausevenueis
improperintheSouthern DistrictofFlorida.Defendantsassertthattheydonotçireside''inthis
2

district,thattherealactionsatissueinthism atteroccurredoutsidethisdistrict,andthatthereis
anotherdistrictinwhichthiscasecouldbebrought.Under28U.S.C.j1391(b),venueisproper
1n'
(1)ajudicialdistrictinwhichanydefendantresides,ifa1ldefendantsareresidentsofthe
Statein which the districtislocated;
(2)ajudicialdistrictinwhichasubstantialpartoftheeventsoromissionsgivingriseto theclaim occurred,orasubstantialpartofpropertythatisthesubjectoftheactionis
situated;or
(3)ifthereisnodistrictinwhichanactionmayotherwisebebroughtasprovidedinthis section,anyjudicialdistrictinwhichanydefendantissubjecttothecourt'spersonal jurisdictionwithrespecttosuchaction.
Thus,Deftndantsm aintainthat,underthestatute,venuedoesnot1ieintheSouthernDistrictof
Florida.D efendantsareincorrect. TheeventsgivingrisetotheUnited States'claim arethedenialsofkosherm ealsto
prisonerswhorequestthem .A ssetoutinthecomplaint,severalprisonersintheSouthern DistrictofFloridahavebeendeniedkosherm eals.Thus,harm hasoccurredintheSouthern DistrictofFlorida.W hileDefendantsassertthattheeventsgivingrisetotheclaim occun'edin Tallahassee,Florida,wherethepolicydecisionnottoprovidekosherm ealswasmade,thepolicy decisionalonedoesnotgiverisetotheclaim ;aclaim onlyexistsifsomeonehasbeenharmedby thepolicydecision.Here,harm hasclearlyoccurredintheSouthernDistrictofFlorida.Thus,
venueisappropriateintheSouthernDistrictofFloridaunderj1391(b)(2).SeeJenkinsBrick Co.v.Bremer,321F.3d1366,1372(11thCir.2003);MobileDiagnosticImagining,Inc.v. Gormezano,2012W L 3244664,*2(S.D.Fla.2012)(notingthatcourtshavehelddGthat substantialeventsoccurredwithinavenuewhenharm orinjurywassufferedinthatvenue''); Sanchezv.Pingree,494F.Supp.68,70(S.D.Fla.1980)(holdingthatalthoughstatestatutewas
3

administeredintheN orthernDistrictofFlorida,venuewasproperintheSouthernDistrictof
Floridabecauseplaintiffssufferedtheirinjuriesfrom theadministrationofthestatuteinthe SouthernDistrict).Accordingly,Defendants'm otiontodismissforlackofvenueisdenied.
#.TransfertotheNorthernDistrictofFloridaisNotAppropriate
A san alternativeto dism issal,D efendantsseek tohavethism attertransferred to the
NorthernDistrictofFlorida,pursuantto28U.S.C.j1404(a). Section1404(a)permitsadistrict courttotransfervenueçsltlortheconvenienceofpartiesandwitnesses,intheinterestofjustice''
toanydistrictcourtwherethecasemighthavebeenbrought.N eitherpartydisputesthatthis casecould havebeen broughtin theN orthern D istrictofFlorida.Plaintiff,how ever,disputes Defendants'contentionthattheN orthernDistrictismoreconvenient.
Underj1404(a),theburdenisonthemovanttoestablishthatthesuggestedforum is moreconvenient.InreRicohs870F.2d570,573(11thCir.1989). Themovantmustestablish thatabalanceoffactorsweighinfavoroftransfer.Thosefactorsare;(1)theconvenienceofthe witnesses;(2)thelocationofrelevantdocumentsandtherelativeeaseofaccesstosourcesof proof;(3)theconvenienceoftheparties;(4)thelocusofoperativefacts;(5)theavailabilityof processtocompeltheattendanceofunwillingwitnesses;(6)therelativemeansoftheparties;(7) aforum'sfamiliaritywiththegoverninglaw;(8)theweightaccordedaplaintiffschoiceof forum;and(9)trialeftkiencyandtheinterestsofjustice,basedonthetotalityofthe circumstances.M anuelv.Converu sCorp.,430F.3d 1132,1135n.1(11thCir.2005).
DefendantsarguethatthemajorityofwitnessesarenotintheSouthernDistrict,that
Plaintiffschoiceofforum isnotentitledto deference,thatthepolicyinvolved wasm adein Tallahassee,and thatthe physicalevidence islikely found in Tallahassee.Thus,D efendants
4

assertthatthefactorsweigh infavoroftransfer.lnresponse,theUnitedStatesm aintainsthatits choiceofforum isentitledtodeference,m anykeywitnessesarein theSouthernDistrict,m anyof thefactsanddocum entsarehere,andthisdistrictisconvenientforthepartiesandcounsel. W eighingthefactorsthatarerelevantinthismatterleadstotheconclusionthatDefendantshave notshownthattransfertotheNorthern DistrictofFloridaisappropriate.
i.LocationoftheWitnesses
Defendantsarguethatm anyofFDOC'Spolicym akerswillbewitnessesandthatthey resideintheNorthernDistrict.Defendanthasidentified thefollowingpotentialwitnesses:the A ssistantSecretaryforInstitutions,D irectorofOperationsand Support,ChiefofSecurity Operations,stafffrom theFoodServicesOftk e,stafffrom theBudgetOfûce,stafffrom the ClassificationOffice,stafffrom theChaplaincyServicesoffice,stafffrom theSecurityThreat Groupoffice,stafffrom theSupportServicesoftk e,andstafffrom theFacilityServicesOffice. Defendants,how ever,havenotidentified w hatthesepotentialw itnessesarelikely to testify about orwhytheirtestim onyisrelevant.Defendantsfurtherarguethatwhiletheprisonerswhoare referred to inthe com plaintcurrentlyresideininstitutionsin the Southern D istrictthereareno assurancesthatthoseprisonerswillcontinuetoresideintheSouthern DistrictofFlorida.
Inresponse,theUnited Statescontendsthattheprisonersarelikelytobewitnesses becausetheyw illbe necessary to establish thatthe FD O C'Spolicy substantially burdensreligious exercise.Additionally,ofscialsattheAlephInstitutein M iam i,whohavecorrespondedwith JewishprisonersthroughoutFDOC,arealsolikelywitnessesastothisissue. TheUnitedStates arguesthatnone ofDefendants'listed w itnessesw illbeabletotestify asto whetherthepolicy imposesasubstantialburden.TheUnited Statesalsoarguesthatkeywitnessesregarding
5

whetherFDOC hasacompellinggovernmentinterestin notprovidingkoshermealsarelocated intheSouthernDistrict.Specifically,thepeopleinvolvedwiththepilotkosherprogram atthe South FloridaR eception Center,such asthew arden,chaplain,and food servicedirector,andthe peoplewhowereinvolvedinformulatingandim plem entingthepilotkosherprogrnm ,suchasa rabbifrom theAlephlnstitutewhoresidesinsouthFloridaandseveralpeoplefrom theSouth Bay Correctionallnstitutein south Florida.Severalotherw itnessesinvolved in thepilotprogrnm resideintheM iddleDistrictofFlorida.
Thus,itappearsthatthelocation ofthewitnessesfactor,ataminimum ,isneutral. However,theCourtfindsthatthisfactorweighsin favoroftheSouthernDistrictofFlorida becausetheburdenisontheDefendantstoshow thatthisfactorfavorstransfer.Defendantshave m erelyidentifiedpotentialwitnessesbuthavefailedto identifythesubstanceoftheirtestimony ortoexplaintherelevanceoftheirtestim ony.TheUnitedStates,ontheotherhand,has identifiednumerousspecificwitnessesandsetforthwhytheirtestim onyisrelevanttotheissues inthissuit.Furtherm ore,Deftndantshavenotshownthattransfeningvenuewoulddoanything otherthanshifttheburdenfrom onesetofwitnessestoanother.Becausetheburdenisonthe D efendantsto establish thattransferisappropriate,the Courtfindsthatthisfactorweighsin favorofvenueinthe Southern DistrictofFlorida.
ii.LocusofoperativeFacts
D efendantsarguethatthepolicy in question w asfinally and conclusively m adeatthe FDOC CentralOffce,intheNorthernDistrictofFlorida.However,theUnitedStatespointsout thatthepilotprogram wasentirelyformulatedandimplem entedintheSouthem Districtandten
6

ofthethirteenprisonersidentifiedinthecomplaintashavingbeenharm edbythepolicy are locatedintheSouthern District.Thus,thisfactordoesnotweighin favorofeithervenue.
iii.LocationofRelevantDocuments
Defendantsassertthatm ostphysicalevidenceinthiscasewilllikelybefoundatthe FDOC CentralOffceinTallahassee.W hiletheUnitedStatesrecognizesthatdocum ents relevanttoFDOC'Ssystem widepoliciesarem aintainedinTallahassee,theUnitedStates respondsthatthedocumentsrelatedtothepilotkosherprogram arelocatedinthisdistrict.Both FDOC andtheAlephInstitutem aintainrecordsrelatedtothepilotkosherprogram inthe SouthernDistrict.Further,anygrievancesfiledbythetenprisonersincarcerated intheSouthern District,FDOC'Sresponsestothegrievances,requeststotransfertothepilotprogram ,and prisonercorrespondencewith religioustiguresareprim arilym aintainedintheSouthernDistrict.
Thus,thisfactordoesnotfavoreithervenue. iv.Familiarity WithControlling LJw
TheU nited StatesarguesthattheSouthernD istrictisfam iliarwith thecontrolling law , RLUIPA .However,afederalcourtintheN orthernDistrictofFloridawouldbeequallyfamiliar w ith theapplicablefederallaw .Therefore,thisfactorisneutral.
ConvenienceoftheParties
D efendantsarguethatthe convenienceofthepartiesfavorstransferto theN orthenz Districtbecausem ostofthewitnessesresidethereandtheUnited Stateshasno klresidence''in
southFlorida.Thus,itwouldbejustasconvenientfortheUnitedStatestotraveltoTallahassee
fortrialasitwould befortheUnited StatestotraveltoM inmi.TheUnited Statesarguesthatthe Southern Districtisasconvenientaforum astheNorthern District,ifnotmoreso,becausethe

UnitedStatesisrepresentedbytheUnited StatesAttorneyfortheSouthernDistrictofFlorida andtheCivilRightsDivisionoftheDepartm entofJusticein W ashington,D.C.Further,getting toTallahasseefrom W ashington,D .C.ism oredifficultandmoreexpensive,than gettingto M iam ifrom W ashington,D.C.Additionally,manywitnessesarelocatedintheSouthern D istrict.Consequently,theCourtfindsthatthisfactorw eighsslightly againsttransfening venue.
vf.Plaint# 'sChoiceofForum
Generally,aplaintiffstdchoiceofforum should notbedisturbedunlessitisclearly outw eighed byotherconsiderations.''Robinson v.GiarmarcodrBill,P.C.,74F.3d 253,260
(11thCir.1996).Defendantsargue,however,thatbecausetheUnited Statesdoesnotresidein
theSouthernDistrictitschoiceofforum shouldbegivenlessconsideration.However, Defendantshavenotsupportedthisconclusionwithanybindingauthorityorwithany authority thatinvolved theUnited Statesasplaintiff. Thus,thisfactorw eighsagainsttransfer.
111. C onclusion V enue isproperin theSouthern D istrictofFlorida and D efendantshave notm ettheir
burden ofestablishingthattransferto theN orthern D istrictofFlorida isappropriate and in the
interestofjustice.lA1lofthefactorsdiscussedbythepartiesareeitherneutralorweighinfavor
ofthism atterrem aining intheSouthernDistrictofFlorida.EveniftheCourtweretoafford less
lDefendants'relianceon thisCourt'sdecision inPrisonLegalNew sv.Fxcker,CaseN o. 11-24145-C1V -Seitz,ism isplaced.In thatcase,theplaintiffw asan out-of-statepublisher,not theUnitedStates,thatw aschallengingapolicydecisionmadeinTallahasseeandtheonlyactual harm allegedinthecomplaintwastoinm ateshousedinfacilitiesintheNorthernDistrictof Florida. Further,whilethedefendantsidentified num erousw itnessesw ho resided in the NorthernDistrict,theplaintiffdidnotidentifyanywitnessesitintendedto callwhoresidedin theSouthernDistrict.Thus,thefactsofthatcasedifferconsiderablyfrom thefactspresently beforetheCourt.

deferenceto theU nited States'choiceofforum ,asurged by D efendants,therem aining factors weigh againsttransfer.Consequently,Defendants'M otionisdenied.
A ccordingiy,itishereby ORDERED thatDefendants'M otionto Dism issor,intheAlternative,toTransferVenue
(DE-9qisDENIED.DefendantsshallfiltAnswersbyDecember31,2012.
DONE andORDERED inM iami,Florida,this19th dayofDecember,2012.

cc: Al1CounselofRecord

$ ë.

e

PATRI IA A. E Z UNITED STATESDISTRICT JUDGE

 </s> Case 1:12-cv-22958-PAS Document 56-1 Entered on FLSD Docket 05/24/2013 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA, Plaintiff;
v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al.,
Defendants.

No. 1:12-cv-22958-SEITZ/SIMONTON

[PROPOSED] FINDGS OF FACT AND CONCLUSION OF LAW The United States respectfully submits the following findings of fact and conclusions of law pursuant to this Court’s May 22, 2013, Order, Dkt. No. 44.
* * * The United States seeks a preliminary injunction ordering Defendants to provide a kosher diet to prisoners with a sincere religious basis for keeping kosher and enjoining four discreet provisions of Defendants’ recently-enacted Religious Diet Program. The Motion is GRANTED for the reasons set forth below. Defendants history of evading their obligations under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (“RLUIPA”) demonstrates that injunctive relief is necessary to protect the religious exercise of Florida prisoners. Defendants terminated their prior kosher diet program in 2007 against the advice of their own study group and then denied virtually all sincere requests for a kosher diet over the next six years. Defendants did not shift gears and pledge to provide a kosher diet to certain prisoners until eight

Case 1:12-cv-22958-PAS Document 56-1 Entered on FLSD Docket 05/24/2013 Page 2 of 28
months into litigation filed by the United States. A policy change so “late in the game” does not moot this case, particularly where Defendants continues to argue that they may lawfully deny a kosher diet to all Florida prisoners at any time. Further, the United States is likely to prevail on the merits of its RLUIPA claim because Defendants cannot justify their refusal to provide a kosher diet under RLUIPA’s strict scrutiny requirement while simultaneously pledging to offer a kosher diet voluntarily. Defendants have likewise failed to demonstrate that any of the four challenged restrictions in their new Religious Diet Program are the least restrictive means of furthering a compelling government interest. Moreover, an injunction is appropriate because the protection of religious freedom and enforcement of federal law advance the public interest, and an injunction protecting these interests is not likely to harm Defendants.
FINDINGS OF FACT Florida Department of Corrections
The Florida Department of Corrections (“FDOC” or “Defendants”) incarcerates approximately 102,000 prisoners in 60 major facilities, Undisputed Facts at ¶ 1, with an operating budget of $1.94 billion for the 2012-2013 fiscal year. Undisputed Facts at ¶ 3. FDOC receives federal funds, Undisputed Facts at ¶ 3, and is subject to RLUIPA. 42 U.S.C. § 2000cc-1(b). FDOC incarcerates prisoners who have a sincere religious basis for keeping kosher. Undisputed Facts at ¶ 4. Defendants’ History of Providing a Kosher Diet
Prior to 2004, Defendants did not offer a kosher diet to any prisoners. Undisputed Facts at ¶ 5. In September 2002, a FDOC prisoner named Alan Cotton filed suit in the U.S. District Court for the Southern District of Florida seeking a kosher diet. Cotton v. Dep’t of Corr., No. 1:02-cv-22760 (S.D. Fla. 2002). In April 2004, shortly after the Cotton case settled, Defendants
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instituted a kosher diet program known as the Jewish Diet Accommodation Program (“JDAP”). U.S. Ex. 2. JDAP offered kosher meals in 13 FDOC facilities. Prisoners eligible to participate in JDAP were transferred to one of these 13 facilities. Id. Initially, only Jewish prisoners were eligible to participate in JDAP, but Defendants opened the program to prisoners of all faiths in 2006. Id.
In early 2007, FDOC Secretary Jim McDonough commissioned a Religious Diet Study Group to evaluate JDAP. Id. On July 26, 2007, the Study Group issued its report on Defendant’s kosher diet program (the “Report”). The Report recommended that Defendants “retain a kosher dietary program,” and that failure to do so would likely violate RLUIPA. Id. at 27. The Study Group stated that a prisoner desiring to keep kosher “is substantially burdened” by the denial of kosher food “because the regulations [denying a kosher diet] leave him with no meaningful choice. He may either eat the non-kosher food and fail to obey his religious laws or not eat the non-kosher food and starve.” Id. Despite the Report’s recommendation, Defendants terminated JDAP in August 2007. Undisputed Facts at ¶ 11.
During the three and a half years of JDAP’s operation, a total of 784 prisoners enrolled in the Program, with an average enrollment of 250 prisoners per day. U.S. Ex. 2. At the time Defendants terminated JDAP, enrollment was 272 prisoners, including 248 Jewish prisoners, 11 Messianic Jews, and 13 prisoners of other faiths. U.S. Ex. 8 at 2.
After terminating JDAP, Defendants did not offer a kosher diet to any prisoners from August 2007 – August 2010. In August 2010, Defendants instituted a “pilot” kosher diet program (the “Pilot Program”) in the South Unit of the South Florida Reception Center (“SFRC”). Undisputed Facts at ¶ 18. From 2007-2013, FDOC did not offer a kosher diet to any prisoners except for the small number of prisoners in the Pilot Program.
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To be eligible for the Pilot Program, a prisoner must be either 59 years old or in a minimum security classification. Enrollment is officially capped at 15 prisoners, and has ranged from 8 to 18 prisoners during the Program’s existence. Undisputed Facts at ¶ 19. The pilot program has operated continuously since August 2010, but has never been expanded to any facility besides SFRC. Defendants’ September 2010 review of the pilot program found that the total cost of providing a 2,750 calorie kosher diet to prisoners in the program was $4.71 per day. U.S. Ex. 7.
Since August 2007, Defendants have offered three primary diet options in their 60 major facilities: (1) a main line; (2) a vegan option; and (3) a no-meat option. U.S. Ex. 1. None of these diet options is kosher. See Rich v. Secretary, No. 12-11735, ___ F.3d ___ , Slip Op. at 3 (11th Cir. May 14, 2013). All FDOC prisoners may select either the main line or no-meat diet option, but must submit a formal request to consume the vegan diet option. U.S. Ex. 1. In 2007, Defendants removed all pork products from their food service offerings. U.S. Ex. 2.
In addition to the main line, no-meat, and vegan diet options, Defendants offer at least 15 medical and therapeutic diets at each facility. U.S. Ex. 4. The medical and therapeutic diet options available at FDOC include: clear liquid diet; cold liquid diet; full liquid diet; puree diet; mechanical dental diet; 1600 calorie diet; 2200 calorie diet; 2800 calorie diet; 4000 calorie regulated diet; prenatal diet; pre-dialysis diet; and a dialysis diet. Id. Defendant’s Litigation Posture In Kosher Diet Cases
Since discontinuing JDAP in 2007, Defendants have defended their refusal to offer a kosher diet in at least three lawsuits filed by pro se prisoners: Linehan v. Crosby, 2008 WL 3889604 (N.D. Fla. 2008); Muhammad v. Crosby, 2009 WL 2913412 (N.D. Fla. 2009); and Rich v. Buss, No. 1:10-cv-157 (N.D. Fla. 2010). In litigation with the United States, however,
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Defendants have changed their policies regarding a kosher diet on the eve of court proceedings in an apparent attempt to avoid liability, but not meaningfully addressing their violations of RLUIPA.
In May 2011, the United States opened a formal investigation of FDOC’s dietary policies. U.S. Ex. 18. The United States’ 15-month investigation included the review of thousands of pages of documents, retaining expert consultants in prison administration, and inspecting four FDOC facilities: the South Florida Reception Center, Dade C.I., Everglades C.I., and South Bay, C.I. In August 2012, the United States’ investigation concluded that Defendants’ failure to offer a kosher diet violated RLUIPA. The United States advised Defendants of this conclusion on Aug. 1, 2012. U.S. Ex. 19.
The United States offered to work with FDOC to negotiate a resolution of the investigation that made a kosher diet available to all FDOC prisoners who have sincere religious grounds for keeping kosher. Id. Defendants refused to consider any change to their policies in response to the findings of the United States’ investigation, and on August 14, 2012, the United States filed the instant suit alleging that Defendants violated RLUIPA by failing to offer a kosher diet to prisoners with a sincere religious basis for keeping kosher. Complaint, Dkt. No. 1.
On January 17, 2013, the parties met with mediator Thomas H. Bateman III for courtordered mediation of this case. At this mediation session, Defendants agreed to submit a kosher diet proposal to the United States by March 4, 2013. Joint Mot. to Stay, Dkt. No. 24. The Court stayed this litigation until April 19, 2013, to facilitate settlement discussions. Order, Dkt. No. 27. On March 22, 2013, while the case was stayed for settlement discussions, Defendants issued a new policy - Procedure 503.006 - called the Religious Diet Program. U.S. Ex. 3. Defendants did not notify the United States of this new policy. Instead, the United States first learned of the
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Case 1:12-cv-22958-PAS Document 56-1 Entered on FLSD Docket 05/24/2013 Page 6 of 28
policy on April 2, 2013 from counsel in separate litigation against Defendants’ dietary policies. Status Rpt., Dkt. No. 28. One week after learning of the new policy, the United States filed a Motion for a Preliminary Injunction, Dkt. No. 29, and the Court lifted the stay on April 15, 2013. Order Lifting Stay, Dkt. No. 30.
In this litigation against the United States, Defendants continue to assert that prisoners do not have a right to a kosher diet under RLUIPA, and that Defendants may lawfully deny a kosher diet at any time. See Defs’ Opp. to U.S. Mot. for Prelim. Inj. (“Opp.”) at 2. Defendants’ New Religious Diet Program
Defendants implemented the new Religious Diet Program in a single facility - the Union Correctional Institution – on April 5, 2013. U.S. Ex. 3. The Union Correctional Institution houses Bruce Rich, the plaintiff in an ongoing lawsuit against FDOC seeking a kosher diet whose appeal was argued before the Eleventh Circuit on April 18, 2013. U.S. Ex. 11. By its terms the Religious Diet Program is not effective in any other institution until September 2013. U.S. Ex. 3. To date, no prisoner has received a kosher diet under the Religious Diet Program. U.S. Ex. 33.
Once implemented, the Religious Diet Program will offer a certified kosher diet at all FDOC facilities to prisoners who FDOC determines to be eligible to participate in the Program. U.S. Ex. 3. These kosher meals will consist of prepackaged, certified kosher entrees in addition to items from FDOC’s normal food service operations. Id.
Defendants estimate that the marginal cost of providing a kosher diet under the Religious Diet Program is $5.81 per prisoner, per day. U.S. Ex. 30. The total cost of the Program depends in part on the number of participants. While Defendants assert that more than 8,600 prisoners are eligible to participate in the Religious Diet Program, enrollment in Defendants’ prior kosher
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diet program averaged only 250 prisoners per day. U.S. Ex. 2. Accordingly, if participation in the Religious Diet Program is the same as participation in JDAP (averaging 250 prisoners per day), its total cost will be $530,162 per year. This expense represents .00027 of FDOC’s operating budget ($530,000 / $1.94 billion = .00027). If participation in the Religious Diet Program is twice as high as participation in JDAP (averaging 500 prisoners per day), the total cost of the Religious Diet Program will be $1,060,324 per year. This expense represents .00054 of FDOC’s operating budget.
Prisoners are eligible to participate in the Religious Diet Program’s kosher diet only if they pass the “sincerity test” prescribed by FDOC Procedure 503.006(4)-(5). The Religious Diet Program’s “sincerity test” requires that prisoners seeking to participate in the Program file a formal request for a kosher diet and interview with a FDOC chaplain who tests the prisoner’s “knowledge of the religious and the requirements of keeping a religious diet.” U.S. Ex. 3. The chaplain may then “confirm” a prisoner’s stated beliefs though “internet searches to research diet requirements for specific religions,” staff interviews, inspection of records of the prisoner’s attendance at religious ceremonies; and conversations with religious figures. Id. If the prisoner’s knowledge of religious orthodoxy is sufficient, the prisoner advances to the next step of the process, during which he or she must eat exclusively non-kosher meals for 90 days. Id. This period drops to 30 days after December 2013. Id. After the 90-day period of eating nonkosher food, the prisoner is re-interviewed by a FDOC chaplain, who again evaluates the prisoner’s answers based on “internet searches,” interviews with staff and clergy, and inspection of FDOC records. Id.
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Upon completion of this process the chaplain either approves or denies the prisoner’s application to the Religious Diet Program based on the prisoner’s demonstrated “knowledge of the religious and the requirements of keeping a religious diet.” Id.
On May 22, 2013, after briefing on the United States’ Preliminary Injunction Motion was complete and less than two weeks before the hearing set by this Court, Defendants shifted gears again and issued another revised kosher diet policy. U.S. Ex. 32. The new policy employs the same rigorous sincerity testing regime with one exception: it does not include the 30-to-90 day period of eating non-kosher food that the United States challenged in its Preliminary Injunction Motion. Id. Defendants’ counsel confirmed that Defendants did not issue this revised policy until May 22, 2013. U.S. Ex. 33.
The new Religious Diet Program – both the March 2013 version and May 2013 version – contains a provision that removes any prisoner who misses 10 percent of available meals. U.S. Ex. 3, 32. A removed prisoner may not reapply for six months. Id. The 10 percent rule applies even if the prisoner who misses 10 percent of meals consumes exclusively kosher food when the prisoner elects to eat. Id. A prisoner who fasts for religious reasons and misses 10 percent of meals will be removed from the Religious Diet Program unless the prisoner submits a request for a religious fast 15 days in advance. Id.
The Religious Diet Program also contains a “zero tolerance removal provision,” under which a prisoner is removed from the Program if he or she consumes any item that Defendants have not listed as “kosher.” Id. Removal lasts for 30 days for a first offense, 120 days for a second offense, and one year for all subsequent offenses. Id. Prisoners subject to this provision do not have an opportunity to explain their reasons for consuming a “non-kosher” item before removal from the Religious Diet Program. Id.
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Dietary Policies at Other Correctional Institutions At least 35 state departments of correction offer a kosher diet to their prisoners. U.S. Ex.
16. In 2007, the FDOC study group’s survey of state correctional facilities found that 26 of 34 responding facilities offered a kosher diet. U.S. Ex. 2. Institutions that currently provide a kosher diet to prisoners include the Federal Bureau of Prisons (“BOP”), the New York Department of Correctional Services, California Department of Corrections and Rehabilitation, Texas Department of Criminal Justice, and the Illinois Department of Corrections. U.S. Ex. 2, 16, 23. The New York state correctional system does not require any sincerity test before admitting prisoners to its kosher diet program. U.S. Ex. 23. Rather, a prisoner need only register his or her religious preference to obtain a religious diet. Id.
The Federal Bureau of Prisons offers a “Certified Religious Menu” to prisoners in each of its 115 facilities, including its maximum security facility in Florence, Colorado, and several facilities in the state of Florida. U.S. Ex. 14. In each of its facilities, BOP’s food service consists of a main line, a vegetarian option, and a Certified Religious Menu option. Id. Like FDOC, BOP does not use pork products in any of its food service. Id. BOP’s Certified Religious Menu serves prepackaged, certified kosher entrees supplemented with certain items from BOP’s other food service operations. Id.
BOP’s Certified Religious Menu is open to prisoners of all religious faiths. A federal prisoner who desires a kosher diet must submit a request and meet with a chaplain at the prisoner’s facility. Once a BOP chaplain determines that a prisoner’s request for the Certified Religious Menu is sincere, the chaplain notifies the facility’s food service director and the prisoner is immediately eligible to participate in the Certified Religious Menu. Id. There is no waiting period before a federal prisoner may begin consuming a certified kosher diet. Id. BOP
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does not remove prisoners from the Certified Religious Diet who elect not to eat a certain percentage of meals. Id.
Approximately 1.3 percent of BOP prisoners are currently enrolled in the Certified Religious Menu program. The marginal cost of BOP’s Certified Religious Menu ranges from $3.60 to $4.15 per prisoner, per day. BOP has provided a kosher diet option for more than 30 years.
CONCLUSIONS OF LAW The United States seeks a preliminary injunction ordering Defendants to provide a kosher diet to prisoners with a sincere religious basis for keeping kosher and enjoining four discreet provisions of Defendants’ recently-enacted Religious Diet Program. For the reasons set forth below, such an injunction is warranted. The United States is likely to prevail on the merits of its RLUIPA claim, and an injunction is necessary to prevent Defendants from continuing to irreparably harm Florida prisoners by unlawfully restricting their access to a kosher diet. Indeed, Defendants’ most recent kosher diet program violates RLUIPA in several important ways, and Defendants’ insistence that they may deny a kosher diet at any time demonstrates that injunctive relief is needed to ensure that Defendants do not again eliminate their kosher diet program entirely – particularly because Defendants did exactly that, against the advice of their own study group, in 2007. Moreover, an injunctive relief is appropriate because an injunction will not harm Defendants and the protection of religious freedom and enforcement of federal law advance the public interest. The Defendants’ last minute changes to its kosher diet program do not impact the propriety of relief. The United States’ RLUIPA claim is not moot and this Court has jurisdiction to issue a preliminary injunction because voluntary cessation of unlawful conduct does not moot
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a case unless a defendant has “completely and irrevocably eradicated the effects of the alleged violation” and “there is no reasonable expectation that the alleged violation will recur.” Harrell v. Florida Bar, 608 F.3d 1241, 1265-66 (11th Cir. 2010). Defendants cannot meet this standard here because they altered their challenged dietary policies only in response to this litigation and continue to assert that they may lawfully deny a kosher diet at any time. See Rich v. Secretary, No. 12-11735, ___ F.3d ___ (11th Cir. May 14, 2013). Further, this Court has jurisdiction to decide the United States’ challenge to four provisions of the Religious Diet Program. The application of these provisions falls squarely within the scope of the United States’ claim that Defendants’ dietary policies violate RLUIPA. Indeed, Defendants rely on the new Program to argue that this case is moot.
Accordingly, the United States’ Motion for a Preliminary Injunction is granted. I. MOOTNESS
Defendants denied a kosher diet to virtually all of its prisoners until modifying their dietary policies eight months into this litigation. Such a “late in the game” policy change does not moot the case. Harrell, 608 F.3d 1266. Rather, mootness occurs only where a defendant “unambiguously” changes course in a way that “completely and irrevocably eradicate[s] the effects of the alleged violation,” and “there is no reasonable expectation that the alleged violation will recur.” Harrell, 608 F.3d at 1265-66. Government defendants who “unambiguously” terminate unlawful conduct are entitled to a rebuttal presumption that their conduct will not recur. Harrell, 608 F.3d at 1268. This presumption is inapplicable here because Defendants defend the legality of their old policies and their new policies continue to violate RLUIPA. Id.
Even if the presumption applies, however, it is rebutted here for several reasons: (1) Defendants continue to defend the legality of the dietary policies that prompted litigation, see
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Nat’l Assoc. of Bds. of Pharmacy v. Bd. of Regents, 633 F.3d 1297, 1312 (11th Cir. 2011); Jager v. Douglas Co. School Dist., 862 F.2d 824, 834 (11th Cir. 1989); (2) Defendants changed their policy in response to litigation, see Sheely, 505 F.3d at 1186 (11th Cir. 2007) (no mootness where change in policy “came almost nine months into this lawsuit”); Nat’l Advertising Co. v. City of Ft. Lauderdale, 934 F.2d 283, 284 (11th Cir. 1991) (no mootness where city amended code six weeks after suit); and (3) Defendants previously rescinded a kosher diet program, see Nat’l Assoc. of Bds. Of Pharmacy, 633 F.3d at 1311 (“the Board of Regents made similar promises before [] and failed to keep them, prompting the current law suit.”).
For precisely these reasons, the Eleventh Circuit recently held that “there is nothing to suggest that Florida will not simply end the new kosher meal program at some point in the future, just as it did in 2007.” Rich, Slip Op. at 10. The Court of Appeals found that a challenge to Defendants’ kosher diet policies was not moot because Defendants argued that their prior policy of denying a kosher diet “should be declared constitutional,” Defendants “never promised not to resume the prior practice,” and the “[t]he policy change was not made before litigation was threatened, but was instead late in the game.” Id. The Rich decision noted that “Florida announced that it was going to change its policy only after . . . the U.S. Department of Justice filed suit against it in the Southern District of Florida,” and thus it “appear[s] that the change in policy is an attempt to manipulate jurisdiction.” Id. The same analysis demonstrates that this case is not moot.
Indeed, FDOC continues to make changes to its new Religious Diet Program, further demonstrating that this case is not moot. On May 22, 2013, after briefing on this Preliminary Injunction Motion was complete, Defendants revised their Religious Diet Program and eliminated one of the restrictions on providing a kosher diet that, for the reasons described
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below, violates RLUIPA. U.S. Ex. 33. Florida’s pattern of last-minute policy changes continues, even after the Eleventh Circuit’s specific condemnation of this behavior. Rich, Slip Op. at 10. Under these circumstances, Defendants’ argument that this case is moot must fail.
RLUIPA’s “safe harbor” provision compels the same result. As the Eleventh Circuit explained, “[w]e have seen nothing that suggests this provision preempts the principle that ‘voluntary cessation of challenged conduct moots a case . . . only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur’” Rich, Slip Op. at 6 (citing Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000)). II. JURISDICTION
Defendants claim that this Court lacks jurisdiction to adjudicate deficiencies with the new Religious Diet Program because the United States does not address the Program in its Complaint. Opp. at 11-12. This argument is unavailing, as Federal Rule of Civil Procedure 8 does not require a plaintiff to allege every fact that supports its claim. Fed. R. Civ. P. 8. In its Complaint, the United States alleges that Defendants’ diet policies violate RLUIPA by burdening the religious exercise of prisoners seeking a kosher diet. Defendants’ various modifications to their dietary policies in response to this litigation are factual issues that clearly fit within the scope of the United States’ RLUIPA claim. Any other result would allow a defendant to avoid liability for perpetuity by continually modifying a policy challenged in litigation. In any event, Defendants themselves place the new Religious Diet Program at issue by arguing that it moots the United States’ case. III. MERITS OF A PRELIMINARY INJUNCTION
A preliminary injunction is appropriate where the moving party shows: (1) a substantial likelihood of success on the merits; (2) that an injunction is necessary to prevent irreparable
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injury; (3) that the injury to the moving party outweighs whatever damage the proposed injunction might cause the non-moving party; and (4) that an injunction is in the public interest. BellSouth Telecomms., Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 968 (11th Cir. 2005). Each of these factors weighs in favor of a preliminary injunction here. A. The United States is Likely To Succeed on the Merits of its RLUIPA Claim
After hearings spanning three years, Congress found that prisoners are sometimes subject to “frivolous or arbitrary” barriers to religious exercise and, accordingly, passed RLUIPA unanimously in 2000. Cutter v. Wilkinson, 544 U.S. 709, 716 (2005) (citing 146 Cong. Rec. 16698, 16699 (2000) (joint statement of Sen Hatch and Sen. Kennedy on RLUIPA) (“Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.”). In doing so, Congress recognized the crucial role that religious belief plays in the orderly operations of institutions and the rehabilitation of prisoners. See 146 Cong. Rec. S6678-02, at S6688-89 (daily ed. July 13, 2000) (“[s]incere faith and worship can be an indispensible part of rehabilitation.”).
RLUIPA prohibits policies that substantially burden religious exercise except where a policy “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest.” 42 U.S.C. § 2000cc-1(a). Under this scheme, once a plaintiff proves that a challenged practice substantially burdens religious exercise, the burden shifts to the defendant to satisfy RLUIPA’s strict scrutiny inquiry. 42 U.S.C. § 2000cc-2(b).
1. Defendants’ challenged dietary policies substantially burden the religious exercise of Florida prisoners
Each of Defendants’ challenged dietary policies substantially burdens the religious exercise of Florida prisoners. A “policy of not providing kosher food may be deemed to work a
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substantial burden upon [an inmate’s] practice of his faith.” Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007); see also Beerheide v. Suthers, 286 F.3d 1179, 1192 (10th Cir. 2002) (failure to provide kosher diet burdens free exercise of religion in violation of the First Amendment). Defendants do not contest that four of the five policies challenged here impose a substantial burden: (1) the blanket denial of kosher food; (2) the Religious Diet Program’s requirement that applicants to the Program consume non-kosher food for 30-to-90 days before accessing a kosher diet; (3) the Religious Diet Program’s “zero tolerance” removal of prisoners from the Program who consume a single item Defendants deem non-kosher; and (4) the Religious Diet Program’s “sincerity test” that probes prisoners’ knowledge of religious doctrine. See Defs’ Opp. to Mot. for Prelim. Inj., Dkt. No. 34, at .21-24; U.S. Reply, Dkt. No. 40, at 9-10.
The fifth challenged provision – which removes prisoners from the Religious Diet Program if they miss ten percent of meals – likewise imposes a substantial burden. The “10 percent rule” removes prisoners from their desired religious diet for a minimum of six months if they do not eat at least 90 percent of the available meals, even if every meal the prisoners eat is kosher. A policy that denies a religious diet to a prisoner, even where there is no evidence that the prisoner is insincere, substantially burdens religious exercise. Cf. Lawson v. Singletary, 85 F.3d 502, 509 (1996)) (“policies grounded on mere speculation” violate RLUIPA). And a sixmonth removal unquestionably works a substantial burden. See Nelson v. Miller, 570 F.3d 868, 880 (7th Cir. 2009) (failure to provide a non-meat diet during 40 days of Lent a substantial burden); Lovelace v. Lee, 472 F.3d 174, 194 (4th Cir. 2006) (denying Muslim prisoner special Ramadan meals 24 out of 30 days violates RLUIPA).
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2. Defendants’ challenged dietary policies are not the least restrictive means of furthering a compelling government interest
As all five challenged dietary policies substantially burden religious exercise, the burden shifts to the Defendants to show that each of these provisions is the least restrictive means of furthering a compelling government interest. 42 U.S.C. § 2000cc-2(b). None of the challenged provisions meet this standard.
a) Blanket Denial of a Kosher Diet At the time the United States filed its Complaint, Defendants denied a kosher diet to all but a handful of prisoners in a single facility. U.S. Ex. 1; Statement of Undisputed Facts ¶ 19. This near-blanket denial of a kosher diet is not the least restrictive means of furthering a compelling government interest. Indeed, Defendants’ recently-announced statewide kosher diet program demonstrates as a matter of law that their challenged dietary policy fails RLUIPA’s strict scrutiny test. Defendants cannot argue that they have compelling interests in denying a kosher diet while they provide such a diet voluntarily. See Moussazadeh v. Texas Department of Criminal Justice, 703 F.3d 781, 794 (5th Cir. 2012) (reversing summary judgment for prison where prison’s “argument that it has a compelling interest” . . . “is dampened by the fact that it has been offering kosher meals to prisoners for more than two years”); Spratt v. Rhode Island Department of Corrections, 482 F.3d 33, 40 (1st Cir. 2007) (prison system lacked compelling reasons for banning inmate preaching because the prison had previously allowed such preaching); Koger v. Bryan, 523 F.3d 789, 799, 801 (7th Cir. 2008) (denying request for a nomeat diet violated RLUIPA where prison offered such a diet to other prisoners); Washington v. Klem, 497 F.3d 272, 285 (3d Cir. 2007) (restriction on the number of religious books a prisoner may possess invalid where other facilities in the state system did not have such a restriction);
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Warsoldier v. Woodford, 418 F.3d 989, 1001 (9th Cir. 2005) (hair length restriction on male prisoners failed strict scrutiny where prison allowed female prisoners to keep long hair).
Even if Defendants’ recent concession that they can provide a kosher diet were not fatal to their legal defense for denying such a diet, the United States is likely to succeed on the merits of its claim for two additional reasons: (1) numerous correctional facilities with interests identical to FDOC are able to offer a kosher diet; and (2) Defendants have not identified any compelling interest furthered only by a blanket denial of a kosher diet.
First, the ability of similar correctional facilities to offer a kosher diet underscores that FDOC can offer such a diet consistent with its penological interests. It is well established that “the policies followed at other well-run institutions [are] relevant to a determination of the need for a particular type of restriction.” Procunier v. Martinez, 416 U.S. 396, 414 n.14 (1974); Rich v. Secretary, Slip Op. at15 (practices of other institutions “are relevant to an inquiry about whether a particular restriction is the least restrictive means by which to further a shared interest”). The Federal Bureau of Prisons’ kosher diet program is particularly relevant because BOP “has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners.” Cutter v. Wilkinson, 544 U.S. 709, 725 (2005). Where BOP accommodates a particular religious exercise, a defendant is unlikely to satisfy RLUIPA’s strict scrutiny inquiry “in the absence of any explanation by [the defendant] of significant differences between [its prison] and a federal prison that would render the federal policy unworkable.” Spratt, 482 F.3d at 42; see also Warsoldier, 418 F.3d at 999 (enjoining prison’s hair length policy where “[p]risons run by the federal government, Oregon, Colorado, and Nevada all meet the same penological goals without such a policy”).
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Here, the experience of similar institutions militates strongly against the legality of Defendants’ blanket denial of a kosher diet. The Federal Bureau of Prisons, Texas, New York, California, Illinois and at least 31 other states offer a kosher diet to their prisoners. See U.S. Exhibits 2, 14, 16, 23. Defendants do not explain how their interests differ from these large correctional institutions. Recognizing this principle, the Eleventh Circuit recently reversed a grant of summary judgment for Defendants in a prisoner’s suit seeking a kosher diet “in light of the Defendants’ meager efforts to explain why Florida’s prisons are so different from the penal institutions that now provide kosher meals such that the plans adopted by those other institutions would not work in Florida.” Rich v. Secretary, Slip Op. at 15.
Second, Defendants have not identified any compelling interest that is furthered only by a blanket denial of kosher diets. Defendants’ chief argument is that denying a kosher diet is the least restrictive means of furthering their compelling interest in controlling cost. While cost control may be a compelling interest in certain situations, see Rich, Slip Op. at 11, RLUIPA expressly contemplates that facilitating religious exercise “may require a government to incur expenses in its own operations.” 42 U.S.C. § 2000cc-3(c). The costs identified by Defendants in this litigation are not of a compelling magnitude. Indeed, Defendants’ expected kosher food expenditures are modest in relation to FDOC’s annual budget of nearly $2 billion. Undisputed Facts at ¶ 2. Defendants’ argue that the total cost of providing a kosher diet to 1,630 prisoners annually is $3.4 million, calculated based on the percentage of prisoners who applied for the Religious Diet Program at Union C.I. – the lone facility where applications are currently permitted. Opp. at 6. This estimate likely overstates the true cost of a kosher diet, as it fails to account for Union’s disproportionate population of Jewish prisoners. See U.S. Ex. 31. Indeed, the average enrollment in Defendants’ prior kosher diet program was only 250 prisoners. Based
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on Defendants’ estimate that a kosher diet costs $5.81 more per prisoner each day, Opp. at 6, a comparable participation rate in the new Religious Diet Program would yield a total cost of approximately $530,000 per year.
Regardless, even accepting arguendo Defendants’ cost estimate, the expense of providing a kosher diet would account for only .0018 of FDOC’s budget.1 No compelling interest is furthered by avoiding such a relatively minor expense. Under the more forgiving standard of review applied in First Amendment cases, the Tenth Circuit has held that avoiding a nearly identical expenditure on kosher food - constituting .0016 of the budget – was not rationally related to a penological interest. Beerheide v. Suthers, 286 F.3d 1179, 1191 (10th Cir. 2002); see also Moussazadeh, 703 F.3d at 795 (“we are skeptical that saving less than .005% of the food budget constitutes a compelling interest”). Avoiding the modest expense of providing a kosher diet to Florida prisoners is not the least restrictive means of furthering a compelling interest.
Accordingly, the United States is likely to prevail on the merits of its claim that Defendants’ blanket denial of a kosher diet violates RLUIPA.
b) The 30-to-90 Day Rule The Religious Diet Program’s requirement that prisoners seeking a kosher diet consume exclusively non-kosher food for a period of 30 to 90 days fails for the same reasons as Defendants’ blanket denial of kosher diet. After briefing concluded on the United States’ Preliminary Injunction Motion, Defendants announced they were removing this provision from the Religious Diet Program and would implement a kosher program without the 30-to-90 day waiting period. U.S. Ex. 32. This policy change demonstrates as a matter of law that the 30-to90 day rule cannot withstand strict scrutiny. The provision cannot be the least restrictive means
1$3.4 million / 1.94 billion = .0018. If the true cost of Defendants’ new kosher diet program is $530,000, this expense would constitute .00027 of Defendants’ budget (530,000 / 1.94 billion = .000273).
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of furthering a compelling government interest once Defendants have conceded that they can provide a kosher diet without it. See supra at 16-18. Regardless, the provision substantially burdens religious exercise by depriving observant prisoners of kosher diet for at least 30 days, see, e.g., Nelson, 570 F.3d at 880 (failure to provide a non-meat diet during 40 days of Lent a substantial burden), and is not the least restrictive means of furthering any compelling interest. Indeed, Defendants have not identified any compelling interest related to this provision. See Opp. at 21.2
c) Religious Orthodoxy Testing The Religious Diet Program likewise violates RLUIPA by conditioning enrollment in the Program on prisoners satisfying a process of interviews and follow up investigation that focuses on the prisoner’s knowledge of religious dogma. See U.S. Ex. 3 at 5-6. These provisions allow FDOC chaplains to measure a prisoner’s fidelity to a particular religion by conducting internet searches, interviewing clergy and FDOC staff, inspecting prisoner records, and reviewing the prisoner’s past religious activities. See U.S. Ex. 3 at 6. Indeed, Defendants judge whether applicants to the kosher diet program sufficiently ground their requests in “knowledge of their religion and the requirements of keeping a kosher diet.” U.S. Ex. 3. This subordination of prisoners’ personal religious beliefs violates federal law. While RLUIPA “does not preclude inquiry into the sincerity of a prisoner’s professed religiosity,” Cutter, 544 U.S. at 725 n.13, such an inquiry must be “handled with a light touch” and limited “almost exclusively to a credibility assessment.” Moussazadeh, 703 F.3d at 792. “Prison officials may not determine which religious observances are permissible because orthodox.” Grayson v. Schuler¸ 666 F.3d 450, 453-55 (7th Cir. 2012). This principle bars
2 For the reasons explained on pages 11-13, supra, Defendants cannot avoid the Court’s decision on the 30-to-90 day rule by changing their policy on the eve of decision. Otherwise, Defendants could constantly evade the Court’s review of the challenged rule, and nothing would prevent the Defendants from reinstituting it in the future.
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Defendants’ policy of excluding prisoners from a kosher diet based on clergy interpretations of religious doctrine. Indeed, “clergy opinion has generally been deemed insufficient to override a prisoner’s sincerely held religious belief.” Koger, 523 F.3d at 799 (holding that RLUIPA covered a prisoner’s request for a vegetarian diet even though there were “no dietary restrictions compelled by or central to his professed faith”); see also Jackson v. Mann, 196 F.3d 316-320 (2d Cir. 1999) (sincerity of a prisoner’s beliefs – not the decision of Jewish religious authorities – determines whether prisoner was entitled to kosher meals); Newingham v. Magness, 364 F. App’x. 298, 300 (8th Cir. 2010) (reversing where district court improperly relied on the prison’s Islamic coordinator’s opinon that a prayer rug was a “convenience” rather than a religious “requirement”); Grayson¸ 666 F.3d at 450 (prison could not force prisoner to cut his hair based on the premise that only those whose faith “‘officially’ require[s] the wearing of dreadlocks [may] wear them”); Benning v. Georgia, 391 F.3d 1299, 1313 (11th Cir. 2004) (finding that RLUIPA’s definition of religious exercise “‘mitigates any dangers that entanglement may result from administrative review of good-faith religious belief.’”) (quoting Madison v. Riter, 355 F.3d 310, 320 (4th Cir. 2003)). Defendants’ orthodoxy testing strays too far “into the realm of religious inquiry,” where government officials “are forbidden to tread.” Moussazadeh, 703 F.3d at 792.
Other correctional institutions effectively operate kosher diet programs without the rigorous inquiry that Defendants require. The Federal Bureau of Prisons sincerity test consists of a single brief interview with a chaplain. See U.S. Ex. 14. The New York correctional system provides a kosher diet to all prisoners who self-identify with a qualifying religion. See U.S. Ex. 23. And the Indiana Department of Corrections provides a kosher diet to all prisoners who submit a request in writing. See Final Judgment and Injunction, Willis v. Indiana Dep’t of
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Corrections, No. 1:09-cv-815 (S.D. Ind. Dec. 8, 2010), Dkt. No. 110 at 2 (ordering state “to provide certified kosher meals to all inmates who, for sincerely held religious reasons, request them in writing”). The experience of these institutions further demonstrates that Defendants’ focus on religious orthodoxy is not the least restrictive means of furthering a compelling interest.
d) Zero Tolerance Removal Provision The Religious Diet Program’s zero tolerance removal provision fails RLUIPA’s strict scrutiny requirement for similar reasons. Prisoners who consume any item that Defendants do not officially list as “kosher” are removed for 30 days for a first offense, 120 days for a second offense, and 1 year for all subsequent offenses. U.S. Ex. 3 at 8. A prisoner has no opportunity to explain how the “non-kosher” selection fits within his or her religious beliefs prior to removal from the Program. This provision is incompatible with the principle that, under RLUIPA, “a sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?” Grayson, 666 F.3d at 454. Indeed, a “few lapses in perfect adherence do not negate [a prisoner’s] overarching display of sincerity.” Moussazadeh, 703 F.3d at 792. In Moussazadeh, the Fifth Circuit held that a Jewish prisoner who repeatedly purchased non-kosher items from the commissary nonetheless “established his sincerity as a matter of law” by requesting a kosher diet and pursuing litigation. Id. at 792. The only compelling interest cited by Defendants in support of the zero tolerance rule is “cost containment.” Opp. at 24. Defendants have presented no evidence, however, of how much money the zero tolerance rule would save. Nor have Defendants identified any other institution that imposes a similar restriction. Without such evidence, Defendants cannot demonstrate that the zero tolerance rule is the least restrictive means of furthering a compelling interest. “Policies
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grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet [RLUIPA’s] requirements.” Rich, Slip Op. at 12 (citing Lawson, 85 F.3d at 509. Thus, the zero tolerance rule violates RLUIPA.
e) Ten Percent Rule The Religious Diet Program removes prisoners who eat less than 90 percent of available meals even if every meal they consume is kosher. See U.S. Ex. 3. Defendants assert that this provision is cost containment and avoiding the waste created by “throw[ing] away” unused meals. Opp. at 23. Like the zero tolerance rule, however, Defendants present no evidence at all of the magnitude of the costs incurred by such waste or the savings attributable to the ten percent rule. Rather, Defendants’ rationale for this provision is “mere speculation” that RLUIPA does not countenance. Rich, Slip Op. at 12. Even if there were some evidence of cost, however, Defendants have not demonstrated that this rule is the least restrictive means to avoid “waste.” Opp. at 23. Indeed, Defendants can simply track average participation in the Religious Diet Program and adjust their kosher food order accordingly to avoid an excess of meals going to waste. There is no evidence that Defendants have considered this less restrictive alternative. See, e.g., Washington, 497 F.3d at 284; Warsoldier, 418 F.3d 989, 999 (“CDC 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.”); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 989 (8th Cir. 2004) (“It is not clear that MDOC seriously considered any other alternatives, nor were any explored before the district court.”). For these reasons, the ten percent rule violates RLUIPA.
* * *
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In sum, the United States is likely to prevail on the merits of its claim that Defendants’ prior blanket denial of a kosher diet violates RLUIPA, as do each of the four challenged provisions of Defendants’ new dietary policies.
B. A Preliminary Injunction is Necessary To Avoid Irreparable Harm Injunctive relief is necessary to prevent irreparable harm to hundreds of Florida prisoners who believe that keeping kosher is an important part of their religious beliefs. As set forth above, several aspects of Defendants’ recently-announced Religious Diet Program will continue to burden prisoners’ religious exercise in violation of RLUIPA. These unlawful restrictions on religious exercise constitute irreparable injury. See, e.g., Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) (finding irreparable harm when RLUIPA is violated); Warsoldier, 418 F.3d at 1001-02 (raising a colorable claim of an RLUIPA violation “established that [prisoner] will suffer an irreparable injury absent an injunction”); Beerheide, 286 F.3d at 1192 (Failure to provide kosher diet burdens free exercise of religion in violation of the First Amendment). Indeed, it is well-established that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Moreover, the entire Religious Diet Program is tenuous, as Defendants previously terminated a kosher diet program against the advice of their own study group and continue to argue that they may lawfully deny a kosher diet to all prisoners at any time. Accordingly, judicial intervention is necessary to ensure that Defendants do not eliminate their Religious Diet Program in violation of RLUIPA in the future. This factor weighs in favor of granting a preliminary injunction.
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C. The Irreparable Harm to Prisoners Outweighs Any Harm to Defendants The lack of potential harm to Defendants further demonstrates that a preliminary injunction is warranted. Although Defendants continue to assert that they have no legal obligation to provide a kosher diet, they have announced their intention to provide one by September 2013. See U.S. Ex. 3. Thus, an affirmative injunction requiring Defendants to provide such a diet will not impose any costs. Rather it will merely ensure that Defendants honor their commitment. Enjoining the four challenged provisions of Defendants’ new Religious Diet Program is similarly unlikely to harm Defendants in any meaningful way. Indeed, enjoining the four challenged provisions of the Program may lessen the administrative burden on FDOC staff, as these provisions impose significant administrative obligations on FDOC staff to test, track, and monitor the religious exercise of prisoners who desire a kosher diet. Nor are any of the challenged provisions necessary to effectively operate a kosher diet program. Without the challenged provisions, the Religious Diet Program would function similarly to other kosher diet programs, such as the one operated by the Federal Bureau of Prisons. An injunction of these discrete provisions will not interfere with Defendants’ stated plan to implement a statewide kosher diet option by September 2013. Finally, enjoining the challenged provisions of the Religious Diet Program will save Defendants from expending resources to train staff and otherwise implement a policy that is likely to be invalidated. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (enjoining implementation of a policy that is likely to be found a violation of law does not harm defendants). For these reasons, avoiding the irreparable harm to Florida prisoners outweighs any harm to Defendants from an injunction.
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D. Injunction Is in the Public Interest An injunction that vindicates religious freedoms protected by federal law is in the public interest. United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012) (“Frustration of federal statutes and prerogatives are not in the public interest”). Protection for religious exercise is a cherished ideal, and RLUIPA passed both houses of Congress unanimously as “the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens.” Cutter, 544 U.S. at 713. By its terms, RLUIPA is broadly construed in favor of religious liberty “to the maximum extent permitted by [the statute] and the Constitution,” 42 U.S.C. § 2000cc-3g, to ensure that “[s]incere faith and worship can be an indispensible part of rehabilitation.” 146 Cong. Rec. S6678-02, at S6688-89 (daily ed. July 13, 2000). The number and diversity of organizations that have recently urged Defendants to provide a kosher diet further demonstrates the strong public interest at stake in this litigation. See U.S. Ex. 25-28 (amicus briefs filed in Rich v. Secretary by, among others, the Aleph Institute, International Mission Board of the Southern Baptist Convention, International Society for Krishna Consciousness, Hindu-American Foundation, National Jewish Commission on Law and Public Affairs, American Civil Liberties Union, Rabbinical Alliance of America, and the American Jewish Committee). Here, Defendants long-standing efforts to avoid providing a kosher diet demonstrate that injunctive relief is necessary to ensure the religious exercise of Florida prisoners. Defendants discontinued their prior kosher diet program against the advice of their own study group in 2007 and refused to offer a statewide kosher diet program for the next six years. In 2013, eight months after the United States’ challenged Defendants’ refusal to offer a kosher diet, Defendants announced that they would start providing a kosher in the fall of 2013 and asked the Court to
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immediately declare this litigation moot. Despite this announcement, Defendants continue to argue that they may lawfully deny a kosher diet to all Florida prisoners and refuse to commit to providing a kosher diet in the future. Accordingly, an injunction is necessary to guarantee the important rights protected by RLUIPA.
CONCLUSION For the reasons set forth above, it is hereby ORDERED that the United States’ Motion for a Preliminary Injunction against the Defendants is GRANTED as follows: (1) Defendants are preliminarily enjoined and ordered to provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher no later than September 1, 2013; (2) Defendants are preliminarily enjoined from implementing or re-promulgating Procedure 503.006(5) (30-to-90 Day Rule) of the Religious Diet Program, U.S. Ex. 3, effective immediately; and (3) Defendants are preliminarily enjoined from implementing the following provisions of the Religious Diet Program, U.S. Ex. 32, effective immediately:
(a) Procedure 503.006(4)(b)-(e) (Orthodox Sincerity Testing); (b) Procedure 503.006(7)(c) (10 Percent Rule); and (c) Procedure 503.006(7)(e)(2)-(3) (Zero Tolerance Rule).
DONE AND ORDERED in Miami, Florida, this ____ day of June, 2013.
_______________________________ PATRICIA A. SEITZ UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE I certify that the foregoing United States’ Proposed Findings of Fact and Conclusions of Law was served through the electronic filing service on May 24, 2013, to the following individuals: Susan A. Maher Chief Assistant Attorney General Office of the Attorney General The Capitol – PL01 Tallahassee, FL 32399 Susan.Maher@myfloridalegal.com Attorney for Defendants
s/ Michael J. Songer MICHAEL J. SONGER Attorney for the United States
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 </s> Case 1:12-cv-22958-PAS Document 29 Entered on FLSD Docket 04/10/2013 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA, Plaintiff;
v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al.,
Defendants.

No. 1:12-cv-22958
UNITED STATES’ MOTION FOR A PRELIMINARY INJUNCTION
Judge Patricia A. Seitz

UNITED STATES’ MOTION FOR A PRELIMINARY INJUNCTION The United States respectfully asks the Court to enter a preliminary injunction against Defendants’ dietary policies and order Defendants to provide a certified kosher diet to all prisoners who have a sincere religious basis for keeping kosher. Since 2007, the Florida Department of Corrections (“FDOC”) has failed to offer a kosher diet option, forcing hundreds of prisoners to violate their religious beliefs on a daily basis. This failure violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (“RLUIPA”). Indeed, FDOC’s own study group commissioned in 2007 to assess whether to continue FDOC’s thenexisting kosher diet program warned that terminating the program would likely violate federal law. FDOC ignored this warning and cancelled the program. This action made FDOC an outlier – the only large American correctional system not to offer a kosher diet to its prisoners. Seven months after the United States filed this litigation, Defendants reversed course and issued a new policy that purportedly will offer a kosher diet in most FDOC facilities by the fall of 2013. This policy demonstrates conclusively that FDOC’s failure to offer a kosher diet since
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2007 violates RLUIPA, as Defendants cannot simultaneously implement a statewide kosher diet plan and prove – as RLUIPA requires – that they have compelling interests in not offering such a plan.
While FDOC’s new kosher diet program demonstrates that the United States is entitled to judgment as a matter of law, the new program continues to violate RLUIPA in several important ways. Most notably, the program admits prisoners only after testing their “sincerity” by forcing them to consume exclusively non-kosher food for months. This illogical requirement, along with others, places a substantial burden on prisoners’ religious practice in conflict with settled law. For these reasons, the United States is likely to prevail on the merits of its RLUIPA claim.
Judicial intervention is necessary to further the public interest in enforcing federal civil rights laws and to prevent irreparable harm to prisoners whose religious exercise is burdened by FDOC’s dietary policies. Indeed, Defendants’ persistent refusal to maintain a lawful kosher diet program highlights the need for an injunction from this Court. Defendants adopted their prior kosher diet program in 2004 shortly after settling litigation brought by a Jewish prisoner, see Cotton v. Dep’t of Corr., No. 1:02-cv-22760 (S.D. Fla.), then terminated the program three years later despite a warning from their own study group that doing so would violate federal law. When the United States Department of Justice advised Defendants in August 2012 that their dietary policies violated RLUIPA, Defendants refused to consider implementing any type of kosher diet option. And despite eventually issuing a flawed kosher diet plan in response to this litigation, Defendants continue to assert – both here and in a separate case before the Eleventh Circuit – that prisoners have no legal right to a kosher diet under RLUIPA. See Appellee’s Opp. to Summ. Reversal, Rich v. Secretary, No. 12-11735 (11th Cir.), at 2-3.
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Accordingly, this Court should issue a preliminary injunction ordering Defendants to provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher and enjoin Defendants’ new Religious Diet Program to the extent that it violates RLUIPA.
BACKGROUND This litigation centers on FDOC’s failure to provide a kosher diet to prisoners in accordance with federal law. In 2007, FDOC discontinued its existing kosher diet program against the recommendation of FDOC’s own Study Group on Religious Dietary Accommodation in Florida’s State Prison System (the “Study Group”). The Study Group advised FDOC to “[r]etain a kosher dietary program” open to “those inmates who have been expertly appraised or vetted” to ensure their sincerity. Study Group Report, attached as Exhibit A, at 2. Indeed, the Study Group warned that discontinuing the kosher program would violate RLUIPA, as a prisoner desiring to keep kosher “is substantially burdened” by the denial of kosher food and “it is improbable that [FDOC] can satisfy a court’s inquiry into whether the department is furthering a compelling interest, let alone that denying inmates’ religious accommodation is the least restrictive means available.” Ex. A at 27. Despite this analysis, FDOC terminated the kosher program on August 16, 2007. See Issue Brief on Religious Dietary Accommodation in Florida Prisons, attached as Exhibit G. Three years later, on August 16, 2010, FDOC initiated a pilot kosher diet program (“Pilot Program”) at the South Unit of the South Florida Reception Center near Miami. The Pilot Program only accommodates a small fraction of prisoners who have a sincere religious basis for keeping kosher. Before its discontinuation in 2007, FDOC kosher diet program averaged approximately 250 prisoners per day. Ex. A. at 10. The Pilot Program began with 11 prisoners and has accommodated as few as 8 prisoners at a time during its operation. See Initial 30-Day
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Review, attached as Exhibit B. In late 2011, FDOC officials met with religious figures advocating greater access to the Pilot Program. For example, on November 29, 2011, Rabbi Menachem Katz met with several FDOC officials at FDOC’s South Bay facility to discuss expanding the Pilot Program. See Exhibit D (email from FDOC employee Janeth McLeod attaching a list of participants at the November 29, 2011, meeting). Despite these community efforts, Defendants did not expand the Program to any additional prisoners.
In May 2011, the United States Department of Justice opened a formal investigation into FDOC’s food service operations pursuant to RLUIPA. See Ltr. from Timothy Mygatt to Jennifer Parker, May 9, 2011, attached as Exhibit C. During the 15-month investigation, the United States retained experts in prison administration and food service1, reviewed thousands of pages of documents, interviewed FDOC officials, and toured several major FDOC facilities.2 This investigation concluded that FDOC could provide a kosher diet consistent with its penological interests and that its failure to do so violated RLUIPA. The United States notified FDOC of its findings on August 1, 2012, and offered to negotiate a mutually agreeable plan to make a kosher diet available at FDOC facilities. See Ltr. from Michael Songer to Phillip Fowler, Aug. 1, 2012, attached as Exhibit E. FDOC rejected the offer to negotiate, and the United States filed the above-captioned suit on August 14, 2012.
FDOC moved to dismiss the United States’ Complaint or transfer this litigation to the Northern District of Florida. See Defs’ Mot. to Dismiss or Transfer Venue, Dkt. No 9. Shortly after this Court denied Defendants’ motion, the United States agreed to Defendants’ request to enter into formal mediation. Following a mediation session in Tallahassee, Defendants presented 1 The United States retained John Clark, former Assistant Director of the Federal Bureau of Prisons, and Dennis Watkins, former BOP Regional Food Service Administrator. Mr. Watkins helped implement BOP’s certified kosher food option in the 1990s. 2 An attorney for the United States and two experts toured the following facilities: the South Florida Reception Center, South Bay C.I., Everglades C.I., and Dade C.I.
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a settlement proposal to the United States on March 4, 2013, and offered a revised proposal on March 20, 2013. See Pl.’s Mediation Report, Dkt. No.28, at 2. The Parties discussed this proposal on March 21, 2013, but did not reach agreement on a kosher diet plan. Id. at 2. The next day – without notifying the United States – Defendants issued a new Religious Diet Program, Policy 503.006, that became effective on April 5, 2013. See Procedure 503.006 (“Religious Diet Program”), attached as Exhibit F.
The new Religious Diet Program will purportedly offer a kosher diet in most FDOC facilities by September 2013, but limits participation to prisoners who comply with extensive requirements, many of which violate RLUIPA, including eating exclusively non-kosher food for 30 to 90 days. Ex. F at 6. The new policy likewise establishes numerous bases for removing prisoners from the Religious Diet Program; removable offenses include a prisoner electing not to eat 10% of the available meals or purchasing a single item from the commissary that is deemed “not kosher” by FDOC officials. See Ex. F at 3, 8.
ANALYSIS A preliminary injunction is appropriate where the moving party shows: (1) a substantial likelihood of success on the merits; (2) that an injunction is necessary to prevent irreparable injury; (3) that the injury to the moving party outweighs whatever damage the proposed injunction might cause the non-moving party; and (4) that an injunction is in the public interest. BellSouth Telecomms., Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 968 (11th Cir. 2005). The United States meets this standard here. First, the United States is likely to succeed on the merits of its RLUIPA claim because FDOC’s recent implementation of a kosher diet program precludes Defendants from showing – as RLUIPA requires – that not offering a kosher
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diet is necessary to achieve a compelling government interest. Moreover, FDOC’s new Religious Diet Program also contravenes RLUIPA, as the barriers to accessing and remaining in the Program burden religious exercise and are not tailored to any compelling interest. Second, absent an injunction, FDOC will continue to violate federal law and force hundreds of Florida prisoners to violate their core religious beliefs by consuming non-kosher food – archetypal examples of irreparable harm. Third, these injuries outweigh any harm to Defendants. Indeed, FDOC has already conceded that it can provide a kosher diet. Enjoining the barriers to participating in the kosher diet program, such as requiring prisoners to eat non-kosher food for 30 to 90 days, would lessen FDOC’s administrative burdens. Fourth, an injunction that forces FDOC to comply with federal civil rights laws and protects the religious exercise of Florida prisoners is unequivocally in the public interest.
Without a preliminary injunction ordering Defendants to provide a kosher diet to all prisoners with a sincere religious basis for keeping kosher, violations of prisoners’ rights will continue. As described more fully below, several provisions of Defendants’ new Religious Diet Program violate RLUIPA. In addition, the entire program is tenuous as Defendants continue to assert that they have no legal obligation to provide a kosher diet to any Florida prisoners. Indeed, Defendants are currently taking this position in a case before the Eleventh Circuit, where Defendants’ most recent filing argues that FDOC has “not violated the RLUIPA as the Department’s [non-kosher] vegetarian and vegan meal plans further the compelling interests of the Florida correctional system.” Rich v. Secretary, No. 12-11735 (11th Cir.), at 6. This litigation posture, combined with Defendants’ prior resistance to maintaining a kosher diet3, underlines the need for an order from this Court.
3 As explained above, Defendants terminated their statewide kosher diet program in 2007 over the objection of their own Study Group, refused to expand their kosher Pilot Program in 2011,
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I. THE UNITED STATES IS LIKELY TO SUCCEED ON THE MERITS OF ITS RLUIPA CLAIM The United States is likely to succeed on the merits of its claim that FDOC violates
RLUIPA by failing to provide a kosher diet to prisoners with a sincere religious basis for keeping kosher. RLUIPA prohibits policies that substantially burden religious exercise except where a policy “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest.” 42 U.S.C. § 2000cc-1(a). Under this scheme, once a plaintiff proves that a challenged practice substantially burdens religious exercise, the burden shifts to the defendant to satisfy RLUIPA’s strict scrutiny inquiry. 42 U.S.C. § 2000cc-2(b).
Here, there is no question that the inability to access a kosher diet since 2007 has substantially burdened the religious exercise of certain FDOC prisoners. Consequently, FDOC’s policies violate RLUIPA unless Defendants demonstrate that denying a kosher diet is necessary to achieve a compelling interest. Defendants cannot make this showing. FDOC successfully offered a kosher diet to all eligible prisoners from 2004-2007, has operated the pilot kosher program since 2010, and recently enacted a new statewide kosher diet plan. See Ex. F. Under these circumstances, FDOC’s argument that is has a compelling interest in not providing a kosher diet is incoherent – and foreclosed by settled law. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (“It 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.”).
refused to negotiate a kosher diet plan with the United States in 2012, and are now arguing before multiple federal courts that they have no obligation to provide a kosher diet to any prisoners.
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Nor does FDOC’s recently-enacted Religious Diet Program comport with RLUIPA’s requirements. Although the Program ostensibly makes a kosher diet available at most FDOC facilities, it erects barriers to participating in the program – such as forcing prisoners to consume exclusively non-kosher food for several months – that substantially burden religious exercise. These provisions are not narrowly tailored to any compelling government interest. Accordingly, this Court should enjoin Defendants’ Religious Diet Program and order Defendants to provide a kosher diet to all prisoners appraised to have a sincere religious basis for keeping kosher.
A. Denying a Kosher Diet Substantially Burdens the Religious Exercise of Certain Prisoners
There is little question that FDOC’s failure to provide a kosher diet since 2007 substantially burdens the religious exercise of prisoners with a sincere religious basis for keeping kosher – a point FDOC has conceded in other litigation over its dietary policies. See Rich v. Buss, No. 1:10-cv-157, 2012 U.S. Dist. LEXIS 28304, at *13 (N.D. Fla. Jan. 12, 2012) (noting that FDOC has not “disputed that their failure to provide a kosher diet to [the prisoner] substantially burdens his religious practice”). Religious exercise “is broadly defined under RLUIPA,” Smith v. Allen, 502 F.3d. 1255, 1276 (11th Cir. 2007), and “there is no question” that keeping kosher is a religious exercise under the statute’s definition. Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007); see also Abdulhaseeb v. Calbone, 600 F.3d 1301, 130405 (10th Cir. 2010) (halal diet a religious exercise).
FDOC’s longstanding failure to provide a kosher diet substantially burdens this exercise. A burden is substantial under RLUIPA if it “is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). Failing to provide a kosher diet easily meets this standard. See, e.g., Baranowski, 486 F.3d at 125 (“policy of not providing kosher
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food may be deemed to work a substantial burden upon [an inmate’s] practice of his faith.”); Love v. McCown, 38 F. Appx. 355, 356 (8th Cir. 2002) (affirming preliminary injunction requiring prison to offer kosher diet); Willis v. Comm’r, Ind. Dep’t of Corr., 753 F. Supp. 2d 768, 777 (S.D. Ind. 2010) (“DOC substantially burdened the Plaintiffs’ religious exercise when it denied them kosher food.”); see also Beerheide v. Suthers, 286 F.3d 1179, 1192 (10th Cir. 2002) (failure to provide kosher diet burdens free exercise of religion in violation of the First Amendment).
B. Denying a Kosher Diet is Not Narrowly Tailored To Any Compelling Government Interest
FDOC’s failure to provide a kosher diet since 2007 cannot withstand RLUIPA’s strict scrutiny inquiry. Most importantly, FDOC’s newly-enacted kosher diet program demonstrates that FDOC can provide a kosher diet consistent with its interests, and FDOC cannot now assert that it has a compelling interest in not providing a kosher diet. The fact that all other large correctional institutions provide kosher diet options, each with the same penological interests as FDOC, confirms that there is no compelling government interest in not providing a kosher diet. Accordingly, FDOC’s continued assertion that it is not obligated to provide a kosher diet under RLUIPA, most recently in Opposition to Summary Reversal filed with Eleventh Circuit just six weeks ago, must fail.
1. FDOC’s newly-implemented kosher diet program demonstrates that it does not have a compelling interest in denying a kosher diet
It is well-established that a government defendant cannot have a compelling interest in avoiding an activity that it already permits. See Church of the Lukumi Babalu Aye, 508 U.S. at 547. Here, less than three months after Defendants asserted that refusing to offer a kosher diet was necessary to advance FDOC’s interests in “security and good order” and “allocating scarce governmental resources,” Answer, Dkt. No.16, at 7, FDOC implemented a new policy that
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purportedly will offer a kosher diet system-wide. FDOC cannot simultaneously (a) argue that it has compelling interests in denying a kosher diet and (b) implement a statewide kosher diet plan.
Appellate courts have repeatedly affirmed this common sense conclusion. In Moussazadeh v. Texas Department of Criminal Justice, 703 F.3d 781 (5th Cir. 2012), a prisoner challenged Texas’ refusal to provide him with a kosher diet despite offering a kosher diet at a different state facility. The Fifth Circuit reversed the district court’s grant of summary judgment in favor of the prison system, explaining that Texas’ “argument that it has a compelling interest” . . . “is dampened by the fact that it has been offering kosher meals to prisoners for more than two years.” Moussazadeh, 703 F.3d at 794. The First Circuit employed similar reasoning in Spratt v. Rhode Island Department of Corrections, 482 F.3d 33, 40 (1st Cir. 2007), holding that a prison system lacked compelling reasons for banning inmate preaching because the prison had previously allowed such preaching. See also Koger v. Bryan, 523 F.3d 789, 799, 801 (7th Cir. 2008) (denying request for a no-meat diet violated RLUIPA where prison offered such a diet to other prisoners); Washington v. Klem, 497 F.3d 272, 285 (3d Cir. 2007) (restriction on the number of religious books a prisoner may possess invalid where other facilities in the state system did not have such a restriction); Warsoldier v. Woodford, 418 F.3d 989, 1001 (9th Cir. 2005) (hair length restriction on male prisoners failed strict scrutiny where prison allowed female prisoners to keep long hair).
The same principle applies here. FDOC’s implementation of a statewide kosher diet program is fatal to its argument that denying such a diet is necessary to achieve a compelling interest. Accordingly, the United States is likely to succeed on the merits of its RLUIPA claim.4
4 Prior to Defendant’s adoption of the new Religious Diet Program, the U.S. District Court for the Northern District of Florida twice upheld FDOC’s failure to provide a kosher diet against challenges from pro se prisoners, citing budgetary and security concerns related to establishing a statewide kosher diet program. See Muhammad v. Crosby, 2009 WL 2913412 (N.D. Fla. 2009)
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2. Defendants cannot meet strict scrutiny because other institutions with the same interests as FDOC offer a kosher diet option
The ability of other corrections institutions to provide a kosher diet consistent with their
penological interests further demonstrates that FDOC cannot satisfy RLUIPA’s strict scrutiny
inquiry. Indeed, all comparably-sized correctional institutions in the United States – including systems operated by the Federal Bureau of Prisons, California, New York, Texas, and Illinois5 –
offer a kosher diet to prisoners with a sincere religious basis for requesting one. A survey by
FDOC’s own Study Group likewise found that 26 of the 32 state correctional systems surveyed
offered a kosher diet. See Exhibit A at 19-20. The experience of these institutions underscores
that FDOC’s outright denial of a kosher diet since 2007 is not necessary to achieve a compelling
government interest, as “the policies followed at other well-run institutions [are] relevant to a
determination of the need for a particular type of restriction.” Procunier v. Martinez, 416 U.S.
396, 414 n.14 (1974); see also Spratt, 482 F.3d at 42.
The Federal Bureau of Prisons’ kosher diet program is particularly relevant because BOP
“has managed the largest correctional system in the Nation under the same heightened scrutiny
standard as RLUIPA without compromising prison security, public safety, or the constitutional
rights of other prisoners.” Cutter v. Wilkinson, 544 U.S. 709, 725 (2005). Indeed, where BOP
accommodates a particular religious exercise, a defendant is unlikely to satisfy RLUIPA’s strict
scrutiny inquiry “in the absence of any explanation by [the defendant] of significant differences
and Linehan v. Crosby, 2008 WL 3889604 (N.D. Fla. 2008). These decisions are clearly inapt here, as Defendants have now promulgated a statewide kosher diet program that is fatal to their argument that not providing a kosher diet is necessary to achieve a compelling interest. Moreover, the unpublished decisions in Linehan and Crosby were limited to the meager factual records presented in those cases, which did not include the evidence currently before this Court relating to the kosher diet practices of comparable institutions. 5 Indeed, FDOC’s own study group recognized that California, New York, and Illinois provide a kosher diet option. See Ex. F. at 48. The Federal Bureau of Prisons has provided a kosher diet option since the early 1990s. See 8 C.F.R. § 548.20. The Texas Department of Criminal Justice has offered a kosher diet option for more than two years. See Moussazadeh, 703 F.3d at 794.
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between [its prison] and a federal prison that would render the federal policy unworkable.” Spratt, 482 F.3d at 42; see also Warsoldier, 418 F.3d at 999 (enjoining prison’s hair length policy where “[p]risons run by the federal government, Oregon, Colorado, and Nevada all meet the same penological goals without such a policy”).
Here, FDOC cannot identify any meaningful distinction between its operations and those of other large correctional institutions that require FDOC to deny access to a kosher diet. Absent such a distinction, the unanimous experience of other major American correctional institutions demonstrates that FDOC’s denial of a kosher diet cannot withstand strict scrutiny.
C. FDOC’s New Kosher Diet Plan Violates RLUIPA For the reasons set forth above, this Court should issue a preliminary injunction ordering Defendants to provide a kosher diet to all prisoners with a sincere religious basis for keeping kosher. Defendants’ new Religious Diet Program, issued seven months after the United States filed this litigation, does not vitiate the need for such an order. Rather, the Religious Diet Program violates RLUIPA by erecting barriers to participation that substantially burden religious exercise and are not narrowly tailored to a compelling government interest.
1. Barriers to entering the Religious Diet Program violate RLUIPA Admission to the Religious Diet Program is governed by an onerous seven-step process that substantially burdens the religious exercise of prisoners desiring to keep kosher. At least two elements of this process plainly violate RLUIPA. First, the Program requires prisoner applicants to consume non-kosher food for 30 to 90 days6 to demonstrate the “sincerity” of their request for a kosher diet. See Ex. F. at 5-6. This illogical provision imposes a substantial burden on its face, as it affirmatively requires prisoners to violate their religious beliefs after a FDOC 6 The Program initially requires applicants to the Program to consume non-kosher vegan food for 90 days. After December 2, 2013, FDOC will require applicants to eat the non-kosher vegan food for 30 days. Ex. F at 6.
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chaplain has deemed these beliefs sincere. See, e.g., Nelson v. Miller, 570 F.3d 868, 880 (7th Cir. 2009) (failure to provide a non-meat diet during 40 days of Lent a substantial burden); Lovelace v. Lee, 472 F.3d 174, 194 (4th Cir. 2006) (denying Muslim prisoner special Ramadan meals 24 out of 30 days violates RLUIPA); Warren v. Peterson, 2008 WL 4411566 (N.D. Ill. Sept. 25, 2008) (substantial burden to deny religious vegan meals for 13 consecutive days); see also Miles v. Moore, 450 F. Appx. 318, 319-20 (4th Cir. Oct. 19, 2011) (substantial burden to permit enrollment in religious services only on a quarterly basis). Nor is any compelling interest furthered by requiring prisoners to eat non-kosher meals for at least 30 days prior to gaining access to a kosher diet. This provision violates RLUIPA for the same reasons discussed on pages 8-10, supra.
Second, the Religious Diet Program violates RLUIPA by establishing a two-tiered process of prisoner interviews and follow up investigation focusing on the prisoner’s fidelity to religious dogma. See Ex. F at 5-6. This process is incompatible with the individualized sincerity inquiry RLUIPA prescribes. While RLUIPA “does not preclude inquiry into the sincerity of a prisoner’s professed religiosity,” Cutter, 544 U.S. at 725 n.13, such an inquiry must be “handled with a light touch” and limited “almost exclusively to a credibility assessment.” Moussazadeh, 703 F.3d at 792. It is difficult to imagine a heavier touch than the one contemplated by FDOC’s Religious Diet Program, which permits chaplains to conduct staff interviews, inspect prisoner records, review the prisoner’s past religious activities, conduct internet searches to “research diet requirements for specific religions,” and interview clergy. See Exhibit F at 6. FDOC’s screening procedures clearly “stray into the realm of religious inquiry,” where government officials “are forbidden to tread.” Moussazadeh, 703 F.3d at 792. Indeed, “clergy opinion has generally been deemed insufficient to override a prisoner’s sincerely held religious belief.” Koger, 523 F.3d at
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799; see also Jackson v. Mann, 196 F.3d 316-320 (2d Cir. 1999) (sincerity of a prisoner’s beliefs – not the decision of Jewish religious authorities – determines whether prisoner was entitled to kosher meals). Here, FDOC subordinates the prisoner’s professed religious beliefs to clergy opinion, FDOC staff opinion, and internet research. Doing so violates RLUIPA.
2. The Religious Diet Program’s removal provisions violate RLUIPA At least two of the Religious Diet Program’s removal provisions likewise violate RLUIPA. First, the Program removes participants who miss 10 percent of available meals, even if the prisoner never consumes a single non-kosher item. See Ex. __ at 3. This provision has no utility for gauging the sincerity of prisoners in the Religious Diet Program, and it punishes prisoners who may choose to skip a meal for personal or religious reasons. Second, the Program establishes rigid guidelines for removing prisoners who consume any item that FDOC does not consider “kosher.” A prisoner who purchases a non-kosher item from the commissary or consumes a non-kosher meal is suspended from the Religious Diet Program for 30 days for a first offense, 120 days for a second offense, and 1 year for all subsequent offenses. Ex. F at 8. Prisoners have no opportunity to explain their actions prior to removal. The Fifth and Seventh Circuits have specifically rejected this approach. In a recent decision, the Seventh Circuit noted that “a sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?” Grayson v. Schuler, 666 F.3d 450, 454 (7th Cir. 2012). Indeed, a “few lapses in perfect adherence do not negate [a prisoner’s] overarching display of sincerity.” See Moussazadeh, 703 F.3d at 792. There, the Fifth Circuit held that a Jewish prisoner who repeatedly purchased non-kosher items from the commissary nonetheless “established his sincerity as a matter of law” by requesting a kosher diet and
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pursuing litigation. Id. at 792. FDOC contravenes this principle by removing prisoners from the Religious Diet Program for consuming a single non-kosher item.
In short, several provisions of FDOC’s newly-enacted Religious Diet Program violate RLUIPA. These violations, combined with FDOC’s failure to provide a kosher diet to all but a handful of prisoners since 2007, demonstrate that the United States is likely to succeed on the merits of its RLUIPA claim. II. A PRELIMINARY INJUNCTION IS NECESSARY TO AVOID IRREPARABLE
HARM Absent an injunction, FDOC will continue to force hundreds of Florida prisoners to violate their religious beliefs by consuming non-kosher food, even under their new Religious Diet Program. This constitutes irreparable harm as a matter of law. It is well-established that the loss of First Amendment freedoms, even for brief periods, represents irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976). “This principle applies with equal force to the violation of RLUIPA rights because RLUIPA enforces First Amendment freedoms.” Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) (finding irreparable harm when RLUIPA is violated). In Warsoldier, the Ninth Circuit found that a prison regulation that burdened religious exercise under RLUIPA constituted irreparable harm. 418 F.3d at 1001-02 (raising a colorable claim of an RLUIPA violation “established that [prisoner] will suffer an irreparable injury absent an injunction”); see also Beerheide, 286 F.3d at 1192 (Failure to provide kosher diet burdens free exercise of religion in violation of the First Amendment); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“Courts have persuasively found that irreparable harm accompanies a substantial burden on an individual’s rights to the free exercise of religion under RFRA [statute applying RLUIPA standard to federal government]”); Reaching Hearts Int’l, Inc. v. Prince George’s Cnty., 584 F.Supp. 2d 766, 795 (D. Md. 2008) (“The infringement
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of one’s rights under RLUIPA constitutes irreparable injury.”). Here, FDOC’s dietary policies irreparably harm hundreds of prisoners on a daily basis by violating their right to religious exercise conferred by RLUIPA. III. A PRELIMINARY INJ UNCTION WILL NOT HARM DEFENDANTS
Issuing an order requiring Defendants to implement a kosher diet program and enjoining the new Religious Diet Program will not harm Defendants. Indeed, Defendants now appear to concede that they should implement a kosher diet program, although they continue to assert that they are not obligated to do so under RLUIPA and want to reserve the right to discontinue the program. Accordingly, Defendants cannot argue that they will be harmed by instituting a kosher diet program.
Moreover, an injunction requiring Defendants’ new Religious Diet Program to comply with RLUIPA is likely to lessen the administrative burden on FDOC staff. The impermissible components of the Religious Diet Program create significant administrative responsibilities, such as requiring FDOC staff to conduct multiple rounds of interviews and follow-up investigations to assess the “sincerity” of Program applicants, track and analyze all prisoner commissary purchases, monitor meal attendance, and respond to grievances and re-applications from prisoners removed from the Program. Requiring Defendants to implement a policy that offers a kosher diet option in accordance with RLUIPA will ease these burdens. For example, the Federal Bureau of Prisons admits to its kosher diet program all prisoners who make a request and submit to a single brief sincerity interview with a chaplain. See 28 C.F.R. § 548.20. Similarly, a federal court recently ordered the Indiana state prison system to admit prisoners to a kosher diet program without any interviews to test sincerity. See Final Judgment and Injunction, Willis v. Indiana Dep’t of Corrections, No. 1:09-cv-815 (S.D. Ind. Dec. 8, 2010), Dkt. No. 110 at 2
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(ordering state “to provide certified kosher meals to all inmates who, for sincerely held religious reasons, request them in writing”).
Further, because the Religious Diet Program violates RLUIPA, an injunction will save Defendants from expending resources to train staff and otherwise implement a policy that is likely to be invalidated. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (enjoining implementation of a policy that is likely to be found a violation of law does not harm defendants). In short, an injunction will not burden Defendants. IV. A PRELIMINARY INJ UNCTION SERVES THE PUBLIC INTEREST
Enforcement of federal statutes is in the public interest. United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012) (“Frustration of federal statutes and prerogatives are not in the public interest”). This principle applies with special force to RLUIPA, which passed both houses of Congress unanimously as “the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens.” Cutter, 544 U.S. at 713. By its terms, RLUIPA is broadly construed in favor of religious liberty “to the maximum extent permitted by [the statute] and the Constitution.” 42 U.S.C. § 2000cc-3g. In enacting RLUIPA, Congress recognized that “some institutions restrict religious liberty in egregious and unnecessary ways,” and noted that “[s]incere faith and worship can be an indispensible part of rehabilitation.” 146 Cong. Rec. S6678-02, at S6688-89 (daily ed. July 13, 2000). By making these findings and enacting RLUIPA, Congress indicated that protection of prisoners’ religious liberties is in the public interest. See, e.g., Monaghan v. Sebelius, No. 12-15488, 2013 U.S. Dist. LEXIS 35144 at *35 (E.D. Mich. Mar. 14, 2013) (finding it in public interest that plaintiff not be compelled to act in conflict with his religious beliefs).
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CONCLUSION Defendants’ failure to provide a kosher diet since 2007 violates RLUIPA, as does the flawed Religious Diet Program that Defendants issued in response to this litigation. A preliminary injunction ordering Defendants to provide a kosher diet to all prisoners with a sincere religious basis for keeping kosher is necessary to stop these violations and prevent their future recurrence. Indeed, Defendants previously terminated a statewide kosher diet program against the recommendation of their own Study Group and continue to assert that they have no legal obligation to provide a kosher diet to any Florida prisoners. Accordingly, the United States asks this Court to issue a preliminary injunction ordering Defendants to provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher and to enjoin Defendants’ new Religious Diet Program to the extent it violates RLUIPA.

Respectfully submitted,

WILFREDO A. FERRER United States Attorney Southern District of Florida

ROY L. AUSTIN Deputy Assistant Attorney General Civil Rights Division

VERONICA HARRELL-JAMES Assistant United States Attorney Southern District of Florida

JONATHAN M. SMITH Chief Special Litigation Section
TIMOTHY D. MYGATT Special Counsel Special Litigation Section
s/ Michael J. Songer____________ MICHAEL J. SONGER
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DATED: April 10, 2013

Special Florida Bar # 5501751 DEENA FOX Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-6255 michael.songer@usdoj.gov
Attorneys for the United States of America

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Case 1:12-cv-22958-PAS Document 29 Entered on FLSD Docket 04/10/2013 Page 20 of 20 CERTIFICATE OF SERVICE
I certify that the foregoing United States’ Motion for a Preliminary Injunction was served through the electronic filing service on April 10, 2013, to the following individuals: Susan A. Maher Chief Assistant Attorney General Office of the Attorney General The Capitol – PL01 Tallahassee, FL 32399 Susan.Maher@myfloridalegal.com Attorney for Defendants
s/ Michael J. Songer MICHAEL J. SONGER Attorney for the United States
20

 </s> Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

United States of America, Plaintiff;
v. Secretary, Florida Department of Corrections; and Florida Department of Corrections,
Defendants.

No. 1:12-cv-22958 AMENDED COMPLAINT

THE UNITED STATES OF AMERICA hereby files this Amended Complaint and alleges upon information and belief:
INTRODUCTION 1. By failing to offer kosher meals to prisoners with a sincere religious basis for keeping
kosher, the Florida Department of Corrections (“FDOC”) forces hundreds of prisoners to violate their core religious beliefs on a daily basis, in violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (“RLUIPA”). 2. Keeping kosher is a central tenet of Judaism and other religious traditions observed by prisoners incarcerated at FDOC facilities. FDOC’s dietary policies substantially burden the religious exercise of many of these prisoners. 3. FDOC’s refusal to provide a kosher diet consistent with RLUIPA makes the Department an outlier among American correctional institutions. The Federal Bureau of Prisons (“BOP”) and most state departments of correction offer kosher meal options to all prisoners with a religious basis for keeping kosher.

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 2 of 15
4. FDOC offered kosher meals until late 2007, when it discontinued its kosher diet program over the objections of its own Study Group on Religious Accommodation. Indeed, FDOC disregarded the Study Group’s warning that ending the kosher food program would violate RLUIPA.
5. From 2007 – 2013, FDOC denied a kosher diet to all prisoners except for approximately one dozen prisoners in a single facility who have had access to a kosher pilot program since late 2010.
6. Months after the United States filed this case, Defendants changed course and admitted that they could offer a kosher diet consistent with their interests. At a hearing in June 2013, multiple FDOC officials stated that FDOC was capable of offering a kosher diet statewide consistent with its interests.
7. In April of 2013, eight months after the United States filed this litigation and after this Court denied Defendants’ Motion to Dismiss, FDOC issued a new statewide dietary policy purporting to offer a kosher diet by September 2013. FDOC then asked the Court to find that this litigation was moot because “it is unambiguous that we intend to go forward to provide a system-wide kosher diet.”
8. Nevertheless, FDOC never implemented the new Religious Diet Program. Rather, in October 2013, FDOC indicated that it had “revisited” its statewide kosher diet plan and instead would offer a kosher diet in no more than six facilities.
9. Currently, Defendants offer a kosher diet in only a single facility. FDOC’s dietary policies continue to burden the religious exercise of hundreds of prisoners on a daily basis.
2

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 3 of 15
10. FDOC’s dietary policies for prisoners who seek to keep kosher are a constantly moving target, but one feature of the policies is consistent: they continue to burden the religious exercise of hundreds of prisoners.
11. The United States seeks declaratory and injunctive relief to remedy Defendants’ violations of the law, and to ensure that FDOC implements sustainable reforms that guarantee the religious freedoms protected by RLUIPA. The United States seeks this relief to remedy Defendants current violations of RLUIPA and any future dietary policies or practices of FDOC that continue to violate RLUIPA and deny a kosher diet to any prisoner with a sincere religious basis for keeping kosher. DEFENDANTS
12. Defendant Secretary of the Florida Department of Corrections is the ultimate decisionmaker with authority to approve all FDOC policies, including its dietary policies. The current Secretary of FDOC is Michael D. Crews, who is sued in his official capacity.
13. Defendant Florida Department of Corrections incarcerates over 100,000 prisoners in 146 facilities across the state of Florida, including 68 prisons, 40 work camps, and 33 work release centers. FDOC has an annual budget of approximately $2.4 billion and employs 25,000 people.
14. FDOC receives federal funding and is an “institution” within the meaning of 42 U.S.C. § 2000cc-1(a) and 42 U.S.C. § 1997. JURISDICTION AND VENUE
15. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1345. 16. The United States is authorized to initiate this action against Defendants under RLUIPA,
42 U.S.C. § 2000cc-2(f).
3

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 4 of 15
17. The declaratory and injunctive relief sought by the United States is authorized by 42 U.S.C. § 2000cc-2(f) and 28 U.S.C. §§ 2201 and 2202.
18. Venue is proper in the Southern District of Florida pursuant to 28 U.S.C. § 1391(b). Defendants operate approximately 20 facilities in the Southern District of Florida, including the South Florida Reception Center that contains the pilot kosher program; Defendants incarcerate in the Southern District of Florida dozens of Jewish prisoners desiring to keep kosher, including prisoners named in this Complaint; and virtually all of the events, actions, or omissions giving rise to this claim occurred in Florida. FACTUAL ALLEGATIONS
19. FDOC’s dietary policies violate the federal rights of hundreds of prisoners by forcing prisoners with a religious basis for consuming kosher meals to violate their core religious beliefs.
20. The substantial burden that FDOC’s dietary policies impose on these prisoners is not necessary to achieve any compelling state interest. Indeed, the Federal Bureau of Prisons and most state departments of correction offer kosher meals while achieving interests that are indistinguishable from FDOC’s.
21. FDOC itself acknowledges that it can provide a kosher diet statewide consistent with its interests, and further demonstrates that it can provide a statewide kosher diet option by voluntarily adopting the Religious Diet Program. I. FDOC Does Not Provide Kosher Meals to All Prisoners Who Have A Sincere Religious Basis for Keeping Kosher
22. Prior to this litigation, FDOC denied a kosher diet to virtually all of its prisoners.
4

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 5 of 15
23. Currently, FDOC offers a kosher diet only to prisoners admitted to the Religious Diet Program in the Union Correctional Institution (“Union C.I.”), and the handful of prisoners eligible for the “pilot” kosher program in the South Florida Reception Center.
24. At all other institutions, FDOC offers two mainline dining options: a meat entrée and non-meat entrée. In addition to these options, prisoners may request vegan meals by submitting a request to the food service director.
25. FDOC also provides a variety of therapeutic diets, including a prenatal diet, liquid diet, puree diet, mechanical dental diet, mental health diet, low residue diet, fat intolerance diet, calorie regulated diet, and a renal diet.
26. FDOC does not offer any system-wide kosher diet. 27. Keeping kosher requires adherence to the laws of kashruth, which prescribe religiously
acceptable sources of food and methods of food preparation. 28. To be kosher, a food item must derive from religiously-acceptable sources, be stored in
kosher containers, prepared in a particular manner, and served on tableware that has not contacted non-kosher food. In addition, meat and dairy products may not be mixed. 29. While most correctional institutions in the United States offer kosher meals consistent with these requirements, many Florida prisoners desiring to keep kosher cannot do so. II. FDOC Previously Offered Kosher Meals, But Discontinued Its Kosher Food
Program Against the Advice of Its Own Study Group 30. From 2004 to 2007, FDOC’s “Jewish Dietary Accommodation Program (“JDA
Program”) served kosher meals to 784 prisoners, with an average daily enrollment of 250. During the last year of JDAP’s operation, the program was open to prisoners of all faiths.
5

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 6 of 15
31. Under that program, FDOC assigned eligible prisoners to one of thirteen FDOC facilities equipped to offer kosher meals. These facilities had the capacity to serve kosher meals to 900 prisoners per day, easily sufficient to accommodate the JDA Program’s average enrollment of 250 prisoners per day.
32. In April 2007, FDOC commissioned a Study Group to review the JDA Program. The Study Group’s report (“the Report”) noted several challenges associated with offering kosher meals, but recommended that FDOC “[r]etain a kosher dietary program,” with participation limited to “those inmates who have been expertly appraised or vetted by a rabbi as eligible to participate.”
33. Indeed, the Study Group concluded that RLUIPA requires FDOC to provide kosher meals. The Report explained that a prisoner desiring to keep kosher “is substantially burdened” by the denial of kosher food “because the regulations [denying kosher food] leave him with no meaningful choice. He may either eat the non-kosher food and fail to obey his religious laws or not eat the non-kosher food and starve.”
34. The Report further posited that “it is improbable that [FDOC] can satisfy a court’s inquiry into whether the department is furthering a compelling interest, let alone that denying inmates’ religious accommodation is the least restrictive means available.”
35. Despite the Study Group’s recommendation to continue providing kosher meals to eligible prisoners, FDOC terminated the JDA Program on August 16, 2007. III. FDOC’s Dietary Policies Unlawfully Burden Religious Exercise
36. Defendants denied a kosher diet to virtually all prisoners from 2007 – 2013. After the United States filed this litigation, however, Defendants have announced a flurry of new
6

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 7 of 15
dietary policies. Each of these dietary policies substantially burdens the religious exercise of many FDOC prisoners desiring to keep kosher. 37. Before the present litigation, FDOC denied a kosher diet to virtually all prisoners it incarcerated. In 2010, Defendants made a small exception to their blanket denial of a kosher diet by offering a kosher diet to roughly one dozen prisoners in a single facility – the South Florida Reception Center. 38. In March 2013, months after the United States filed this litigation, Defendants announced a new statewide Religious Diet Program that purportedly would offer a kosher diet to all sincere prisoners by September 2013. This policy continued to violate RLIUPA by restricting access to a kosher diet in several ways, including: requiring prisoners seeking a kosher diet to consume exclusively non-kosher food for 90 days; removing prisoners from the kosher diet program for consuming a single item that FDOC deems “not kosher”; missing ten percent of the available meals, even if every meal a prisoner ate was kosher; and requiring prisoners to answer questions about religious dogma as a prerequisite for accessing a kosher diet. 39. In May 2013, FDOC revised its statewide kosher diet policy to remove the 90-day waiting period requirement. The May 2013 policy continued to limit participation in the kosher program based on the other three requirements discussed in Paragraph 37. The May 2013 policy had an effective date of September 2013. In June 2013, Defendants advised the court that the United States’ litigation was moot because “it is unambiguous that we intend to go forward to provide a system-wide kosher diet.” 40. Defendants never implemented a statewide kosher diet option.
7

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 8 of 15
41. In October 2013, Defendants advised that they are no longer planning on implementing a statewide kosher diet program. Rather, they are only considering expanding the current kosher diet program at Union C.I. to between two and six additional facilities. FDOC’s latest kosher diet policy continues to exclude prisoners based on impermissible criteria, such as consuming a single non-kosher item and electing not to eat a certain percentage of meals. Moreover, the kosher diet will only be available in a handful of FDOC’s 60 major facilities. Accordingly, the new program will substantially burden the religious exercise of many prisoners with a sincere religious basis for consuming a kosher diet.
42. In November 2013, Defendants announced that they will utilize an even stricter “sincerity” test to limit access to the Religious Diet Program. The new requirement forces prisoners to “clarify the specific law(s) connected to your belief or faith that require(s) you to eat a religious diet.” This requirement will exclude sincere prisoners from the Program who are not able to answer questions about religious dogma to Defendants’ satisfaction.
43. Consuming a kosher diet is a fundamental tenet of Judaism and other religions practiced by FDOC prisoners. FDOC’s dietary policies deny a kosher diet to many of these prisoners and substantially burden their religious exercise.
44. FDOC’s dietary policies substantially burden the religious exercise of hundreds of prisoners. For example: a. Bruce Rich is an observant Jew who is serving a life sentence at Union Correctional Institution. Mr. Rich has been a sincere adherent of the Jewish faith since childhood, and has remained committed to his observance while incarcerated. Mr. Rich celebrates Jewish holidays, observes the Sabbath, studies
8

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 9 of 15
religious texts, and acts as the rabbi for the Sabbath services within his institution. Because Mr. Rich believes that eating only kosher food is a Biblically mandated obligation, he has sustained himself by purchasing kosher food items from the canteen rather than eating food that is not kosher. In an effort to obtain kosher food from FDOC, Mr. Rich filed a lawsuit in 2010 and has faithfully litigated his case in district and circuit court. FDOC dietary policies substantially burden Mr. Rich’s religious exercise. b. Robert Gray is a 55-year-old prisoner housed at Everglades Correctional Institution. Mr. Gray is a sincere adherent of Judaism and has requested a transfer to the South Florida Reception Center so that he can participate in the pilot kosher program. To date, FDOC has not granted his request, forcing Mr. Gray to violate his religious beliefs by consuming non-kosher food. c. Leonard Shuster is a 52-year-old Jewish prisoner incarcerated in the Central Florida Reception Center. Mr. Shuster has submitted several lengthy requests for kosher meals that explain how his religious beliefs compel him to eat properly prepared kosher foods. In December 2011, FDOC denied Mr. Shuster’s request by stating simply that its vegetarian meal option “allows the majority of religious groups . . . to meet the basic tenets of their belief systems.” FDOC’s dietary policies continue to force Mr. Shuster to violate his religious beliefs daily by consuming non-kosher food. d. Richard Shapiro is a Jewish prisoner who has been incarcerated at FDOC since 1999. He is currently housed in the Everglades Correctional Institution. Mr. Shapiro was raised by two Jewish parents and has been a sincere adherent to the
9

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 10 of 15
Jewish faith his entire adult life. FDOC’s refusal to provide a kosher diet forces Mr. Shapiro to violate his religious conviction that his faith requires him to keep kosher. e. John Phillips is a Jewish prisoner incarcerated by FDOC. Mr. Phillips was raised by two Jewish parents and has been a sincere adherent to the Jewish faith his entire adult life. He believes his faith requires him to keep kosher. FDOC’s dietary policies force Mr. Phillips to violate his religious convictions on a daily basis. f. Philip Melton is a Jewish prisoner incarcerated at the FDOC since 2009. Mr. Melton is currently housed in the Tarpon Springs Work Release Center. Mr. Melton’s mother was Jewish by birth, and he has been a sincere adherent of the Jewish faith throughout his adult life. Mr. Melton believes that keeping kosher is a core aspect of his religious practice. FDOC’s refusal to provide kosher meals substantially burdens Mr. Melton’s religious exercise. g. Henry Camacho is a 49-year-old Jewish prisoner serving a life sentence. Mr. Camacho is incarcerated in the South Bay Correctional Facility. Mr. Camacho believes that keeping kosher is a core part of his religious faith. FDOC’s refusal to provide kosher meals substantially burdens Mr. Camacho’s religious exercise, and will continue to do so for the remainder of his life sentence. h. Murray Breitberg is a 70-year-old Jewish prisoner who has been incarcerated at FDOC for the past 12 years. Mr. Breitberg is currently housed in the South Bay Correctional Facility, where he is serving a life sentence. Mr. Breitberg believes that consuming exclusively kosher food is an important part of his religious
10

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 11 of 15
practice. FDOC’s dietary policies substantially burden Mr. Breitberg’s religious exercise, and will continue to do so for the duration of his life sentence. i. William Newkirk is a 53-year-old Jewish prisoner serving a life sentence. Mr. Newkirk is currently housed in the South Bay Correctional Facility, where he does not have access to kosher meals. Mr. Newkirk believes such meals are important to exercising his Jewish faith. FDOC’s dietary policies force Mr. Newkirk to violate his religious beliefs on a daily basis by consuming non-kosher food. j. James Lopiano is a 24-year-old prisoner incarcerated in the Dade Correctional Institution. Mr. Lopiano is a sincere adherent of the Jewish faith, which he believes compels him to keep kosher. FDOC’s dietary policies substantially burden Mr. Lopiano’s religious exercise, and will continue to do so until his release, which is not scheduled until 2033. k. Paul Inkeles is a 60-year-old minimum security prisoner incarcerated in the Martin Correctional Institution. Mr. Inkeles is a sincere adherent of the Jewish faith, which he believes compels him to consume kosher food. FDOC’s dietary policies substantially burden Mr. Inkeles’s religious exercise. l. Edrian Katz is a 37-year-old minimum security prisoner housed in the Sago Parl Re-entry Center. Mr. Katz is a sincere adherent of the Jewish faith who believes that keeping kosher is an important aspect of his religious practice. FDOC’s dietary practices substantially burden Mr. Katz’s religious exercise. m. Mark Schack is a 50-year-old prisoner serving a life sentence. Mr. Schack is currently housed in the Okeechobee Correctional Institution. He is a sincere
11

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 12 of 15
adherent of the Jewish faith who believes keeping kosher is an important part of his religious exercise. FDOC’s dietary policies substantially burden Mr. Schack’s religious exercise. 45. FDOC’s dietary policies likewise burden the religious exercise of hundreds of other prisoners. IV. Providing A Kosher Diet Is Consistent With FDOC’s Compelling Government Interests 46. FDOC is capable of providing kosher meals to prisoners consistent with its compelling government interests. 47. From 2004 to 2007, FDOC provided kosher meals to all prisoners deemed eligible by a screening process that measured the sincerity of their religious convictions. During this period, FDOC’s kosher food program enrolled an average of 250 prisoners per day. 48. In 2007, a Study Group commissioned by the FDOC Secretary recommended that FDOC continue to make kosher meals available to prisoners deemed eligible by the religious sincerity screening. FDOC rejected the advice of its own Study Group and discontinued its kosher program. 49. FDOC’s termination of its kosher food program was not supported by any studies or analysis other than the Study Group Report, which recommended that FDOC maintain the program. FDOC did not consider numerous alternative ways to provide kosher meals consistent with its compelling interests. 50. Most states and the federal government offer kosher diets to prisoners. BOP offers a kosher diet to prisoners at each of its 115 major facilities. 51. FDOC’s voluntary operation of a kosher pilot program at the South Florida Reception Center further demonstrates that it can provide kosher food consistent with its compelling
12

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 13 of 15
interests. Since FDOC initiated the pilot program on August 16, 2010, it has spent approximately $4.70 per day to provide kosher meals to prisoners in the program. 52. After initially authorizing the pilot program to run for 6 months, FDOC has continued it for the past three years. 53. FDOC’s actions since this lawsuit began further demonstrate its ability to offer a statewide kosher diet program available to all prisoners. 54. In March 2013, FDOC promulgated a new Religious Diet Program and represented that it would implement this policy at all 60 of its major facilities. 55. At a preliminary injunction hearing in June 2013, Defendants represented to the Court that they were committed to a statewide kosher diet program. 56. Several FDOC officials testified at the June 2013 preliminary injunction hearing that FDOC can provide a statewide kosher diet program consistent with its interests.
CLAIM FOR RELIEF: DEFENDANTS’ DIETARY POLICIES VIOLATE RLUIPA
The United States incorporates by reference the allegations set forth in Paragraphs 1 – 56 as if fully set forth herein. 56. From 2007 – 2013, Defendants denied kosher meals to virtually all prisoners in their
custody who requested the meals in accordance with their religious beliefs. Starting in 2013, Defendants have announced several new dietary policies that continue to restrict access to a kosher diet in important ways. 57. None of these new policies has been implemented, and FDOC currently denies a kosher diet to hundreds of prisoners who have a sincere religious basis for keeping kosher.
13

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 14 of 15
58. Defendants’ failure to provide a kosher diet to all prisoners with a sincere religious basis for keeping kosher - whether as part of FDOC’s prior blanket denial of a kosher diet or under FDOC’s revised dietary policies – substantially burdens the religious exercise of prisoners in its custody. Failure to offer a kosher diet to sincere prisoners does not further a compelling government interest, and is not the least restrictive means of doing so.
59. Accordingly, FDOC’s dietary policies violate RLUIPA, 42 U.S.C. § 2000cc. PRAYER FOR RELIEF
RLUIPA authorizes the United States to seek injunctive and declaratory relief for Defendants’ failure to provide a kosher diet to prisoners in their custody who desire such a diet to exercise their religious beliefs. WHEREFORE, the United States prays that the Court:
a. Declare that Defendants have violated RLUIPA by failing to offer kosher meals to prisoners in their custody who desire a kosher diet to exercise their religious beliefs;
b. Order Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them, to provide nutritionally sufficient kosher meals to all prisoners in their custody who have a sincere religious basis for keeping kosher; and
c. Order such other relief as the interests of justice may require.
14

Case 1:12-cv-22958-PAS Document 104 Entered on FLSD Docket 11/25/2013 Page 15 of 15

Respectfully submitted for the United States of America,

WIFREDO A. FERRER United States Attorney Southern District of Florida VERONICA HARRELL-JAMES Assistant United States Attorney Southern District of Florida
DATED: November 25, 2013

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
TIMOTHY D. MYGATT Special Counsel Special Litigation Section
s/ Michael J. Songer MICHAEL J. SONGER Special Florida Bar # A5501751 DEENA FOX Attorneys United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-6255 michael.songer@usdoj.gov

15

 </s> Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 1 of 34

U NITED STA TES DISTR IC T C O U RT SO U TH ER N DISTRIC T O F FLO R ID A CASEN O.12-22958-CIV-SEITZ/SIM ONTON
UNITED STATES OF AM ERICA ,
Plaintiff,

VS.

SECRETA RY ,FLORID A D EPAR TM EN T O F CORRECTION S,etal.,
D efendants. /

O R DER

GR

AN TIN G

M

O TIO N

FO

R

PRELIM

IN AR Y

IN JUN

CTIO N .

R ESE TTIN G

TRIA L DATE.AND SETTING STATUS CONFERENCES

THISM ATTER isbeforetheCourtontheUnitedStates'M otionforPreliminary

Injunction(DE-291,theresponsegDE-34),thereply(DE-401,severalsupplementalevidentialy filingsbyDefendants(DE-72,75,99J,andPlaintiffsresponsetoDefendants'supplemental tilingsgDE-88).Further,theCourtheldanevidentiaryhearingontheM otionforPreliminary

InjunctiononJune4and5,2013.TheUnitedStatesbroughtthisactionallegingthatDefendants

are in

violation

oftheReligiousLandU

se and

lnstitutionalized

PersonsActof2000 ,

42U.S.C.j

2000cc (RLUIPAIIbecausetheydonotservekoshermealstothoseprisonerswhosereligious

beliefsrequire kosherm eals.

A

fter the

United

States instituted

this action ,

D

efendants

announced anew ReligiousDietProgram ,thatwouldprovidekosherm ealsundercertain

circumstances.TheM otionforPreliminaryInjunctionseeksanorderrequiringDefendantsto

l'rhisaction wasfiledpursuantto42U.S.C.j2000cc-2(9,whichgivestheDepartment ofJusticetheauthoritytoenforcecompliancewithj2000cc-1byeitheranactionforinjunctive
reliefordeclaratoryreliefonbehalfoftheUnitedStateswho hasanobligatoryinterestin
protecting thereligiousliberty ofallprisoners.

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 2 of 34

providekosherm ealsto al1prisonersw ith a sincerereligiousbeliefforkeepingkosherand
enjoiningtheimplementationofcertainaspectsoftheReligiousDietProgram, whichtheUnited
StatesassertsviolateRLUIPA . BecausetheUnitedStateshasm etitsburden ofestablishingits
entitlementtoapreliminaryinjunction,theM otionisgranted.
FIND IN G S O F FA CT

Florida D epartm entofC orrections

TheFloridaDepartmentofCorrections(STDOC''orûr efendants'')incarcerates

approxim ately 102,000prisonersin 60m ajorfacilities,UndisputedFactsat1, w ith an operating
budgetof$2.1billionforthe2013-2014 fiscalyear. June5Tr.at4.

FD

O

C

receivesfederalfunds,U

ndisputed

Facts at 3 ,

andissubjecttoRLUIPA.

42U.S.C.j2000cc1(b).

FDOC incarceratesprisonerswhohaveasincerereligiousbasisforkeeping kosher.U ndisputed Factsat4. 1l. Defendants'H istory ofProviding a K osherD iet

4.

Priorto 2004,Defendantsdid notofferakosherdietto any prisoners .

U ndisputed

Facts at 5.

5. InSeptember2002,anFDOC prisonernamedAlanCottonfiledsuitinthe U .S.

D istrictCourtforthe Southern D istrictofFlorida seeking akosherdiet .

Cottonv.Dep'tofcorr.,

No.l:02-cv-22760(S.D.Fla.2002).

ln A

pril2004,shortly

aherthe

Cotton

case settled ,

D

efendantsinstituted

a kosher

dietprogram

known astheJewishDietAccomm odation Program

(ç7DAP'') .

U .S.Ex.2.

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 3 of 34

JDA P

offered kosherm

eals in

13 FD O C

facilities .

Prisonerseligibleto

participatein JD A P w eretransferred to one ofthese 13 facilities
.

1d. lnitially,onlyJewish

prisonerswereeligibleto participatein

JDA P ,

butD efendantsopened theprogram

to prisoners

ofa11faithsin2006. Id ;June5Tr.at88.

8. ln early 2007, FDOC Secretary Jim M cDonough comm issionedaReligiousDiet

StudyGroupto evaluateJDAP .

Id

OnJuly26,2007, theStudyGroupissueditsreport(the

ftlleport''l. TheReportrecommendedthatDefendantstdretainakosherdietaryprogram,''and

thatfailureto doso w ould likely violate RLUIPA .

U .S.Ex.2 at27.TheStudy Group stated that

aprisonerdesiring to keep kosherççissubstantially burdened''by thedenialofkosherfood

(lbecausetheregulationsgdenyingakosherdiet)leavehim

withnomeaningfulchoice .

Hem ay

eithereatthenon-kosherfood and failto obey hisreligiouslaw sornoteatthenon-kosherfood

and starve.''Id

9.

D

espitetheReport'srecom

m

endation ,

D

efendantsterm

inated JD

A

P

in

August

2007.

Undisputed

Factsat

11;June4

Tr .

at56.

10.

D

uring

the three

and

a half years of JD

AP'Soperation ,

atotalof784

prisoners

enrolledintheProgram,withanaverageenrollm entof250prisonersperday .

U .S.Ex.2. In

April2007 -ten m onthsaherD efendantsopened theprogram

to prisonersofallfaiths -

259

prisonerswereenrolled,and 95applicationswerepending .

June5 Tr.at88-89.IfD efendants

hadacceptedeveryoneofthe95applicationsandnoprisonershadlefttheprogram ,itw ould

haveenrolledamaxim um

of364prisoners .

June 5 Tr.at89.

11. TheprisonerpopulationintheFloridaDepartm entofCorrectionsisroughlythe

sam etoday asitwasin 2007. June5 Tr.at89.

3

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 4 of 34

Like

thefinalyearofJD

A

P ,

the new

ReligiousDietProgram

(é:RDP'')isopento

prisonersofallfaiths. June5 Tr.at86.

Afterterm

inating

JD

AP ,

D

efendants did

notofferakosherdietto

any

prisoner for

thenextthreeyears. June4 Tr.at56.

14. lnAugust2010, Defendantsinstitutedadtpilot''kosherdietprogram (thetipilot

Program '')intheSouthUnitoftheSouthFloridaReeeption Center((çSFRC'') .

Undisputed

Facts

at 18.EnrollmentinthePilotProgram rangedfrom 8to 18prisonersduring theprogram 's

existence. U ndisputedFactsat

l9;June

4

Tr .

at 56.

ThePilotProgram

wasneverexpanded to

any facilitybesidesSFRC. Thus,from 2007-2013, FD O C did notofferakosherdietto any
prisonersexceptforthe sm allnum berofprisonersin thePilotProgram
.
15. Defendantsoriginallycomm ittedtoexpandingthePilotProgram inOctober2010, seeU .S.Ex.20,butchangedcourseandneverexpandedtheprogram toanyadditionalprisoners. June4 Tr.at59.

16. Defendants'September2010review ofthePilotProgram foundthatthetotal
cost
ofprovidingakosherdiettoprisonersintheprogram was$4.71perday.U.S.Ex.7. Since August2007,D efendantshave offeredthreeprim arydietoptionsintheir60

majorfacilities.(1)amainline;(2)aveganoption;and(3)ano-meatoption. U .S.Ex.1.None

ofthesedietoptionsiskosher. SeeRich v.Secretary, FloridaDep 'tofcorrections,716F.3d

525,528(11thCir.2013)(dtnoneofthesedietsarekosher');June5Tr. atl06.ln2007,

D efendantsrem oved

allpork productsfrom

their food

service

offerings .

U

.S.Ex.2;June5

Tr.at

90.

4

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 5 of 34

ln

addition

to

the m

ain

line ,

no-m

eat,and

vegan

dietoptions ,

Defendantsofferat

leastl5m edicalandtherapeuticdietsateachfacility .

U

.S.Ex.4.D efendantshave successfully

m anagedallsecurityand budgetaryissuesrelatedtoproviding thesespecialdietsforyears. June 4 Tr.at60.

111. Defendant'sLitigationPostureln KosherDietCases

19.

Since

discontinuing

JDA

P

in

2007 ,

D

efendants have defended

theirrefusalto

offerakosherdietinatleastfivelawsuitsfiledbyproseprisoners:M arshallv.FlDep'tof

Corr,2011U.S.Dist. LEXIS35057(S.D.Fla.2011);Richv.Buss,N o.1:10-cv-157('N.D.Fla.

2010);Muhammadv.Crosby,2009W L2913412(N.D.Fla.2009);Youngv.McNeil,2009W L

2058923(N.D.Fla.2009);andfinehanv. Crosby,2008W L 3889604(N.D.Fla.2008). June5

Tr.at153(t'W ehavelitigatedthisissueseveraltimes''). A gainsteach pro seprisoner,
Defendantslitigated them eritsoftheirrightto deny akosherdiet .

20.

ln

M

ay

2011 ,

theUnited

Statesopened

afonnalinvestigation

ofFD

OC

'S dietary

policies.U.S.Ex.18. TheUnitedStates'ls-m onthinvestigationincluded thereview of

thousandsofpagesofdocum

ents,

retaining

expertconsultantsinprison

adm

inistration ,

and

inspecting fourFDOC facilities. InAugust2012,theUnited States'investigationconcludedthat

Defendants'failureto offerakosherdietviolated RLUIPA .

The

United

Statesadvised

Defendantsofthisconclusion

on

A

ugust 1 ,

2012,and

offeredtoworkwith FDOC tonegotiatearesolution thatmadeakosherdietavailable to all

Floridaprisonerswith sincerereligiousgroundsforkeeping kosher .

U .S.Ex.19.D efendants

refusedtoconsideranychangetotheirpoliciesinresponsetothefindingsoftheUnited States'

investigation,and

on

A

ugust l4 ,

2012,the

United

States filed

theinstantsuit .

Com

plaint,D

E-I.

5

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 6 of 34

AfterthisCourtdeniedD efendants'M otion toD ism issorTransferV enue,DE-

13,thepartiespartook

in

court-ordered

m

ediation

on

January

17
,

2013.

Atthism

ediation

session,Defendantsagreedtosubm itakosherdietproposaltotheUnited Statesby M arch 4 ,

2013.

JointM

ot.to

Stay ,

DE-24.

TheCourtstayed

this litigation

untilApril19 ,

2013,to

facilitate settlem

entdiscussions .

D E-27.

23. OnM arch 22, 2013,whilethecasewasstayedforsettlem entdiscussions ,

Defendantsissuedanew policy-Procedure503.006-calledtheReligiousDietProgram . U .S.

Ex.3.DefendantsdidnotnotifytheUnitedStatesofthisnew policy . lnstead,theU nited States

frstlearned

ofthepolicy

on

A

pril2 ,

20 13

from

counselin separatelitigation againstD efendants'

dietary

policies.

Status Rpt .,

D

E-28.

24.

One week afterlearning ofthenew

policy s

the United

StatesEled a M

otion fora

Preliminarylnjunction,DE-29,andtheCourtliftedthestayinthisactiononApril15 ,

2013,D

E-

In

this litigation

with

the U

nited

States ,

D

efendantscontinuetoassertthat

prisonersdonothavearighttoakosherdietunderRLUIPA andthatDefendantsm aylawfully

denypriosnersakosherdietatanytim e .

SeeD efs'Opp.to U .S.M

ot. forPrelim.lnj.(''Opp.'')at

2,'June4 Tr.at154.

IV. D efendants'N ew R eligiousD ietProgram

26. Defendantsannouncedthattheywereimplementingthenew ReligiousDiet

Program

(lkDP)inasinglefacility-theUnionCorrectionalInstitution-onApril5 ,

2013. The

Union

Correctionallnstitution

housesBruceR

ich ,

the plaintiff in

alzongoing

law

suitagainst

FDOC seekingakosherdiet,whoseappealwasarguedbeforetheEleventhCircuitonApril18 ,

6

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 7 of 34

2013.U.S.Ex.11.AftertheEleventhCircuitrejectedDefendants'argumentthatthenew policy
mootedtheRichcase,DefendantsalmouncedthattheUnion program wouldnotbegin untilat leastJuly 1,2013. June4 Tr. at6.

Byitstenns,theRDPwastobecom eeffectivein allotherinstitution in

Septem ber2013.U .S.Ex.3.

28. lfim plem ented,theRDP willofferacertifiedkosherdiettoeligibleprisonersat

participatingFDOC facilities. U.S.Ex.3.Thesekosherm ealswillconsistofprepackaged ,

certifedkosherentreesin additionto item sfrom FDOC'Snorm alfood serviceoperations.Id

29.

Jam

esUpchtlrch,FD

O

C'SA

ssistant Secretary

forlnstitutions ,

testified

that the

useofprepackagedmealsinastatewideprogram alleviatesthesecurityconcernsidentifiedwith

thepriorJD AP program . June 4 Tr.at53.

30.FDOC OperationsM anagerShanePhillipstestifiedthathewasnotawareofany

reasontobelievethattheparticipationrateinthenew RDP wouldbehigherthanparticipationin

theJDAP.June4Tr.at153.FDOC headchaplainAlexTaylortestifedthatçiitwouldn'tbe

unreasonable''to expectltm aybeasm

any as500'5prisonersto participatethe RD P .

June 5

Tr.at

A

ccordingly,priorto

institution

of the R

DP ,

it w

as reasonable to

anticipatethatthe

likely

rangeofparticipation intheRDP wouldbebetween250-500prisonersperday .

.d. ParticipationintheReligiousD ietProgram and ChangestotheProgram

31.

Since institution

of the R

DP

atUnion

CorrectionalInstitution ,

there has been

an

unexpectedly high

num

berofapplicationsforparticipation

in

the RD

P ,

w

ith

an

early

participation rateofapproxim ately 40%

ofthe facility'spopulation .

D E-99-1.A saresult,

7

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 8 of 34

D

efendants revised

the

guidelines for participation

in

the

RDP ,

leading

to

a drop

in

eligible

inm ates. Id

Therevisiontotheguidelinesresulted intheadditionofaquestiontothe

Assessm entSheetusedbyDefendantstodetennineparticipationeligibility .

The new

AssessmentSheetincludesthequestion çdW hatarethereligiousreasonsforyourdietneeds?

Pleasespecifythespecificlawts)connectedtoyourbelieforfaiththatrequirets)youtoeata
religiousdiet?'' 17E-99-8at13.

33. Severalmonthsafterthepreliminaryinjunctionhearing,Defendantsadvisedthat

the new

RD

P

would

notberolled-outstatew

ide by

Septem

ber2013

and ,

instead,w

illbe

introduced atahandfulofinstitutionsbetw een now

and January 2014 .

D E-99-2. Those

institutionsareCrossCity

CorrectionalInstitution ,

EvergladesCorrectionalInstitution,

H

om

estead

CorrectionalInstitution,N

orthwestFloridaReception

Center ,

and

Okaloosa

CorrectionalInstitution.1d.TherearecurrentlynoplanstointroducetheRDP atanyadditional

institutions. fJ.

34. Additionally,notallofthesefivefacilitieswillusedprepackagedm eals. N orthwestFloridaReception Centerand EvergladesCorrectionalInstitution w illusekosher

kitchenstopreparem eals.1d.Evergladeswilluseacom binationofprepackagedmealsand

m ealsprepared in thekosherkitchen. 1d.

D efendantsnow

statethatthey w illim plem

enttheRDP

atCrossCity ,

Everglades,

andN orthwestFloridaon oraboutJanuary 15, 2014.1d.Therearenoimplem entationdatesfor

H om estead orO kaloosa.1d.

8

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 9 of 34

#. CostoftheReligiousDietProgram

D efendantsestim atethatthe m arginalcostofproviding a kosherdietunderthe

RDP is$5.81perprisoner,perday.U.S.Ex.30.

ThetotalcostoftheProgram

dependsinparton thenum berofparticipants .

If

participationin theRDP isthesameasparticipation inJDAP (averaging250prisonersperday) ,
itstotalcostwillbe$530,162peryear. Thisexpenserepresents.00025 ofFDOC 'Soperating

budget($530,000/$2.1billion= .00025).

38. lfparticipationintheRDP istwiceashighasparticipationinJDAP(averaging

500prisonersperday),thetotalcostoftheRDPwillbe$1,060,324peryear. Thisexpense
represents.0005 ofFD OC 'Soperating budget.

39. SinceinstitutionoftheRDP atUnion,therehasbeenan unexpectedlyhigh

numberofapplicationsforparticipationintheRDP,withan initialparticipationrateof

approxim ately 40% and acurrentratecloserto25% ofthefacility'spopulation. DE-99-1.A

statewideparticipationrateof40% wouldleadtoacostof$86,522,520peryear (40,800

prisonersx $5.8lx 365)or.04 ofFDOC'Soperatingbudget,whileastatewideparticipationrate

of25% wouldleadtoacostof$54,076,575peryearor.02575ofFDOC'Soperatingbudget.

TheFourChallengedProvisionsoftheReligiousDietProgram'
40. PrisonersareeligibletoparticipateintheRDP onlyiftheypassthedçsincerity

test''prescribedbyFDOC Procedure503.006(4).U.S.Ex.32at4-5.

2Itappearsthatnota11oftheseprovisionscontinueto bepartoftheR DP .

H ow ever,

given theconstantly changing nature oftheRD P,theissueofwhethertheseprovisionarevalid

underRLU IPA isnotm oot.

9

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 10 of 34

TheRD P'Sçssinceritytest''requiresthatprisonersseekingto participatein th
e
Program fileafonualrequestforakosherdietand interview withanFDOC chaplain w ho tests

theprisoner'sçlknowledgeofthereligion andtherequirem entsofkeepingareligiousdiet.''U.S.

Ex.32.Thechaplainmaythenlûconfirm''aprisoner'sstatedbeliefsthrough tsinternetsearchesto

researchdietrequirem entsforspecificreligions,''staffinterviews,inspectionofrecordsofthe

prisoner'sattendanceatreligiouscerem

onies ,

and

conversations w

ith religioustlgures.

1d. lfthe

prisoner's know

ledge

ofreligiousorthodoxy

is sufficient ,

the prisoner is adm

itted

to

the kosher

dietprogram .

42. Chaplain Tayloracknowledgedthatthecriteriausedtoassesssincerityislinot

very clear''and createsaçtslippery issue.'' June5 Tr.at62-63. FD O C hasnotprovided any
trainingorotherguidancetochaplainsatits60majorinstitutionsabouthow tojudgeaprisoner's

sincerityortestçiknowledge ofthereligionandtherequirementsofkeepingareligiousdiet'' .
June4 Tr.at93-95.

43. Underthepriorversion oftheReligiousDietProgram thatwaschallengedbythe

UnitedStates'M otionforaPreliminaryInjunction,prisonerswhopassedthesincerityinterview

processwererequiredtoeatexclusivelynon-kosherm ealsfor90dayspriortoaccessingthe

kosherdietoption.U .S.Ex.3. D efendantsrem ovedthisprovisionfrom theR DP ontheeveof

thepreliminaryinjunctionhearingafterbrietlngontheUnitedStates'M otionwascomplete.

Defendantscontinuetodefendthelegalityofthe90-dayprovision whilesim ultaneouslyarguing

thattheCourtlacksjurisdictiontoreview it.SeeDefs'ProposedFindingsofFactandConcl.of Law CçDefs'Findings''),DE-47at24.

10

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 11 of 34

44. Thenew RDP alsocontainsaprovision thatremovesanyprisonerwhom issesten percentofavailablemeals.U.S.Ex. 32 at6.A removedprisonermay notreapplyforsix

m onths.1d.TheTenPercentRuleapplieseveniftheprisonerwhom issestenpercentofm eals

consum

esexclusivelykosherfood w hen theprisonerelectstoeat .

f#.

45. A prisonerwhofastsforreligiousreasonsand m issestenpercentofmealsw illbe

removed from theRDP unlesstheprisonersubm itsarequestforareligiousfastfifteendaysin

advalw e.fJ.D efendants'witnessesdid notidentify any basisforselecting thetenpercent

tllreshold. June 4

Tr.at123(il-l-heCourt:Andhow

wasthetenpercentnum

ber selected .

.

.

?

A:Tobehonest,l'm notquitesurehow thattenpercentcam eintoeffect.''l;June4Tr.at50(:i1

hesitateto sayit'sarbitrary,butIdon'tthinkit'sbasedonanyanalyticalfol'mula.''l.

46.

ln addition

to

the Ten

PercentRule,

the

RDP

containsa

i'Zero

ToleranceRule'' ,

underwhichaprisonerisremovedfrom theRDP ifheorsheconsum esanyitem thatFDOC'S

contractorsdonotlistasdçkosher.''June4Tr.at143(Q:çsisitcorrectthatifaprisonereatsa

single item

thatisnotconsidered

kosherbythecontractorthatprovided

thelistto

you ,

thatthat

prisonerisremovedfrom thedietprogram ...? A. Thatiscorrecf). Removallastsfor30days

fora tirstoffense,120 daysforasecondoffense,andoneyearfo<allsubsequentoffenses. U .S.

Ex.32at6.Rem ovalfrom theRDP ism andatoryforafirstoffense,June 5 Tr.at100,and prisonersdonothaveanopportunitytoexplaintheirreasonsforconsum ingaçsnon-kosher''item

priorto rem oval.U .S.Ex.32 at6;June5 Tr. at101. 47. D efendantsarguethatthisprovision isnecessary to avoid w aste. How ever,M r.
Phillipstestified thatunused m ealsdo notcreatewastebecauseprepackaged kosherm ealslastt$a

coupleyears.''June4 Tr.at147($1Q:lfyouwereorderingthoseshelf-stablekoshermeals,and

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 12 of 34

the

quantitythatyou

ordered

turned

out to

be

slightly

m

ore than

w

hat w

asneeded
,

there's no

real

risk thatany ofthose m ealswould go bad and bew asted beforetheyw ereused byprisone
rs,

right? A .No,1don'tbelieveso.'').FonnerBOPRegionalFoodServiceAdministratorDennis

W atkinslikewisetestifedthatfood serviceofficialscanensurethatm ealsdonotgotowasteby

preparingaconservativenumberofhotentrees. lfaprisonershowedup beforehisorherm eal wasprepared,food serviceofficialscouldheatupanadditionalm ealint;am inuteandahalfto

two m inutes.''June 5Tr.at126. V . D ietary PoliciesatO therC orrectionallnstitutions

48. Atleast35statedepartmentsofcorrectionofferakosherdiettotheirprisoners .
U.S.Ex.16.In2007,theFDOC studygroup'ssurveyofstatecorrectionalfacilitiesfoundthat

26of34respondingfacilitiesofferedakosherdiet. U .S.Ex.2.lnstitutionsthatcurrentlyprovide

akosherdiettoprisonersincludetheFederalBureauofPrisons(û$BOP''),theNew York
Departm entofCorrectionalServices,CaliforniaDepartmentofCorrectionsandRehabilitation ,
TexasDepartm entofCrim inalJustice,andthelllinoisDepartm entofCorrections. U .S.Ex.2, 16,23.

49. N ew York doesnotrequireany sinceritytestbeforeadm ittingprisonerstoits

kosherdietprogram .U.S.Ex.23.Rather,aprisonerneedonlyregisterhisorherreligious

preferencetoobtainareligiousdiet.1d. Sim ilarly,FDOC GenexalCounselKathleenVonHoene

acknowledgedthat8of11statedepartm entsofcorredionssurveyedbyDefendantshadno

formalsinceritytestingfortheirreligiousdietprogramsbecauseçtdeveloping atestwouldbe

difticultunder(RLUIPAI.''U.S.Ex.24.

12

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 13 of 34

50. TheFederalBureau ofPrisonsoffersakosherttcertifiedReligiousM enu''to

prisoners in

each

ofits115

facilities ,

including

its m

axim

um

securityfacilityin Florence ,

Colorado,and severalfacilitiesin thestateofFlorida .

U .S.Ex.l4;June5 Tr.at133-35.

BOP

hasofferedakosherdietsystem -widefortwodecades .

FormerBOP AssistantDirectorJohnClarktestifiedthataccesstoreligiousdiets

furtherstitheinherentvalueofprisonersbeingpositivelyengaged inpro-socialactivity.'' June4 Tr.at86.

52.

ln

each

ofitsfacilities,BO

P's food

service consists of a

m

ain

line ,

a vegetarian

option,and aCertified ReligiousM enu option. U .S.Ex.14;June 5 Tr.at132-33. BO P's

Certified

R

eligiousM

enu

serves prepackaged ,

certified

kosherentreessupplem

ented

w

ith

certain

item sfrom BOP'sotherfood serviceoperations. 1d.

53.

BO P'sCertitled ReligiousM

enu

isopen to prisonersofallreligiousfaiths .

A

federalprisonerwhodesiresakosherdietm ustsubmitarequestandmeetwithachaplainatthe

prisoner'sfacility.OnceaBOP chaplaindeterm inesthataprisoner'srequestfortheCertified

ReligiousM enuissincere,thechaplainnotifesthefacility'sfood servicedirectorandthe

prisonerisim m ediately eligibleto participate in the Certitied R eligiousM enu. U .S.Ex.14,.June 5Tr.at128. Thereisnowaitingperiodbeforeafederalprisonermaybeginconsum inga

certified kosher diet. f#.

BOP doesnotem ploy asinceritytestthatfocusesonknowledgeofreligious

dod rinebecauseçithere'sno nexusbetween being ableto articulateknow ledgeandw hetheror

notthere'sasincerereligiousbelief.''June4 Tr.at90.ChaplainTayloracknow ledged thatBOP

abandoned knowledgetestingyearsagobecauseoftitheproblem sitcreated.''June5Tr.at98.

13

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 14 of 34
BOP doesnotremoveprisonersfrom theCertitiedReligiousDietwhoelectnotto eatacertain percentageofm eals. June5 Tr.at127.
56. NordoesBOPm onitorcom missarypurchasesofprisonersenrolled initskosher
dietprogram .June5Tr.at140(ttwedonotm onitorwhatthoseinm atespurchaseinthe commissarf).
57. Approxim ately 1.2percentofBOP prisonersarecurrentlyenrolledintheCertitied ReligiousM enu program .June 5Tr. at136.A fteran initialspikein participation shortlyaher BOPimplementedthekosherdietprogram ,participationhasremainedsteadyfornearlytwo decades.June 5Tr.at136-37.
58. ThetotalcostofBOP'sCertifiedReligiousM enurangesfrom $4.80to$6.75per prisoner,perday.June 5 Tr.at135.
CONCLUSIONSO F LAW Defendantsraise severalargum entsin opposition to theM otion. Defendantsarguethat
themotionismootbasedonDefendants'new RDP,thattheCourtlacksjurisdictionto adjudicateanyissueswiththenew RDPbecausethePlanwasnotexplicitlypledinthe
complaint,andthatthemotion shouldbedeniedonitsm erits.Defendantscalmotprevailonany oftheirargum ents. 1. The CaseisN otM oot
DefendantsarguethattheadoptionofFlorida'snew RDPm ootstheUnitedStates' RLU IPA claim based onthe failureto provide kosherm eals. Thisexactissuew asrecently
addressedbytheEleventhCircuitinRichv.Secretary,FloridaDepartmentofcorrections,716 F.3d 525(11th Cir.2013).InRich,anindividualprisoner,who isanorthodox Jew,challenged
14

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 15 of 34

theD efendants'failuretoprovidehim

withkosherm ealsunderRLUIPA .

W

hiletheRich appeal

waspending,theinstantsuitwastiledandFloridannnotmcedthedevelopm entofitsnew RDP .

A saresult,theRich defendantsargued thattheappealw asm oot .

The Eleventh C ircuitheld that

the claim

s w

erenotm

oot under the voluntary

cessation

doctrine ,

which

requires the

analysis of

tltreefactors:(1)whetherthetenninationoftheoffendingconductwasunam biguous;(2)

whetherthe changein govennm entpolicy orconductappearsto betheresultofsubstantial

deliberation,orissimplyanattempttomanipulatejurisdiction;and(3)whetherthegovernment

hasltconsistently applied''anew

policy oradhered to anew

courseofconduct .

1d.at531-32.

Applyingthesefactorsto

virtually

the sam

efactspresentlybeforethisCourt ,

the

Eleventh

C

ircuit

foundthattheRichdefendantshadnotunam biguouslyterm inatedtheirpolicyofrefusingkosher

m eals.1d.at532.TheCourtspeeitk allynotedthattheRichdefendants'policychangecam e

tllateinthegame,''andonlyafterRich'sbriefhadbeenfiledwith theEleventhCircuitandthis

suithadbeenfiled.Id TheEleventhCircuitfurthernotedthattheRDP hadbeenimplemented

onlyattheprisonwhereRichwasincarcerated,indicatinganattempttomanipulatejurisdiction.3
Id.Finally,theEleventhCircuitalso foundthatRich'sclaim swerenotmootbasedon

Defendants'continuedassertionthattheirfailuretoprovidekoshermealsdid notviolatethelaw . Id Thus,basedonRich,theUnited States'claim sintheinstantcasearenotmoot.4

3ItisstillthecasethattheRDP hasonlybeeninstitutedatasinglecorrectionalfacility. 4w hileDefendantsarguethattheEçvoluntarycessation''doctrinedoesnotapplyunder RLUIPA ,seeDE-34at9,theEleventh CircuitclearlyfoundotherwiseinRich.
l 5

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 16 of 34

II. TheCourtH asJurisdiction OvertheGovernm ent'sChallengetotheNew Religious D ietProgram

DefendantsarguethatthisCourtlacksjurisdictiontoadjudicatedeticiencieswiththe

(RDP becausetheUnitedStatesdoesnotspecificallyidentifytheProgram

in itsCom plaint .

This

argum entisunavailing,asFederalRuleofCivilProcedure 8 doesnotrequireaplaintiffto allege

everyfactthatsupportsitsclaim .Fed.R.Civ.P. 8.ûtunderRule8(a),applicabletoordinaly
civilproceedings,acomplaintneed onlyprovidefairnotieeofwhattheplaintiffselaim isand

thegroundsuponwhichitrests.''M aylev. Felix,544U.S.644,655(2005).InitsComplaint,
theUnited StatesallegesthatDefendants'dietarypoliciesviolateRLUIPA byburdeningthe

religiousexerciseofprisonersseekingakosherdiet.sDefendants'continuing m oditicationsto theirdietary policiesin responsetothislitigation arefactualdetailsthatfitwithin thescope of

theUnitedStates'RI-UIPA claim underthefairnoticestandard. C/ DelM onteFreshProduce Co.v.UnitedStates,570F.3d316,324(D.C.Cir.2009)(reversingthedistxictcourt'sdismissal
ofachallengetotheTreasuryDepartm ent'sdelayingrantingalicensebecausethecourtwrongly

focused on the l'precisehistoricalfactsthatspawned the plaintiffsclaim s''ratherthan (tthe legal

wrongcomplainedof').Furthermore,anyotherresultwouldallow adefendanttoavoidliability

inperpetuitybycontinuallym odifyingapolicychallenged inlitigation.Inanyevent,Defendants

themselveshaveplacedtheRDP atissuebyraising itintheiroppositiontotheinstantm otion

andbyarguingthatitmootstheUnitedStates'case.Consequently,theCourthasjurisdictionto
hearthechallengesto thenew RDP.

sM onthsafterthepreliminaryinjunctionhearing,theUnitedStatesfiledanAmended
Complaint,D E-104,w hich specifically pleadstheexistenceofthe RDP.
1 6

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 17 of 34

111. TheUnitedStateslsEntitledtoaPreliminaryInjunction

A preliminaryinjunctionisappropriatewherethemovingpartyshows:(1)asubstantial likelihoodofsuccessonthemerits;(2)thataninjunctionisnecessarytopreventirreparable

injury;(3)thattheinjurytothemovingpartyoutweighswhateverdamagetheproposed

injunctionmightcausethenon-movingparty;and(4)thataninjunctionisinthepublicinterest.

Bellsouth

Telecom

ms.,Inc.v.M

clM

etroAccessTransm

ission

Servs .,

LLC,425

F.3d

964,968

(11thCir.2005). TheUnitedStateshasestablishedeachoftheseelements.Thus,apreliminary

injunctioniswanunted.

A. TheUnited StatesisLikelytoSucceed ontheM eritsofitsRLUIPA Claim

RLUIPA prohibitspoliciesthatsubstantiallybtlrdenreligiousexerciseexceptwherea

policyçû(l)isinfurtheranceofacom pellinggovem m entalinterest,'and(2)istheleastrestridive

m eansoffurtheringthatcom pelling govenunentinterest.''42 U .S.C.j2000ec-1(a).Underthis
schem e,onceaplaintiffprovesthatachallengedpradicesubstantiallyburdensreligious

exercise,theburdenshiflstothedefendanttosatisfyRLUIPA 'Sstrictscrutiny inquiry. 42U .S.C.

j2000cc-2(b).Assetforthbelow,Defendantscannotm eettheirburden.

Defendants'ChallengedDietaryPoliciesSubstantiallyBurdenthe ReligiousExerciseofFlorida'sPrisoners

Each ofD efendants'challenged dietary policiessubstantiallyburdensthereligious

exerciseofFloridaprisoners.A çtpolicyofnotprovidingkosherfoodmaybedeem edtoworka

substantialburdenupon (aninm ate'slpradiceofhisfaith.''Baranowskiv.Hart,486F.3d112,

125(5th Cir.2007);seealsoBeerheidev.Suthers,286F.3d 1179,1185(10th Cir.2002)(failure

toprovidekosherdietburdensfreeexerciseofreligioninviolationoftheFirstAm endm ent).

17

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 18 of 34
Defendantsconcedethatasubstantialburdenresultsfrom theirblanketdenialofakosherdiet
andfrom threeofthefourchallengedprovisionsoftheRDP:(1)the90-DayRule;(2)the(Yero
tolerance''rem ovalofprisonerswhoconstlmeasingleitem Defendantslistedasnon-kosher;and
(3)thet'sinceritytest''thatprobesprisoners'knowledgeofreligiousdoctrine.SeeDefs'Opp. to Mot.forPrelim.Inj.,DE-34,at.21-24;U.S.Reply,DE-40,at9-10.
Thefourthchallengedprovision-whiehrem ovesprisonersfrom theRDP iftheym issten percentofm eals-likew iseim posesasubstantialburden. TheTen PercentR ulerem oves prisonersfrom theirdesiredreligiousdietforam inim um ofsixm onthsiftheydonoteatatleast 90percentoftheavailablem eals,evenifeverym ealtheprisonerseatiskosher. A policy that deniesareligiousdietto aprisoner,evenwherethereisnoevidencethattheprisonerisinsincere
,
substantiallyburdensreligiousexercise.Cf Lcwyonv.Singletary,85F.3d502,509(1996)) (ltpoliciesgroundedonmerespeculation''violatethelaw).Further,asix-monthremoval unquestionablyworksasubstantialburden.SeeNelsonv.M iller,570F.3d868,880(7th Cir. 2009)(failuretoprovideanon-meatdietduring40daysofLentasubstantialburden);fovelace v.fee,472F.3d174,187(4thCir.2006)(denyingM uslim prisonerspecialRamadanmeals24 outof30daysconstitutesasubstantialburdenunderRLUIPA).
Defendants'ChallengedDietaryPoliciesAreNottheLeastRestrictive MeansofFurtheringaCompellingGovernmentlnterest
BecauseDefendants'dietarypoliciessubstantially burdenreligiousexercise,theburden shiftstotheDefendantstoshow thateachoftheseprovisionsistheleastrestrictivem eansof
furtheringacompellinggovernmentinterest.42U.S.C.j2000cc-2(b).Noneofthechallenged
provisionsm eetthisstandard.
18

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 19 of 34
a. TheBlanketDenialofaKosherDiet AtthetimetheUnitedStatesfiled itsComplaint,Defendantsdeniedakosherdiettoa1l butahandfulofprisonersin asingle facility. UndisputedFacts 19.Thisnear-blanketdenialof akosherdietisnottheleastrestrictivem eansoffurtheringacompellinggovernm entinterest
.
lndeed,Defendants'admissionthattheycanprovide akosherdietddem onstratesasam atterof law thattheirchallenged dietarypolicy failsR LUIPA 'Sstrictscrutiny test. D efendantscannot arguethatthey have com pelling interestsin denying akosherdietw hilethey providesuch adiet voluntarily andcontinuetorepresenttotheCourtthattheyremaincomm ittedtoprovidinga
kosherdiettoalleligibleprisoners.SeeM oussazadehv. TexasDepartmentofcriminalJustice, 703F.3d781,794(5thCir.2012);Kogerv.Bryan,523F.3d 789(7thCir.2008)(denying requestforano-meatdietviolatedRLUIPA whereprisonofferedsuehadiettootherprisoners); Sprattv.RhodeIslandDepartmentofchrrections,482F.3d33,40(1stCir.2007)(prison
system lackedcompellingreasonsforbanninginmatepreachingbecausetheprisonhad
previouslyallowedsuchpreaching);Washingtonv.Klem,497F.3d272,285(3dCir.2007) (restrictiononthenum berofreligiousbooksaprisonermaypossessinvalidwhereotherfacilities inthestatesystem didnothavesucharestriction);Warsoldierv.Woodford,418F.3d989,1001 (9thCir.2005).Defendantscannothaveitbothways- Defendantscannotarguethattheyhavea
compellinginterestinnotprovidingkoshermealsandalsoarguethattheyarecomm ittedto
VeeJune4Tr.at52CdQ :M r.Upchurch,it'sfairtosaythattheDepartm entof
Correctionshasnow determ ined thatitcan provideastatew idekosherdietplan consistentw ith
itsinterests,correct? A:Yes.'');June5Tr.at80($1Q:Mr.Taylor,theFloridaDepartmentof
Correctionshasnow determ ined thatitcan provide akosherdietin every facility using certified
prepackagedkoshermeals;isthatcorrect? A:Yes.'').
19

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 20 of 34
providingkoshermeals.IfDefendantstrulyremain comm ittedtoprovidingkosherm ealstoa1l eligibleprisoners,thenDefendants'interestsinnotprovidingthem ealscannotbecompelling
.
EvenifDefendants'concessionthattheycan,andw illeventually,provideakosherdiet werenotfataltotheirlegaldefensefordenyingsuchadiet, theUnited Statesislikelytosucceed
onthemeritsofitsclaim fortwoadditionalreasons:(1)Defendantshavenotidentitiedany compellinginterestfurtheredonlyby ablanketdenialofakosherdietand(2) num erous
correctionalfacilitieswith interestsidenticalto FDOC areabletoofferakosherdiet. Firstandm ostimportantly,Defendantshavenotidentifiedanycompellinginterestthatis
furtheredonlybyablanketdenialofkosherdiets.Defendants'chiefargum entisthatdenyinga kosherdietistheleastrestrictivem eansoffurtheringtheircompellinginterestin controlling cost.W hilecostcontrolmaybeacompellinginterestincertainsituations,seeRich,716F.3dat 534,RLUIPA expresslycontem platesthatfacilitatingreligiousexerciseétm ayrequirea
governmenttoincurexpensesinitsownoperations.''42U.S.C.j2000cc-3(c).
ThecostsinitiallyidentifedbyDefendantsinthislitigation arenotofacompelling m agnitude. The average enrollm entin Defendants'priorkosherdietprogram w as250 prisoners perday.BasedonDefendants'estimatethatakosherdietcosts$5.81m oreperprisonereach day,Opp.at6,acomparableparticipationratein thenew RDP wouldyieldatotalcostof approximately$530,000peryear.AcceptingChaplainTaylor'sestimatethat500prisonersm ay participate,thecostofprovidingakosherdietis$1.06m illionperyear,or.0005ofFDOC'S budget. Even ifparticipation w erefourtim esashigh asunderthepriorprogram -averaging 1,000prisonersperday-thecostwouldonlybe$2.12m illionperyear,or.001ofFDOC'S budget.Nocompellinginterestisfurtheredbyavoidingsuch arelativelyminorexpense.Under
20

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 21 of 34

the lessrigorousstandard ofreview

applied in FirstA m endm

entcases ,

the

Tenth

Circuithasheld

thatavoiding alargerexpenditureon kosherfood -constituting .0016 ofthebudget-w asnot

rationallyrelatedtoapenologicalinterest.Beerheide,286F.3d at1191;seealsoM oussazadeh,

703F.3dat795(ûiweareskepticalthatsavinglessthan.005% ofthefoodbudgetconstitutesa

compellinginteresf').

Aftertheevidentiaryhearing,Defendantssubm ittedevidenceindicatingthatthe

participationrateatthesingleinstitutionwherekosherm ealsareactuallybeingservedis

approxim ately25% oftheinstitution'spopulation.How ever,Defendantsadmitthatthehigh

participationrateisnotbasedonreligiousreasons.SeeN ovember22Tr.at12.Further,the

participationratewasinitiallycloserto40% ;however,theratehasdroppedoffasDefendants

havebegun to reexam ineapplicationsforpm icipation in the RDP.SeeD E-99-1.Clearly,the

currentprogram hasm adetheRDPamoreappealingaltem ativethanthestandard mealoptions.

Thisisnotarequirem entofRLU IPA .Thus,itappearsthatthehigh participation ratew illnotbe

m aintained astheRD P continuesand the dlbugs''in the system ,w hich currently have m adethe

RDP moredesirablethanstandardprison fare,areworkedout.SeeJune5Tr.at123('dAnytime
you offeranew progrnm to the inm ates,typically you're going to seea highernum berinitially,

andthenthosenumberswillfalloffafterthreeorfourmonthsorsoofaprogram '').
Consequently,D efendantshavenotshow n thatthehigh participation rate isrepresentativeofthe

long-term participation rate.Thus,D efendantscnnnotshow thatavoiding theexpense of

providing akosherdietto Floridaprisonersistheleastrestrictive m eansoffurtheringa

com pelling interest.

21

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 22 of 34
Second,theabilityofsim ilarcorrectionalfacilitiesto offerakosherdietunderscoresthat Defendantscanoffersuchadietconsistentwith itspenologiealinterests. Itiswellestablished
thatSéthepoliciesfollowedatotherwell-runinstitutions(arelrelevanttoadeterm inationofthe needforaparticulartypeofrestriction.''Procunierv. Martinez,416U.S.396,414n.14(1974), overruled onothergroundsby Thornburghv.Abbott,490U.S.40l,413(1989);Rich,716F.3d at534(practicesofotherinstitutionsSçazerelevanttoaninquixyaboutwhetheraparticular restridionistheleastrestrictivemeansbywhichtofurtherasharedinteresf').TheFederal
BureauofPrisons'kosherdietprogram isparticularlyrelevantbeeauseBOPdthasmanagedthe largestcorrectionalsystem intheNationunderthesameheightenedscrutiny standardas RLUIPA withoutcomprom isingprisonsecurity,publicsafety,ortheconstitutionalrightsof
otherprisoners.''Cutterv.Wilkinson,544U.S.709,725(2005).W hereBOPaccommodatesa
particularreligiousexercise,adefendantisunlikely to satisfy RLU IPA 'Sstrictscrutiny inquiry
ççintheabsenceofanyexplanationby(thedefendant)ofsigniticantdifferencesbetween gits prison)andafederalprisonthatwouldrenderthefederalpolicyunworkable.''Spratt,482F.3d at42;seealsoWarsoldier,418F.3dat999(enjoiningprison'shairlengthpolicywhere lçlplrisonsrunbythefederalgovernment,Oregon,Colorado,andNevadaa11meetthesame penologicalgoalswithoutsuchapolicy').
H ere,theexperienceofsim ilarinstitutionsm ilitatesstrongly againstthe legality of D efendants'blanketdenialofa kosherdiet.TheFederalBureau ofPrisons,Texas,N ew Y ork, California,Illinoisand atleast31otherstatesofferakosherdietto theirprisoners.SeeU .S. Exhibits2,14,16,23.D efendantsdonotexplain how theirinterestsdifferfrom these large
correctionalinstitutions.See,e.g.,June5Tr.at30(notawareofanydifferencesinbudgetary
22

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 23 of 34
circum stancesbetweenFloridaandotherlargeinstitutions);June5Tr.at31(noreasontothink rateofparticipationinkosherdietwillbehigherinFloridathanotherprisonsystems). Recognizingthisprinciple,theEleventhCircuitrecentlyreversedagrantofsummaryjudgment
forD efendantsin aprisoner'ssuitseeking akosherdietttin lightoftheD efendants'm eager effortstoexplainwhyFlorida'sprisonsaresodifferentfrom thepenalinstitutionsthatnow providekosherm ealssuchthattheplansadoptedby thoseotherinstitutionswouldnotwork in Florida.''Rich,716 F.3d at534. BecauseD efendantshavenotestablished thattheyhavea compellingstateinterestinnotprovidingakosherdiet,theUnited Statesislikelytoprevailon themeritsofitsclaim thatDefendants'blanketdenialofakosherdietviolatesRLUIPA .
b. The90 Day Rule TheRDP'Srequirementthatprisonersseekingakosherdietconsum eexclusively non-kosherfood foraperiod of90 daysfailsforthe sam ereasonsasD efendants'blanketdenial
ofakosherdiet.AherbriefingconcludedontheUnitedStates'PreliminalyInjunctionMotion,
Defendantsalm ouncedtheywererem ovingthiswaitingperiod from theRDP andwould im plem enta kosherprogram w ithoutit.SeeU .S.Ex.32. Thispolicy change dem onstratesthat the 90 Day Rule cannotwithstandstrictscrutiny. Regardless,theprovision substantially burdens religiousexerciseby depriving observantprisonersofakosherdietfor90 days,see,e.g.,N elson,
570F.3dat880(failuretoprovideanon-m eatdietduring40daysofLentasubstantialburden),
and isnottheleastrestrictivem eansoffurthering any com pelling interest. lndeed,D efendants havenotidentified any com pelling interestrelated tothisprovision.SeeO pp.at21.N orcan D efendantsavoid the Court'sreview ofthe 90 Day Rulebychangingtheirpolicy on theeve ofa
23

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 24 of 34
decision,astheycontinuetodefendthelegalityoftheprovisionintheirbrieûng, Defs'Findings at24,and m ay re-institutetheprovision inthefuture.
ReligiousOrthodoxyTesting TheRDP likewiseviolatesRLUIPA by conditioningertrollm entintheProgram on prisonerssatisfying aproeessofinterview sand follow -up investigation thatfocuseson the
prisoner'sknowledgeofreligiousdogma.?SeeU.S.Ex.32at4-5.Defendantsjudgewhether
applicantstotheRD P sufficiently groundtheirrequestsin çtknow ledge oftheirreligion andthe requirem entsofkeeping akosherdiet,''8and authorize FD O C chaplainsto m easure aprisoner's fidelity to aparticularreligion by conducting interviews,internetsearches,inspecting prison records,andreviewingaprisoner'spastreligiousactivities.SeeU .S.Ex.32at4-5.This subordinationofprisoners'personalreligiousbeliefsviolatesfederallaw .TheriskofFDOC officialssecond-guessingprisonersisheightenedbecause,w hileD efendantsconcedethatthe criteriain itsnew policyareSlnotveryclear,''June 5 Tr.at62,they have provided notrainingto chaplainsto guidetheirassessm ents. June5 Tr.at93-95.
W hileRLU IPA ifdoesnotprecludeinquiry into the sincerity ofa prisoner'sprofessed religiosity,''Cutter,544 U .S.at725 n.13,such an inquiry m ustbeç'handled w ith a lighttouch''
7W hileDefendantsstatethatcurrentlythoseconductinginterviewshavebeeninstructed to castatiw idenet,''seeD efs'Supp.Prop.Findingsat17,thereisnothing in theRD P that ensuresthatthisw illcontinueto beD efendants'policy.
'Becauseoftheunexpectedly high participation ratein the RDP,D efendantsm odified theirA ssessm entSheetfortheCertified FoodO ption thatprisonersseekingto participate in the RDP fill-outand subm itto Defendants.See13E-99-8 at13.Them odification included the addition ofthefollow ing question:dtW hatarethereligiousreasonsforyourdietneeds?Please
clarifythespecificlaw ts)colmectedtoyourbelieforfaiththatrequirets)youtoeatareligious
diet?'' 24

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 25 of 34
andlim itedçtalmostexclusivelytoacredibilityassessm ent.''M oussazadeh,703F.3dat792. t6prisonofficialsm aynotdeterm inewhichreligiousobservancesareperm issiblebecause
orthodox.''Graysonv.Schuler.666F.3d450,453-55(7th Cir.2012).Thisprinciplebars
Defendants'policyofexcludingprisonersfrom akosherdietbasedonclexgyintep retationsof religiousdoctrineoronprisoners'knowledgeofreligiouslawsand doctrine.lndeed,dlclergy opinionhasgenerallybeen deemedinsufscientto ovenideaprisoner'ssincerelyheldreligious
belief.''Koger,523F.3dat799(holdingthatRLUIPA coveredaprisoner'srequestfora
vegetarian dieteven though therew ere $ûno dietaryrestrictionscom pelled by orcentraltohis
professedfaith'');seealsoJacksonv.M ann,196F.3d316,320(2dCir.1999)(sincerityofa
prisoner'sbeliefs-notthe decisionofJew ish religiousauthorities-determ inesw hetherprisoner
wasentitledtokoshermeals);Newingham v.Magness,364F.App'x.298,300(8thCir.2010) (reversingandremandingwheredistrictcourtimproperlyreliedontheprison'slslam ic
coordinator'sopinion thataprayerrug wasaçûconvenience''ratherthan a religious
dlrequiremenf');Grayson,666F.3dat450 (prisoncouldnotforceprisonertocuthishairbased ontheprem isethatonlythosewhosefaithléçofficially'requirels)thewearingofdreadlocks (m ayjwearthem '');Benning v.Georgia,39lF.3d 1299,1313(11th Cir.2004)(findingthat
RLUIPA'Sdefinition ofreligiousexercise'ûm itigatesanydangersthatentanglementmayresult
from administrativereview ofgood-faithreligiousbelief'').Defendants'orthodoxytesting
straystoo farSéintotherealm ofreligiousinquiry,''wheregovernm entofficialsStareforbidden to tread.''M oussazadeh,703 F.3d at792.
Othercorrectionalinstitutionseffectively operatekosherdietprogram sw ithoutthe rigorousinquirythatD efendantsrequire. TheFederalBureau ofPrisonssincerity testconsistsof
25

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 26 of 34
a singlebriefinterview with achaplain.SeeU .S.Ex.14.TheN ew York correctionalsystem providesakosherdietto al1prisonerswho self-identifyw ith aqualifying religion.SeeU .S.Ex. 23. Eightofeleven state correctionalsystem ssurveyed by Defendantsreportedthatthey used no sinceritytestingata1lbecausesuchtestingmayviolateRLUIPA U.S.Ex.24.Theexperienceof theseinstitutionsfurtherdem onstratesthatDefendants'focuson religiousorthodoxy isnotthe leastrestrictivem eansoffurthering acom pelling interest.
Zero ToleranceRem ovalProvision TheRDP'SzerotoleranceremovalprovisionfailsRLUIPA 'Sstrictscrutinyrequirement forsim ilarreasons. Prisonersw ho consum eany item thatD efendantsdonotlistasklkosher''are removedfor30daysforatirstoffense,120daysforasecondoffense,and 1yearforall subsequentoffenses. U .S.Ex.32 at6.A prisonerhasno opportunityto explainhow theûinonkosher''selection fitswithin hisorherreligiousbeliefspriorto rem ovalfrom theProgram . This provisionisincompatiblewiththeprinciplethat,underRLUIPA,aitfew lapsesinperfect
adherencedonotnegate(aprisoner's)overarchingdisplayofsincerity.''M oussazadeh,703F.3d at792(holdingthataJewishprisonerwhorepeatedlypurchasednon-kosheritemsfrom the
comm issarynonethelessSûestablishedhissincerityasam atteroflaw''byrequestingakosherdiet
andpursuinglitigation).1:A sincerereligiousbelieverdoesn'tforfeithisreligiousrightsmerely
becauseheisnotscrupulousinhisobservance;forwherewouldreligion bewithoutits backsliders,penitents,and prodigalsons?''Grayson,666 F.3d at454.
Theonly com pelling interestcited by D efendantsin supportofthezero tolerance ruleis tçcostcontainm ent.'' Opp.at24. Defendantshavepresentedno evidence,however,ofhow m uch moneythezerotolerancerulewouldsave.June4Tr.at144.N orhaveDefendantsidentified
26

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 27 of 34
any otherinstitution thatim posesasim ilarrestriction.W ithoutsuch evidence,Defendants cannotdem onstratethatthezero tolerance ruleistheleastrestrictivem eansoffurthering a com pellinginterest.tipoliciesgroundedonmerespeculation,exaggeratedfears,orpost-hoc
rationalizationswillnotsufficetomeet(RLUIPA'S)requirements.''Rich,716F.3dat533 (citingfawson,85F.3dat509).Thus,thezerotoleranceruleviolatesRLUIPA.
The Ten PercentRule TheRDP rem ovesprisonerswhoeatlessthan 90percentofavailablemealsevenifevery m ealthey consum eiskosher.SeeU .S.Ex.32 at6. D efendantsassertthatthisprovision is
necessarytoavoidthewastecreatedbytstltrow ginglaway''unused meals.Opp.at23.Likethe
zerotolerancerule,however,Defendantspresentnoevidenceofthem agnitudeofthecosts incurredby such w asteorthesavingsattributableto theten percentrule.9 Rather,Defendants' rationaleforthisprovisionisiçmerespeculation,''which RI,UIPA proscribes.Eveniftherewere som eevidenceofcostsavings,Defendantshavenotdem onstratedthatthisruleistheleast restrictivem eanstoavoidlçwaste.''Opp.at23.D efendantscansim plytrackaverage
participationintheRDPandadjusttheirkosherfoodorderaccordinglytoavoidwastingexcess
m eals.BOP hasm anageditskosherdietoperationusingthisaltenzativefortwodecades.June5
Tr.at127(idQ.S0,how didyouavoidwaste...from prisonersnotshowinguptoeatmeals? A.
Basicallybasedonhistory.W eknew overaperiodoftimeroughlyhow m anyguysweregoingto show up forbreakfast,lunch,anddinnerinthosespecialprograms.Andwewouldbreak out
accordingly.'').Thereisno evidencethatDefendantshaveconsideredthislessrestrictive
gseeJune4Tr.at123(tt-f'heCourt:Andhow wasthetenpercentnumberselected...? A:Tobehonest,l'm notquitestlrehow thattenpercentcameintoeffect.''l;June4Tr.at50(i1I hesitatetosayit'sarbitrary,butldon'tthirlkit'sbasedonanyanalyticalform ula.''l.

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 28 of 34
altemative.See,e.g.,Washington,497F.3dat284;Warsoldier,418F.3dat999(tSCDC cannot
m eetitsburdentoproveleastrestrictivem eansunlessitdemonstratesthatithasactually
consideredandrejectedtheefficacyoflessrestrictivemeasuresbeforeadoptingthechallenged practice.');Murphyv.Mo.Dep'tofcorr.,372F.3d979,989(8thCir.2004)(i$Itisnotclearthat M DOC seriouslyconsideredanyotheralternatives.').Forthesereasons,theTenPercentRule
violatesRI,UIPA . lnsum ,theUnited Statesislikelytoprevailonthemeritsofitsclaim thatDefendants'
priorblanketdenialofakosherdietviolatesR T.UIPA,asdo each ofthe fourchallenged provisionsofDefendants'new dietarypolicies.
B . A PreliminaryInjunctionisNecessaryToAvoidIrreparableHarm InjunctivereliefisnecessarytopreventirreparablehanntohundredsofFloridaprisoners
w ho believethatkeepingkosherisan im portantpartoftheirreligiousbeliefs.A ssetforth above,severalaspectsofDefendants'RD P w illcontinueto burden prisoners'religiousexercise in violation ofRLUIPA . Theseunlaw fulrestrictionson religiousexercise constitute irreparable
injury.See,e.g.,OpulentL# Churchv.CityofHollySprings,M iss.,697F.3d279,295(5thCir. 2012)(findingirreparableharm whenRLUIPA isviolated);Warsoldier,418F.3dat1001-02 (raisingacolorableclaim ofanRLUIPA violationitestablishedthat(prisonerqwillsufferan irreparableinjuryabsentaninjunction');Beerheide,286F.3dat1192(failuretoprovidekosher dietburdensfreeexerciseofreligioninviolationoftheFirstAmendment).Indeed,itis
well-establishedthatSçthelossofFirstAmendm entfreedom s,forevenm inim alperiodsoftim e,
unquestionablyconstitutesinrparableinjury.''Elrodv.Burns,427U.S.347,373(1976).
28

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 29 of 34
M oreover,the entireRDP istenuous,asDefendantspreviouslytenuinated akosherdiet program againsttheadviceoftheirown studygroup andcontinuetoarguethattheymaylawfully
denyakosherdiettoallprisonersatanytime.Accordingly,judicialinterventionisnecessaryto
ensurethatDefendantsdo notelim inatetheirRD P in violation ofRLUIPA in thefuture. T helrreparableH arm to PrisonersO utweighsA ny H arm to Defendants
Thelack ofpotentialhann to Defendantsfurtherdem onstratesthataprelim inary
injunctioniswarranted.AlthoughDefendantscontinuetoassertthattheyhavenolegal
obligation to provideakosherdiet,theyhaveconceded thatproviding such adietisconsistent
withtheirinterests.SeeJune4Tr.at52(itQ;M r.Upchurch,it'sfairtosaythattheDepartment
ofCorrectionshasnow determinedthatitcanprovideastatewidekosherdietplan consistent
withitsinterests,correct? A;Yes.'').AninjunctionrequiringDefendantstoprovideadietwill
merelyensurethatDefendantsdonotagainreversecourseand denyakosherdiettoa1lFlorida prisoners.
Moreover,enjoiningthefourchallengedprovisionsofDefendants'new RDPwillnot hannDefendantsinanymeaningfulway.lndeed,enjoiningtheseprovisionsmaylessenthe
adm inistrativeburden on FDOC staff,asthechallengedprovisionsimposeobligationstotest, track,and m onitorthe religiousexerciseofprisonerswho desireakosherdiet.SeeJune 5Tr.at
112($T heCourt:Butrightnow,(thesinceritytestingandm onitoringprocess)isstaff-intensive onbothends,theadmissionandthemonitoring.TheW itness:Asitappearsinwriting.').
Further,thechallengedprovisionsarenotnecessarytoeffectivelyoperateakosherdietprogram . W ithoutthem ,D efendants'RD P w ould function sim ilarly to otherkosherdietprogram s,such as the oneoperated bytheFederalBureau ofPrisons.

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 30 of 34
Finally,enjoiningthechallengedprovisionsoftheRDPwillsaveDefendantsfrom
expendingresourcestotrainstaffandotherwiseim plementapolicythatislikelytobe
invalidated.SeeGiovaniCarandola,Ltd.v.Bason,303F.3d507,521(4thCir.2002)(enjoining
implementationofapolicythatislikelytobefoundav'iolationoflaw doesnotharm
defendants).Forthesereasons,avoidingtheirreparableharm toFloridaprisonersoutweighsany hanntoDefendantsfrom aninjunction.
D. AnlnjunctionIsinthePublicInterest Aninjunctionthatvindicatesreligiousfreedomsprotectedbyfederal1aw isinthepublic interest.UnitedStatesv.Alabama,691F.3d 1269,1301(11th Cir.2012)(iTrustrationoffederal statutesandprerogativesarenotinthepublicinteresf).Protection ofreligiousexerciseisa
cherishedideal,andRLUIPA passedbothhousesofCongressunanim ouslyasçsthelatestof long-runningcongressionaleffortsto accordreligiousexerciseheightenedprotection from governm ent-im posed burdens.'' Cutter,544 U .S.at713.By itsterm s,RLU IPA isbroadly
construedinfavorofreligiouslibertytstothemaximum extentpermittedbyEthestatutelandthe Constitution,''''42U.S.C.j2000cc-3g,toensurethatçslslincerefaithandworshipcanbean indispensablepal'tofrehabilitation.''146Cong.Rec.56678-02,at56688-89(dailyed.July 13, 2000).Thenum beranddiversityoforganizationsthathaverecentlyurgedDefendantstoprovide
akosherdietfurtherdem onstratesthe strong publicinterestatstakein thislitigation.SeeU .S.
Ex.25-28(nm icusbriefsfiledinRichv.Secretary by,am ongothers,theAlephInstitute,
lnternationalM ission Board ofthe Southern BaptistConvention,lnternationalSociety for K rishnaConsciousness,H indu-Am erican Foundation,N ationalJew ish Com m ission on Law and
30

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 31 of 34
PublicA ffairs,A m erican CivilLibertiesUnion,RabbinicalA lliance ofAm erica,and the
AmericanJewishComm ittee).
C O N C LUSIO N D e'fendants'longstandingeffortsto avoidproviding a kosherdietdem onstratethat
injunctivereliefisnecessarytoensurethereligiousexerciseofFloridaprisoners.Defendants
discontinuedtheirpriorkosherdietprogram againsttheadviceoftheirownstudygroup in2007 andrefusedtoofferastatewidekosherdietprogram forthenextsixyears.Eightm onthsafter theUnitedStatesfiled suitin2012,Defendantsswitched courseandaskedtheCourtto declare thislitigationm oot.M eanwhile,Defendantscontinuetoarguethattheym aylawfullydenya kosherdiettoa11Floridaprisonersandrefuseto com m ittoprovidingakosherdietinthefuture.
Accordingly,aninjunctionisnecessarytoguaranteetherightsprotectedbyRLUIPA.
A ccordingly,itishereby ORD ERED that:
TheUnitedStates'M otionforaPreliminaryInjunctiongDE-291againstthe
DefendantsisG RAN TED asfollow s:
(a) Defendantsarepreliminarilyenjoinedandorderedtoprovideacertified
kosherdietto al1prisonersw ith a sincere religiousbasisforkeeping kosherno laterthan July 1, 2014;
(b) Defendantsarepreliminarilyenjoinedfrom implementingor re-prom ulgatingProcedure503.00645)(90DayRule)oftheReligiousDietProgram ,U .S.Ex.3,
effectiveimm ediately;and

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 32 of 34

Defendantsarepreliminarilyenjoinedfrom implementingthefollowing
provisionsoftheReligiousDietProgram ,U .S.Ex.32,effectiveim mediately:

(i) Procedure503.006(4)(b)-(e)(OrthodoxSincerityTesting),
includingaskingthefollowingquestion ontheAssessmentSheetfortheCertifiedFoodOption:

%ûW hatarethereligiousreasonsforyourdietneeds?Pleaseclarifythespecificlawts)cormected

toyourbelieforfaiththatrequirets)youtoeatareligiousdiet?''; (ii) Procedure503.006(7)(c)(10PercentRule);and (iii) Procedure503.006(7)(e)(2)-(3)(ZeroToleranceRule).
Pursuanttotheparties'agreementandtheoralm otionforextensionofpretrialdeadlines

madeattheNovember22,2013hearing,thetrialin thismatterisresetforthetwo-weektrial periodbeginningAugust25,2014,thepretrialconferenceisresetforAugust4,2014 at9:30

a.m .,andthefollowingdeadlinesshallapply:

February28,2014 DefendantsshallsubmitaplanforphasingintheRDP(as m odifiedherein)inallfacilitiesbyJuly 1,2014

July 21,2014

Pretrialstipulationdueandm otionsin lim ineandresponsesdue

StatusConferencesshallbeheldonthefollowingdatesat9:30a.m .:

January 7,2014 February 4,2014

M arch 21,2014 A pril22,2014 M ay 12,2014

June24,2014

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 33 of 34

Anypartythatwishestoappearatastatusconferencebyvideoconferencem aydosoby

subm ittingacom pletedVideo ConferenceSchedulingForm,attachedasExhibitA,atleast5

businessdavsbeforethescheduled statusconference.

4. DefendantsshallarrangeforPlaintifftoinspectthreefacilitiesduringtheweek of

Decem ber16,2014andtoinspecttwomorefacilitiesbytheendofJanuary2014.
DONEandORDEREDinMiami,Florida,this Y P dayofDecember,2013.

*.

*

e

PA TRICIA A .S 1TZ UN ITED STA TES DISTRICT JU D GE

cc: Al1CounselofRecord

Case 1:12-cv-22958-PAS Document 106 Entered on FLSD Docket 12/06/2013 Page 34 of 34
V ideo C onference Scheduline Form (ForExternalOff-siteVideo ConferenceFacilities)
Pleaseprovidethefollow ing inform ation:

Approving Judge/u nitExecutive; Courtroom D eputy/cham bersContact:

CaseN o: D ocket# Referencing V ideo Conference:

Requested V ideo ConferenceD ate:
Requested V ideo ConferenceTim e:
D uration ofVideo Conference;
Attorneyts)appearingbyvideo:
A ttorney'sEm ailaddress: A ttorney'sPhone #:

ExternalIP A ddressforattorney video equipm ent: Contactinform ation forattorney video equipm ent: Testdateandtim e:

Com m ents.

D ateR equestSubm itted:

Consrm ation

ForUseO nly by Com puterServices

Y ourvideo conference isconfirm ed for at

at forthepartieslisted above.

j EXHIBIT

B y:

D ate:

1

 </s> Case 1:12-cv-22958-PAS Document 273 Entered on FLSD Docket 05/22/2014 Page 1 of 3 Case: 14-10086 Date Filed: 05/21/2014 Page: 1 of 1

John Ley Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
May 21, 2014

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 14-10086-DD Case Style: USA v. Secretary, Florida Department District Court Docket No: 1:12-cv-22958-PAS

MC
May 21, 2014
Miami For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause.
The enclosed order has been ENTERED.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Elora Jackson, DD/bmc Phone #: (404) 335-6173

MOT-2 Notice of Court Action

Case 1:12-cv-22958-PAS Document 273 Entered on FLSD Docket 05/22/2014 Page 2 of 3 Case: 14-10086 Date Filed: 05/21/2014 Page: 1 of 2

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 14-10086-DD

UNITED STATES OF AMERICA,
versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA DEPARTMENT OF CORRECTIONS,

Plaintiff-Appellee, Defendant-Appellant, Defendant.

Appeal from the United States District Court for the Southern District of Florida

Before: HULL, WILSON, and JORDAN, Circuit Judges. BY THE COURT:
Before the Court is Appellant's "'Motion for Partial Stay of Preliminary Injunction Order Pending Appeal." Appellant's motion asks for a stay of the district court's preliminary injunction prohibiting Appellant from enforcing the following three aspects of Appellant's Religious Diet Program: (1) the ''Sincerity Test," (2) the "Ten Percent Rule," and (3) the "Zero Tolerance Policy." However, Appellant's motion for a stay in the district court requested relief only with respect to the district court's injunction of the Appellant's "Zero Tolerance Policy." Accordingly, Appellant's 1notion is DENIED \VITHOUT PREJUDICE subject to Appellant's

Case 1:12-cv-22958-PAS Document 273 Entered on FLSD Docket 05/22/2014 Page 3 of 3 Case: 14-10086 Date Filed: 05/21/2014 Page: 2 of 2
right to tile a renewed motion for stay in the district court that addresses all of the relief that it seeks in the present rnotion before this Court. See United States v. Drogoul, 1 F.3d 1546, 1558 n.29 (11th Cir. 1993) (""We generally require the district court to rule on the question of a stay in the first instance"); see also Fed.R.App.P. 8(a) (providing that a party must ordinarily first move in the district court for a stay of an order pending appeal). We trust that the district court will rule expeditiously on the motion for stay, especially given the July I, 2014, deadline provided in the preliminary injunction order.
2

 </s> UN ITED STA TES D ISTR ICT C O U R T SO UTHERN DISTRICT OF FLORIDA CA SE NO.12-22958-C1V-SElTZ/TURNOFF
UNITED STATES OF AM ERICA , Plaintiff,
VS.
SECRETARY,FLORIDA DEPARTM ENT OF COR RECTION S, eta1.,
Defendants.

ORDER DENYING M OTION TO STAY

THISM ATTER isbeforetheCourton theDefendants'Renew edM otion forPartialStay
oftheCourt'sJuly 1,2014ImplementationDate(DE-3051. Defendantspreviouslyfiledan

AmendedM

otionforPartialStay(DE-260)thatsoughtastayoftheJuly

1 ,

2014

im

plem

entation

deadlinein favorofaquarterlyphase-in startinginOctober2014andculm inating on July 1,

2015.

A

tahearing

on

theAm

ended

M

otion ,

the

Courttoldthepartiesthatitdid

nothave

jurisdictiontoissueanorderstayingtheJuly1, 2014deadlineandorderingthequarterlyphase-in

becausethePreliminarylnjunctioncontainingtheJuly1, 2014deadlineiscurrentlyonappealto

theEleventhCircuit. Thus,Defendantscurrentm otionnolongerseeksanorderaddressingthe

quarterly phase-in,

Atthehearing

and

in

itsorderdenying

the A

m

ended

M

otion

to

Stay
,

the

Courtordered

thepartiestofileam otionforpartialrem andwiththeEleventh Circuitbecauseapartialrem and

w ould allow the Courtto m odify theJuly 1,2014 im plem entation datein thePrelim inary

Injunctiontopermitaquarterlyphase-in.TheDefendants'RenewedM otionstatesthat

D

efendantswillnotseek

thepartialrem

and

and ,

instead,seeksonly

the

entry

of a stay

of the

im plem entation

deadline ,

w

ithoutam

odification

ofthe

im

plem

entation

deadline .

H owever,the

Courtwillnotsimplyenterastayoftheimplementationdeadlinebecause itcannotrely on

Defendants'representationsthatitwillcontinuetoimplementitsreligiousdietprogrnm in a

timelyfashion.AtthePreliminarylnjunctionhearing, Defendants'witnessestestifiedthatthe

Defendantshadeveryintentiontohaveastatewidereligiousm ealsprogram by Septem beror

October2013,whileothersstatedthattheprogram wouldbestatewidebythebegilmingof2014.

D

espite

these representations ,

only

onecorrectionalfacility

had

im

plem

ented

areligiousdiet

program bythebegirmingof2014andthatfacility hadbeenorderedtodosobytheEleventh

Circuitin

a separate case .

D espitetheim pending July

1, 2014deadlineforstatewide

im plem entation,Defendantshaveimplementedthereligiousdietprogram atonlyahandfulof

facilities,leaving 51institutionsandassociatedfacilitiesremainingtoimplem entthereligious

dietprogram .

TheCourthaspreviouslyrepresentedtothepartiesthatitiswillingtomodify the

implem entationdeadlinebutcarmotdosowithoutapartialremandfrom theEleventhCircuit.

Defendantshavedeclinedtoseeksuch aremand .

Consequently,itis

ORDERED thatDefendants'Renewed M otionforPartialStayoftheCourt'sJuly 1,2014

ImplementationDate(DE-305JisDENIED.

DONE andORDERED

in M

iam

i ,

Florida,this

//

dayofJune,2014.

cc: A1lCounselofRecord

=
PA T CIA A .SEITZ UN ITED STA TES D ISTR ICT JUD G E

2

 </s> Case 1:12-cv-22958-PAS Document 324 Entered on FLSD Docket 06/27/2014 Page 1 of 2 Case: 14-10086 Date Filed: 06/27/2014 Page: 1 of 1
ABM

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Jun 27, 2014

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

MIAMI

John Ley Clerk of Court

June 27, 2014

For rules and forms visit www.ca11.uscourts.gov

Steven M. Larimore U.S. District Court 400 N MIAMI AVE MIAMI, FL 33128-1810
Appeal Number: 14-10086-DD Case Style: USA v. Secretary, Florida Department District Court Docket No: 1:12-cv-22958-PAS

LIMITED REMAND
Enclosed is a copy of an order remanding the referenced appeal for further proceedings. JURISDICTION OF THIS APPEAL IS BEING RETAINED BY THE ELEVENTH CIRCUIT.
This case will be held in abeyance and monitored in the Eleventh Circuit pending disposition of remand proceedings in your court.
Upon completion of remand proceedings, please promptly send a copy of the ORDER ON REMAND to this court.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Elora Jackson, DD Phone #: (404) 335-6173

CLK-3 DC Letter with Ltd Remand order

Case 1:12-cv-22958-PAS Document 324 Entered on FLSD Docket 06/27/2014 Page 2 of 2 Case: 14-10086 Date Filed: 06/27/2014 Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-10086-DD ________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Defendant-Appellant,

FLORIDA DEPARTMENT OF CORRECTIONS,

________________________

Defendant.

Appeal from the United States District Court for the Southern District of Florida ________________________

Before: TJOFLAT and MARTIN, Circuit Judges. BY THE COURT:
Appellant’s “Motion for Partial Remand” is GRANTED. This matter is REMANDED for the limited purpose of allowing the district court to modify Appellant’s deadline for providing a kosher diet to all inmates in the Florida prison system. See Fed.R.App.P. 12.1; 11th Cir. R. 12.1-1.

 </s> Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 1 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 1 of 1

Amy C. Nerenberg Acting Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
February 27, 2015

Steven M. Larimore U.S. District Court 400 N MIAMI AVE MIAMI, FL 33128-1810
Appeal Number: 14-10086-DD Case Style: USA v. Secretary, Florida Department District Court Docket No: 1:12-cv-22958-PAS

MC
Feb 27, 2015
MIAMI
For rules and forms visit www.ca11.uscourts.gov

The enclosed published order dismissing the appeal or disposing of a petition for a writ of mandamus or prohibition or other extraordinary writ has been entered. The time for issuance of the mandate is governed by FRAP 41(b). See 11th Cir. R. 41-3.
Per instructions from the Court; “Each Party to Bear Own Costs”
Sincerely,
AMY C. NERENBERG, Acting Clerk of Court
Reply to: Elora Jackson, DD Phone #: (404) 335-6173
Enclosure(s)

DIS-4 Multi-purpose dismissal letter

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 2 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 1 of 12
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ No. 14-10086 ________________________
D.C. Docket No. 1:12-cv-22958-PAS
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
Before ED CARNES, Chief Judge, RESTANI,* Judge, and MERRYDAY,** District Judge. ED CARNES, Chief Judge:
* Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by designation.
** Honorable Steven D. Merryday, United States District Judge for the Middle District of Florida, sitting by designation.

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 3 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 2 of 12
There is a vast amount of federal law. So much that no one can hope to keep it all in mind, much less master the mass of it. But it was not always so. The current universe of federal law did begin with a bang, although not a big one. It began with a Constitution on four parchment pages, followed by a Bill of Rights on one more.1 But the Constitution begat Congress, and Congress begat statutes –– lots and lots of statutes –– the current version of them fills 45,000 pages of the United States Code.2 Those statutes begat hundreds of administrative agencies, and many of those agencies begat regulations –– lots and lots of them. So many that the Code of Federal Regulations fills 235 volumes and is 175,000 pages long, give or take a few thousand pages.3 As the number of statutes and regulations has multiplied exponentially, so has decisional law. Supreme Court decisions fill 573 volumes of the official United States Reports, while federal court of appeals decisions fill 2,000 or so volumes of the Federal Reporter series.
1 The parchment pages containing the Constitution are 28 and 3/4 inches by 23 and 5/8 inches. The Bill of Rights parchment page is 28 and 1/2 inches by 28 and 1/4 inches.
2 This number is based on the 2012 edition of the United States Code, excluding volumes 35 through 41 (which contain conversion tables and indices) and annual supplements.
3 Those numbers are based on the latest official statistics from the Office of the Federal Register. See Office of the Federal Register, Code of Federal Regulations – Total Pages 1938 Through 1949, and Total Volumes and Pages 1950 Through 2013, https://www.federalregister.gov/uploads/2014/04/OFR-STATISTICS-CHARTS-ALL1-1-12013.pdf (last visited Jan. 27, 2015).
2

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 4 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 3 of 12
Truly, federal laws have multiplied to become “beyond number, like the stars in the sky and the sand on the seashore.”4 Charting a course through this universe of federal law, which is expanding at an ever-accelerating rate, can be difficult. Attorneys and judges sometimes overlook a statutory provision, a regulation, or a decision that directly controls a case. We have all done it occasionally. It happened in this case.
I. In August of 2012 the United States filed a civil suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., alleging that the failure of the State of Florida to provide a kosher diet program to all of its prisoners with sincere religious grounds for keeping kosher was a substantial burden on those prisoners’ religious exercise. The complaint requested both injunctive and declaratory relief under the statute. See 42 U.S.C. § 2000cc2(a). After the district court denied Florida’s motion to dismiss the complaint, the State issued a new policy in March 2013, formally titled “Procedure 503.006” and informally referred to as “the Religious Diet Program.” That program would
4 Genesis 22:17 (New Living Translation); see also Raymond Chandler, The Long Goodbye 315 (Vintage Books 1988) (1953) (“[Lawyers] write the laws for other lawyers to dissect in front of other lawyers called judges so that other judges can say the first judges were wrong and the Supreme Court can say the second lot were wrong. Sure there’s such a thing as law. We’re up to our necks in it.”).
3

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 5 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 4 of 12
provide prisoners with kosher meals using a combination of “prepackaged, certified kosher entrees” and kosher items from each prison’s “normal food service operations.” In addition to outlining the contents of the meals, Procedure 503.006 contains a number of provisions that determine a prisoner’s eligibility for the program. Three of those provisions are at issue in this appeal. First is the “sincerity test,” which Florida uses as a mechanism for initially determining whether a prisoner should be eligible to receive kosher meals. The second and third contested provisions are part of what the district court labeled the “Zero Tolerance Rule.” Those two provisions mandate the removal from the program of any prisoner who (1) purchases, possesses, or consumes an item that is not listed as “kosher” by Florida’s supply contractors, or (2) barters using a kosher food item.
When the United States learned about Procedure 503.006 in April 2013, it filed a motion for a preliminary injunction. It requested that the injunction: (1) require Florida “to provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher,” and (2) prohibit Florida from implementing its “new Religious Diet Program to the extent it violates RLUIPA.” After holding an evidentiary hearing, the district court granted the motion. The preliminary injunction the court entered required Florida to “provide a certified kosher diet to
4

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 6 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 5 of 12
all prisoners with a sincere religious basis for keeping kosher”5 and prevented the State from enforcing the eligibility provisions of Procedure 503.006 mentioned above.
The court’s order did not, however, mention the need-narrownessintrusiveness criteria for preliminary injunctions established by the Prison Litigation Reform Act (PLRA). See 18 U.S.C. § 3626(a)(2). Nor did the court “make[] the order final before the expiration of the 90-day period” beginning on the entry of the order. See id. Florida filed a notice of interlocutory appeal in January 2014. While this interlocutory appeal has been pending, the district court has held monthly status conferences between the parties. But the court has not made any need-narrowness-intrusiveness findings regarding the preliminary injunction, nor has it issued an order finalizing the preliminary injunction. See 18 U.S.C. § 3626(a)(2).
II. Although the parties did not raise any question about mootness, we have an obligation to notice and decide mootness issues. See Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994) (“It is incumbent upon this court to consider issues of mootness sua sponte . . . .”). Mootness is a question of law that
5 The district court’s original order required Florida to provide kosher meals on a statewide basis “no later than July 1, 2014.” The court later vacated that July 1 deadline and adopted a region-by-region timetable proposed by Florida.
5

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 7 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 6 of 12
we consider de novo. See United States v. Logal, 106 F.3d 1547, 1551 (11th Cir.
1997). We must address it at the outset because we have no jurisdiction to decide
moot questions. See United States v. Shenberg, 90 F.3d 438, 440 (11th Cir. 1996).
The mootness question is: If a preliminary injunction expires automatically by
operation of statute, and none of the parties notice, does it moot the interlocutory
appeal challenging that injunction? We conclude that, like the proverbial tree, if an
issue falls in the forest of federal law, courts must take notice of the sound even if
the parties did not hear it.6
A.
A suit challenging prison conditions under RLUIPA is governed by the
PLRA.7 See Cutter v. Wilkinson, 544 U.S. 709, 723 n.12, 125 S. Ct. 2113, 2123
n.12 (2005) (citing 42 U.S.C. § 2000cc-2(e) for the proposition that “nothing in
RLUIPA shall be construed to amend or repeal the Prison Litigation Reform Act of
6 Apologies to Bishop Berkeley. See The History of Philosophy: Modern Philosophy from 1500 CE to the Present 113 (Brian Duignan ed., 2011) (explaining that George Berkeley’s philosophy of phenomenalism was the inspiration for the “question of whether a tree falling in an uninhabited forest makes a sound”).
7 That is true even though the plaintiff in this case is the United States and not an individual prisoner. The PLRA provision at issue here states that it applies “[i]n any civil action with respect to prison conditions.” 18 U.S.C. § 3626(a)(2) (emphasis added). And the subsection defining “civil action with respect to prison conditions” states that it “means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2) (emphasis added). The provision’s plain language makes it applicable regardless of whether the plaintiff is the government or a prisoner. Cf. United States v. Puerto Rico, 642 F.3d 103, 104 (1st Cir. 2011) (applying a separate provision of § 3626 to a suit brought by the United States).
6

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 8 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 7 of 12
1995”) (quotation marks omitted). The PLRA provides that “[p]reliminary injunctive relief shall automatically expire on the date that is 90 days after its entry” unless the district court does two things. 18 U.S.C. § 3626(a)(2). The first thing the district court must do to keep a preliminary injunction alive past the 90day deadline is “make[] the findings required under subsection (a)(1) for the entry of prospective relief.” Id. The second is to “make[] the order final before the expiration of the 90-day period.” Id.
As for the findings required under subsection (a)(1), the statute directs that the district court “shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. § 3626(a)(1)(A) (emphasis added). In Cason v. Seckinger, we interpreted the term “written findings” in § 3626(b)(3), which governs the termination of prospective relief by motion of a party, in the context of a motion to terminate a consent decree. 231 F.3d 777, 785 (11th Cir. 2000). We held that a district court may not allow consent decrees to remain in effect despite a motion to terminate, unless it makes:
particularized findings . . . that each requirement imposed by the consent decrees satisfies the need-narrowness-intrusiveness criteria . . . . It is not enough to simply state in conclusory fashion that the requirements of the consent decrees satisfy those criteria. Particularized findings, analysis, and explanations should be made as
7

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 9 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 8 of 12
to the application of each criteri[on] to each requirement imposed by the consent decrees. Id.8 We see no reason why the term “finds” in § 3626(a)(1) does not require the
same particularity as the term “findings” in § 3626(b)(3). See Cason, 231 F.3d at
785; see also Erlenbaugh v. United States, 409 U.S. 239, 244, 93 S. Ct. 477, 480
(1972) (“[I]ndividual sections of a single statute should be construed
together . . . .”). We thus read § 3626(a)(1) to require particularized findings that
each requirement imposed by the preliminary injunction satisfies each of the need-
narrowness-intrusiveness criteria.
In this case the district court did not make those particularized findings or
finalize its order. The court entered its preliminary injunction order on December
6, 2013. The 90-day clock began ticking the next day. See 18 U.S.C.
§ 3626(a)(2); Fed. R. Civ. P. 6(a)(1). Neither the December 6 order nor any of the
court’s later orders contained specific findings that any of the preliminary
8 In Cason, we interpreted the terms in § 3626(b)(3). See 231 F.3d at 785. That paragraph provides:
Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. 18 U.S.C. § 3626(b)(3) (emphasis added). In comparison, § 3626(a)(1) states that a “court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. § 3626(a)(1)(A) (emphasis added).
8

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 10 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 9 of 12
injunction’s requirements satisfied the need-narrowness-intrusiveness criteria in
§ 3626(a)(2), much less an explanation of how they did. The court also did not
issue an order finalizing its December 6 order. As a result, the preliminary injunction expired by operation of law on Thursday, March 6, 2014.9 See 18
U.S.C. § 3626(a)(2); Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001)
(“Because the district court in the present case did not make either of the
preliminary injunctions at issue final within 90 days, both injunctions expired
pursuant to [§ 3626(a)(2)].”). The question thus becomes whether the expiration of
the preliminary injunction renders this appeal moot.
B.
An appeal is moot “when, by virtue of an intervening event, a court of
appeals cannot grant any effectual relief whatever in favor of the appellant.”
Calderon v. Moore, 518 U.S. 149, 150, 116 S. Ct. 2066, 2067 (1996) (quotation
marks omitted). One such intervening event is the expiration of a preliminary
9 In response to our request for supplemental briefing on the mootness issue, Florida argued that the preliminary injunction did not expire on March 6 because, after entering the preliminary injunction order, the district court issued several later orders clarifying the scope of the injunction. None of the orders to which Florida points renewed the preliminary injunction. They merely clarified the scope of the existing injunction. Clarification is not renewal. Cf. Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001) (holding that § 3626(a)(2) permits a district court to “enter[ a] second injunction after the first one expire[s]”). In any event, it does not matter, because the last of the orders that Florida cites was entered on June 30, 2014. So even if we accepted Florida’s renewal argument, the preliminary injunction would have expired on Monday, September 29, 2014. Cf. Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).
9

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 11 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 10 of 12
injunction that is being challenged in an interlocutory appeal. See Local No. 8-6, Oil, Chem. & Atomic Workers Int’l Union v. Missouri, 361 U.S. 363, 367, 80 S. Ct. 391, 394 (1960); Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114, 1119 (11th Cir. 1995) (“[T]his court has consistently held that the appeal of a preliminary injunction is moot where the effective time period of the injunction has passed.”) (citing Tropicana Prods. Sales, Inc. v. Phillips Brokerage Co., 874 F.2d 1581, 1582–83 (11th Cir. 1989) and Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)).10 If the preliminary injunction has expired, it no longer has legal effect on the parties, and a decision by this court affirming or vacating the defunct injunction “cannot affect the rights of [the] litigants.” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705 (1974).
The preliminary injunction in the present case passed on to injunction heaven on March 6, 2014. And with it died this appeal, unless some exception to the mootness doctrine can save it. See Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir. 1997). The only one that could arguably apply here is the one for disputes that are “capable of repetition, yet evading review.” See Strickland v. Alexander, 772 F.3d 876, 887 (11th Cir. 2014). It applies where “(1) there [is] a
10 Earlier decisions by this Court recognized “the traditional rule that issues raised by an expired injunction are not moot if one party was required to post an injunction bond.” Medtronic, Inc. v. Janss, 729 F.2d 1395, 1398–99 (11th Cir. 1984) (quotation marks omitted). Here, neither party claims to have posted an injunction bond, and our own review of the record confirms that none was posted.
10

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 12 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 11 of 12
reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.” Martin, 110 F.3d at 1554.
That exception does not apply here because Florida has not demonstrated a probability that any additional injunction the district court enters will evade review. In arguing about the government’s motion for a preliminary injunction, the parties did not mention the PLRA in any of their briefs or during the hearing on the motion. And the district court did not mention the statute in its order entering the preliminary injunction or any of its later orders regarding the scope of that injunction. It is apparent that the parties and the district court simply overlooked the findings and finalization requirements of 18 U.S.C. § 3626(a)(2). There is no basis for us to predict that if the United States seeks a new preliminary injunction, the district court (assuming it grants the motion) will decline to make the required need-narrowness-intrusiveness findings or will refrain from finalizing its order. See 18 U.S.C. § 3626(a)(2). Or to put it in terms of the mootness exception, there is no “reasonable expectation” that any new preliminary injunction would expire before it reached this Court on appeal. See Martin, 110 F.3d at 1554. The issues underlying the preliminary injunction the district court entered are capable of repetition but we do not expect that they will evade review if they arise again.
11

Case 1:12-cv-22958-PAS Document 460 Entered on FLSD Docket 02/27/2015 Page 13 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 12 of 12
III. When an issue becomes moot on appeal, we not only “dismiss as to the mooted issue, but also vacate the portion of the district court’s order that addresses it.” De La Teja v. United States, 321 F.3d 1357, 1364 (11th Cir. 2003); see United States v. Ghandtchi (In re Ghandtchi), 705 F.2d 1315, 1316 (11th Cir. 1983) (“Where a case becomes moot after the district court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss the appeal, vacate the district court’s judgment, and remand with instructions to dismiss the case as moot.”). We vacate the moot part of the order because “a party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness to be forced to acquiesce in the judgment.” De La Teja, 321 F.3d at 1364 (quotation marks omitted). Florida’s appeal from the now expired preliminary injunction is therefore DISMISSED as moot, but the district court’s orders entering and clarifying that preliminary injunction are VACATED.
12

 </s> PR(''..'IL)ED -rO M ('.'Si'(hl

. Y Case 1:12-cv-G2;.h29.)'57:D8F-(P(.*7.Ay.,!jjS1 :',5D-oT(c-)'-u!JmTje(.)Mnt 461 Entered on FLSD Docket 03/04/2015 Page 1 of 31

..

o. y

F. 'k').i'.)(',..1'.'t((..-)'I.t(.:.1'

IN TH E U N ITED STA TES D IST RIC T CO U R T SO UTH ERN DISTR IC T O F FL O RIDA
CaseN o.12-22958-ClV -SElTZ
UN ITED STA TES OF A M ERICA , Plaintiff,

FILED by

D.C.

MA2-i 2215

STEVEN M.LARIMORE CLERK U.& DlsT.cT, s.D.ofFLA. - MIAMI

Secretary,Fla.D ept.ofCorrections,et.a1.,

Defendantts).

/

TH IRD PA RTY CO M PLA W T FOR SPECIFIC PERFORM AN CE O F PR ELIM INA RY INJU NCTION
ORD ERED A GA IN ST D EFEND A NTS
The above case cam e beforethis Honorable Courton oraround June4 or5,2013.Since

thattime,theDefendantts)havefailedtocom ply with numerousordersancl/orinjunctionsissued

by this Court.
This complaintisadirectresultofthe Defendantts)num erousdefaultsand/oroutright
failureto com ply to thisCourt'sdirectionsin that:
a) On the 17th day ofJanuary, 2013,an initialorderwasdirectedtowardsthe
Florida D epartm ent of Corrections to im plem ent a Kosher/cFo option for Jewish

inm ates,and,
b) Thaton the4thday ofJune,2013,the F.D .O.C.filed a new policy,F.A .C.
503.006,and essentially told thisH onorableCourt$1W earen'tgoing to do this.'' Thatonthe22''ddayofNovember2013, thisCourtagain orderedand/orasked
theF.D .O.C.to providereasoningasto why it/they wouldnotcomply with thisCourt's

order.

# Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 2 of 31
The F.D .O .C .then began asystem atic display ofreasoning asto why itcould notpossiblysponsoraCFo/Kosherprogram ,which cam edown to costefficiency and/or alack offunding.
Furtherm ore, the D efendants, failing to overcom e the klcost problem '' decided to im plem ent the least costly program it could com e up w ith and began to change their adm inistrativecodesin an effortto retlectthe Defendant'snew option and legality ofsuch.See,
ExhibitA-1,A-2).Asyou'llsee,thepolicystatesûlllotmealswillbeserved perday.''And,Ex
A -2 now has the sentence removed.You'llnotice am ended change dateson bottom ofeach Exhibiton the2ndpageoj.eacj4sxhibit.
The Defendants are furthering theirown agenda to the detrim entofm y Jewish heritage and are outrightm aking a m ockery ofm y beliefs and tenants and the need to eatonly K osher food item sby notproviding prepackaged food stuffs pertheirown policy 503.006 religious
diets/cFo.Thiswasam ended overtivetimesin two yearssothat1)they couldrefuse anyone, orremoveanyone,and2)sotheycouldallow anyoneexpressinganinteresttoparticipate.They
callitllkosher''and only ahandfulofparticipantsareJew ish,and outofthose few ,only aportion are orw ere born Jew ish and truly understand the need to keep Kosherand thedietary law s,m ost participantsarenotJew ish,nordo they observeK osherdietarylaw s,nordothey careto do so.
M oreover,the D efendantscontinuously show theircontem ptforthisHonorableCourtin theiroverallim plem entation,care and delivery ofCFO food stuffto participantsin theprogram by:
Notservingprepackaged,preplated food aspertheircurrentpolicy (M arch 22,2014);

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 3 of 31
preparing and handling offood in anon-Koshersetting and using non-K osher equipm ent;
c) preparingandstoringoffoodadayortwoinadvance; d) refusingtoallow Kosherobservantinmatesto eatseparately,orin aKosher
approved dining hall;
e) ordering a11CFO participants to notonly eatin an unclean environm ent,but theyhavetoeatoff(and/orouto9 theirbrownpaperbagsthatthecoldmealsareserved
w ithin;
9 refusing to allow CFO participantsto bring their bow ls orcups so w e don't havetoeatoffof(and/oroutot)apapersack;
g) refusing to allow CFO participantsto takefood stuffstotheirdorm itory where
properK osherobservance can takeplace;
h) AssistantW ardenofSecurity,M arlow,tellingmeûtthecourtordertellsusto feedyouinthediningroom,andoffof(and/orouto9 bags,''andtodatehehasfailedto providesaidcourtorder(asperpolicyl;
M r.M arlow stating,kûw e w illnotbe serving prepackaged-preplated m ealsat
thisinstitution,norwilll(thecomplainant)receiveanyhotm eals-'' thatper503.006 (see ExhibitB incorporated herein by reference)thatthe
religiousdietprogram presented tothiscourt,repeatedly isstillnotin compliance,and;
k) A ssistantW arden Program s,M artin CIdid infonn this com plainantthatyou
approved everything they are doing by courtorderin Septem berof2014,again w ithout providing said proof;

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 4 of 31
Thiscourtwasledtobelieve(bytheDefendants)thatallthreem ealswouldbe
ûûserved''prepackaged and ûiprepared''in atûKosher''setting,and thatwith theexclusion
ofthepeanutbutter,jelly,cereal,fishandcondiments,thisisnotbeingadheredto,and food stuffsarebeing handled in an areawhere staffusedtherestroom facilities(asl
worked in this area for about 2 or3 days untiltheir food service director M s.Brown
redirected m ywork areadueto excessiveoverexplanationsastowhyher(M s.Brown's)
methods could notbe used for Kosher food preparation and the setting in which the
preparation is being done).
The setting and idea ofthis CF0 program wasto allow Kosherobservance to Jewish inm atesthathave a sincereneed to keep theirdietary law s,notforthe generalpopulation tohave atitaûeranswering a few meagerquestionspresented to them by an untrained clergy person, and in fact,itfeelslike Iam beingpunished forbeing Jew ish and causing theD efendantstohave toprovidemewith am ealconsistentwithm ybeliefsordoctrineaswellasdietarylaws.
And the factthatthe F.D .O .C.purposely and arbitrarily changed F.A .C.ch.33-204.003
FoodServices- StandardofOperations(whichwaschangedpreviouslyduetothefactthatthe
D efendants were facing litigation for attem pting to serve 1ta11''cold m ealsto the entire prison
population)duethepresentlitigation sothattheaboveadm inistrativecodenolongerreflects44(1)
Generalinm atesshallreceive three m ealsperday,ofwhich atleasttw o shallbehotm eals.''To
now read,:t(l)General.Inmatesshallreceivethreemealsperday.''
Granted,the factthatitw as changed in M ay of 2014,butthat's when the D efendants decided to treatthe CFO meals in a differentm annerunder similar circum stanceswhich is causing harm to com plainantphysically and em otionally.The D efendants feed over 100,000
inm ates(3)hotm ealsperday,yet,dueto thefacttheyarebeingorderedtoexpandtheirdietary
4

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 5 of 31
#
options,theywantto dosoin aw aythatisinconsistentwith theFirstAm endm entoftheUnited StatesConstitution form e,aJew ish inm ate.
See ExhibitC ,an articleby D araK am ,N ew sServiceofFlorida,which statesin pertinent part:tç...The contention is thatthe F.D .O .C .are using presentm enu to discourage or punish inm ates.''Thesamearticlegoesontoexplain partialhistoryofthecase,up to andincludingç4the agency istryingto do awaywith decades-o1dnllerequirinzthatinm atesreceivetwohptm eals aday.Too late,asthedefendantsdid do away with said rulesand 1aw usingtheirrulem aking
authorityunderF.S.A.j120.54 and 120.536.
Y ou'llnoticethatboth ofthese statutes contend thatrulescannotbe changed arbitrarily, yetthe Defendantschoseto ignorethatfact...again.
CON C LU SION lassertthattheDefendantsarestillbeing arbitrary and outrightignoringthisHonorable Court'sinstructionsandareseekingmultiplewaystodefy everyorderthisHonorableCourtputs
forthbyservingCFO diets(me)coldmeals,inandonpaperbags,withoutaccesstoeithercold
or hot water during certain m eals,forcing m e to eat in a room that infested with mold, cockroaches,open drainage on the floorsby allow ing a m ockery to be m ade ofstrictKosher observance by allow ing inm ates who are not hereditarily Jew ish, M uslim , or Seventh Day Adventiststo ûtsign-up''andbe partidpants.
W HEREFORE,thecomplainantrespectfully praysthatthisHonorableCourtgrantthis
third-party complaintand ordertheDefendantsto complywith gllofthisHonorableCourt's
O rders,to the letterorto place theprogram in abeyanceuntilsuch a tim ethatthe above can be fully investigated,and/orto initiatetinesagainstthe Defendantsin lieu offailureto comply in the nmountofno m orethan $50,000.00 perday and/orno lessthan $10,000.00 perday,until
5

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 6 of 31

suchcomplianceisobservedorverified and anyal1otherreliefdeemedjustandproperinthis

prem ise.

Respectfully Subm itted,
<
/s//
D id Brenn , 385902

* 3u 9/1

U N NO TAR IZED OA TH
1,DavidBrennan,swearunderpenaltyofperjuryandIdeclarethatthefactsstatedinthis

motion aretnzeand correctunderUnited StatesLaw 18 U.S.C.j1621and28U.S.C.j1746.

ExecutedonthisR :Q/ dayoryebruaryzols.

/s/

..--

DjvidBrennan,#385902

# xeNqpl

CERTIFICATE O F SERVICE l H ER EBY CER TIFY thata true and correctcopy of this m otion was placed in the

hands of prison officials for m ailing to:A ssistant Attorney G eneral, O ffice of the Attorney

a s.*; lïzo Aoeae qr

, xb

General,

'

W estPalm Beach,Florida33401on thi day

ofFebruary 2015.

c

/s/

'.'-w w

D avid Brennan,#385902

M artin CorrectionalInstitution

1150 S.W .A llapattah Road

Indiantow n,Florida 34956

6

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 7 of 31
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Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 8 of 31
I
33-294.003 Food Services- StandardsofO peration.
(1)General.lnmatesshallreceivethreemealsperday,ofwhichatleasttwoshallbehotm eals.Themealsshallbeprovidedat
regularmealtimesduringeach24-hourpcriod,withaperiodofnomorethan 14hoursbetweentheend oftheeveningmealandthe begilmingofthemorningmeal,weathcrandsecmitypermitting.Holiday substitutionsthatdeviatefrom themastermenumustbe
approved in advancebytheinstitutîonalwarden,workreleasecentermajor,ordnzg treatmentcenterchiefcorrectionalofticer. Prescribedtherapeuticbietsshallbeavailabletoal1inmateswithacurrentdietprescription.
(2)Confinement. (a)A!1inm atesinconfnementshallreceivenormalinstitutionalmealsasareavailabletothegeneralpopulation,cxceptthatif
any item on thenormalmenu oranyfoodutensilmightcreatea securityproblem in theconfnementarea,then anotheritem of comparablequalityorotherappropriateutensilsshallbesubstituted.SubstitutionsshallbedocumentedonForm DC6-209,Housing UnitLog,andForm DC6-210,IncidentReport.Form 13C6-209isincorporatedbyreferenceinRule33-601.800,F.A.C,Form DC6-
210 isincorporated byreferencein Rule33-602.210,F.A.C.
(b)Hotfood served in satellitefood operationsshallbeprotected from contamination in transitandshallbeserved at
temperaturessetbytheDepartm entofHealth.
(c)TheprovisionsofRule33-602.223,F.A.C.,shallbeutilizedinplacinginmatesonthespecialmanagementmeal. (d)Food shallnotbewithheld,northestandard menu varied,asadisciplinarysanctionorasareward forgood behavioror
work foranindividualinmate.
(3)M enus.TheDietaryReferenceIntakesoftheFoodandNutritionBoard-NationalAcademyofSciencesshallsel'veasthe
standard forthepreparation ofm enusand theevaluation ofm enusserved.TheD ietaryReferenceIntakesoftheFood andNutrition Board are hereby incorporatcd by reference.A copy ofthe Dietary Reference Intakes may be obtained from the Bureau of InstitutionalSupportScrvices,Food Service Section,2601 Blair Stone Road,Tallahassee,Florida 32399-2500.The Dietary
ReferenceIntakeswerecopyrightedin2001.
(a)Themastermenusreviewedby themastermenu committee shallbeusedbya11institutionsandfacilitieswithinthe
departm ent.Them asterm enusshallbereviewed atlemstannually bythedepartm ent'sm asterm enucom mitteetodeterm inetheneed
foradjustments based upon cost,nukitionalvalue,equipmentcapabilities,productavailability and staffdetermined inmate
preferences.
(b)Food preparation and serviceshallbescheduledto ensurethatfood isserved assoon aftercompletionofpreparationas
possibleapd attheappropriatetem perature.
(c)Mealsshallbepreparedandservedinaccordancewiththemastermenu ineffect.Nospeciallypreparedmealsshallbe
servedexceptthoseapprovedtherapeuticdietsthatareprescribed bytheattending physician,clinicalassociateordentist.
(d)Themastermenushallbeadheredtoexceptthatspecifk menusandmcnuitemsaresubjecttochangebythepersonin
chargeoffoodscrviceateach facilityduetoproductionproblems,productavailability,orsecurityissues.Failuretoorderaproduct doesnotconstittztealack ofavailability.Substitutionswillnotbeplannedtoutilizeleftovers,'W henmenusubstitutionsarerequired, thesubstitutionswïllbefrom thesamefoodgroupastheoriginalmenuitem.Themastermenumanualprovidesalistofappropriate substitutionswithinfood groups.A1linmatesshallreceivethesamefood itemsasspecifiedonthemastermenu.Adequateamounts offoodm ustbeprtpared toserveal1inm atesaccording tothem asterm enu.
(e)Al1vegetablesshallbepreparedwithoutmeat,animalfat,meat-bascdbroth,margarineorbuttertobesuitableforrcligious
and strictvegetarian diets.
(4)Veganmealpattern.Inmatesmaychoosethevegan(strictvegetarian)mealpatternbysubmittingForm 17C6-236,Inmate
Request,to the food servicedirectoratthefacility w heretheinm ateishoused.An inm ate who istransferredtoanothcrfacilityshall beallowedtocontinuetheveganmealpattcrnatthenew facilityby showingtheinmaterequestthatwasapprovedbytheprevious food selwicedirectoruntilhisrequestisapprovedbythenew foodservicedirector.Form 9C6-236isincoporatedbyreferencein
Rule33-193.019,F.A.C .
(a)Thefollowinginmatesshallberemovedimmediatelyfrom theveganmealpattern:
1.Imnatesobservedeatingfrom theregularmenu; 2.Inmatesobscrvedeating thealternativeentrée;and 3.Inmateswho intentionally purchase,possess,or consume items from the canteen thatcontain any animalproductsor
byproducts.
(b)StaffshalldocumenttheincidentonForm DC6-210,IncidentReport.Suchinmatesshallbeineligibletoreapplyforthe

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 9 of 31

veganmealpattem forsixmonthsafterinvoluntaryremoval.
(c)Aninmatewhovoluntarilyrequeststoberemovedfrom theveganmealpatternmaynotreapplyforthepattenzfor30days. (5)TherapeuticDiets.Therapeuticdietsformedicalordentalreasonsshalibeprovidedasordered byaDepartmentof Correctionscredentialedphfsician,clinicalassociate(physiciansassistant,advancedregisterednursepractitioner)ordentist.A11
ordersfortherapeuticdietsshallbe in writing.Non-standard therapeutic diets shallbe approved by the publichealthnutrition program managerandtheregionalmedicalexccutivedirector.Thcrapeuticdiets shallbe served foramaximum of90days.Diets extendingforperiodslongerthan90daysshallrequireanew dietorderfrom theattendingDepartmentofCorrectionscredentialed
physician,clinicalassociate(physiciansassistantoradvancedregisterednursepractitioner)ordentist.Dietprescriptionorëersmust
bereceived in foodservicespriortotheexpiration ofthecurrentprescriptionto avoid interruptionofthetherapeuticdiet.ThePublic Hca1thNutritionPropam ManagerandthePublicHealthConsultantsshallbeavailableforconsultationbyhealthandfoodservicc
personnelregardingtherapeuticdiets.
(6)ReligiousDiets.The alternate entree and theveganmealpattern providesmealoptionsforthereligiousrequirementsof
inm ateswhosereligionsrequireapork-free,lacto-ovo,lacto-vegetarian,orvegandiet.

Rulemaking Authority 944.09Fs.Law Implemented 944.09F.î.History-New 1-18-89,Amended 7-21-97,Formerly 33-30.003,Amendedd-p-pp,

11-16-00,10-2-01,2-18-02,7-2-03,11-1-04,2-27-05,10-16-05,1-17-06,4-27-09,3-3-10,

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Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 10 of 31
Dave

Rule33-204.003,F.A.C.

W EST'SFLORIDA ADM INISTRATIVE CODE TITLE 33.DEPARTM ENTOFCORRECTIONS CHAPTER 33-204,FOOD SERVICES

CurrentwithamendmentsavailablethroughJanuary3.2014.

33-204.003.FoodServices- StandardsofOperation.

(1)General.Inmatesshallreceivethreemealsperday,ofwhichatleasttwoshallbehotmeals.Themealsshallbeprovidedatregularmeal timesduringeach24-hourperiod,with aperiodofno morethan 14 hoursbetweentheend oftheeveningmealand thebeginningofthemorning meal,weatherand security permitting.Holidaysubstitutionsthatdeviate from the mastermenu mustbe approved inadvanceby theinstitutional
warden,workreleasecentermajor,ordrugtreatmentcenterchiefcorrectionalofficer.Prescribedtherapeuticdietsshallbeavaildbletoallinmates
withacurrentdietprescription.

(2)Confinementandspecialhousingunits.

(a)Al1inmatesin continementand specialhousing shallreceivenormalinstitutionalmealsasareavailable to the generalpopulation,
exceptthatifany item on thenormalmenu orany food utensilmightcreatea security problem in the continementarea,then anotheritem of

comparablequalityorotherappropriateutensilsshallbesubstituted.SubstitutionsshallbedocumentedonForm DC6-209,HousinjUnitLog,and
Form DC6-210,IncidentReport.Fonn DC6-209 is incorporated by reference in > Rule33-601.800,F.A.C.Form DC6-210 islncorporated by

referencein>Rule33-602,210,F.A.C.

'

(b)Uponenteringcontinementorspecialhousing,aninmateshalldesignatehisorhersingularchoiceoftheregularmenu,altemateentrée.
orvegan mealpattern.Theinmatem ayvoluntarilyalterthischoicebysubmittingForm 17C6-236,InmateRequest,tothefoodselwicedirectorevery
30days.Form 17C6-236isincop oratedbyreferencein> Rule33-103.005,F.A.C.

(c)Hotfoodservedinsatellitefoodoperationsshallbeprotectedfrom contaminationintransïtandshallbeservedattemperaturessetby
theDepartmentofHealth.

(d)Theprovisionsof> Rule33-602.223,F.A.C.,shallbeutilizedinplacinginmatesonthespecialmanagementmeal.

(e)Food shallnotbewithheld,northestandardmenuvaried,asadisciplinary sanctionorasarewardforgoodbehaviororworkforan
individualinmate.

(3)M enus.'TheDietaryReferencelntakesoftheFoodandNutritionBoard-NationalAcademyofSciencesshallserveasthestandardfor the preparation ofmenus and the evaluation of menus served.The Dietary Reference Intakes ofthe Food and Nutrition Board are hereby
incorporatedbyreference.A copyoftheDietaryReferenceIntakesmaybeobtainedfrom theBureau ofContractM anagementandM onitoring,501 SouthCalhounStreet,Tallahassee,Florida32399-2500.n eDietaryReferenceIntakeswerecopyrightedin2004.
(a)Themastermenusreviewed by themastermenucommitteeshallbeusedby allinstitutionsandfacilitieswithinthedepartment.The mastermenusshallbereviewedatleastannuallybythedepartment'smastermenucommitteetodetenninetheneedforadjustmentsbaseduponcost,
nutritionalvalue,equipmentcapabilities,productavailabilityandstaffdetenninedinmatepreferences.
(b)Foodpreparationandserviceshallbescheduledtoensurethatfoodisservedassoonaftercompletionofpreparationaspossibleandat
theappropriatetem perature.
(c)Mealsshallbeprepared and servedinaccordancewith themastermenu in effect.No speciallyprepared mealsshallbeserved except
thoseapprovedtherapeuticdietsthatareprescribedbytheattendingphysician,clinicalassociateordentist.
(d)Tlemastermenushallbeadheredtoexceptthatspeciscmenusandmenuitemsaresubjecttochangebythepersoninchargeoftbt)d
serviceateachfacilityduetoproductionorequipmentproblem s,non-deliveryofingredientsorfood items,securityissues,useoffarm produceor USDA commoditiessorasauthorizedbythewarden.Whenmenusubstitutionsarerequiredsthesubstitutionswillbefrom thesam efoodgroupasthe originalmenu item.Themastermenum anualprovidesalistofappropriatesubstitutionswithin food groups.Adequateamountsoffoodmustbe preparedtoservea1linmatesaccordingtothemastermenu.
(e)A1lvegetablesshallbe prepared withoutmeat,animalfat,meat-based broth,margarineorbuttertobesuitableforreligiousandstrict
vegetarian diets.
(9 Foodandbeverageshallnotbeconsumedinfoodpreparationareas.
(g)Leftoverfoodsmustbelabeledwith thecontents,date,andtimeofproductionandhandledinaccordancewiththeprovisionsof subsections M E-Il.004(3)and 64E-11.004(14),F.A.C.Food Hygiene.Subsections 64E-1l.004(3)and 64E-1l.004(14),F.A.C.,are hereby

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 11 of 31
incorporatedbyreference.Copiesoftheserulesareavailablefrom theFonnsControlAdministrator,501South CalhounStreet,Tallahassee,Florida
32399-2500,httpr//www.oales.or#Gateway/reference.asp?No=Ref-ozo67.Theeffectivedateoftheserulesis7-14-2003.
(h)Toiletandhand-washingfacilitiesshallbereadilyavailabletofood servicestaffandinmatefoodhandlers.Foodservicestaffand
inmatefooëhandlersarerequiredto wash theirhandspriortoreportingtodutyandafterusingtoiletfacilities.
(i)A copyofChapter64E-ll,F.A.C.,FoodHygiene,willbeavailableforreferenceateachdepartmentfoodservicefacility.
(4)Veganmealpattern.lnmatesmaychoosetheveganmealpatternbysubmittingForm 9C6-236,lnmateRequest,tothefoodselaice
directoratthefacilitywheretheinm ateishoused,and shallindicate ifthey areparticipating asavegan.An inmatewho istransferredtoanother facilityshallbeallowedtocontinuetheveganmealpatternatthenew facilitybyshowingtheinmaterequestthatwasapprovedbythepreviousfood servicedirectoruntilhisrequestisapprovedbythenew foodservicedirector.
(a)Thefollowinginmatesshallberemovedimmediatelyfrom theveganmealpattern:
1.Inmatesobservedeating from theregularmenu;
2.Inmatesobservedeatingthealternativeentrée;and
3.Inmates whoare noton the mealpattern forreligiousreasons and who intentionally purchase.possess,orconsumeitemsfrom the canteenthatcontainanyanimalproductsorbyproducts.
(b)StaffshalldocumenttheincidentonForm DC6-2l0,lncidentReport.Suchinmatesshallbeineligibletoreapplyfortheveganmeal
patternforsixm onthsafterinvoluntaryremoval.
(c)Aninmatewhovoluntarilyrequeststoberemovedfrom theveganmealpatternmaynotreapplyforthepatternforaminimum of30
days.
(5)TherapeuticDiets.Therapeuticdietsformedicalordentalreasonsshallbeprovided asordered by aDepartmentofCorrections credentialedphysician,clinicalassociate(physiciansassistant,advancedregisterednursepractitioner)ordentist.Allordersfortherapeuticdietsshall
beinwriting.Non-standard therapeuticdietsshallbeapproved bythepublichealth nutrition program managerandtheregionalmedicalexecutive director.n erapeuticdietsshallbeserved foramaximum of90days.Dietsextending forperiodslongerthan90daysshallrequireanew dietorder
from the attending Department of Corrections credentialed physician. clinical associate (physicians assistantor advanced registered nurse practitioner)ordentist.Dietprescription ordersmustbereceived in food servicespriorto theexpirationofthecurrentprescriptiontoavoid
interruption ofthetherapeuticdiet.'n ePublicHea1thNutrition Program M anagerandthePublicHealthNutritionConsultantsshallbeavailablefor consultationbyhealthandfoodservicepersonnelregardingtherapeuticdiets.
(6)ReligiousDiets.n ealternateentreeandtheveganmealpatternprovidesmealoptionsforthereligiousrequirementsofinmates.
(7)MealattendanceforinmatesontheveganmealpatternoratherapeuticdietshallbetrackedusingFonnDC4-668,DietAttendance
Roster,Form 17C4-668isherebyincorporatedbyreference.Copiesofthisform areavailablefrom theFonnsControlAdministrator,501S.Calhoun St.,TallahasseeFL 32399-2500,http://www.crules.org/Gateway/reference.asp?No=Ref-o1869.Theeffectivedateoftheform isl2-l2.
(a)4,ninmateontheveganmealpatternwhomissesI0% ormoreofhisorherveganmealswithinamonthwillberemovedfrom the
veganmealplanandmaynotre-applyforaminimum ofsixmonths.
(b)Aninmateonatherapeuticdietwho,followingtheolientation,missesl0% ormoreofhisorhermealsduringthetirstmonth,ormisses ninemealsinanycalendarmonththereafter,issubjecttodisciplinaryaction.
AdoptedJan.18,1989,.AmendedJuly 21,l997,.Transferred from 33-30.003,.AmendedAug.9,2000,Nov.16,2000,Oct.2,200l,Feb.18,2002, July2,2003,Nov.l.2004,Feb.27,2005,Oct.16,2005,Jan.17,2006; AmendedApril27,2009.AmendedM arch3,2010;July 18,20l0,'Dec. 30,2012,
Authority:> 944.09FS.Law lmplemented>944.09FS.

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 12 of 31

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Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 13 of 31
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Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 14 of 31

33-204.:03Food Services-StandardsefOperation.

(1)General

Inm

'
ates shall receive tlzree

mealsperday.The

mealsshallbepro:,idedfatregu1arm

ealtimesduringeach24-hour

.

period,witllaperiodofnomoretlkan 14hoursbetweentheendoftheeveningmealandthebegilmingofthemorningmeal,weather

andsecuritypermitting.Holidaysubstitutionsthatdeviate from themastermenu mustbeapproved in advancebytheinstitutional

warden,workreleasecentermajor,ordrugtreatmentcenterchiefcorrectionalofficer.Prescribedtherapeuticdietsslmllbeavailable

to a11inm atesw ith a currentdietprescliption.

(2)Confinementandspecialhousingunits. (a)A1linmates in confinementand specialhousing shallreceivenormalinstitutionalmealsasare available to thegeneral

population,èxceptthatifanyitem onthenormalmenuoranyfoodutensilmightcreateasecurityproblenlin theconfinementarea,

then anotheritem ofeomparable quality orotherappropriate utensilsshallbesubstituted.Substitutionsshallbedocumented on

Fol'm DC6-209,HousingUnitLog,andFol'm DC6-210,lncidentReport.Form 1.)C6-209isincomorated by referenceinRule33-

601.800,F.A.C.Form DC6-210isincomoratedbyreferenceinRule33-602.210,F.A.C.

(b)Upon entering confinementorspecialhousing,an inmateshalldesignatehisorhersingularchoieeoftheregularmenu,

alternateentrée,orveganmealpattem .TheinmatemayvoluntarilyalterthischoicebysubmittingForm DC6-236,InmateRequesq

tothefoodservicedirectorevery30days.Form DC6-236isincorporatedbyreferenceinRule33-103.005,F.A.C.

(c)Hotfood served in satellitefood operationsshallbe protected from contamination in transitand shallbeserved at

temperaturessetby theDepartmentofHea1th.
(d)TheprovisionsofRule33-602.223,F.A.C.,shallbeutilizedinplacinginmatesonthespecialmanagementmeal.

(e)Foodshallnotbewithheld,northestandardmenuvaried,asadisciplinarysanctionorasarewardforgoodbehaviororwork

foranindividualinm ate.
(3)M enus.TheDietaryReferenceIntakesoftheFoodandNutritionBoard-NationalAcademyofSciencesslzallserveasthe
standard forthepreparation ofmenusand theevaluation ofm enusserved.TheDietaryReferenceIntakesofthe Food and Nutrition Boardareherebyincorporatedbyreference.A copy oftheDietaryReferenceIntakesmaybeobtainedfrom theBureauofContract
M anagementand M onitoring,501 South Calhoun Street,Tallahassee,Florida32399-2500.TheDietm'yReference Intakeswere

copyrighted in 2004.
(a)Themastermenusreviewed bythemastermenucommitteeshallbeusedby a11institutionsand facilitieswithinthe
departm ent.The m asterm enusshallbereviewed atleastannually by thedepartm ent'sm astermenucom m itteeto determinetheneed

foradjustments based upon cost, nutritionalvalue,equipventcapabilities,productavpilability and staffdetermined inmate

preferences.
#(b)Foodpreparationandserviceshallbescheduled to ensure thattbod isservedassoon aftercompletion ofpreparation as
possibleand attheappropriatetem peram re.
(c)Mealsshallbeprepared and served inaccordancewith the mastermenu in effect.No specially prepared mealsshailbe

servedexceptthose approvedtherapeuticdietsthatareprescribedby theattendingphysician,clinicalassociateordentist.

(d)Themastermenushallbeadheredtoexceptthatspeciik menusandmenuitemsaresubjecttochangebythepersonin
chargeoffood serviceateachfacility duetoprodtlctionorequipmentproblems,non-deliveryofingredientsorfooditems,security

issues,useoffann produce orUSDA comm odities,orasauthorized by the warden.W hen m enu substitutionsare required,the

substitutionswillbefrom thesamefbodgroup astheoriginalmenu item.Themastermenu manualprovidesalistofappropriate

substitutionswithin tbodgroups.Adequate am ountsoffoodm ustbepreparedtoservea11inm atesaccordingtothem asterm enu.

(e)A1lvegetablesshallbe prepared withoutm eat,anim alfat,m eat-based broth,m argarine orbutterto be suitableforreligious
and strictvegetarian diets.

4(9Foodandbeverageshallnotbeconsumedinfoodpreparationareas.

/(g)Leftoverfoodsmustbelabeledwiththecontents,date,andtimeofproductionandhandledinaccordancewiththe

provisionsofsubsections64E-11.004(3)and 64E-11.004(14t F.A.C.Food Hygiene.Subsections64E-11.004(3)and 64E-

1l.004414),F.A

.C.,arehere

y

lncom. .

' '
orated

by

..

.

referen/è.Copiesofthese

nzles are available from

the Form

sControlAdministrator,

501 South Calhoun Street,Tallahassee, Florida 32399-2500, httpr//o 'w.im les.orc/G atew-ax/refere-nce.asp?No=Ref-ozo67.The

effectivedate oftheserulesis7-14-2003.
y(h)Toiletandhand-washingfacilitiesshallbereadilyavailabletofoodselwicestaffandinmatefoodhandlers.Foodservice
staffandimnatefoodhandlersarerequiredtowashtheirhandspriortoreportingtodutyandafterusingtoiletfacilities.

(i)A copyofChapter64E-11,F.A.C.,FoodHygiene,willbeavailableforreferenceateachdepartmentfoodservicefacility.

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 15 of 31

(4)Veganmealpattern.InmatesmaychoosetheveganmealpatternbysubmittingForm DC6-236,InmateRequest,tothefood
selwice directoratthefacility wherethe inm ate ishoused,and shallindicate ifthey areparticipating asavegan.An inm ate who is
eansferredto anotherfacilityshallbeallowedtocontinuethe veganmealpattern at'thenew facilitybyshowingtheinmaterequest

thatwasapprovedbythepreviotusfoodservicedirectoruntilhisrequestisapprovedby the new foodservicedirector.
(a)Thefollpwinginmatesshallberemovedimmediatelyfrom theveganmealpattem:
1.Inmatesobservedeating&om theregularmenu; 2.lnm atesobserved eatingthealternative entrée;and 3.Inmateswho arenoton themealpattern forreligiousreasonsandwho intentionally purchase,possess,orconsumeitems

from thecanteenthatcontainanyartimalproductsorbyproducts.
(b)StafrshalldocllmenttheincidentonForm DC6-210,IncidentReport.Suchinmatesshallbeineligibletoreapplyforthe
veganmealpattem forsixmonthsafterinvoluntaryremoval.
'
(c)Aninmatewhovoluntarilyrequeststoberemovedâom theveganmealpattern maynotreapply forthepatternfora
minimum of30days.
(5)TherapeuticDiets.Therapeuticdietsformedicalordentalreasonsshallbeprovidedasordered byaDepartmentof correctionscredentialedphysician,clinicalmssociate(physicianKmssistam ,advanced registered nursepractitioner)ordentist.A1l
ordersfor therapeutic dietsshallbe in writing.Non-standard therapeuticdietsshallbe approvedby thepublichealth nutrition
progrnm managerandtheregionalmedicalexecutivedirector.Therapeuticdietsshallbeservedforamaximum of90days.Diets

extendingforperiodslongerthan90daysshallrequireanew dietorder&om theattendingDepartmentofCorrectionscredentialed' physician,clinicalassociate(physiciansassistantoradvancedregisterednursepractitioner)ordentist.Dietprescriptionordersmtlst bereceivedin food serdcespriorto tlleexpirationofthecurrentprescriptiontoavoidintem lptionofthetherapeuticdiet.ThePublic Health Nuz tion Progrsm M anagerand thePublicHeàlth NutritionConsultantsshallbe availableforconsulutionby health and

food servicepersormelregarding them peuticdiets.
(6)ReligiousDiets.Thealtem ateenteeand thevegan mealpatternprovidesmealoptionsforthe'religiousrequirementsof

inm ates.
(7)Mealattendanceforinmatesontheveganmealpattem oratherapeuticdietshallbeeackedusingForm DC4-668,Diet
AttendanceRoster,Fonn DC4-668 isherebyincorporatedbyreference.Copiesofthisform areavailable&om theFormsConeol '

Administcator,501S.Calhoun St.,TallahasseeFL 32399-2500,ho r//- .M les.ora/Gateway/reference.asp?N- Ref-ol86g.The

efectivedateoftheform is12-12.

.

(a)Aninmateontheveganmealpatternwhomisses10% ormoreofhisorherveganmealswithinamonthwillberemoved

from theveganmealplanandmaynotre-applyforarninimllm ofsixmonths.

(b)Aninmateonatherapeuticdietwho,followingtheorientation,misses10% ormoreofhisorhermealsdulingthe&st

month,ormissesninemealsinanycalendarmonththereaher,issubjecttodisciplinmyaction.

Rulemak-ingAuthority 944.09FS.LawImplemented944.09FS.Historvv-New 1-18-89,Amended7-21-97,Formerly33-30.003,Amended8-9-00,

11-16-00,10-2-01,2-18-02,7-2-03,l1-1-04,2-27-05,10-16-05,l-17-06,4-27-09,3-3-10,7-18-10,12-30-12,5-15-14.

.

Cease 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 16 of 31

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Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 18 of 31

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On Overs co n tln u es Over
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Os er.m e sl.n lorl. a r.l.sons

Bv DARA Ka

Iwouldsaythatpeanut T.ASstatedthepmposed

TheNewsserdceofFlorida butter,sardines and cab- ntleistoa2- thedepart-

bageeverydaylx ksa1ot mentto mpre effee vely

Peanutbutter,sardines like punishm ent''said mnnageitsfx dselviceop-

and cabbo maybehealthyopdonsforsomesclw

gLeunkeeraGlocoodurnicshyl,

deputy for the

emtions,and thathzcludes beingabletoimplementa

pulousdieters.

BecketRmd forpeligious kosher mealplan in the

ButFlorida prison 11- Liberty which sued the mostcost-effective way

m atesw hosekosherm eats arecomprbedprim arilyof

state on behalf of Bruce Rich, an Orthodox Jew

nmustreitiloe,nwahlialenmdereetml'l-pgothues

thosethree staplesserved who wasdenied akosher needs/' ' departm ent

coldsevendaysaweeksay diet

sw keswomanJessicaCazy

thechow isn'tjttstnutri- Richdropm dhiscasein saidinanezmmn.

tionally inadequate,it's DecemberafterU.S.Dis- ButFlorida Je ce In-

plain gross.

trictJudge Pae cia seitz sdtute Fzxcv'udve a'- nr

They contend tlùtthe guketheagency1m61July1 RnndallBergsaidthecold-

'

peanu!buttetsardinesand
cabbage served up daily by

ptorkosfofnerenko.wshitehramseinalcsetlxodz'wall

mealntlelw isionisclearly anotlzerpunitivemenml-

theFloridaDepnrtmentof ligousbasisforkeepm'gko- ThestatehasY nem.-

Correcdozlsaredesir edto sheroSeitz'srllllng which bmiled inlegalchnllenr s

discourage inmates from thestateLsapm alinp came overthekoshermeab for

signing up for the kosher

in aseparatelawsuitKCXII

m

ore

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a

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The

meaksortopmiqhinmates bytheU.S.Depn- entof koshermealsarem llable

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scnN dietarymstricdorks.

to startserving kosher ofthe qtate'smore than Thestatehasao edthat

m eatstolnm ates.

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Agency oë cials insist ingthedietatthesix in- prohibitively expensive

tlleree dkoshermealom stihd onswhere itksnow andm - a- m'tyrl'skbe-

tion - which untillast offered, and m ore than catpeinm nteswouldhave

moni includeditemsS'UC.IA 5,e othershavebeenap- tolx M nh'fonvdtof= .11-

asmeadod Salisbuzysteak provedforthediet

des that either had knqber

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whilecomplyingwiththe thatl.nmatesreceivetwo jdv'eM thox aw enl m

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hotm ealseachday

herIxcemu rnlling.

#

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 22 of 31
Dave
West'sF.S.A.j120.536
W EST'SFLORIDA STATUTESANNOTATED
TITLEX.PUBLICOFFICERS,EM PLOYEES,ANDRECORDS(CHAPTERS l10-123)
CHAPTER 120.ADM INISTRATIVEPROCEDURE ACT
CurrentthroughCh.272(End)ofthe2013 lstReg.Sess.ofthe23rdLegislature
120.536.Rulemakingauthority;repeal;challenge
(l)A grantofrulemakingauthorityisnecessarybutnotsufticienttoallow anagencytoadoptarule;aspecificlaw tobeimplementedis alsorequired.Anagencymayadoptonlyrulesthatimplementorintem retthespecificpowersanddutiesgrantedbytheenablingstatute.Noagency shallhaveauthoritytoadoptaruleonlybecauseitisreasonablyrelatedto thepumoseoftheenabling legislationandisnotarbitrae and capricious oriswithin theagency'sclassofpowersand duties,norshallanagencyhave theauthority to implementstatutoryprovisionssetting forth general legislativeintentorpolicy. Statutory languagegrantingrulemakingauthorityorgenerallydescribingthepowersandfunctionsofanagencyshallbe construedtoextendnofurtherthanimplementingorintemretingthespeciticpowersanddutiesconferredbytheenablingstatute.
(2)Unlessotherwiseexpresslyprovidedbylaw:
(a)Therepealofoneormoreprovisionsof1aw implementedbyanllethatonitsfaceimplementsonlytheprovisionorprovisionsrepealed
andnootherprovisionoflaw nullifiestherule.W henevernoticeofthenullificationofaruleunderthissubsectionisreceivedfrom thecommitteeor otherwise,theDepartmentofState shallremovetherule from the Florida AdministrativeCodeasoftheeffectivedateofthelaw effecting the nullificationandupdatethehistoricalnotesforthecodetoshow tllerulerepealedbyoperationoflaw.
(b)TherepealofoneormoreprovisionsofIaw implementedbyarulethatonitsfaceimplementstheprovisionorprovisionsrepealedand
oneorlnoreotherprovisionsoflaw nullitiestheruleorapplicableportionoftheruletotheextentthatitimplementstherepealedIaw.Theagency havingauthoritytorepealoramendtheruleshall,within 180daysaftertheeffectivedateoftherepealinglaw,publishanoticeofruledevelopment identifyinga1lportionsofrulesaffectedbytherepealinglaw,andifno noticeistimelypublishedtheoperationofeachruleimplementingarepealed provisionoflaw shallbesuspendeduntilsuchnoticeispublished.
(c)Therepealofoneormoreprovisionsoflaw that,otherthanasprovidedinparagraph(a)orparagraph(b),causesaruleorportionofa
ruletobeofuncertainenforceabilityrequirestheDepartmentofStatetotreattheruleasprovidedby> s.l20.555.A ruleshallbeconsideredtobe ofuncertainenforceabilityunderthisparagraphifthedivisionnotitiestheDepartmentofStatethataruleoraportionoftherulehasbeeninvalidated inadivisionproceeding basedupon arepealoflaw,orthecommitteegiveswrittennotificationtotheDepartmentofStateandtheagency having powertoamendorrepealtherulethatalaw hasbeenrepealedcreatingdoubtaboutwhethertheruleisstillinfu11forceandeffect.
(3)TheAdministrativeProceduresCommitteeoranysubstantially affected personmaypetition anagencyto repealanyrule,orportion thereotlbecauseitexceedstherulemakingauthoritypermittedbythissection.Notlaterthan30daysafterthedateoffilingthepetitioniftheagency
isheadedbyanindividual,ornotlaterthan45daysiftheagencyisheadedbyacollegialbody.theagencyshallinitiaterulemakingproceedingsto repealtherule,orportionthereof,ordenythepetition,givingawrittenstatementofitsreasonsforthedenial.
(4)Nothinginthissectionshallbeconstruedtochangethelegalstatusofarulethathasotherwisebeenjudiciallyoradministratively
determinedtobeinvalid.
CREDITIS)
Laws1996,c.96-159,j9,effOct.I,l996.AmendedbyLaws1999,c.99-379,j3,efEJunel8.1999;Laws2000,c.2000-15l,jl5,eff.July4, 2000;Laws2005.c.2005-2,j l5,eff.July5,2005) Laws2008,c.2008-104.j4,eff.July l,2008;Laws2012,c.2012-31,j l,efftMay27,2012.
HISTORICAL NOTES
HISTORICAL AND STATUTORY NOTES
AmendmentNotes:
Laws1999,c.99-379,jl,provides:
''ItistheintentoftheLegislaturethatmoditicationscontainedinsections2 and3ofthisactwhichapplytorulemakingareto clarifythe
limitedauthorityofagenciestoadoptrulesinaccordancewithchapter96-159,LawsofFlorida,andareintendedtorejecttheclassofpowersand dutiesanalysis.However.itisnottheintentoftheLegislaturetoreversetheresultofanyspeciticjudicialdecision.''
Laws1999,c.99-379,j3,in subsec.(l),substituted ''orinterpretthe specificpowers''for'',interpret,ormake specitictheparticular
powers' and 'implem enting or interpreting the specitic'' for ''the particular'and inserted ''oriswithin theagency'sclassofpowersand
duties'following'capricious';insubsec.(2),insertedtheparagraph(algdesignation and paragraph (b),relating to alisting ofrulesand

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 23 of 31
M io.
West'sF.S.A.j120.54
W EST'SFLORIDA STATUTESANNOTATED TITLEX.PUBLICOFFICERS,EMPLOYEES,AND RECORDS(CHAPTERS110-123) CHAPTER 120.ADM INISTRATIVEPROCEDUREACT
Currentwithchaptersineffectfrom the20142ndReg.Sess.ofthe23rdLegislaturethroughM arch31,2014
120.54.Rulemaking
(1)Generalprovisionsapplicabletoallrulesotherthanemergencyrules.--
(a)Rulemaking isnotamatterofagencydiscretion. Eachagencystatementdetinedasaruleby> s.120.52shallbeadoptedbythe
rulelnaking procedure provided by this section as soon as feasible and practicable.
1.Rulemakingshallbepresumedfeasibleunlesstheagencyprovesthat:
a.The agency has nothad sufticienttime to acquire the knowledgeand experience reasonably necessary to addressa statementby rulemaking;or
b.Relatedmattersarenotsufticientlyresolvedtoenabletheagencytoaddressastatementbyrulem aking.
2.Rulemaking shallbe presumed practicable to the extentnecessal'y to provide fairnotice to affected personsofrelevantagency proceduresandapplicableprinciples,criteria,orstandardsforagencydecisionsunlesstheagencyprovesthat:
a.Detailor precision in the establishmentof principles, criteria, or standards for agency decisions is notreasonable under the circum stances;or
b.Theparticularquestionsaddressed areofsuch anarrow scopethatmorespeciticresolution ofthematterisimpracticaloutsideofan
adjudicationtodeterminethesubstantialinterestsofapartybasedonindividualcircumstances.
(b)W heneveran actofthe Legislature isenacted which requiresimplementationoftheactbyrulesofan agencywithin theexecutive
branch ofstategovernment,such rulesshallbedrahed andformallyproposed asprovided inthissection within 180daysaftertheeffectivedateof theact.unlesstheactprovidesotherwise.
(c)No statutoryprovision shallbedelayed in itsimplementationpendingan agency'sadoption ofimplementing rulesunlessthereisan
expressstatutoryprovisionprohibitingitsapplicationuntiltheadoptionofimplementingrules.
(d)Inadoptingrules,al1agenciesmust,amongthealternativeapproachestoanyregulatoryobjectiveandtotheextentallowedbylaw,
choosethealternativethatdoesnotim poseregulatorycostsontheregulatedperson,county,orcitywhichcouldbereducedbytheadoptionofless
costlyalternativesthatsubstantiallyaccomplishthestatutoryobjectives.
(e)Noagency hasinherentrulemaking authority,norhasanyagencyauthoritytoestablishpenaltiesforviolationofaruleunlessthe
Legislature,whenestablishingapenalty,speciticallyprovidestbatthepenaltyappliestorules.
(9Anagencymayadoptrulesauthorizedbylaw andnecessal'ytotheproperimplementationofastatutepriortotheeffectivedateofthe
statute,butthe rulesmay notbeeffectiveuntilthestatuteupon which they arebased iseffective. An agency may notadoptretroactiverules, includingretroactiverulesintendedtoclarifyexistinglaw,unlessthatpowerisexpresslyauthorizedbystatute.
(g)Eachruleadoptedshallcontainonlyonesubject.
(h)lnrulemakingproceedings,theagencymayrecognizeanymaterialwhichmaybejudicially noticed,anditmayprovidethatmaterials
sorecognizedbeincorporatedintotherecordoftheproceeding.Beforetherecordofanyproceedingiscompleted,aIlpartiesshallbeprovidedalist ofthesematerialsandgivenareasonableopportunitytoexaminethem andofferwrittencommentsorwrittenrebuttal.
(i)l.A rulemayincorporatematerialbyreferencebutonlyasthematerialexistsonthedatetberuleisadopted.Forpurposesoftherule,
changesinthematerialarenoteffectiveunlesstheruleisamendedtoincom oratethechanges,
2.Anagencyrulethatincorporatesbyspeciticreferenceanotherruleofthatagencyautomaticallyincorporatessubsequentamendmentsto thereferencedruleunlessacontraryintentisclearly indicated inthereferencingrule.A noticeofamendm entstoarulethathasbeenincorporated byspecificreferenceinotherrulesofthatagencymustexplaintheeffectofthoseamendmentsonthereferencingrules.
3.InrulesadoptedafterDecember3l,2010,materialmay not beincorporattdbyreferenceunless:
8

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a.Thematerialhasbeen submittedintheprescribedelectronicfonnatto theDepartmentofStateandthefulltextofthematerialcanbe madeavailableforfreepublicaccessthroughanelectronichyperlinkfrom therulemakingthereferenceintheFloridaAdministrativeCode;or
b.n eagencyhasdeterminedthatpostingthematerialonthelnternetforpurposesofpublicexaminationandinspectionwouldconstitutea violation offederalcopyrightlaw,in which caseastatementtothateffect.along with theaddressoflocationsatthcDepartmentofStateand the
agencyatwhichthematerialisavailableforpublicinspectionandexamination,mustbeincludedinthenoticerequiredbysubparagraph(3)(a)l.
4.A rulemaynotbeamendedbyreferenceonly.Amendmentsmustsetouttheamendedruleinfullinthesamemannerasrequiredbythe StateConstitutionforlaws.
5.Notwithstanding anycontraryprovisioninthissection,whenanadoptedruleoftheDepartmentofEnvironmentalProtectionorawater managementdistrictis incomorated by reference in the otheragency's rule to implementa provision ofpartIV ofchapter373,subsequent amendmentstotherulearenoteffectiveasto the incorporatingruleunlesstheagency incorporating by referencenotifiesthe committeeand the Departm entofStateofitsintenttoadoptthesubsequentamendment,publishesnoticeofsuchintentintheFloridaAdministrativeRegister,andtiles withtheDepartmentofStateacopyoftheamendedruleincorporatedbyreference.Changesintheruleincorporatedbyreferenceareeffectiveasto theotheragency20daysafterthedateofthepublishednoticeand tiling with theDepartm entofState. TheDepartmentofStateshallamendthe historynotcoftheincorporatingruleto show theeffectivedateefsuchchange.Anysubstantiallyaffectedpersonmay,within 14daysafterthedate
ofpublicationofthenoticeofintentintheFloridaAdministrativeRegister,tileanobjectiontorulemakingwiththeagency.Theobjectionshall specifytheportionsoftheruleincorporatedbyreferencetowhichthepersonobjectsandthereasonsfortheobjection.Theagencyshallnothavethe authorityunderthissubparagraphtoadoptthoseportionsoftherulespecitiedinsuchobjection.Theagencyshallpublishnoticeoftheobjectionand
ofitsactioninresponseinthenextavailableissueoftheFloridaAdministrativeRegister.
6.TheDepartmentofStatemayadoptbyrulerequirementsforincorporatingmaterialspursuanttothisparagraph.
U)A rulepublishedintheFloridaAdministrativeCodemustbeindexedbytheDepartmentofStatewithin90daysaftertheruleisfiled.
TheDepartmentofStateshallbyruleestablishproceduresforindexingrules.
(k)Anagency headmaydelegatetheauthoritytoinitiatel'uledevelopmentundersubsection(2); however,rulemakingresponsibilitiesof anagencyheadundcrsubparagraph(3)(a)1.,subparagraph(3)(e)1.,orsubparagraph(3)(e)6.maynotbedelegatedortransferred.
(2)Ruledevelopment;workshops;negotiatedrulemaking.--
(a)Exceptwhentheintended actionistherepealofarule,agenciesshallprovidenoticeofthedevelopmentofproposed rulesby
publication ofa notice ofrule developmentin the Florida Administrative Registerbefore providing notice ofa proposed rule asrequired by
paragraph (3)(a). Thenoticeofruledevelopmentshallindicatethesubjectareato beaddressed by ruledevelopment,provideashort,plain
explanationofthepurposeandeffectoftheproposedrule,citethespecificlegalauthorityfortheproposed rule,andincludethepreliminarytextof theproposedrules,ifavailable.orastatementofhow apersonmaypromptlyobtain,withoutcost,acopyofanypreliminarydraft,ifavailable.
(b)A1lrulesshouldbedraftedinreadablelanguage.Thelanguageisreadableif:
l.Itavoidstheuseofobscurewordsandunnecessarilylongorcomplicatedconstructions;and
2.ltavoidstheuseofunnecessarytechnicalorspecializedlanguagethatisunderstoodonlybymembersofparticulartradesorprofessions.
(c)Anagencymayholdpublicworkshopsforpurposesofruledevelopment.Anagencymustholdpublicworkshops,includingworkshops invariousregionsofthestateortheagency'sservicearea,forpurposesofruledevelopmentifrequested inm itingbyanyaffectedperson,unlessthe agencyheadexplainsinwritingwhyaworkshopisunnecessary.Theexplanationisnottinalagencyactionsubjecttoreview pursuanttoss.120.569 and120.57. Thefailuretoprovidetheexplanationwhenrequiredmaybeamaterialerrorinprocedurepursuantto> s.120.5641)(c). Whena
workshop orpublichearingisheld,theagencymustensurethatthepersonsresponsibleforpreparingtheproposedruleareavailabletoexplainthe agency'sproposalandtorespond to questionsorcommentsregardingtherulebeing developed.Theworkshopmaybefacilitatedormediatedbya neutralthird person,orthe agency may employ othertypes ofdispute resolution alternatives forthe workshop thatare appropriate forrule development.NoticeofaruledevelopmentworkshopshallbebypublicationintheFloridaAdministrativeRegisternotlessthan14dayspriortothe
dateonwhichtheworkshopisscheduledtobeheldandshallindicatethesubjectareawhichwillbeaddressed;theagencycontactperson;andthe
place,date,andtimeoftheworkshop.
(d)1.Anagencymayusenegotiatedrulemakingindevelopingandadoptingrules. Theagencyshouldconsidertheuseofnegotiated
rulemaking whencomplexrulesarebeingdraftedorstrongoppositiontotherulesisanticipated.Theagency shouldconsider,butisnotlimited to considering,whetherabalancedcomm itteeofinterestedpersonswhowillnegotiateingoodfaithcanbeassembled,whethertheagencyiswillingto supporttheworkofthenegotiatingcommittee,and whethertheagencycan usethegroupconsensusasthebasisforitsproposedrule. Negotiated rulemakingusesacommitteeofdesignatedrepresentativestodraftamutuallyacceptableproposedrule.
2.Anagencythatchoosesto usethenegotiatedrulemakingprocessdescribed inthisparagraphshallpublishintheFloridaAdministrative Registeranoticeofnegotiated rulemaking thatincludesa listing oftherepresentativegroupsthatwillbeinvited to participateinthenegotiated rulemakingprocess. Anyperson who believesthathisorherinterestisnotadequatelyrepresented mayapplyto participatewithin 30daysafter publicationofthenotice.Allmeetingsofthenegotiatingcommitteeshall be noticed and open to the public pursuantto the provisions ofthis
chapter. Thenegotiatingcommittee shallbe chaired by aneutralgfacilitatorormediator.

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3.Theagency'sdecisiontousenegotiatedrulemaking,itsselectionoftherepresentativegroups,andapprovalordenialofanapplicationto participatein thenegotiatedrulemakingprocessarenotagencyaction. Nothingin thissubparap aph isintendedto affecttherightsofan affected
persontochallengeaproposedruledevelopedunderthisparagraphinaccordancewith>s.120.56(2).
(3)Adoptionprocedures.--
(a)Notices.--
l.Priortotheadoption,am endment,orrepealofanyruleotherthananem ergencynlle.anagency,uponapprovaloftheagencyhead,shall give notice ofits intended action,setting forth a short,plain explanation ofthe purpose and effectofthe proposed action; the fulltextofthe proposedruleoramendmentand asummarythereof', areferencetothegrantofrulemakingauthoritypursuanttowhich theruleisadopted; anda referenceto thesectionorsubsection oftheFloridaStatutesortheLawsofFloridabeingimplemented orintem reted.Thenoticemustincludea
summary oftheagency'sstatementoftheestimated regulatol'ycosts.ifonehasbeenprepared,based on thefactorssetforthin > s.120.541(2),. a
statementthatanyperson who wishestoprovidetheagency withinformationregarding thestatementofestimatedregulatory costs,ortoprovidea
proposalforalowercostregulatoryalternativeasprovidedby> s.120.541(l),mustdo so inwritingwithin 21daysafterpublicationofthenotice;
andastatementastowhether,basedonthestatementoftheestimatedregulatorycostsorotherinfonnationexpresslyrelieduponanddescribedby
theagencyifnostatementofregulatorycostsisrequired,theproposedruleisexpectedtorequirelegislativeratiticationpursuantto>s.120.541(3).
n enoticemuststatetheprocedureforrequestingapublichearingontheproposedrule.Exceptwhentheintendedactionistherepealofarule,the
noticemustincludeareferenceboth to thedateonwhichand totheplace wherethenoticeofruledevelopmentthatisrequiredbysubsection(2)
appeared.
2.Thenoticv shallbe published in theFloridaAdm inistrative Registernotlessthan 28 dayspriorto the intended action.Theproposedrule shallbeavailableforinspectionandcopyingbythepublicatthetimeofthepublicationofnotice,
3.Thenoticeshallbemailedtoallpersonsnamedintheproposedruleandtoa1lpersonswho,atleast14 dayspriortosuchmailing,havc maderequestsoftheagencyforadvancenoticeofitsproceedings.Theagencyshallalsogivesuchnoticeasisprescribedbyruletothoseparticular classesofpersonstowhom theintendedactionisdirected.
4.Theadoptingagencyshalltilewiththecommittee,atleast21dayspriortotheproposedadoptiondate,acopyofeachruleitproposesto
adopt; acopyofanymaterialincoporatedbyreferenceintherule; adetailedwrittenstatementofthefactsandcircumstancesjustifyingthe
proposednlle; acopy ofany statem entofestimatedregulatorycoststhathasbeenpreparedpursuantto > s.120.54l; astatementoftheextentto
whichtheproposedrulerelatestofederalstandardsorrulesonthesamesubject;andthenoticerequiredbysubparagraph1.
(b)Specialmatterstobe'consideredinruleadoption.--
1.Statementofestimatedregulatorycosts.-Beforetheadoption,amendment,orrepealofanyruleotherthananemergencyrule,anagency isencouragedtoprepareastatementofestimated regulatorycostsoftheproposed rule,asprovidedby> s.l20.541. However,an agency must prepareastatementofestimatedregulatorycostsoftheproposedrule,asprovidedby> s.l20.541,if:
a.Theproposedrulewillhaveanadverseimpactonsmallbusiness;or
b.Theproposedruleislikelytodirectlyorindirectlyincreaseregulatorycostsinexcessof$200,000intheaggregateinthisstatewithin 1 yearaftertheimplementationoftherule.
2.Smallbusinesses,smallcounties,andsmallcities.--
a.Each agency,beforetheadoption.amendment,orrepealofarule,shallconsidertheimpactoftheruleonsmallbusinessesasdetinedby > s.288.703andtheimpactoftheruleonsmallcountiesorsmallcitiesasdefinedby> s.120.52.W heneverpracticable,anagencyshalltieritsrules toreducedisproportionateimpactson smallbusinesses,smallcounties,orsmallcitiestoavoidregulatingsmallbusinesses,smallcounties,orsmall citiesthatdonotcontributesigniticantlytotheproblem theruleisdesignedtoaddress.Anagencymaydetine'smallbusiness'toincludebusinesses employingmorethan200persons,m aydetine''smallcounty''toincludethosewithpopulationsofmorethan75,000,andmaydetine'smallcity'to includethosewithpopulationsofmorethan l0,000,ifittindsthatsuchadefinitionisnecessarytoadaptaruletotheneedsandproblemsofsmall businesses,smallcounties,orsm allcities.Theagencyshallconsidereach ofthefollowingm ethodsforreducingtheimpactoftheproposedruleon smallbusinesses,smallcounties,and smallcities,oranycombinationoftheseentities:
(I)EstablishingIessstringentcomplianceorreportingrequirementsintherule.
(11)Establishinglessstringentschedulesordeadlinesinthel'uleforcomplianceorreportingrequirements.
(111)Consolidatingorsimplifyingtherule'scomplianceorreportingrequirements.
(IV)Establishingperfonuancestandardsorbestmanagementpracticestoreplacedesignoroperationalstandardsintherule.
(V) Exempting smallbusinesses,smallcounties,orsmall citiesfrom anyoral1requirementsoftherule.
10

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b.(I)Ifthe agencydeterminesthattheproposed actionwillaffectsmallbusincssesasdefinedbytheagency asprovided insub-
subparagraph a.,theagency shallsend written noticeoftheruleto therulesombudsmanintheExecutiveOfticeoftheGovernoratleast28days before the intended action.
(11)EachagencyshalladoptthoseregulatoryalternativesofferedbytherulesombudsmanintheExecutiveOfticeoftheGovernorand
providedto the agency no laterthan21daysaftertherulesombudsman'sreceiptofthewrittennoticeofthe rulewhich ittindsarefeasibleand
consistentwiththestatedobjectivesoftheproposedruleandwhichwouldreducetheimpactonsmallbusinesses.W henregulatoryalternativesare offeredbytherulesombudsmanintheExecutiveOfticeoftheGovernor,the90-dayperiodforfilingtheruleinsubparagraph(e)2.isextendedfora
periodof2ldays.
(111)Ifanagencydoesnotadoptallalternativesofferedpursuanttothissub-subparagraph,itshall,beforeruleadoptionoramendmentand pursuanttosubparagraph(d)1.,tileadetailedwrittenstatementwiththecommitteeexplainingthereasonsforfailureto adoptsuchalternatives.-
w ithin3workingdaysaftertheGlingofsuchnotice,theagencyshallsendacopyofsuchnoticetotherulesombudsmanintheExecutiveOfticeof the Governor.
(c)Hearings.--
1.Iftheintendedactionconcernsanyruleotherthanonerelatingexclusivelytoprocedureorpractice,theagency shall,on therequestof anyaffectedpersonreceivedwithin2ldaysafterthedateofpublicationofthenoticeofintendedagencyaction,giveaffectedpersonsanopportunity topresentevidenceandargumentona1lissuesunderconsideration. Theagency may scheduleapublichearingontheruleand,ifrequestedbyany affectedperson,shallscheduleapublichearingonthcrule.W henapublichearingisheld,theagencymustensurethatstaffareavailabletoexplain theagency'sproposalandtorespondtoquestionsorcommentsregardingtherule.lftheagencyheadisaboardorothercollegialbodycreatedunder
> s.20.165(4)or> s.20.43(3)(g),andoneormorerequestedpublichearingsisscheduled,theboardorothercollegialbodyshallconductatleastone
ofthepublichearingsitselfandmaynotdelegatethisresponsibilitywithouttheconsentofthosepersonsrequestingthepublichearing.Anymaterial pertinentto the issuesunderconsideration submitted tothe agency within 21daysafterthedate ofpublication ofthenoticeorsubmittedto the agencybetweenthedateofpublicationofthenoticeandtheendofthefinalpublichearing shallbeconsideredbytheagencyandmadeapartofthe recordoftherulemakingproceeding.
2.Rulemaking proceedingsshallbegoverned solely by the provisionsofthissection unlessaperson timely assertsthatthe person's substantialinterestswillbeaffected intheproceedingand affirmativelydemonstratesto theagency thattheproceedingdoesnotprovideadequate opportunitytoprotectthoseinterests. Iftheagency determinesthattherulemakingproceeding isnotadequatetoprotecttheperson'sinterests,it shallsuspend therulemakingproceedingandconveneaseparateproceedingundertheprovisionsof> ss.120.569and> 120.57.Similarlysituated
personsmayberequestedtojoinandparticipateintheseparateproceeding.Uponconclusionoftheseparateproceeding,therulemakingproceeding
shallberesumed.
(d)M oditicationorwithdrawalofproposedrules.--
1.Afterthetinalpublichearingontheproposedrule,orafterthetimeforrequestingahearinghasexpired,iftherulehasnotbeenchanged from theruleaspreviouslytiledwiththecommittee,orcontainsonlytechnicalchanges,theadoptingagencyshallfileanoticetothateffectwiththe committeeatleast7dayspriortotiling theruleforadoption. Any change,otherthanatechnicalchangethatdoesnotaffectthesubstanceofthe rule,mustbesupportedbytherecord ofpublichearingsheldontherule,mustbein responsetowrittenm aterialsubmittedtotheagencywithin21 daysafterthedateofpublicationofthenoticeofintendedagencyactionorsubmittedtotheagencybetweenthedateofpublicationofthenoticeand
theendofthefinalpublichearing,ormustbeinresponsetoaproposedobjectionbythecommittee. lnaddition,whenanychangeismadeina
proposedrule,otherthanatechnicalchangestheadoptingagencyshallprovideacopyofanoticeofchangebycertitiedmailoractualdeliverytoany
personwhorequestsitinwritingno laterthan21daysafterthenoticerequired inparagraph(a).Theagencyshallfilethenoticeofchangewiththe
com mittee,alongwiththereasonsforthechange,andprovidethenoticeofchangetopersonsrequestingit,atleast21dayspriortofilingtherulefor adoption.Thenoticeofchangeshallbepublished intheFloridaAdministrativeRegisteratleast21dayspriorto tilingtheruleforadoption,This
subparagraphdoesnotapplytoemergencyrulesadoptedpursuantto subsection(4).
2.Afterthenoticerequiredbyparagraph(a)andpriortoadoption,theagencymaywithdraw theruleinwholeorinpal't.
3.Afteradoptionandbeforetherulebecomeseftkctive,arulemaybemodifiedorwithdrawnonlyinthetbllowingcircumstances:
a.Whenthecommitteeobjectstotherule;
b.Whenatinalorder,whichisnotsubjecttofurtherapgeal,isenteredinarulechallengebroughtpursuantto>s.l20.56afterthedateof adoptionbutbefbretherulebecomeseffectivepursuanttosubparagraph(e)6.;
c.Ifthe rule requiresratitication,when lnore than 90 dayshave passed since the rulewastiled tbradoption withoutthe Legislature
ratifgngtherule,inwhichcasetherulemaybewithdrawnbutmaynotbemodified;or
d.Whenthecolnmitteenotitiestheagencythatanobjectiontotheruleisbeingconsidered.inwhichcasetherulemaybemodifiedto
extendtheeffectivedatebynotmorethan60days.
4.Theagencyshallgivenoticeofitsdecision to withdraw or modify aruleinthetirstavailableissueofthepublication inwhichthe
originalnoticeofrulemakingwaspublished,shallnotifythosepersons1ldescribedinsubparagraph(a)3.inaccordancewiththerequirementsof

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 27 of 31
thatsubparagraph,andshallnotifytheDepartmentofStateiftheruleisrequiredtobefiledwiththeDepartmentofState.
5.Aherarulehasbecomeeffective,itmayberepealedoramendedonlythroughtherulemakingproceduresspecifiedinthischapter.
(e)Filingfortinaladoption,'effectivedate.--
1.Iftheadoptingagency isrequiredtopublish itsrulesintheFlolidaAdm inistrativeCode,theagency,uponapprovaloftheagencyhead, shallfilewiththeDepartmentofStatethreecertifiedcopiesoftheruleitproposesto adopt; onecopy ofanymaterialincorporatedbyreferencein therule,certitiedbytheagency; asumm aryoftherule;asummaryofanyhearingsheld on therule; andadetailedwrittenstatementofthefacts
andcircumstancesjustifyingtherule.AgenciesnotrequiredtopublishtheirrulesintheFloridaAdministrativeCodeshallfileonecertifiedcopyof
theproposedrule,andtheothermaterialrequiredbythissubparagraph,intheofticeoftheagencyhead,andsuchrulessballbeopentothepublic.
2.A rulemaynotbetiledforadoptionlessthan28daysormorethan90daysafterthenoticerequiredbyparagraph(a),until2ldaysafter thenoticeofchangerequired byparagraph (d),untill4daysafterthefinalpublichearing,until21daysafterastatementofestimatedregulatory
costsrequiredunder> s.l20.541hasbeenprovidedtoal1personswhosubm ittedalowercostregulatoryalternativeandmadeavailabletothepublic,
oruntiltheadministrativelawjudgchasrenderedadecisionunder>s.120.56(2),whicheverapplies.Whenarequirednoticeofchangeispublished
priortotheexpirationofthetimeto t5letheruleforadoption.theperiodduringwhicharulemustbefiledforadoptionisextendedto45daysafter thedateofpublication. lfnoticeofapublichearingispublishedpriortotheexpirationofthetimetotiletheruleforadoption,theperiodduring
whicharulemustbefiledforadoptionisextendedto45daysaheradjournmentofthetinalhearingontherule,2ldaysafterreceiptofaIlmaterial
authorized tobesubmitted atthehearing,or21daysafterreceiptofthetranscript,ifoneismade,whicheverislatest.Theterm 'publichearing''
includesanypublicmeetingheldbyanyagencyatwhichtheruleisconsidered.Ifapetitionforanadministrativedetenninationunder> s.120.56(2) isfiled,theperiodduringwhicharulemustbefiletlforadoptionisextendedto60daysaftertheadministrativelawjudgetilesthefinalorderwith theclerkoruntil60daysahersubsequentjudicialreviewiscomplete.
3.At.thetimearuleistiled,theagencyshallcertifythatthetimelim itationsprescribedbythisparagraphhavebeencompliedwith,thatalI statutoryrulem akingrequirementshavebeenmet,andthatthereisnoadministrativedeterminationpendingontherule.
4.Atthetime arule i.stiled,thecomm ittee'shallcertify whethertheagencyhas'respondedinwritingtoa11materialandtimelywritten
commentsorwritteninquiriesmadeonbehalfofthecommittee. Thedepartmentshallrejectanyrulethatisnotfiledwithintheprescribedtime
Iimits,' thatdoesnotcomplywith a1lstatutoryrulemakingrequirementsandrulesofthe department; upon which anagencyhasnotrespondedin writingtoa1lmaterialandtimely writteninquiriesorwrittencomments;uponwhich anadministrativedeterminationispending;orwhichdoesnot includeastatementofestimatedregulatorycosts,ifrequired.
5.Ifarulehasnotbeenadoptedwithinthetimelimitsimposedbythisparagraphorhasnotbeenadoptedincompliancewithal1statutory rulemakingrequirements,theagencyproposingtheruleshallwithdraw theruleandgivenoticeofitsactioninthenextavailableissueoftheFlorida AdministrativeRegister.
6.TheproposedruleshallbeadoptedonbeingtiledwiththeDepartmentofStateandbecomeeffective20daysafterbeingfiied,onalater datespecitiedinthenoticerequiredbysubparagraph(a)1.,onadaterequiredbystatute,oruponratiticationbytheLegislaturepursuantto> s.
120.541(3).Rulesnotrequiredto betiled withtheDepartmentofStateshallbecomeeffectivewhenadoptedbytheagency head,on alaterdate specitiedbyruleorstatute,oruponratificationbytheLegislaturepursuantto>s.l20.541(3).lfthecommitteenotifiesanagencythatanobjection
to aruleisbeing considered,theagencym aypostponetheadoptionofthenlletoaccommodatereview oftherulebythe comm ittee. W henan agency postponesadoptionofarule to accom modatereview bythecommittee,the90-day period fortiling theruleistolled untilthecommittee notifiestheagencythatithascompleteditsreview oftherule.
Forthepumosesofthisparagraph,theterm 'administrativedetermination''doesnotincludesubsequentjudicialreview.
(4)Emergencyrules.--
(a)Ifanagency tindsthatan immediatedangertothepublichealth,safety.orwelfarerequiresemergencyaction,theagencymayadopt
anyrulenecessitatedbytheimmediatedanger.Theagencymayadoptarulebyanyprocedurewhichisfairunderthecircumstancesif:
1.The procedure provides at leastthe proceduralprotection given by other statutes,the State Constitution,or the United States Constitution.
2.Theagencytakesonlythatactionnecessarytoprotectthepublicinterestundertheemergencyprocedure.
3.Theagencypublishesinwritingatthetimeof,orpriorto,itsactionthespeciticfactsandreasonsforfindinganimmediatedangertothe pu'blic health, safety,orwelfare and itsreasonsforconcluding thattheprocedure used isfairunderthe circumstances. In any event,noticeof
emergencynlles,otherthanthoseofeducationalunitsorunitsofgovernmentwithjurisdictioninonlyoneorapartofonecounty,includingtheftlll
textoftherules,shallbepublishedin thefirstavailableissueoftheFloridaAdministrativeRegisterandprovidedtothecommitteealongwithany
materialincorporatedbyreferenceintherules.Theagency'stindingsofimmediatedanger,necessity,andproceduralfairnessshallbejudicially
reviewable.
(b)Rulespertainingto thepublichealth,safety,orwelfare shallincluderulespertainingtoperishableagriculturalcommoditiesor
rules pertaining to the interpretation and implementation ofthe1zrequirementsofchapters97-l02andchapter105oftheElectionCode.

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 28 of 31

exceptwh(ecn)tAhenaegmenercygehnacsyinruitlieateaddorputleedmuakndinegrttohiasdsoupbtsreuclteisonadsdhraelslsninogttbheeesfufbejcetcivteoffothreaepmeerrigodenlcoyngruelrethanadne9i0thdera:ysand

shallnotberenewable ,

l.A challengetotheproposedruleshasbeentiledandremainspending;or

2.Theproposed

rulesareawaiting

ratification by the

Legislaturepursuantto

>

s .

120.541(3).

Nothing in thisparagraph prohibitsthe
specified in subsection (3).

agcncy

from

adopting

a rule

or nlles

identical to

the

emergencyrulethroughtherulemakingprocedures

(d)Subjecttoapplicableconstitutionalandstatutoryprovisions

lessthan20daysthcreafterifspecified thepublichealth, safety,orw elfare.

in

the rule ,

iftheadopting

, an emergency agency tindsthatsuch

rcuffleecbtievceomdaetseeisffneeccteivsesairmymbeecdaiautseelyoofnimfmlinedgi,aoterdoanngacdrattoe

(5)Uniform rules.-

(a)l.ByJulyl,l997,theAdministrationCommissionshalladopto

bythecommitteeand tiledwiththeDepartmentofSt

neormoresetsofuniform rulesofprocedurewhichshallbereviewed

persotacbeldisuhrepfroorceeadcuhreasgethnacytcsuombjpeclyttwoitthhisthchearpetqeruiurnemleesnsatttshee.ofAAtdghmeinsicnciiehsstarpamttieuors.ntCcOoonmmpmtillyiisnswgioitwnhigtthrhaenthtusenaidfnoeerpmxacrtermpulteienosnqbtytohJetuhleuynailgf,oennlc9ny98ruu.nldensersethhuaisnllisfbuoerbmstehcretuiloreunsl.esshaollf

A

dm

inistra2t.ioAnnCaogmenmciyssmioanyshsaelelkapepxrcoevpetioexnsceptotiothnestuonitfhoennexrteunletsnoecfepssraorcyedtouriem

by tiling a petition with plementotherstatute

the

A

dm

inistration

Comm

ission.

n

e

praesuqbrueliiqsrhuemierdeedinntftiohmrepthFoelsoemldiodasastAaefdctmkoniindeinistttirooanptiepvrreaetRcieoedngeionsfttetthro.ereacgeeinpctyoafsfeddeetrearlmfiunneddsboyrtthoepAendnmitinpiesrtsraotniosninCtohmismstiastseiso,tnot.orentcheeieverexettaeasnxotnbsneenfcoeerfsittshsaeruynexdtoceercpfotenidofeonrrsamlshltaaowlla,nboeyr

hFeaalocshriadapalpteArorndv3ame.tdiAivngteihsecetnhraceoytxsivecrenueplCfetrsiooomdtnhesaa.ttmhpaEortoancdvgheidtlhieanogeeseaxentcceaeysuptctthilhooeanratisrzlaeytdodottbhphyetesptuhrrenuoilvufeonissniiftonohnrarsmtuolperfrusotlshvehsieda.elaE!genaexocnchtceybcp'ehstiaortspnultlseeedrstoswthhtiahtalhtelbtpuhreneooivfdriogderpaemnaeirzrtxmeucdleeepnisnttisouthhnnaesllelstsaopsmutthebhelemisAuahnndaminfoeisrnneipuassatrrrtaauhttleieeosuncnahCinafdooprmtesmpmreriicnusilsteitioshe.nes
(b)Theuniform rulesofproeedureadoptedbytbecommissionpursuanttothissubsectionshallinclude,butarenotlimitedto:

1.Uniform

rulesfortheschedulingofpublicm

eetings
,

hearings,

and

w

orkshops.

cacmtmthatoetacemekedhptinhimntnadeogoruadtlnneoelcoicvgc1efhi9y2adn.t.c.emoioonUlL'moanlc'nyihegsmmi,eyfmuobitterf=eneiuasndilctcpegiiimaalrrsptuioitotsoolveiheencininyssadh.lt,enfslwodaoIpoirnfllofrlbduoagyabsvycapeeircdsusgbeueahbusyvcalstmhialhecltieaoalsmnacmttpbthaeaeutlaaleeeslbtnt.tlhaiessnit,ocvucNgwicd,tmaohhegthpeenhpeeeecirntaunneirscbogi,oynltntiigiecnsctsh,etimaoitnhtmrsteihepseorwartneioplyosnlvatrg,eirkssdadaosg,enhirdhnosapeptpraaaaohttrrietgcise.nesunhdtgmdoausTiel,rnlbnehgaestbenmepdfconroacerwonyostcdnoeidocrunsoektnctredstsuehdfoueodocdrasptbhnistnpyado,lgulismdnbphbileauimepcablelnialrninmsfcsifaoesoommhnrefdteeiatcenhenIodtgoemidscner,amgbqitgsyhiuuoh,eantnmhlaisrcteceo,aiaonaritfngniiionnssasgsi,nnpdossyae,ef,nrmcaacdwtnteoiddhpmoweuinawrmbo,elortuirkecercnkcogsihhmrscaehonramcdopotioplsloureosndsngu,ssisyctaio,malnuitfdonzeiroditdfhnenoiigefrasr
onhppoepuriaebnernltfiiencftdegomcmstt,he.aeaettnOtipendturhg,bwesalr,iuohclrdakesiwohash,rsaifolnrlupegblsllsae-,mctaiponnrongetdidsotuuwoncmotpveeruikdddbselthbioooyc,pvmfmisro.eeeleeaaAztntieesns-gtfuhross,afeemhdrcieeogiamnhvrtinimntdhgoeguisfossn,a,,ihscaccuecnaobaetdmiprsoisanpwnrogrosaesgfrs,mkrtshaaseepnehdddohpi,vpauwi'sdbtc,oeeloiirocnckmh.,csanmlhaunoondudlpdoninsdgiaciygsngau,yiptbtiaeoajonnlefndactvsiltcismdatihoacnealoddltahlibrcaebmytitepnoaercennloihdybvtniaieamoskrliealeooplntnglrhyosyuovn'doc'idofmsaeinv>oresanatssirsnlu.u,asc2beshdt8hlhca6ce.ili.n0rlecl1atuephlmcpettiolrsryotpanatnopliaccpcpeletisurcsabiansntlisiocvomtomninisdeotsoeniaotnnsinnduagcolloshyff,

prescribet3h.eUfonrimfonanndrsuulebsstaonftipvreocperodvuirseiofnosrotfheartielqinugireodfbnoontdic.e

of protests

and

form

alwritten

protests .

The Adm inistration Commission may

require

4.Uciform rulesofprocedureforthe the petition to include:

filingofpetitionsforadm

inistrativehearingspursuantto>

s .

120.569

or >

s.

120.57.Such

rulesshall

a.The identification electronicmeans.

of

the

petitioner ,

including

the

petitioner's

e-m

ail address,

if

any, for the

transm

ittal of

subsequentdocuments

by

b.A statementofwhenandhow thepetitionerrcceivednoticeoftheagency'sactionorproposedaction
.

c.Anexplanationofhow thepetitioner'ssubstantialintere stsareorwillbeaffectedbytheactionorproposedaction.

d.A statementofa1lmaterialfactsdisputedbythepetitioner orastatementthattherearenodisputedf

13

acts.

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 29 of 31

e.A statem entofthe ultimate facts modificationoftheagency'sproposedaction

alleged
,

including

a

statement

of

the

specitic

facts

the

petitioner contends

warrant

reversal or

.

including

fanAexsptalatenmateiontnooffthhoewsptehceiatilclergueldesfaocrtsstraetluatteesttohathtethscpepceitfiitciornuelerscoorntsetantdustersequire .

reversalormodificationo?theagency'sproposedaction ,

proposed

g.A statem action.

entofthereliefsoughtby

thepetitioner,stating

precisely

the action

petitionerwishesthe

agency

to take

withrespecttothe

rulesshall5r.eqUuniirfeonanrerquuleesstfotoritnhcelufidlein:gofrequestforadministrativehearingby arespondentinagencyenforeementanddisciplinaryactions Such
.

ofthepartay.'sTchoeunnasmeleo,raqdudarelisfsie,de-rmeparielsaedndtaretisvse, aunpdontewlehpohmonseernvuicmeboefrpolfeathdeinpgasrtayndmoakthinegrptahpeerresqsuheasltlabnedmthaeden;ame,address,and telephonenumber

cdaisspeuttheethreebsm.pAoantsedtraeiatneltmfsaehcnatstlltahidlaleetgnttehidefyrbetyhsptohoseenpdmeeatnittteiiorsinareelrqf;auceatnsstditnhgataanreadinmdiniisspturateti,voerhtehaartinthgearnedspdoisnpduetnetsitsheremquaetesrtiinaglfaanctasdamlleingiesdtrabtyivtehehepaertiintigonaenrd,

in whicb does not

pleading

c.A referenceby wasreceived.

file num

ber to

the

adm

inistrativecomplaintthatthe

party

has received

from

the

agency

and

the date

on

which

the agency

uTfonhrleethsasegseiunncfcohyrrmmeqaatuyioirpnermoinveisndutesb-aasrnuebeslppeaecrctaiiogtinrca-aoplfhly-sriaagu.httthhsorfrooiuzrgmehdfcbo.yratnlhadwedr.eosepsonnodteinmt'psousseeainnyreaqdudeitsitoinngalarehqeuairrienmg.esnotsloonngaarsesapnoynfdoernmtipnroovrdideerdtobyretqhueeastgaenhceyacrianlgls,

.

6.Unifonnrulesofprocedureforthetilingandpromptdispositionofpetitionsfordeclaratorystateme

contentsofthenoticesthatmustbepublished in tilingofpetitionstointerveneorpetitionsforadm

ithneistFrlaotirvideahAeadrminignbisytrpateirvseonRsegwihsotesreusnudbesrta>ntsia. lli2n0t.565,includnintgs.aTnyhearpuplleicsasbhlaelltiamlseoldimesictrfiboertthhee

erestsmaybeaffected.

7.Provision ofamethodby which eachagency operations.Thenllesshallrequirethatthestatementc

headshallprovidea

description

of the agency's organization

and

general course of its

oncerningtheagency'sorganizationandoperationsbepublishedontheagency'swebsite

.

8.Uniform rulesestablishingproceduresforgrantingordenyingpetitionsforvariancesandwaivcrsp

ursuantto>s.l20.542.

ofepdeerraatliolanw,(6soi)rnAeandcfcoooprrctdeioamnnccnoetfwofifetdhfeetrhdaeelrfasoltallpnordwoagirnrdagsm.-p-srN,ooacnetwdauigtrheessnt:acnydiisngemapnyowceornetdratroyapdroopvtisrioulnesosfutbhsitsansteicvteiolyn,idinentthicealptuorsrueagnucleatioofnsstaatdeopimtedplepmuresnutaantitotno,

dleaaysst2prliodra(atyos)TsprhliionergagttoheenthcreyuldesahtwaelilothpfuttihbleliinsDghewpnaoitrthtimcteheeontfDoienftSetnattet.oTadhoeptagaernuclyesphuarlsluparnotvtiodethaiscospuybsoefcttihoenniontitcheeoFfloinrtiednatAtodmadionpisttraartiuvleetRoegthiestecromatmleitateste2at1
partmentofState.Priorto filing tberulewiththeDepa
aGfyllngwwritittehntheeomDmepeanrttmsreencteoivfeSdtawtei.thSinub1s4tadnatiyvseacfhtearngtheesfdroatmeothfepruubleliscaatsionnotoicfetdheshnaoltlirceeqoufireinrteenputbtolisahdionpgrttomafnernuoltteio.cfeTSahtsaerteer,qutulheieresaldlgaielnlntbcheyisasshduaoblplstececodtniuospindo.enr
acloptaru(leb;)hAonwyervuelre,naodosputcehdrpuulerssuhaanltltboeethoimsesuebffseeccttiivoenesahralilelrbtehcaonmtheeeeffffeecctitviveeudpaotneothfethdeasteubdsetsanigtnivaetleydibdyentthiecaalgfeednceyralinretghueiantoiotnic.eofintentto

objection(toc)l-uAlenmyaskuibnsgtawntiitahlltyheafafgeecntecdy.pTerhsoenobmjeacyti,ownisthhianll1s4pedcaifyysthafeteprotrhtieondsatoeftohfeppurbolpicoasteiodnruolfetthoe

notice

of

intent to

adopt a

rule ,

tile

an

rroeuàaljeseocinntisonnofo,mrunathlteeersisoatblhjreeecsatpgioeecnnt.cdyinfdfeeeresma&gseotnmhceythosbehjreaeclqltiuoninorettmoprebonectsefreoidvfotphluoeursfsue,dabenurttatlmoraetyghuipslrasotuciobenesdeucpptoiuonrnswutaohnictahdtooitpsitusbtbhsaoescseteidop,nois(r3tdi)weo.enhmsAicenohdfotthtbohejeebpcepetifrrorsonipovnotooslooeabudjpser.rcuotlpseoassnepddectrhiuteileesd,pweinchiifcaihnc

trrheupleeeFapllouedrris.dura(aednAm)tdaWtnmodhitneehdiniss,etrovsauertbrisvsuaeesncpRyteieonfgnedidesietdser,arst.ulhberSesautgagcunhelatnirtcaeiolyplynesahaalamdilosle,pnewtdfefiedetdhca,tiinstvhae6en0uapadggoaeenynnscpcytyuhbmerrluiaecylaeaftatipedoruno,rpspotuufatbtnhhletiesthaonmoatehtninicosdete.isdcuWebrseohegfceurtnleieoapvtneiearilsaodnfeytchfleeadrseeudrbasilntravenagtliuivdlaelotyiroinidseawndtoiitpchtadeldraaagwsenna,cnryeavrgouelkenccdiny,

adoptedasarulewithin 180daysaftertheeffectivedateoftheamended anoticeofrepealoftheoriginalagencyruleinthenextavailableFlorida

regulation.theoriginalrule AdministrativeRegister

onasarule. Iftheam endedregulationisnot isdeemedrepealedandtheagencyshallpublish

.

federallaw(,e)suWchherunleevsehraalll1boerwpraitrtteonfinanaymraunlneeprrsoopothsaetdthfoerraudleopsptieocnitibcyaltlhyereatgkernenccyeissthseubrestgaunltaivtieonlywidheennteicvaelrtpoosasirbelgeu.lation adoptedpursuantto (7)Petitiontoinitiaterulemaking.-

14

Case 1:12-cv-22958-PAS Document 461 Entered on FLSD Docket 03/04/2015 Page 30 of 31
crlaoutlemerpotlrhytaownip(3tahr0)otvAhciaendlyeerenptqhdeuearersmsotdneiandyriesmagcfuutoimlolalntope,wudoibrbnldgiycenatihnynefatohgdneeanntpeacdtyloioftonirofrnihleiaqwnvugiitinhraegadpsuwebytbriisttittthaoenninst,iscatthhlaeatiepnamttegeerreen.nstcTtyoihfnseihtaspanelrltaeigatiniseonointnciayssthefroaulrrlluetlshmepemeadcayeikfnpyinieatgthil,tepiorpnorcoaepneodasgienedgnsrcuyulnetodaeanrddtohapicstt,iocahmnaerpnetqdeur,,eoosrttehredep.rweNailsoeat
fwwiihlithincgihnah3pa0est(dibntaoiy)otslnfba,etfihteneenirtpipaaedutteobitplriioutcelnaedtmtiioblaenykdoitnuhfgenth,droeeurrnleptohmrtoiiacsvkeisid.unebg'FsnhepoecrttoipiccoueenrdipniuostrshdeeseiroeFofcltotehrdeidptaouAbaldnicmuhnineaiadsrotirnpatgteividsertRuoleecg,ointshtseeidraetghreatnhtcethycesohmagamelln,ecnnyotstwoliafltltehhreothlpdaunablp3iuc0bddliiarcyecshtefeaodrliltnoogwthoinengatghtheenepcdeyatitrteiuoolnef
ppurobcleicduinretesroerstreiqsusireermveedntasdseeqtufoarttehlyinbtyhitshcehaapptpelric.ation ofthrererquuliereomnenatscaosfet-bhyis-ecahsaeptbears,iist,sasscocpoentarnadsteadppwlicitahtioitns,aadnodpttoioncobnysidtherewruhleetmhearkitnhge
(c)W ithin30daysfollowingthepublichearingprovidedforby racugoelmenmpcylayksihwnagiltlhotritloheeththereerwqsuitaseetsetcemodmenaptcltwyioiinnthg, twthheiethcaotghmeenmrceiytqteuseeh.satleTldhpeaucbctoiloimsnhm,aiinnttdetehoefshaFanllylorfcoihdrawanpagAarerddasmgairtiacnwpoishiptlyrl(amboti)fa,vkteihefeRtinhseetgtahitaseegtmesercneoncapytesttdoaootrteheamspnpenolittcaointfiiotiinatstoefrertuahsleeonmunsaakdfionorgptneoodrtnoilntlheite.imantiinsege oversightjurisdictionoftheagencyineachhouseoftheLegislature.Thecommitteeortheconimitteewithprimeasryubosvtaentivecommitteewithprimary hmeaakriinnggtdhierercuteledatosttahteutsotarytesmtaenndtaorfdtohreIaimgeitnicnyg.orThotehceorwmimseitmteoedhifoylidnigngththeeahutehaorirnitgymofaythreecaommendtotheLegislaturctrhseigihnttjrourdiuscdtiicotnioonfmIeagyishlaotlidona
gency.

(8)Rulemakingrecord.--ln aIlrulemakingproceedingstheagency shall

applicable, copies of:

compile a rulemaking record.

The

record

shall

include ,

if

(a)A1lnoticesgivenfortheproposedrule.

(b)Anystatementofestim atedregulatorycostsfortherule .

(c)A writtensummaryofhearingsontheproposedrule .

(d)Thewrittencommentsandresponsestowrittencommentsasrequiredbythissedionand>s. 120.541. (e)Al1noticesandfindingsmadeundersubsection(4).

(9Al1materials5ledbytheagencywiththecommitteeundersubsection(3) .

(g)Al1materialstiledwiththeDepartmentofStateundersubsection(3) .

(h)Allwritteninquiriesfrom standingcommitteesoftheLegislatureconcerningtherule.

pEuarcshuastnattetoagtheencreycsohrdasll-rreetteanintiothnesrcehceodrduleofdreuvleemlopaekdinugnadserlo>ngs.a2s5t7h.e36r(u6le).isineffect.

W

hen

a rule

is no longer in effect ,

the record

m

ay be destroyed

CREDITIS)

2222JLlel111000u,9995f)fan092I1799w2Le9l,02,J7s,;,0ajuj4,,ccwl,8cc1Ly.3.I;92s..2;a027790l0wL,104,072L9es1a,31--a12f8w2lc2;f1w9-4-96.069s2,L06sO731802c,,40a.;cl03.jwj9-,jt,830.jLc7s481j11.19a32-20,.,,w228;,0ec,010c,0sf.4j9L.f31e,52910a7f,,l7O09-t6w9j;l;c209,.-cs.847J2L9tL2uL9.;-0.1aa0la910,wcyIwL00wj.7,.4s52sa7j9ls,-1w0,,l92,l6jlc9s2-l97e99.3720698f9,71.f57;3l,,9679s,cL1,j8NLc-,;4cf5acfao.j5.w5:.w70Lv9c934Js5.,sa3.6,a,-we-13-n2ljelf13975.09stf3l8f,28-l1l,'72200J1s3,,0aJ0,0,,jL2nuj41jlcc0an.,301..660we1j,;'82,39,ssc00l.,72;Le2.8-11',f0a0329L3,tLlw019-L07aa106J18sw9allwu)4,wS,91slsl,j-cp9y9Ls2j12.e,.75a2c9107146,'w5,9i9L08,a,581,sa8-Lelc92,6,wjaf2.'98fcc,Aw07s6l,.c.06sJsj9'.)226u-e580l0S2Ll,lfy60-90e3cf'a,1-8.8s12.l4w3s-LJ,,12,07isuc1,oaj20,,4nc.wn001jj39e.926,ls,)809l7H-32j80ll;754L)J9-2,817R,a3L7L,-c)w,0278aja.9e905,Lwsw9-f3l,,cAaf7lss,l..jjw-9e;;127J197fls9u08L7f6L,;8l.6-11ya4,ae7J93w,Lcw2fu9,j,lfa.5lsc.e5.sw7y3,.22M.,62,js8l02c0-0e7,0a2.0l2lfy21-97981l;f3203.56)2,88,0LM-c3-9j5c2L6la.,,,5a9jw..,2ca2yj.25w0s.01Lj,033l,80sa1j021;1319w12-23,;-;67L01-3s,1.209L45ae9L2,72w9aAf910a.fcw,,,7wms.0.jjcj.Js,87s1e.u429,29n12L2l9,c,'9y-d900a3.0e.7ew002,eLf,2d7f9.fs3j(0a,f-),2b.0w.J71c10ycJ98u9.8s;u.0-1l97L7y213Ll1-y78,a9939.a-.wj10043w11c,2473,s,4.s2-,,42,j9190cj,1ûe9854.91jf91-3,,28f7216e.6j4'190,-,,f;;J-0,f2uc1.LL,cLL..lJ7aa.yjae9au3ww7wfwl6,31y9f-sss.j,.s-

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 </s> Case 1:12-cv-22958-PAS Document 468 Entered on FLSD Docket 03/13/2015 Page 1 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 1 of 1

Amy C. Nerenberg Acting Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
March 13, 2015

Steven M. Larimore U.S. District Court 400 N MIAMI AVE MIAMI, FL 33128-1810
Appeal Number: 14-10086Case Style:

MC
Mar 13, 2015
MIAMI
For rules and forms visit www.ca11.uscourts.gov

The enclosed published CORRECTED order dismissing the appeal or disposing of a petition for a writ of mandamus or prohibition or other extraordinary writ has been entered. The time for issuance of the mandate is governed by FRAP 41(b). See 11th Cir. R. 41-3.
Sincerely,
AMY C. NERENBERG, Acting Clerk of Court
Reply to: Elora Jackson, DD Phone #: (404) 335-6173
Enclosure(s)

DIS-4 Multi-purpose dismissal letter

Case 1:12-cv-22958-PAS Document 468 Entered on FLSD Docket 03/13/2015 Page 2 of 13 Case: 14-10086 Date Filed: 02/27/2015 Page: 1 of 12
[PUBLISH]
CORRECTED
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 14-10086 ________________________ D.C. Docket No. 1:12-cv-22958-PAS
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ Before ED CARNES, Chief Judge, RESTANI,* Judge, and MERRYDAY,** District Judge.
* Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by designation.
** Honorable Steven D. Merryday, United States District Judge for the Middle District of Florida, sitting by designation.

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ED CARNES, Chief Judge: There is a vast amount of federal law. So much that no one can hope to keep
it all in mind, much less master the mass of it. But it was not always so. The current universe of federal law did begin with a bang, although not a big one. It began with a Constitution on four parchment pages, followed by a Bill of Rights on one more.1 But the Constitution begat Congress, and Congress begat statutes –– lots and lots of statutes. The current version of them fills 45,000 pages of the United States Code.2 Those statutes begat hundreds of administrative agencies, and many of those agencies begat regulations –– lots and lots of them. So many that the Code of Federal Regulations fills 235 volumes and is 175,000 pages long, give or take a few thousand pages.3 As the number of statutes and regulations has multiplied exponentially, so has decisional law. Supreme Court decisions fill 573 volumes of the official United States Reports, while federal court of appeals decisions fill 2,000 or so volumes of the Federal Reporter series.
1 The parchment pages containing the Constitution are 28 and 3/4 inches by 23 and 5/8 inches. The Bill of Rights parchment page is 28 and 1/2 inches by 28 and 1/4 inches.
2 This number is based on the 2012 edition of the United States Code, excluding volumes 35 through 41 (which contain conversion tables and indices) and annual supplements.
3 Those numbers are based on the latest official statistics from the Office of the Federal Register. See Office of the Federal Register, Code of Federal Regulations – Total Pages 1938 Through 1949, and Total Volumes and Pages 1950 Through 2013, https://www.federalregister.gov/uploads/2014/04/OFR-STATISTICS-CHARTS-ALL1-1-12013.pdf (last visited Jan. 27, 2015).
2

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Truly, federal laws have multiplied to become “beyond number, like the stars in the sky and the sand on the seashore.”4 Charting a course through this universe of federal law, which is expanding at an ever-accelerating rate, can be difficult. Attorneys and judges sometimes overlook a statutory provision, a regulation, or a decision that directly controls a case. We have all done it occasionally. It happened in this case.
I. In August of 2012 the United States filed a civil suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., alleging that the failure of the State of Florida to provide a kosher diet program to all of its prisoners with sincere religious grounds for keeping kosher was a substantial burden on those prisoners’ religious exercise. The complaint requested both injunctive and declaratory relief under the statute. See 42 U.S.C. § 2000cc2(a). After the district court denied Florida’s motion to dismiss the complaint, the State issued a new policy in March 2013, formally titled “Procedure 503.006” and informally referred to as “the Religious Diet Program.” That program would
4 Genesis 22:17 (New Living Translation); see also Raymond Chandler, The Long Goodbye 315 (Vintage Books 1988) (1953) (“[Lawyers] write the laws for other lawyers to dissect in front of other lawyers called judges so that other judges can say the first judges were wrong and the Supreme Court can say the second lot were wrong. Sure there’s such a thing as law. We’re up to our necks in it.”).
3

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provide prisoners with kosher meals using a combination of “prepackaged, certified kosher entrees” and kosher items from each prison’s “normal food service operations.” In addition to outlining the contents of the meals, Procedure 503.006 contains a number of provisions that determine a prisoner’s eligibility for the program. Three of those provisions are at issue in this appeal. First is the “sincerity test,” which Florida uses as a mechanism for initially determining whether a prisoner should be eligible to receive kosher meals. The second and third contested provisions are part of what the district court labeled the “Zero Tolerance Rule.” Those two provisions mandate the removal from the program of any prisoner who (1) purchases, possesses, or consumes an item that is not listed as “kosher” by Florida’s supply contractors, or (2) barters using a kosher food item.
When the United States learned about Procedure 503.006 in April 2013, it filed a motion for a preliminary injunction. It requested that the injunction: (1) require Florida “to provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher,” and (2) prohibit Florida from implementing its “new Religious Diet Program to the extent it violates RLUIPA.” After holding an evidentiary hearing, the district court granted the motion. The preliminary injunction the court entered required Florida to “provide a certified kosher diet to
4

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all prisoners with a sincere religious basis for keeping kosher”5 and prevented the State from enforcing the eligibility provisions of Procedure 503.006 mentioned above.
The court’s order did not, however, mention the need-narrownessintrusiveness criteria for preliminary injunctions established by the Prison Litigation Reform Act (PLRA). See 18 U.S.C. § 3626(a)(2). Nor did the court “make[] the order final before the expiration of the 90-day period” beginning on the entry of the order. See id. Florida filed a notice of interlocutory appeal in January 2014. While this interlocutory appeal has been pending, the district court has held monthly status conferences between the parties. But the court has not made any need-narrowness-intrusiveness findings regarding the preliminary injunction, nor has it issued an order finalizing the preliminary injunction. See 18 U.S.C. § 3626(a)(2).
II. Although the parties did not raise any question about mootness, we have an obligation to notice and decide mootness issues. See Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994) (“It is incumbent upon this court to consider issues of mootness sua sponte . . . .”). Mootness is a question of law that
5 The district court’s original order required Florida to provide kosher meals on a statewide basis “no later than July 1, 2014.” The court later vacated that July 1 deadline and adopted a region-by-region timetable proposed by Florida.
5

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we consider de novo. See United States v. Logal, 106 F.3d 1547, 1551 (11th Cir.
1997). We must address it at the outset because we have no jurisdiction to decide
moot questions. See United States v. Shenberg, 90 F.3d 438, 440 (11th Cir. 1996).
The mootness question is: If a preliminary injunction expires automatically by
operation of statute, and none of the parties notice, does it moot the interlocutory
appeal challenging that injunction? We conclude that, like the proverbial tree, if an
issue falls in the forest of federal law, courts must take notice of the sound even if
the parties did not hear it.6
A.
A suit challenging prison conditions under RLUIPA is governed by the
PLRA.7 See Cutter v. Wilkinson, 544 U.S. 709, 723 n.12, 125 S. Ct. 2113, 2123
n.12 (2005) (citing 42 U.S.C. § 2000cc-2(e) for the proposition that “nothing in
RLUIPA shall be construed to amend or repeal the Prison Litigation Reform Act of
6 Apologies to Bishop Berkeley. See The History of Philosophy: Modern Philosophy from 1500 CE to the Present 113 (Brian Duignan ed., 2011) (explaining that George Berkeley’s philosophy of phenomenalism was the inspiration for the “question of whether a tree falling in an uninhabited forest makes a sound”).
7 That is true even though the plaintiff in this case is the United States and not an individual prisoner. The PLRA provision at issue here states that it applies “[i]n any civil action with respect to prison conditions.” 18 U.S.C. § 3626(a)(2) (emphasis added). And the subsection defining “civil action with respect to prison conditions” states that it “means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2) (emphasis added). The provision’s plain language makes it applicable regardless of whether the plaintiff is the government or a prisoner. Cf. United States v. Puerto Rico, 642 F.3d 103, 104 (1st Cir. 2011) (applying a separate provision of § 3626 to a suit brought by the United States).
6

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1995”) (quotation marks omitted). The PLRA provides that “[p]reliminary injunctive relief shall automatically expire on the date that is 90 days after its entry” unless the district court does two things. 18 U.S.C. § 3626(a)(2). The first thing the district court must do to keep a preliminary injunction alive past the 90day deadline is “make[] the findings required under subsection (a)(1) for the entry of prospective relief.” Id. The second is to “make[] the order final before the expiration of the 90-day period.” Id.
As for the findings required under subsection (a)(1), the statute directs that the district court “shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. § 3626(a)(1)(A) (emphasis added). In Cason v. Seckinger, we interpreted the term “written findings” in § 3626(b)(3), which governs the termination of prospective relief by motion of a party, in the context of a motion to terminate a consent decree. 231 F.3d 777, 785 (11th Cir. 2000). We held that a district court may not allow consent decrees to remain in effect despite a motion to terminate, unless it makes:
particularized findings . . . that each requirement imposed by the consent decrees satisfies the need-narrowness-intrusiveness criteria . . . . It is not enough to simply state in conclusory fashion that the requirements of the consent decrees satisfy those criteria. Particularized findings, analysis, and explanations should be made as
7

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to the application of each criteri[on] to each requirement imposed by the consent decrees. Id.8 We see no reason why the term “finds” in § 3626(a)(1) does not require the
same particularity as the term “findings” in § 3626(b)(3). See Cason, 231 F.3d at
785; see also Erlenbaugh v. United States, 409 U.S. 239, 244, 93 S. Ct. 477, 480
(1972) (“[I]ndividual sections of a single statute should be construed
together . . . .”). We thus read § 3626(a)(1) to require particularized findings that
each requirement imposed by the preliminary injunction satisfies each of the need-
narrowness-intrusiveness criteria.
In this case the district court did not make those particularized findings or
finalize its order. The court entered its preliminary injunction order on December
6, 2013. The 90-day clock began ticking the next day. See 18 U.S.C.
§ 3626(a)(2); Fed. R. Civ. P. 6(a)(1). Neither the December 6 order nor any of the
court’s later orders contained specific findings that any of the preliminary
8 In Cason, we interpreted the terms in § 3626(b)(3). See 231 F.3d at 785. That paragraph provides:
Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. 18 U.S.C. § 3626(b)(3) (emphasis added). In comparison, § 3626(a)(1) states that a “court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. § 3626(a)(1)(A) (emphasis added).
8

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injunction’s requirements satisfied the need-narrowness-intrusiveness criteria in
§ 3626(a)(2), much less an explanation of how they did. The court also did not
issue an order finalizing its December 6 order. As a result, the preliminary injunction expired by operation of law on Thursday, March 6, 2014.9 See 18
U.S.C. § 3626(a)(2); Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001)
(“Because the district court in the present case did not make either of the
preliminary injunctions at issue final within 90 days, both injunctions expired
pursuant to [§ 3626(a)(2)].”). The question thus becomes whether the expiration of
the preliminary injunction renders this appeal moot.
B.
An appeal is moot “when, by virtue of an intervening event, a court of
appeals cannot grant any effectual relief whatever in favor of the appellant.”
Calderon v. Moore, 518 U.S. 149, 150, 116 S. Ct. 2066, 2067 (1996) (quotation
marks omitted). One such intervening event is the expiration of a preliminary
9 In response to our request for supplemental briefing on the mootness issue, Florida argued that the preliminary injunction did not expire on March 6 because, after entering the preliminary injunction order, the district court issued several later orders clarifying the scope of the injunction. None of the orders to which Florida points renewed the preliminary injunction. They merely clarified the scope of the existing injunction. Clarification is not renewal. Cf. Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001) (holding that § 3626(a)(2) permits a district court to “enter[ a] second injunction after the first one expire[s]”). In any event, it does not matter, because the last of the orders that Florida cites was entered on June 30, 2014. So even if we accepted Florida’s renewal argument, the preliminary injunction would have expired on Monday, September 29, 2014. Cf. Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).
9

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injunction that is being challenged in an interlocutory appeal. See Local No. 8-6, Oil, Chem. & Atomic Workers Int’l Union v. Missouri, 361 U.S. 363, 367, 80 S. Ct. 391, 394 (1960); Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114, 1119 (11th Cir. 1995) (“[T]his court has consistently held that the appeal of a preliminary injunction is moot where the effective time period of the injunction has passed.”) (citing Tropicana Prods. Sales, Inc. v. Phillips Brokerage Co., 874 F.2d 1581, 1582–83 (11th Cir. 1989) and Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)).10 If the preliminary injunction has expired, it no longer has legal effect on the parties, and a decision by this court affirming or vacating the defunct injunction “cannot affect the rights of [the] litigants.” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705 (1974).
The preliminary injunction in the present case passed on to injunction heaven on March 6, 2014. And with it died this appeal, unless some exception to the mootness doctrine can save it. See Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir. 1997). The only one that could arguably apply here is the one for disputes that are “capable of repetition, yet evading review.” See Strickland v. Alexander, 772 F.3d 876, 887 (11th Cir. 2014). It applies where “(1) there [is] a
10 Earlier decisions by this Court recognized “the traditional rule that issues raised by an expired injunction are not moot if one party was required to post an injunction bond.” Medtronic, Inc. v. Janss, 729 F.2d 1395, 1398–99 (11th Cir. 1984) (quotation marks omitted). Here, neither party claims to have posted an injunction bond, and our own review of the record confirms that none was posted.
10

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reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.” Martin, 110 F.3d at 1554.
That exception does not apply here because Florida has not demonstrated a probability that any additional injunction the district court enters will evade review. In arguing about the government’s motion for a preliminary injunction, the parties did not mention the PLRA in any of their briefs or during the hearing on the motion. And the district court did not mention the statute in its order entering the preliminary injunction or any of its later orders regarding the scope of that injunction. It is apparent that the parties and the district court simply overlooked the findings and finalization requirements of 18 U.S.C. § 3626(a)(2). There is no basis for us to predict that if the United States seeks a new preliminary injunction, the district court (assuming it grants the motion) will decline to make the required need-narrowness-intrusiveness findings or will refrain from finalizing its order. See 18 U.S.C. § 3626(a)(2). Or to put it in terms of the mootness exception, there is no “reasonable expectation” that any new preliminary injunction would expire before it reached this Court on appeal. See Martin, 110 F.3d at 1554. The issues underlying the preliminary injunction the district court entered are capable of repetition but we do not expect that they will evade review if they arise again.
11

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III. When an issue becomes moot on appeal, we not only “dismiss as to the mooted issue, but also vacate the portion of the district court’s order that addresses it.” De La Teja v. United States, 321 F.3d 1357, 1364 (11th Cir. 2003); see United States v. Ghandtchi (In re Ghandtchi), 705 F.2d 1315, 1316 (11th Cir. 1983) (“Where a case becomes moot after the district court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss the appeal, vacate the district court’s judgment, and remand with instructions to dismiss the case as moot.”). We vacate the moot part of the order because “a party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness to be forced to acquiesce in the judgment.” De La Teja, 321 F.3d at 1364 (quotation marks omitted). Florida’s appeal from the now expired preliminary injunction is therefore DISMISSED as moot, but the district court’s orders entering and clarifying that preliminary injunction are VACATED.
12

 </s> Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 1 of 14 Case: 14-10086 Date Filed: 04/22/2015 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

John Ley Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
April 22, 2015

Steven M. Larimore U.S. District Court 400 N MIAMI AVE MIAMI, FL 33128-1810

Appeal Number: 14-10086-DD Case Style: USA v. Secretary, Florida Department District Court Docket No: 1:12-cv-22958-PAS

MC
Apr 22, 2015
MIAMI
For rules and forms visit www.ca11.uscourts.gov

A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being forwarded to counsel and pro se parties. A copy of the court's decision was previously forwarded to counsel and pro se parties on the date it was issued.

The enclosed copy of the judgment is hereby issued as mandate of the court. The court's opinion was previously provided on the date of issuance.

Sincerely,

DOUGLAS J.MINCHER, Clerk of Court

Reply to: Lois Tunstall Phone #: (404) 335-6224

Enclosure(s)

MDT-1 Letter Issuing Mandate

Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 2 of 14 Case: 14-10086 Date Filed: 04/22/2015 Page: 1 of 1
UNITED STATES COURT OF APPEALS For the Eleventh Circuit ______________ No. 14-10086 ______________ District Court Docket No. 1:12-cv-22958-PAS
UNITED STATES OF AMERICA, Plaintiff - Appellee,
versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant - Appellant, FLORIDA DEPARTMENT OF CORRECTIONS, 501 Calhoun Street Tallahassee, FL 32399 (850) 488-7480 ,
Defendant. __________________________________________ Appeal from the United States District Court for the
Southern District of Florida __________________________________________
JUDGMENT It is hereby ordered, adjudged, and decreed that the opinion issued on this date in this appeal is entered as the judgment of this Court.
Entered: February 27, 2015 For the Court: Amy Nerenberg, Acting Clerk of Court
By: Djuanna Clark
ISSUED AS MANDATE 04/22/2015

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[PUBLISH]
CORRECTED
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 14-10086 ________________________ D.C. Docket No. 1:12-cv-22958-PAS
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ Before ED CARNES, Chief Judge, RESTANI,* Judge, and MERRYDAY,** District Judge.
* Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by designation.
** Honorable Steven D. Merryday, United States District Judge for the Middle District of Florida, sitting by designation.

Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 4 of 14 Case: 14-10086 Date Filed: 02/27/2015 Page: 2 of 12
ED CARNES, Chief Judge: There is a vast amount of federal law. So much that no one can hope to keep
it all in mind, much less master the mass of it. But it was not always so. The current universe of federal law did begin with a bang, although not a big one. It began with a Constitution on four parchment pages, followed by a Bill of Rights on one more.1 But the Constitution begat Congress, and Congress begat statutes –– lots and lots of statutes. The current version of them fills 45,000 pages of the United States Code.2 Those statutes begat hundreds of administrative agencies, and many of those agencies begat regulations –– lots and lots of them. So many that the Code of Federal Regulations fills 235 volumes and is 175,000 pages long, give or take a few thousand pages.3 As the number of statutes and regulations has multiplied exponentially, so has decisional law. Supreme Court decisions fill 573 volumes of the official United States Reports, while federal court of appeals decisions fill 2,000 or so volumes of the Federal Reporter series.
1 The parchment pages containing the Constitution are 28 and 3/4 inches by 23 and 5/8 inches. The Bill of Rights parchment page is 28 and 1/2 inches by 28 and 1/4 inches.
2 This number is based on the 2012 edition of the United States Code, excluding volumes 35 through 41 (which contain conversion tables and indices) and annual supplements.
3 Those numbers are based on the latest official statistics from the Office of the Federal Register. See Office of the Federal Register, Code of Federal Regulations – Total Pages 1938 Through 1949, and Total Volumes and Pages 1950 Through 2013, https://www.federalregister.gov/uploads/2014/04/OFR-STATISTICS-CHARTS-ALL1-1-12013.pdf (last visited Jan. 27, 2015).
2

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Truly, federal laws have multiplied to become “beyond number, like the stars in the sky and the sand on the seashore.”4 Charting a course through this universe of federal law, which is expanding at an ever-accelerating rate, can be difficult. Attorneys and judges sometimes overlook a statutory provision, a regulation, or a decision that directly controls a case. We have all done it occasionally. It happened in this case.
I. In August of 2012 the United States filed a civil suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., alleging that the failure of the State of Florida to provide a kosher diet program to all of its prisoners with sincere religious grounds for keeping kosher was a substantial burden on those prisoners’ religious exercise. The complaint requested both injunctive and declaratory relief under the statute. See 42 U.S.C. § 2000cc2(a). After the district court denied Florida’s motion to dismiss the complaint, the State issued a new policy in March 2013, formally titled “Procedure 503.006” and informally referred to as “the Religious Diet Program.” That program would
4 Genesis 22:17 (New Living Translation); see also Raymond Chandler, The Long Goodbye 315 (Vintage Books 1988) (1953) (“[Lawyers] write the laws for other lawyers to dissect in front of other lawyers called judges so that other judges can say the first judges were wrong and the Supreme Court can say the second lot were wrong. Sure there’s such a thing as law. We’re up to our necks in it.”).
3

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provide prisoners with kosher meals using a combination of “prepackaged, certified kosher entrees” and kosher items from each prison’s “normal food service operations.” In addition to outlining the contents of the meals, Procedure 503.006 contains a number of provisions that determine a prisoner’s eligibility for the program. Three of those provisions are at issue in this appeal. First is the “sincerity test,” which Florida uses as a mechanism for initially determining whether a prisoner should be eligible to receive kosher meals. The second and third contested provisions are part of what the district court labeled the “Zero Tolerance Rule.” Those two provisions mandate the removal from the program of any prisoner who (1) purchases, possesses, or consumes an item that is not listed as “kosher” by Florida’s supply contractors, or (2) barters using a kosher food item.
When the United States learned about Procedure 503.006 in April 2013, it filed a motion for a preliminary injunction. It requested that the injunction: (1) require Florida “to provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher,” and (2) prohibit Florida from implementing its “new Religious Diet Program to the extent it violates RLUIPA.” After holding an evidentiary hearing, the district court granted the motion. The preliminary injunction the court entered required Florida to “provide a certified kosher diet to
4

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all prisoners with a sincere religious basis for keeping kosher”5 and prevented the State from enforcing the eligibility provisions of Procedure 503.006 mentioned above.
The court’s order did not, however, mention the need-narrownessintrusiveness criteria for preliminary injunctions established by the Prison Litigation Reform Act (PLRA). See 18 U.S.C. § 3626(a)(2). Nor did the court “make[] the order final before the expiration of the 90-day period” beginning on the entry of the order. See id. Florida filed a notice of interlocutory appeal in January 2014. While this interlocutory appeal has been pending, the district court has held monthly status conferences between the parties. But the court has not made any need-narrowness-intrusiveness findings regarding the preliminary injunction, nor has it issued an order finalizing the preliminary injunction. See 18 U.S.C. § 3626(a)(2).
II. Although the parties did not raise any question about mootness, we have an obligation to notice and decide mootness issues. See Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994) (“It is incumbent upon this court to consider issues of mootness sua sponte . . . .”). Mootness is a question of law that
5 The district court’s original order required Florida to provide kosher meals on a statewide basis “no later than July 1, 2014.” The court later vacated that July 1 deadline and adopted a region-by-region timetable proposed by Florida.
5

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we consider de novo. See United States v. Logal, 106 F.3d 1547, 1551 (11th Cir.
1997). We must address it at the outset because we have no jurisdiction to decide
moot questions. See United States v. Shenberg, 90 F.3d 438, 440 (11th Cir. 1996).
The mootness question is: If a preliminary injunction expires automatically by
operation of statute, and none of the parties notice, does it moot the interlocutory
appeal challenging that injunction? We conclude that, like the proverbial tree, if an
issue falls in the forest of federal law, courts must take notice of the sound even if
the parties did not hear it.6
A.
A suit challenging prison conditions under RLUIPA is governed by the
PLRA.7 See Cutter v. Wilkinson, 544 U.S. 709, 723 n.12, 125 S. Ct. 2113, 2123
n.12 (2005) (citing 42 U.S.C. § 2000cc-2(e) for the proposition that “nothing in
RLUIPA shall be construed to amend or repeal the Prison Litigation Reform Act of
6 Apologies to Bishop Berkeley. See The History of Philosophy: Modern Philosophy from 1500 CE to the Present 113 (Brian Duignan ed., 2011) (explaining that George Berkeley’s philosophy of phenomenalism was the inspiration for the “question of whether a tree falling in an uninhabited forest makes a sound”).
7 That is true even though the plaintiff in this case is the United States and not an individual prisoner. The PLRA provision at issue here states that it applies “[i]n any civil action with respect to prison conditions.” 18 U.S.C. § 3626(a)(2) (emphasis added). And the subsection defining “civil action with respect to prison conditions” states that it “means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2) (emphasis added). The provision’s plain language makes it applicable regardless of whether the plaintiff is the government or a prisoner. Cf. United States v. Puerto Rico, 642 F.3d 103, 104 (1st Cir. 2011) (applying a separate provision of § 3626 to a suit brought by the United States).
6

Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 9 of 14 Case: 14-10086 Date Filed: 02/27/2015 Page: 7 of 12
1995”) (quotation marks omitted). The PLRA provides that “[p]reliminary injunctive relief shall automatically expire on the date that is 90 days after its entry” unless the district court does two things. 18 U.S.C. § 3626(a)(2). The first thing the district court must do to keep a preliminary injunction alive past the 90day deadline is “make[] the findings required under subsection (a)(1) for the entry of prospective relief.” Id. The second is to “make[] the order final before the expiration of the 90-day period.” Id.
As for the findings required under subsection (a)(1), the statute directs that the district court “shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. § 3626(a)(1)(A) (emphasis added). In Cason v. Seckinger, we interpreted the term “written findings” in § 3626(b)(3), which governs the termination of prospective relief by motion of a party, in the context of a motion to terminate a consent decree. 231 F.3d 777, 785 (11th Cir. 2000). We held that a district court may not allow consent decrees to remain in effect despite a motion to terminate, unless it makes:
particularized findings . . . that each requirement imposed by the consent decrees satisfies the need-narrowness-intrusiveness criteria . . . . It is not enough to simply state in conclusory fashion that the requirements of the consent decrees satisfy those criteria. Particularized findings, analysis, and explanations should be made as
7

Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 10 of 14 Case: 14-10086 Date Filed: 02/27/2015 Page: 8 of 12
to the application of each criteri[on] to each requirement imposed by the consent decrees. Id.8 We see no reason why the term “finds” in § 3626(a)(1) does not require the
same particularity as the term “findings” in § 3626(b)(3). See Cason, 231 F.3d at
785; see also Erlenbaugh v. United States, 409 U.S. 239, 244, 93 S. Ct. 477, 480
(1972) (“[I]ndividual sections of a single statute should be construed
together . . . .”). We thus read § 3626(a)(1) to require particularized findings that
each requirement imposed by the preliminary injunction satisfies each of the need-
narrowness-intrusiveness criteria.
In this case the district court did not make those particularized findings or
finalize its order. The court entered its preliminary injunction order on December
6, 2013. The 90-day clock began ticking the next day. See 18 U.S.C.
§ 3626(a)(2); Fed. R. Civ. P. 6(a)(1). Neither the December 6 order nor any of the
court’s later orders contained specific findings that any of the preliminary
8 In Cason, we interpreted the terms in § 3626(b)(3). See 231 F.3d at 785. That paragraph provides:
Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. 18 U.S.C. § 3626(b)(3) (emphasis added). In comparison, § 3626(a)(1) states that a “court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. § 3626(a)(1)(A) (emphasis added).
8

Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 11 of 14 Case: 14-10086 Date Filed: 02/27/2015 Page: 9 of 12
injunction’s requirements satisfied the need-narrowness-intrusiveness criteria in
§ 3626(a)(2), much less an explanation of how they did. The court also did not
issue an order finalizing its December 6 order. As a result, the preliminary injunction expired by operation of law on Thursday, March 6, 2014.9 See 18
U.S.C. § 3626(a)(2); Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001)
(“Because the district court in the present case did not make either of the
preliminary injunctions at issue final within 90 days, both injunctions expired
pursuant to [§ 3626(a)(2)].”). The question thus becomes whether the expiration of
the preliminary injunction renders this appeal moot.
B.
An appeal is moot “when, by virtue of an intervening event, a court of
appeals cannot grant any effectual relief whatever in favor of the appellant.”
Calderon v. Moore, 518 U.S. 149, 150, 116 S. Ct. 2066, 2067 (1996) (quotation
marks omitted). One such intervening event is the expiration of a preliminary
9 In response to our request for supplemental briefing on the mootness issue, Florida argued that the preliminary injunction did not expire on March 6 because, after entering the preliminary injunction order, the district court issued several later orders clarifying the scope of the injunction. None of the orders to which Florida points renewed the preliminary injunction. They merely clarified the scope of the existing injunction. Clarification is not renewal. Cf. Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001) (holding that § 3626(a)(2) permits a district court to “enter[ a] second injunction after the first one expire[s]”). In any event, it does not matter, because the last of the orders that Florida cites was entered on June 30, 2014. So even if we accepted Florida’s renewal argument, the preliminary injunction would have expired on Monday, September 29, 2014. Cf. Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).
9

Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 12 of 14 Case: 14-10086 Date Filed: 02/27/2015 Page: 10 of 12
injunction that is being challenged in an interlocutory appeal. See Local No. 8-6, Oil, Chem. & Atomic Workers Int’l Union v. Missouri, 361 U.S. 363, 367, 80 S. Ct. 391, 394 (1960); Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114, 1119 (11th Cir. 1995) (“[T]his court has consistently held that the appeal of a preliminary injunction is moot where the effective time period of the injunction has passed.”) (citing Tropicana Prods. Sales, Inc. v. Phillips Brokerage Co., 874 F.2d 1581, 1582–83 (11th Cir. 1989) and Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)).10 If the preliminary injunction has expired, it no longer has legal effect on the parties, and a decision by this court affirming or vacating the defunct injunction “cannot affect the rights of [the] litigants.” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705 (1974).
The preliminary injunction in the present case passed on to injunction heaven on March 6, 2014. And with it died this appeal, unless some exception to the mootness doctrine can save it. See Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir. 1997). The only one that could arguably apply here is the one for disputes that are “capable of repetition, yet evading review.” See Strickland v. Alexander, 772 F.3d 876, 887 (11th Cir. 2014). It applies where “(1) there [is] a
10 Earlier decisions by this Court recognized “the traditional rule that issues raised by an expired injunction are not moot if one party was required to post an injunction bond.” Medtronic, Inc. v. Janss, 729 F.2d 1395, 1398–99 (11th Cir. 1984) (quotation marks omitted). Here, neither party claims to have posted an injunction bond, and our own review of the record confirms that none was posted.
10

Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 13 of 14 Case: 14-10086 Date Filed: 02/27/2015 Page: 11 of 12
reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.” Martin, 110 F.3d at 1554.
That exception does not apply here because Florida has not demonstrated a probability that any additional injunction the district court enters will evade review. In arguing about the government’s motion for a preliminary injunction, the parties did not mention the PLRA in any of their briefs or during the hearing on the motion. And the district court did not mention the statute in its order entering the preliminary injunction or any of its later orders regarding the scope of that injunction. It is apparent that the parties and the district court simply overlooked the findings and finalization requirements of 18 U.S.C. § 3626(a)(2). There is no basis for us to predict that if the United States seeks a new preliminary injunction, the district court (assuming it grants the motion) will decline to make the required need-narrowness-intrusiveness findings or will refrain from finalizing its order. See 18 U.S.C. § 3626(a)(2). Or to put it in terms of the mootness exception, there is no “reasonable expectation” that any new preliminary injunction would expire before it reached this Court on appeal. See Martin, 110 F.3d at 1554. The issues underlying the preliminary injunction the district court entered are capable of repetition but we do not expect that they will evade review if they arise again.
11

Case 1:12-cv-22958-PAS Document 495 Entered on FLSD Docket 04/22/2015 Page 14 of 14 Case: 14-10086 Date Filed: 02/27/2015 Page: 12 of 12
III. When an issue becomes moot on appeal, we not only “dismiss as to the mooted issue, but also vacate the portion of the district court’s order that addresses it.” De La Teja v. United States, 321 F.3d 1357, 1364 (11th Cir. 2003); see United States v. Ghandtchi (In re Ghandtchi), 705 F.2d 1315, 1316 (11th Cir. 1983) (“Where a case becomes moot after the district court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss the appeal, vacate the district court’s judgment, and remand with instructions to dismiss the case as moot.”). We vacate the moot part of the order because “a party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness to be forced to acquiesce in the judgment.” De La Teja, 321 F.3d at 1364 (quotation marks omitted). Florida’s appeal from the now expired preliminary injunction is therefore DISMISSED as moot, but the district court’s orders entering and clarifying that preliminary injunction are VACATED.
12

 </s> U NITED STA TES D ISTR ICT C O U R T SO UTH ERN DISTRICT OF FLORIDA CASE N O.12.22958-ClV-SEITZ/TURNOFF UN ITED STA TES OF A M ERICA , Plaintiff,
SECRETARY,FLORIDA DEPARTM ENT OF CORRECTION S,etal.,
D efendants. /
ORDER O N M OTIO NS FO R SUM M ARY JUDGM ENT
THISM ATTER isbeforetheCourtoncross-motionsforstlmmaryjudgment.lThe
United StatessuedDefendantsallegingviolationsoftheReligiousLandUseand
lnstitutionalizedPersonsActof2000, 42U.S.C.j2000ccIRLUIPAIZbecauseDefendantsdid
notservekoshermealstothoseprisonerswhosereligiousbeliefsrequirekosherm eals .
Defendantssubsequentlynnnouncedtheirintentiontoprovidekosherm ealstoprisonerswhose religiousbeliefsrequiresuchm eals,throughtheimplem entationofaReligiousDietProgram
(RDP).TheUnitedStatesalsoallegesthatcertainaspectsoftheRDPviolateRLUIPA.
l'rhefilingsincludetheUnitedStates'M otionforSummaryJudgment(DE-4431 ,
Defendants'RenewedM otionforSummaryJudgmentgDE-442),andtheparties'responsesand replies(DE-449,453,457,4581.lnaddition,thepartieshavefiled supplem entalmem orandaat theCourt'srequest(DE-485,486,4881andaJointStatem entofUndisputedFacts(DE-487).
z'rhisaction w asfiled pursuantto 42 U .S.C.j2000cc-2(9,whichgivestheDepartm ent ofJusticetheauthoritytoenforcecompliancewithj2000cc-1byanactionforinjunctiverelief
ordeclaratory reliefon behalfoftheU nited Stateswhich hasan obligatoryinterestin protecting thereligiouslibertyofal1prisoners.

A

fterthecasew

asfiled,thepartiessoughtastay

in

order to

negotiate a

settlem

ent ,

which

theC ourtgranted. Thepartiesw ereunableto reach

a settlem

ent .

A lthough D efendantsagreed to

beginservingkosherm ealstoprisoners, Defendantswouldnotagreetoentryofan orderholding

thattheywererequiredbylaw toprovidethekosherm eals. ThestaywasliftedandtheUnited

StatessoughtapreliminaryinjunctionorderingDefendantstoprovidekoshermealstothose

prisonerswithasincerereligiousbeliefforeatingkosherandenjoiningenforcementofsomeof

Defendants'policiesimplementingtheRDP.TheCourtgrantedapreliminaryinjunction,which

waslatervacatedbytheEleventh Circuit.

TheUnitedStatesnow seeksdeclaratoryreliefandapermanentinjunctionrequiring

DefendantstoservekoshermealsandenjoiningtheimplementationofthreechallengedRDP

policies.Defendants,ontheotherhand,seekadeterm inationthatRLUIPA doesnotrequire

them toprovidekosherm ealstoprisonersandthatthechallengedpoliciesarevalidunder

RLUIPA.3IftheCourttsndsthatany ofDefendants'policiesviolateRLUIPA , itm ustthen
dderminewhetherapermanentinjunctionisappropriateunderthePrisonLitigationReform Act IPLRAI.BecauseDefendants'denialofkosherm ealsandtwoofthechallenged RDP policies
violateRLUIPA andtherequirem entsofthePLRA havebeenm et,theUnited States'summ ary
judgmentmotionfordeclaratoryandinjundivereliefisgrantedinpart.Becausethethird

challengedRDPprovisiondoesnotviolateRLUIPA,Defendants'motionforsummaryjudgment
isgranted in part.

3DefendantsalsoseeksummaryjudgmentdeclaringthattheRDP'Santi-barteringpolicy

is valid.

The U

nited

Statesdoesnotchallengethe

anti-bartering policy

and ,

thereby,concedesits

validity.Thus,Defendantsareentitledtosummaryjudgmentonthisissue.

1.U ndisputed M aterialFacts4

DefendanttheFloridaDepartmentofCorrections(FDOC)incarceratesapproximately
100,000prisonersinover60facilities. Approxim atelytenpercentofFloridaprisonersare incarceratedinprivately operatedfacilities. FDOC'S2014-2015operatingbudgetis$2.3billion
anditsfoodbudgetisjustover$54million.FDOC receivesfederalfundsandissubjectto
RLU IPA .

FD OC

incarceratesprisonersw ho have asincerereligiousbasisforkeeping kosher .

The

partiesagreethattheinabilitytoconsum eakosherdietsubstantiallyburdensthereligious

exerciseofFloridaprisonerswith asinceredesire to keep kosher .
Defendants'History WithKosherM eals
Priorto2004,Defendantsdidnotofferakosherdiettoanyprisoners. ln 2004, Defendantsimplementedakosherm ealplanknownastheJewishDietaryAccom modation

Program (JDAP),whichofferedkoshermealstoprisonersinthirteenFDOC fadlities.Prisoners

eligibleto participatein

JDA P w eretransferred to oneofthethirteen fad lities .

Initially JD A P

wmsopenonlytoJewishprisoners,butin 2006itw asopenedtoprisonersofallfaiths .

FD OC

term inated the JD A P program in A ugust2007.ln August2010, FD OC instituted apilotkosher dietprogram atthe South FloridaReception Center. Ertrollm entinthe pilotprogram ranged

from 8 to 18 prisoners.

W hen thislitigation started inA ugust2012,otherthanthepilotprogram ,D efendants
offeredonlythreemealoptionstom ostprisoners:(1)m ainline;(2)vegan;and(3)thealternative,

4Factswithoutrecordcitationscanbefoundintheparties'JointStatementofU ndisputed
Facts gDE-487).

no-m

eatoption

to the m

ainline entree.

In

addition ,

Defendantsalsoprovided

variousm

edical

andtherapeuticdietsprescribedbyFDOC personnelforapproximately3,500-3,600prisoners.

Noneofthesefoodoptionsarekosher. Prisonerswithreligiousdietneedshadonlythethree

non-m edicaldietstochoosefrom unlesstheywereoneoftheprisonersparticipating inthepilot

Program .
OnM arch22,2013,FDOC issuednew policy503.006,establishingtheRDP.(DE-29-8.)
A tthattim e,FDO C had approxim ately 8,500-8,700prisonerswhoself-identifiedw ithareligion
thatwouldrequireakoshermeal.(DE-68at46-47.) Thereafter,theUnitedStatesamendedits
complainttochallengeboththeblanketdenialofkosherm ealstothoseprisonerswithasincere

religiousbeliefforeatingkosherandsom eofDefendants'new

dietaly policies .

(DE-104.) On

December6,2013,theCourtissuedaPreliminarylnjunctionorderingDefendantstoprovide

koshermealstothoseimnateswithasincerereligiousbeliefrequiringthem toeatkosherand

enjoiningtheenforcementoffourprovisionsoftheRDP.5(DE-106.)Defendantsappealed.

(DE-120.) OnFebruary27,2015,theEleventhCircuitdeniedDefendants'appealasm ootand

vacatedthePreliminarylnjunctionbasedontheinjunction'sfailuretocomplywiththe requirementsofthePLRA.(DE-468.)

sspecifically,inadditiontorequiringDefendantstoprovidekosherm eals,theprelim inary

injunctionenjoinedDefendantsfrom :(1)enforcinganinety-daywaitingperiodforenteringthe

RDP;(2)asking RDP applicantstoidentifyspecificreligiousdoctrineaspartofDefendants'

sinceritytesting;(3)enforcing anlleknownasthetenpercentrule;and(4)enforcingarule

know n asthezero tolerancerule. D efendants,im plicitly recognizingthatitviolatesRLU IPA

,

voluntarily w ithdrew

theninety-day w aitingperiod policy from

theRD P ,

and both parties are no

longerpursuing itin thislitigation.

TheReligiousD ietProgram

UndertheRDP,thereligiousdietneedsofprisonersarem etthroughtllreeoptions:(1) thepreviously-offeredalternate,non-meatentreefrom themainline;(2)thepreviously-offered veganmealoption;and(3)thenewly-offered CertifiedFoodOption(CFO),whichisakosher foodoption.6(DE-29-8.)PrisonersseekingtoparticipateintheCFO mustsubmitan

application.(DE-29-8.)W hilethequestionsontheapplicationhavechangedduringthecourse

ofthislitigation,atsom epointtheapplicationincludedthefollowingquestion:identifyçtspecific

lawts)connectedtoyourbelieforfaiththatrequirets)youtoeatareligiousdiet.''(DE-99-8at

13.)W hilethatquestionisnotcurrentlyincludedontheapplication,Defendantsmaintainthatit

is a valuable

screeningtoolanda

perm

issible question

under the

1aw

.7

Thus ,

both

parties'

motionsforsummaryjudgmentaddresstheuseofthisquestion.

TheRDP alsoincludesenforcem entprovisions,which allow forsuspension and

expulsion from

the R

DP.Two

particular enforcem

entpoliciesare

at issue ,

both

of w

hich

specificallyaddressenforcementoftheCFO mealoption.BThefirststatesthatandiinmate

6originally ,

theCFO

consistedofprepackagedprocessedfoods(DE-29-8;442-2at!4)

andincludedtwohotmealsaday.However,theCFO w assubstantiallymodifiedandnow

consistsofa11coldm eals(17E-442-2at:4),comprisedofpeanutbutter,coldcereal,andbreadfor
breakfasteverydayandamixofsomeofthefollow ing forlunchanddinnereveryday:sardines ,
cabbage,beans,carrots,peanutbutter,breadorcrackers, andanoccasionalpieceoffruit.W hile
therecord isnotentirelyclear,itappearsthattheswitchtoal1cold mealsoccurredinlate

sum m er2014.

XD espiterem

ovalofthequestion from

the application ,

D

efendants have continued

to

accessthesincerityofapplicantsandtheChaplaincyAdm inistratortestitiedthataprisonercould

stillbesincerewithouthavingthatdoctrinalknowledge. (17E-443-26at103:1-25.)

FA

s noted

earlier ,

the U

nited

Statesisno

longer pursuing

claim

s relating to

the

ninety-day

w aiting period.

enrolledintheCFO whomissestenpercent(10%)ormoreofher/hisCFO mealswithinamonth

willberemovedfrom theCFO''(thetenpercentrulel.(DE-29-8.)Thesecondsuspendsa

prisonerfrom theCFO ifheisdiscoveredpurchasing, possessing,orconsumingfood from the
canteenorothersourcethatviolatesthereligiousdietrequirem ents(thezerotoleranceruleg).

(DE-29-8.)lfaprisonerfeelsthathehasbeenimproperlyremovedfrom theCFO undereitherof

theserules,he m ay usetheprison'sgrievance processto seek reinstatem entearlierthanw ould

otherwisebepermittedundertheRDP.(17E-442-6at93:6-10.)Duringthegrievanceprocess,

w

hich,D

efendantsrepresented

atoralargum

ent ,

can

take

up

to thirty

days,theprisonerm

usteat

from themainline.

AfterentryofthePreliminaryInjtmction,Defendantsmaintainedthattheinjunction

preventedthem from implem entingany oftheRDP'Senforcementprovisions. (DE-246.)

H

owever,despitethisposition,the

Courtand

the parties ,

recognizing the need

for enforcem

ent

provisions,wereabletoreach an agreem entastosuchprovisionsthatw ouldnotviolatethe

termsofthePreliminaryInjunction.(DE-259.)Undertheagreedenforcementprovisions,a
prisonerw ho violatestheten percentorzerotolerancerulew illreceive anoticeand havean

opportunitytoexplainhisactionstoachaplainbeforeanysuspensionorrem ovalcan occur.
(DE-252-1.) Basedontheprisoner'sexplanationtothechaplain,thechaplainhasthediscretion

tosuspendtheprisonerfrom orkeeptheprisonerintheRDP. (DE-252-1.)Thisprocessisvery
sim ilartotheprocessalreadyinusebyFDOC forthenearly 5,000prisonersonmedicaland
vegandiets.(17E-268-3at99:17-100:8;17E-268-4at22:4-25:4.)

gDefendantsobjecttotheuseofthisterm asmisleadingandinflammatory. However,the
partiesandtheCourthavebeen usingthisterm throughoutthelitigation. Consequently,the Courtw illcontinuetousethisterm todescribethepolicyatissue.

FD OC

beganservingm ealsundertheRDP inJuly2013 atasingleinstitution .

Since that

tim e,Defendantshaveextended theRD P to additionalinstitutionsand theirgoalw asto haveit

im plem ented in al1state institutionsby the end ofApril2015 .

A sofM

arch

15,2015,therew ere

9,543prisonersapprovedfortheCFO optionoftheRDP statewideoutoftheover100,000 state prisoners.lo H ow ever,participationratesatthefivefacilitiesthathavebeen serving theRDP for

approxim ately oneyearhavedropped from 3,232 prisonersin A pril2014 to 1,031prisonersin
February20l5.(17E-443-3at5.)FDOC ofticialsexpecttoseedeclinesatallinstitutionsafter

theRD P hasbeen in placeforsom

etim e .

(17E-443-9at47:14-48:5.)

W

hileoneoftheUnited

States'expertsopinedthatheexpectsparticipationratestodroptoaroundarangeof1.5% to

2% ,theexpertbasedhisopinionontheexperienceoftheFederalBtlreauofPrisons(BOP)and

doesnotappeartohaveconsidered w hetherBOP'sand FDO C 'Sprisonerpopulationshave

similardemographics.l'(DE-443-17at14-16.)Noneoftheexpertscouldpredicthow longit

wouldtakefortheparticipationratetodrop down totheirexpectedlevels .

(DE-270-2at185:4-

17.)

EnforcementoftheRDP

Totrack how m anyprisonerspiekuptheirm eals,Defendantshaveinvested$86,000in electronicscalm ersandlaptopsandrequireaprisonertoscananidentificationcarduponentering

lo-rhroughouttheirpapers ,

thepartiesusethetenn

RDP

to

refertothe CFO

option ofthe

RDP. BecausetheCFO

option

istheonly relevantoption

in

this litigation ,

the

Courtw

illusethe

term sinterchangeably.

llDem ographicsarerelevanttotheanalysisbecausetheywouldindicatehow many
prisonersbelong to areligion w ith know n dietaly needs. Forexam ple,aprison system with a highpercentageofJewishorM uslim prisonerswould beexpectedtohaveahighernumberof prisonersseekingakosherdietthan aprisonsystem with few JewishandM uslim prisoners
.

thefood line.D efendantspurchasedthe scalm ersasa wayto enstzrethatonlythoseprisone
rs
approvedfortheRDP eatfrom theRDP. However,thescannersarenotusedtopreventanRD P-

em olled prisonerfrom

eating from

them ainline .

D efendantsusethescannersfortracking

participation in

both the m ainlineand theRDP .

Based on theinfonuation gathered from

the

scanners,oneFD

O

C

food

service director testified

thatin

one m

onth ,

som

e

ofthe

192

prisoners

approvedfortheRDPathisinstitutionate2,600non-lo pmeals.(DE-449-1at58:9-11.)Yet,

thesamefoodservicedirectorwasunawareofanyinm ateswhohadbeenrem ovedfrom theRDP

foreatingthemainlinemeal.(DE-449-1at59:11-14.)

Onechaplaintestifiedthatwheninm atesgiveanon-religiousreason forwantingto bein

theRDP heoffersthem religiousreasonsforwantingtobeintheRDP and letsthem chooseA
,
B,C,ora11oftheabove.(17E-442-6at51:10-52:6.) Thatsam echaplaintestifiedthathehasnot

done anything to

enforce

canteen

purchase

violations ,

i.e.purchasesofnon-kosherproducts.

(17E-442-6at71:6-72:8.) Healsotestifiedthathewasneverinstructedtotakeanyactionagainst

RDP approvedinm ateswhoeatthemainlinem ealandtohisknow ledgeinm ateswhoeatoffthe

mainlinearenotsupposedtobesuspendedfrom theRDP.(17E-442-6at86:18-21)87:18-24;

88:18-23.) FDOC'SChaplaincyAdm inistratortestifiedthathedirededchaplainsata1lRDPparticipatingfacilitiesnottoremoveinm atesfrom theRDPforeatingoffthem ainline. (DE443-10at113:7-15.) lnfact,theChaplaincyAdm inistratorhadnoknowledgeofanyprisoner beingrem ovedfrom theRDPforeatingoffthem ainline. (DE-443-10at113:16-25.) A food
servicestaffm emberatUnion Correctionallnstitutetestifiedthatthecentralofficeinstructedthe

stafftostopsuspendinginmatesfrom theRDP.(DE-443-23at46:17-24.)Thus,Defendantsare

notusingtheenforcem entprovisionsoftheRDPto suspendprisonerswhoviolatetheRDP

rules.

TheCostsoftheRDP

Thecostsassociatedw

ith

the

RDP

includethecostoffood ,

thecostofadditional

equipment,andthecostofadditionalstaffing. Thepartiesagreethatthetotalfuturecostsofthe

RDP willbebetween$384,400and$12.3millionperyear.Thiswidevariation isduetothe

parties'differingestim atesofthe long-term

participation rate ,

the U

nited

States'use

ofthepick-

upratestoreducethedailycosts,Defendants'inclusionofthecostsoftheequipm entusedto

track

participation

in

the

RDP

and

the m

ainline ,

and

D

efendants'inclusion

ofadditionalstaffing

costs.

Defendantshaveallotted

the

entirecostofthescalm

ers ,

laptops,and

serverstotheRD

P,

even though the equipmentisalsoused fortrackingm ainlineparticipation. Inaddition,

Defendantsalsoinclude100% ofthecostsforadditionalchaplaincyandfood servicestaff ,

regardlessofwhetherthe staff-mem bersdevote 100% oftheirtim etotheRDP. D efendants

describetheircalculationsasbased on theSsw orstcase scenario''w ith variablesthatwillchange

overtime.(DE-443-7at61:12-15.)
Atoralargument,Defendantsassertedthattodatetheyhavespent$3.9m illion

implem entingtheRDP.However,Defendantsdidnotprovideabreakdown ofthatnumber. Defendantshavenotprovided clearnum bersform any ofthecoststhey associatew ith theR DP. Forexample,Defendantsassertthattheyhavehired additionalfood serviceandchaplaincystaff

specifically fortheR DP,butD efendantshavenotprovided alistofthatstaffand thecostof

hiringeachperson.Norisitclearwhetherthat$3.9millionincludestheactualcostoftheRDP

foodservedupuntilthattime.Thus,thetotalcoststodaterem ain som ewhatobscure.

9

ThelastknowncostsfortheCFO mealis$3.554perprisonerperdaycomparedto

$1.888perprisonerperdayforthemainlinemeal. Thesecostsarebasedona 100% prisoner

participationrate.However,thestatewideaverage forparticipationonthem ainlineis85% .

(DE-443-1at19:7-8.12)TheaverageparticipationratefortheCFO mealis75% .

(17E-442-3 at

23:3-11.) Asaresult,foodservicedirectorsordertheirfoodbasedonknownparticipationrates ,

not100% participation.(DE-443-1at20:8-14.)M ainlinecostsarealsoreducedbybetween10

and 15centsperdaythroughtheuseofFDOC 'Sfarm

produce progrnm .

(DE-443-1at19:11-13.)

Defendantshavenotfactoredinanyofthesavingsfrom thefarm program tothecostoftheRDP .

(DE-443-9at52:4-10.)ThecostofDefendants'medicalandtherapeuticdietsrangesfrom $2.00

to$3.05perdayperinmatefortheapproxim ately3,600prisonersonthosediets.(DE-443-1at

31:18-25-,35:1-6.)

FD O C

hasdeveloped m

eansforavoidingw aste and thereby reducing food costs .

For

exam

ple,pre-packaged

food that is not consum

ed can

be

and

is reused ,

and

kitchens prepare

the

foodbasedonpriorparticipationrates.(DE-449-1at38:17-41:11.) Asnotedabove,foodorders

arealsobasedonpriorparticipationrates,noton 100% participation. (DE-443-1at92:3-11.)
Asforstaffing,accordingtoAlex Taylor,Chaplaincy ServicesAdministratorforFDOC, FDOC intendstohireatotalof58additionalchaplainstohelpwiththeadditionalworkload

createdbytheRDP.(DE-442-1at66:10-14.)W hileDefendantshavealreadyhiredmanyofthe

extrachaplainstodealw ith the RDP w ork,thereisno evidenceastohow m uch tim ethe

chaplainsare spending on the RDP versusotherchaplain duties. (DE-442-1at45:21-24,.49:7-

12Thepartiesdidnotalw

ays subm

it entire

depositionsorheming

transcripts ,

only

selected

excerpts.

Any

citation

to

a deposition

or hearing

transcriptistothetranscriptpage

num

ber ,

not

theCM /ECF pagenum ber.

10

Oneofthenewlyhiredchaplainstestifiedthathe spentthreehoursperdaydealingwiththe

RDP(DE-442-6at29:1-10.) Thus,a11histimeisnotspentontheRDP, although Defendants
allota11ofhissalary tothecostoftheRDP. Thesam echaplaintestifiedthatdespitebeinghired

becauseofthe RDP,he did notlearn oftheRD P untila m onth afterhe washired .

(17E-442-6 at

32:17-33:7.)

DuringthetimethattheRDP hasbeenoffered, FDOC hasnothadtodiscontinueany
program sbecauseoftheRDP'Scosts.(17E-442-3at108:11-13;17E-443-7at97:15-19.)
FDOC'SOperationsM anagementConsultanttestifiedthatFDOC iscomm ittedtoproviding

kosherm ealsandthatFD OC

hascom eup withawaythattheRDP couldbesustainable .

(DE-

443-6at43:14-21.) Further,FDOC'SOperationsManagerintheBureauofContract

M anagem entandM onitoringisnotawareofanylay-offsthathaveoccurredbecauseofthecost

oftheRDP.(17E-442-3at108:16-20.)Healsotestifiedthathebelievesthatthecoldmenu currentlyinplacefortheCFO isCéasustainablemodel.''(DE-443-1at67:12-16.) FDOC'S
ChiefProcurem entOfficeralsotestifiedthatthecurrentkosherdietissustainablegoingforward .
(13E-443-5at120:17-19.) FDOC'Sdesignatedsecurityexperttestifiedatthepreliminary injunctionhearingthatFDOC hasdeterminedthatitcanprovideastatewidekosherdietplan

consistentwith itssecurity interests.(DE-443-4at52.)
ll.Sum m ary Judgm entStandard

SummaryjudgmentisappropriatewhenCithepleadings...show thatthereisnogenuine issueasto anym aterialfactandthatthem ovingpartyisentitledtoajudgmentasamatterof law .''Anderson v.Liberty Lobby,Inc.,477 U .S. 242,247(1986);seealsoHCA HealthServs.of Ga.,Inc.v.EmployersH ealthlns. Co.,240F.3d982,991(11thCir.2001).Oncethemoving

11

party

dem

onstrates the absence of a genuine

issue

ofm

aterialfact ,

the

non-m

oving

party

m

ust

dscom eforwardwith Cspecificfactsshowingthatthereisagenuineissuefortrial.'''M atsushita

Elec.Indus.Co.v.Zenith

Radio

Corp .,

475U.S.574,587(1986)(quotingFed.R.Civ.P.56(e)).

TheCourtmustview therecordanddraw allfactualinferencestherefrom inthelightm ost

favorabletothenon-m ovingparty anddecidewhethertsttheevidencepresentsasufficient

disagreementtorequiresubmissiontoajuryorwhetheritissoone-sidedthatonepartymust

prevailasam atteroflaw.'''Allenv. TysonFoods,Inc.,121F.3d642, 646(11thCir.1997) (quotingAnderson,477U.S.at251-52)).

lnopposingamotionforsummaryjudgment,thenon-movingpartymaynotrelysolely

on thepleadings,butm ustshow

by

affidavits ,

depositions,answ

ers to

intenogatories ,

and

adm issionsthatspecificfactsexistdem onstrating a genuineissuefortrial .

See Fed. R.Civ.P.

56(c),(e);seealsoCelotexCorp.v.Catrett,477U.S.317,324(1986).A merettscintilla''of

evidence supporting

the opposing

party's position

w

illnotsuffice;instead ,

there m

ust be

a

sufficientshowingthatthejurycouldreasonablyfindforthatparty.Anderson,477U.S.at252;

seealsoWalkerv.Darby,911F.2d 1573,1577(11thCir.1990).
111. D iscussion

A . Issuesand LegalStandards

TheU nited StatesassertsthatD efendants'denialofakosherdietand threeoftheRD P

provisions,kno'wnasthetenpercentrule,thezerotolerancerule, anddoctrinalsinceritytesting, violate RLU IPA .D efendantsm aintain thatRLU IPA doesnotm andatethattheyprovidekosher

m ealsbecausecostcontainm entisa com pelling govem m entalinterestw hich excusesthem from

12

providing kosherm

eals.

D

efendants also

contend

that the

zero

tolerance rule ,

the ten

percent

rule,and doctrinalsinceritytesting donotrun afoulofR LUIPA
.

U nderR LU IPA, nogovernm entm ayimposeasubstantialburdenon aprisoner's

religiousexerciseunlesstheburdençd(1)isinfurtheranceofacompellinggovernmentinterest;

and(2)istheleastrestrictivemeansoffurtheringthatcompellinggovernmentalinterest.''42 U.S.C.j2000cc-1(a).Theburdenisonthedefendanttoestablishthatitschallengedpolicy

meetstheserequirem ents.42 U.S.C.j2000cc-2(b).RLUIPA recognizesthatcomplianceSdmay
requireagovelmm enttoincurexpensesinitsownoperationstoavoidim posingasubstantial

burdenon religiousexercise.''42U.S.C.j2000cc-3(c).

Astothegeneraldenialofkosherm eals,becauseneithersidedisputesthatthefailureto

providekosherm

eals im

posesasubstantialbm

den

on

aprisoner'sreligiousexercise ,

the issues

before the Courtarew hetherdenyingsuch m ealsisinfurtheranceofacom pelling stateinterest

andistheleastrestridive m eansoffurtheringthatinterest. A sforthethree challenged RDP

policies,D efendantshavenotconceded thatthesepoliciesim pose asubstantialburden on a

prisoner'sreligiousexercise.Thus,theissueofa substantialburdenm ustbeaddressedbefore

the issuesofcom pelling stateinterestand theleastrestrictivem eansoffurthering thatinterest.

lfDefendantsareinviolationofRLUIPA,beforetheCourtcanissueaninjunction,the

CourtmustenstlrethattheinjunctiverelieftheUnitedStatesseeksmeetstherequirementsofthe

PrisonLitigationReform ActIPLRAI.UnderthePLRA,anyinjunctiverelief:
shallextend no furtherthan necessaryto correcttheviolation oftheFederalrightofa particularplaintifforplaintiffs.The courtshallnotgrantorapprove any prospectiverelief unlessthecourtfindsthatsuch reliefisnarrowly draw n,extendsno furtherthan necessary to correcttheviolation oftheFederalright,and istheleastintrusivem eans necessary to correcttheviolation oftheFederalright.Thecourtshallgivesubstantial

13

weighttoanyadverseimpactonpublicsafetyortheoperationofacriminaljustice
system caused by the relief.

18U.S.C.j3626(a)(1).TheEleventh Circuitinterpretsthisprovisiontorequireadistrictcourt

tomakeparticularizedfindingsastoeachelementoftheinjunctionandperfonnaneed-

narrow ness-intrusivenessanalysisthatprovidesaseparateexplanation asto each elem ent .

Cason

v.Seckinger,231F.3d777,785(11thCir.2000).However,acourtneednotdothisaboutany

factsorfactorsnotindispute. Id at785n.8.

ln discussingtherequirementsofthePLRA, theSuprem eCourthasexplained:
Narrow tailoringrequiresaddfit''betweentherem edy'sendsandthem eanschosento accomplishthoseends.Thescopeoftheremedym ustbeproportionaltothescopeofthe violation,and the orderm ustextend nofurtherthannecessarytorem edy theviolation
.
ThisCourthasrejectedremedialordersthatunnecessarilyreachouttoimproveprison
conditionsotherthan thosethatviolatetheConstitution. Buttheprecedentsdonot suggestthatanarrow andotherwiseproperremedyforaconstitutionalviolationisinvalid sim plybecause itw illhave collateraleffects.

Brownv.Plata,131S.Ct.1910,1939-40(2011)(internalcitations,quotationmarks,and

bracketsom itted).

TheCourtw illaddresseach ofthefouralleged RLUIPA violations- theblanketdenialof

koshermealsandthethreechallengedRDP policies- separately. Asto each,itwillfirstdiscuss whetherthepolicyviolatesRLUIPA and,ifnecessary,willthenaddresswhethertheUnited

States'requestedinjunctivereliefmeetsthePLRA'Srequirements.

14

B. TheBlanketD enialofK osherM eals

TheBlanketDenialofKosherM ealsViolatesRLUIPAI?

Both sidesread RLU IPA

to supporttheirposition .

The United

StatesreadsRI,UIPA

to

requireD efendantsto providekosherm ealsto thoseprisonersw ith asincerereligiousbelief,

whileDefendantsarguethatprovidingkoshermealsisapolicydecisionwhichRLUIPA gives

them

the freedom

to m

ake forthem

selves .

They cannotboth beright.

Becauseneithersidedisputesthatablanketdenialofkosherm ealsimposesasubstantial burden on prisoners'religiousexercise forthoseprisonersthathave asincerereligiousbelief

requiringthem toeatkosher, theburden isonDefendantstodemonstratethatdenyingsuch

prisonerskoshermeals(a)isinfurtheranceofacompellingstateinterestand(b)istheleast

restrictivemeansofachievingthatinterest. Throughoutthislitigation,Defendantshaveasserted

thattheyhavea com pelling state interestin costcontainm entand thatnotproviding akosherdiet

isthe leastrestrictive m eansofachieving costcontainm

ent .

O n therecord

beforetheCourt,

Defendantshavenotm ettheirburden.

W hilethepartiesdisputetheexactmnountsinvolved, atthesummaryjudgmenthearing

Defendantsarguedthatdespitethisissueofm aterialfact, summaryjudgmentwasstill

appropriatebecausethegeneralrangeofthecostsinvolved w asnotin dispute .

Thepartiesdo

notdisputethatDefendantshavealready spentseveralm illion dollarsim plementingtheRDP and

thattheRDP willcostapproximately $3.554perprisonerperday, w ith atotalcostranging between $384,400and$12.3m illion.Clearly,inpurenum berstheseam ountsarenot

13Assetoutinthepreliminaryinjunction,thisissueisnotmoot,despiteDefendants'
institution oftheRD P. SeeD E-106 at14-15.
1 5

insignificant.However,inanoverallbudgetofnearly $2.3 billion peryear,these am ountsare

relativelysmall.Evenassum ingDefendants'worstcasescenarioofacostof$12.3 m illion per

year,thatam ountstoapproximatelyfiveonethousandths(0.005)ofD efendants'totalbudget.

Atthesummaryjudgmenthearing,theUnitedStatesmaintainedthat,whilethecosts

involved

in

providingkosherm

eals are substantial ,

D

efendantshavenotshown

thatthey

have a

compellingstateinterestin containingtheseparticularcostsbecause:(1)Defendantsarealready

providingkoshermealsandincuningtheassociatedcosts;(2)Defendantshavenotshownthat

theFloridaprisonsystem isdifferentfrom themajorityofstateprisonsystemsandtheFederal

BureauofPrisons,whichareallabletoofferkoshermealstoprisonersil4and(3)Defendants

havenotdemonstratedthatavoidingthesecostsactually furthersacom pellingstateinterest .

H

aving considered

theparties'subm

issions and

argum

ents ,

the

Courtagreeswith

the United

States:D efendantshavenotshow n thatthey haveacom pelling stateinterestin denyingkosher

mealstoprisonerswithasincerereligiousbeliefrequiringthem toeatkosherm eals.

The U

nited

States'firstargum

ent appeals to

com

m

on

sense

and ,

when

com

bined w

ith

the

UnitedStates'thirdargum ent,establishesthatDefendantshavenotmettheirburden. A sthe

UnitedStatescontends,itishardtounderstandhow Defendantscanhaveacompellingstate

interestinnotspendingm oneythattheyarealreadyvoluntarilyspendingontheexactthingthey

claim to havean interestin notproviding,SeeM oussazadeh v. TexasDepartmentofcriminal Justice,703F.3d781,795(5th Cir.2012)(holdingthatthedefendant'scom pellingstateinterest

in denyingkosherm ealsto aprisonerataparticularinstitution w astsdam pened''by the factthat

14In

fact ,

otherthan

som

e

lim

ited

evidenceabouttheFederalBureau

ofPrisons,

Defendantshavenotprovidedanycomparativeevidenceregardingotherstateprison system s.

1 6

defendanthadbeen offeringkoshermealstoprisonersatanotherinstitution foryears) .
Furtherm ore,notonlyareDefendantsvoluntarilyspendingthemoneyonprovidingkosherm eals ,
theyhaverepeatedlyrepresentedthattheyarecom mittedtoprovidingkoshermealsandthatthe

currentRD P isSdsustainable,''both m onetarily andsecurity-w ise. Thus,D efendants'com pelling stateinterestargum entissubstantiallydam penedbyitsvoluntarydecisiontoprovidekosher

m eals.

M oreover,astheUnited Statesargues,Defendantshavenotshownhow containingthe

costsassociatedwith theRDP actuallyfurthersany compellingstateinterest. Defendants,who

bear the burden

of proof on

this issue ,

havenotshow

n

thatthe

costs

of the R

D

P

are

so

onerous

thatthey havehad an effecton D efendants'operations .

ln fact,D efendantshavenotpresented

any evidenceindicatingthattheRDP'Scostshaveaffectedprisonoperationsinanyway,15There

isnoevidencethatanyprogram shavebeencut,thatany staffhasbeencut,orthattherehasbeen

anyharm toany aspectofDefendants'operations. Additionally,atthesummaryjudgment

hearing,theUnited Statesnoted,andDefendantsdidnotrefute,thatsincetheinstitutionofthe

RDP,FDOC em ployeeshavereceivedraisesandthevacancyratesforvariouspositionshave

l'D efendantsciteto tw o unpublished decisionsfrom

the Eleventh

Circuit ,

f inehan

v.

Crosby,346F.App'x471(11thCir.2009),andM uhammad v.Sapp,388F.App'x892(11th

Cir.2010),andonepublishedcase,M artinelliv.D ugger,817F.2d 1499(11thCir.1987),forthe

propositionthatthecostofprovidingreligiousmealsisacompellingstateinterestthatjustifiesa

refusaltoprovideareligiousdiet.lnbothoftheunpublishedcasestheglaintiffs/prisoners
appeared pro seand therecord beforethe courtappearsto havebeen qulte lim ited. Furtherm ore, undertheEleventh Circuit'srules,unpublished decisionstsare notconsidered binding precedent.''

11th Cir.R .36-2.Thepublished decision,M artinelli,w asdecided underadifferentstandard
than theonerequired by RLU IPA .SeeH arrisv. Chapman,97F.3d499,503(1lthCir.1996)

(recognizingthatRFRA changedthestandardreliedoninMartinelli).

17

fallen.Therefore,Defendantshavenotshownhow savingthecostsassociatedw ith theRD P would furtherany com pelling stateinterest
.
DefendantsinsistthatthelegislativehistoryofRLUIPA makesclearthatspending

decisionsareto

be

leftto

the

discretion

ofstatepolicym

akers and ,

thus,m

erely

because

Defcndantshavecurrentlychosentoprovidekosherm ealsdoesnotmeanthatRLUIPA mandates

thatDefendantsprovidethem .W hileCongressdidrecognizethatitdsexpectsthatcourtswill

giveduedeferencetotheexperienceandexpertiseofprisonandjailadministratorsin

establishing

necessary regulations and procedtzres to

m

aintain

good

order ,

security

and

discipline,

consistentwith consideration ofcostsandlim itedresources,''Congresswentontostatethat

4'inadequatelyformulatedprisonregulationsandpoliciesgroundedonm erespeculation ,

exaggeratedfears,orpost-hocrationalization w illnotsuftk etom eettheact'srequirem ents'' .

l46Cong.Rec.16698,16699(quotingS.Rep.No.103-111at10(1993)).Furthermore,

RLUIPA itselfrecognizesthatitdsm ayrequireagovernm enttoincurexpensesin itsown

operationsto avoidim posingasubstantialburdenonreligiousexercise.''42U.S.C.j2000cc3(c).Consequently,Defendants'intem retation ofthelegislativehistorycalm otbereconciled
withthelanguageofthestatute,whichm akesclearthatRI,UIPA m ayoverridesom estatefiscal

policydecisions.SeeBurwellv.HobbyLobbyStores,Inc., - U .S.-,134 S.Ct.2751,2781

(2014)(rejectingtheview thatRFRA canneverrequirethegovemmenttospendmoneyand
explicitlystatingthatRFRA andRLUIPA m ayrequirethegovernm enttoexpendadditional

fundstoaccommodatecitizens'religiousbeliefs).Thelaw isclearthatundercertain
circum stancesRLUIPA m aym andatespendingandtherebyrem ovethespendingdecision from

policym akers.G iven thatDefendants'policym akershavealready decided to incurthecosts

associated w ith theRD P

and thatRLU IPA

can m

andatethatcostsbe

incurred ,

itisdifficultto

seehow D efendantscan arguethatthey haveacom pelling stateinterestnotto incurthecostsof

theRDP.

Further,Defendantsmaintainthat, asapolicym atter,theymustbeabletodiscontinuethe

RDP ifafiscalcrisisoccurs.Thisargum ent, however,isbasedonspeculationaboutfuture

possibilities. Such

speculationcannotcreateacom pellingstateinterest .

Rich v.Secretary,

FloridaDepartmentofcorrections,716F.3d525,533(1lthCir.2013)(statingthatpolicies

groundedonmerespeculationwillnotsufficetomeetRLUIPA'Srequirements);146Cong. Rec. 16698,16699(quotingS.Rep.No.103-111at10(1993)(sçpoliciesgroundedonm ere

speculation...willnotsufficetomeettheact'srequirements'l).M oreover,ifafiscalcrisis,or

anything

else im

plicating

a com

pelling

state interest ,

wereto

occurnothing

w

ould

prevent

Defendantsfrom seekingtomodifyanypermanentinjunctionentered.Additionally,asalready

noted,D efendantshaverepeatedly stated thatthe RDP isSçsustainable.'' Consequently,

Defendantshave notm ettheirburden ofestablishing acom pelling state interestin containingthe

costsassociated w ith theR DP.

TheUnitedStatesalsopointsoutthattheFederalBureauofPrisonsandmostmajor
prisonsystem sintheUnitedStatesofferkoshermealstoprisonersandDefendantshavefailedto

presentanyevidenceastowhyFDOC isdifferentthan theseotherprison system s. In H oltv.

Hobbs,-U .S.-,135S.Ct.853,866(2015),theSupremeCourt,tindingthatapolicyviolated

RLU IPA ,stated,'çw hen som anyprisonsofferan aceom modation, aprison m ust,atam inim um ,

offer persuasive

reasons w

hy

it believes that it m

ust take a different course ,

and the D

epartm

ent

failedtom akethatshowinghere.''Thesam ehashappenedinthism atter. W hileDefendants

have repeatedly

argued

thatbudgetaly

issuesunderlietheirdecision
,

theyhavenotpresentedany

evidenceastohow theirbudgetissueswoulddifferfrom thosefacedbyotherprison system s.In

fact,theevidencepresentedhasnoteven clearlyexplainedexactlyhow thebudgetprocess

w orks,letalonehow

it differs from

otherprisonsystem s .

Thus,D efendantshave failed to

explainwhytheyésm usttakeadifferentcourse''when itcom estoprovidingkosherm ealsfor

their prisoners.

Even ifDefendantshadestablishedthatcostcontainmentunderthesecircum stanceswere

acompellingstateinterest,theyhavenotshown thatanoutrightdenialofkoshermealsisthe

leastrestrictivemeansofachievingthatgoal. AstheSupremeCourthasheld:
Theleast-restrictive-m eansstandardisexceptionallydem anding, anditrequiresthe govermnenttoshow thatitlacksotherm eansofachievingitsdesiredgoalwithout
imposingasubstantialburdenontheexerciseofreligionbytheobjectingparty.lfaless
restrictivem eansisavailablefortheGovernmenttoachieveitsgoals,the Governm ent m ustuse it.

1d.at864 (internalcitations,quotationm arks,andbracketsomitted).Defendantshavenotm et

thisburdenbecausetheyhavenotshownthattheylackothermeansofprovidingkosherm ealsin

awaythatcontainscosts.Defendantshavesim plyarguedthattheleastrestrictivemeansofcost

containmentisnotincurring thecost.In supportofthisproposition,Defendantsrely on Knightv.

Thompson,723F.3d 1275(11th Cir.2013);however,Knightwasvacatedandrem anded,135S.

Ct.1173(2015),inlightoftheSuprem eCourt'sholdinginHolt.
Defendantsfurtherm'guethata1lthey haveto do isofferaplausibleexplanation fortheir

chosen policythatissupported byw hateverevidenceisavailabletothem .H ow ever,D efendants

havenotdonethis.W hileDefendantshaveofferedan explanation fortheirblanketdenialof

kosherm eals,theyhavenotoffered evidenceto supporttheirpolicy. A snoted above,despitethe

20

allegedbudgetcrisis,D

efendants have

begun

providing

kosher m

eals to

prisoners ,

havenothad

to cutany program s,havegiven raisesto theirem ployees,and havefilled m orevacantpositions.

M oreover,Defendantscouldcontaincosts,atleasttoanextent,ifDefendantswould

adually usethetoolsavailabletothem to reduceRDPparticipationrates. Theevidenceindicates thatDefendantsarenotscreeningoutRDP applicantswhodonothaveasincerereligiousbelief

requiringthem toeatkosherm eals.Thisisillustratedbythetestimonyofachaplainwhostated

that,ifapplicantsdonotgiveareligiousreasonforwantingtoparticipateintheRDP, heoffers them m ultiplereligiousreasonsto choosefrom . Further,the evidenceclearly indicatesthat

DefendantsarenotactivelyandconsistentlyenforcingtheRDP policiesthatcanresultin

suspension orexpulsion ofthoseprisonerswho dem onstrate alack ofsincerity by eating or

purchasingnon-kosherfoodson aregularbasis,i.e.thecurrentversionsofthetenpereentand

zerotoleranceruleswhich w ereagreed upon bythepartiesandtheCourtduringthecourseof

thislitigation.lf,asDefendantscontend,containingtheRDP'Scostsweresuch acom pelling

interest,DefendantswouldbedoingeverythingintheirpowertoenforcetheRDP policiesto

ensurethatonly sincereprisonersparticipateand w ould thereby reduce the costsassociated w ith

theR DP. Thus,D efendantshaveattheirdisposalan alternativem eansto contain costsw ithout

burdeningthereligiousexerciseofthoseprisonersw ith a sincerereligiousbeliefrequiring them

tokeepkosher.Todate,however,Defendantshaveactivelychosennottousethesealtem ative

costreductionm ethods.l6 NorhaveDefendantsshownthatactivelyusingthesetoolswouldnot

reduceorcontrolparticipation ratesand,thus,thecostsincurred. Consequently, D efendants

l6lronically,elsewhereintheirm otion,Defendantsdefendtheuseofthetenpercentand zero tolerancerulesasnecessary to ensurethatonly sincereprisonersparticipate in the RDP and to thereby controltheRD P'Scosts.
2 1

havenotshownthatablarlketdenialofkosherm ealsistheleastrestrictivemeansofachieving

theircom pelling interest.

Plaintt isEntitledtoaPermanentInjunctionRequiringDefendantsto
ProvideK osherM eals

TheU

nited

Stateshassatisfed

the requirem

entsofthePLR

A

and

is ,

therefore,entitled

to

apermanentinjunctionrequiringDefendantstoprovidekoshermealstothoseprisonerswitha

sincerereligiousbeliefrequiring koshermeals. Assetoutabove,thereisaneedforthe

injunctionbecauseDefendants'years-long,blanketdenialofkoshermealstothoseprisoners
withasincerereligiousbeliefrequiringthem toeatkosherviolatesR LU IPA. Further, throughoutthislitigation,Defendantshavem aintained thatRLU IPA doesnotrequirethem to

providekosherm ealsand,therefore,theycanstop doingsoatanytim e, regardlessofw hether
thereisachangeofcircumstancesorjustachangeofheart.M oreover,Defendantshavedone

justthatinthepast,havingdiscontinuedtheirpriorkoshermealsprogram,JDAP,againstthe
adviceoftheirow n study group.SeeD E-49-2 at5.Thus,thereisaneedfortherequested
injunction.
Sim ply requiring D efendantsto providekosherm ealsto thoseprisonersw hose sincere

religiousbeliefsrequirethem isthem ostnarrowlydrawnwayofachievingthatgoal. Itlim itsto whom Defendantsmustprovidethemealsanddoesnotattem pttoaccomplishanythingother

thantorem edytheRLUIPA violation.Im portantly,itleavesDefendantsfreetocrafttheirown

policiesrelated to providing kosherm ealsconsistentw ith RLU IPA . Becausesuchaninjunction
would leaveallofthepm icularsto Defendants,itwouldalsobetheleastintrusivemeansof

accomplishingthegoal.Thus,such aninjunctionw ouldreachnofuxtherthannecessaryto

22

correcttheRLU IPA violation.Further,thereisno evidencein therecord,and no argum entshave
beenmade,thatsuchaninjunctionwouldhaveanyeffectonpublicsafetyortheoperationof

FDOC.Consequently,aninjunctionrequiringDefendantstoprovidekoshermealstoa1l
prisonerswithasincerereligiousbeliefforeatingkosherm eetstheneed-narrowness-

intnlsivenessrequirem entsofthePLRA.

C . TheZero T oleranceRule

1. TheZeroToleranceRule ViolatesRLUIPA

Turningtothespecitk RDP provisions,theUnited Statesassertsthatthezerotolerance

ruleim posesasubstantialburdenonprisonerswith asincerereligiousbeliefforkeepingkosher

becausetheruleautom atically rem ovesaprisonerfrom theRD P upon asinglealleged infraction .
Undertherule,afterremovalaprisonerm ustusetheprison'sgrievanceprocesstoseek

reinstatem

ent. D

uring

the

grievanceprocess,which

can

last up

to

thirty

days ,

the

prisoner m

ust

eatfrom them ainline.Defendantsrespondthatthereisnosubstantialburdenonprisoners'

religiousexercisebecauseprisonerswhoareimproperly suspendedfrom theRDP willbe

reinstatediftheyfileagrievance.Furthermore,D efendantsm aintainthatapromptpost-

suspension grievance processisacceptableunderthelaw .

Suspensionbeforeanopporttmityforaprisonerto explainhisposition astothealleged

violationoftheRDP rulesdoesimposeasubstantialburdenontheprisoner'sreligiousexercise, particularlythoseprisonerswhoareremovedinerror.Thispolicyforcesaprisoner,during the grievanceprocess,tochoosebetweenviolatinghisreligiousbeliefsornoteating. This

constitutesasubstantialburdenonreligiousexercise.SeeThomasv.Review Boardoflndiana

EmploymentSecurityDivision,450U.S.707,718(1981)(underFreeExerciseclause,a

substantialburdenexistswhensubstantialpressureisputonanadherenttom odifyhisbehavior
andtoviolatehisreligiousbeliefs);seealsoM idrashSephardi,Inc.v.Ftlwaofsurfîides366 F.3d 1214,1227(11th Cir.2004)(statingthatanindividual'sreligiousexercisehasbeen
substantiallyburdenedifaS'regulationcompletelypreventstheindividualfrom engagingin religiouslymandated activity,oriftheregulationrequiresparticipationin anactivityprohibited
byreligion'');Nelsonv.M iller,570F.3d868(7thCir.2009)(holdingthatdenialofnon-meat dietduringforty daysofLentconstitutedasubstantialburden);fovelacev.Lee,472F.3d 174, 188(4thCir.2006)(inabilitytoobserveRnm adanbyday-timefastingandattendingprayer servicesfortwentpfourofthirtydayssubstantiallyburdenedreligiousexercise).Theonecase Defendantsrelyupontosupporttheirpolicy,UnitedStatesv. Kaley,579F.3d1246,1254(11th Cir.2009),isinappositebecauseitdidnotinvolveRLUIPA orreligiousexercise.M oreover,in
the Statem entofUndisputed Facts,thepartiesboth agreethatthe inability to consum eakosher dietsubstantiallyburdensthereligiousexerciseofFloridaprisonerswith asinceredesiretokeep
kosher.SeeDE-487at!4.Thus,Defendantsimplicitlyrecognizethattheautom aticsuspension
beforeinvestigation portion ofthisrule createsasubstantialburden on aprisoner'sreligious exercise.Forthesam ereasons,anyautomaticsuspensionthatrequirestheremovedprisonerto grieveafterthesuspensioncreatesasubstantialburden on aprisoner'sreligiousexexcise.
Theburdennow shiftstoDefendantstoshow thatthezerotolerancepolicy andthepost suspension grievanceprocessazetheleastrestrictive m eansforachieving acom pelling state interest.D efendantshavenotdonethis. Defendantssim ply arguethatthey have acom pelling stateinterestincostcontainm entandthattheylackthem anpowertoprovidepre-suspension hearings.However,Defendantshaveofferednoevidencesupportingtheseassertions. Thereis

no record

evidenceindicating how

m uch m

oney issaved by im m

ediately suspending violators
,

at

leastsomeofwhom willbereinstatedintotheRDPaftergoingthroughthegrievanceprocess .

Noristhereanyevidenceindicatinghow muchm orem anpowerw ouldbeusedbyapre -

suspension investigation versusthemanpowerusedinthepost-suspensiongrievanceprocess .
Thus,Defendantshavenotshownthattheyactually haveacompellingstateinterestthatis

achieved

by

thispolicy.M

oreover ,

D

efendants presently

conductpre-suspension

counseling/

investigationforthenearly5,000prisonerson medicalandvegan diets .

Thus,D efendantshave

alreadyshownthattheyhavealessrestrictivem eansofachievinganycostcontainment .

Consequently,thezerotoleranceruleandanyrulethatresultsinim mediatesuspensionbefore

investigation violatesRLU IPA .

2. PlaintiffisEntitledtoaPermanentInjunctionEnjoiningEnforcementofthe
Zero ToleranceR ule

Aninjunctionenjoiningtheenforcementofthezerotolerancerulewouldmeetthe requirementsofthePLRA.ThereisaneedfortheinjunctionbecausetheruleviolatesRLUIPA. Enjoiningenforeementoftheruleisanarrowlydrawnresolutionoftheissue.Itonlyprevents
D efendantsfrom enforcing asingle rule.ItleavesD efendantsfreeto find otherm ethodsto

enforcetheRDP,consistentwithRLUIPA . Simplyenjoiningtheruledoesnotdictateto
Defendantswhatthey mustdo;instead,itsimplyforeclosesonem ethodofensuringthatonly

sincereprisonersare enrolled in the RDP. ItleavesD efendantswidelatitudeto fashion other
methodsofensuringthatonlysincereprisonerspartakeintheRDP. Thus,suchaninjunctionis
nanowlydrawnandistheleastintrusivem ethodofinsuringthattheDefendants'RDP doesnot violate prisoners'rightsunderR LUIPA .

25

D. T heT en PercentR ulel? 1. The Ten PercentR ule ViolatesRL UIPA TheUnited Statesassertsthattheten percentrule createsasubstantialburden on a
prisoner'sreligiousexereisefortworeasons:(1)itremovesprisonersfrom theRDPbasedonan adm ittedlyarbitrarynumberofmealsm issedduringthecourseofam onth and(2)likethezero
tolerancepolicy,itrem ovesprisonersfrom theRDP andthen requiresprisonersw ho w ish to remainintheRDP togrievetheirremoval,leaving prisonerswhohaveasincerereligiousbelief forkeepingkosherto decidebetw een violatingtheirbeliefsornothavingtheirfood needsm et. Defendantsdo notargue in theirpapersthattheten percentruledoesnotcreatea substantial burdenon aprisoner'sreligiousexercise.Thus,itappearsthatDefendantshaveimplicitly concededthispoint.However,eveniftheyhavenot,forthesnm ereasonsthatthezerotolerance rule createsasubstantialburden on religiousexercise,the ten percentrulealso createsa substantialburden,regardlessofthe arbitrarinessofthe ten percentcutoff.
D efendantsm aintainthattheten percentruleservesacom pelling stateinterest- cost containm ent. H ow ever,again D efendantshavefailed to provideany evidenceindicating how m uchwasteisavoidedandhow m uchm oneyissavedbytheenforcem entofthisrule.Thus,a1l Defendantshavedoneissaythem agicwords- costcontainm ent-withoutanyevidenceto supporttheirclaim s. Further,thereisno evidence in therecord indicating w hy ten percentisa
betterchoicethanfivepercentorfifteenpercentoranyothernumber.Atthesum maryjudgment
l7Intheirsupplementalmemorandum gDE-486J,Defendantsstatethatthey$1wi1lno
longerseekto enforcethe 10percentrule''and thatthey w illcontinueto providepre-suspension noticeto prisoners. How ever,Defendantshavenotagreedthatthepolicy atissueviolates RLUIPA orconsentedto entry ofan orderpreventing reinstatem entoftheten percentrule.Thus,
forthesam ereasonssetoutintheprelim inaryinjunction,theseissuesarenotmoot.

hearing,D efendantsalso asserted thatthisruleservesa security interestbecauseal1otherspecial dietsalso haveaten percentruleand treatingprisonerson specialdietsdifferently could lead to securityissues.However,thereisnorecordevidencetosupportargum ent.
DefendantsalsoarguethattheUnitedStatesshouldbet'estopped''from challengingthe
tenpercentrulebecausetheFederalBureauofPrisons(BOP)hasasim ilarmissedmealpolicy.
UndertheBOP'spolicy,missingsix straightm ealsmayresultinaconsultationwith achaplain. How ever,theBO P policy,unliketheten percentrule,doesnotresultin im m ediatesuspension from aspecialm ealsprogrnm .In fad,theBOPpolicyisapplicabletoal1prisoners,regardlessof whattypeofmealtheyeat.Further,Defendantshaveprovidedno legalauthoritytosupporttheir estoppelargum ent.
Even iftheCourtweretoacceptcostcontainm entasacom pellingstateinterest, D efendantshavenotshow nthatenforcem entofthisruleistheleastrestrictivem eansof
achievingthatinterest.Atthesummaryjudgmenthearing,theUnitedStatespointedoutthat
D efendantsalreadyuseotherm ethodsto avoid w aste- trackingm ealparticipation ratesand planning accordingly;progressivepreparation ofm eals;and reusing m ealcom ponentsthatare unused.A1lofthesesavingsm easurescanhelpcontaincostsandavoidwastewithoutimposing any burden on aprisoner'sreligiousexercise. BecauseD efendantshavenotshow n how these cost-savingm easuresare lesseffective,ornoteffective,they cnnnotshow thattheten percent ruleisthe leastrestrictive m eansofachieving acom pellingstateinterest. Consequently,theten percentruleviolatesRI,U IPA .

2. Plaintt isEntitledtoaPermanentInjunctionEnjoiningEnforcementofthe
Ten PercentR ule
Aninjunctionenjoiningtheenforcementofthetenpercentrulewouldmeetthe requirementsofthePLRA.ThereisaneedfortheinjunctionbecausetheruleviolatesRLUIPA. Enjoiningenforcementoftheruleisanarrowlydrawnresolutionoftheissue.Itonlyprevents
Defendantsfrom enforcingasinglerule.ItleavesDefendantsfreetoflndothermethodsto
enforcetheRDPandtofindwaystominimizecosts.Simplyenjoiningtheruledoesnotdictate
toDefendantswhattheymustdo;instead,itsim plyforeclosesonemethodofenforcem ent.It
leavesDefendantswidelatitudetofashionotherm ethodsofensuringthatwasteislim ited.
Thus,suchaninjunctionisnarrowlydrawnandistheleastintrusivemethodofinsuringthatthe
Defendants'RDP doesnotviolateprisoners'rightsunderRLUIPA.
E. sincerity Testingl'
D efendants'DoctrinalSincerity Testing DoesNotViolateRLUIPA TheUnitedStatesseekssummaryjudgmentdeclaringthataquestionontheapplication
forparticipation in theRD P violatesRLU IPA . The specitk question asksapplicantsto identify
dtspecificlawts)connectedtoyourbelieforfaiththatrequirets)youtoeatareligiousdiet''(the Question).TheUnitedStatesassertsthattheQuestionviolatesRLUIPA becauseitgoesbeyond
18AtthesummaryjudgmenthearingtheCourtaskedthepartiestotrytoresolvethisissue
on theirown.Thepartiesindicated thattheythoughttheyw ouldbeableto resolvetheissue.
Thereafter,initssupplementalmemorandum gDE-486),Defendantsstatedthattheywouldno
longerusethespecificquestion atissue. How ever,they did notrepresentthattheybelieved the question violated RI,U IPA and elsew herein theirm em orandum stated thatthey should notbe
enjoinedfrom usingthequestion.Further,theUnitedStates'replyarguesthattheDefendants'
statem entsdo notm aketheissuem oot.Thus,thepartieshavenotactually resolvedtheissue.
Forthesamereasonssetoutinthepreliminaryinjunction,Defendants'statementaboutuseof
thequestion doesnotm ootthe issue.
28

thelevelofpermissibleinquiryandfurthersnocompellingstateinterest.Furthermore, having
stoppedtheQuestion'susageaherentryofthepreliminaryinjunction,Defendantshavealready
foundthattheycan screenprisoners'sincerityinalessrestrictiveway.Defendantsassertthat
useoftheQuestionispermissiblebecausetheanswertotheQuestion aloneisnotdetenninative
ofaprisoner'sacceptanceintotheILDP and,thus,doesnotbm dentheprisoner'sreligious exercise.
RLUIPA definesSlreligiousexercise''asincludingdianyexerciseofreligion,w hetheror
notcompelledby,orcentralto,asystem ofreligiousbelief.''42U.S.C.j2000cc-5(7)(A).Thus, RLUIPA containsabroaddetinitionofreligiousexercise.Further,Cdgplrisonchaplainsmaynot
determ inewhich religiousobservancesareperm issible because orthodox.'' G rayson v. Schuler,
666F.3d450,455(7thCir.2012).Thus,RLUIPA requiresconsiderationofthesincerityofthe
prisoner'sbelief,notwhetheraparticularbeliefissupportedbyspecificreligious1aw ordoctrine.
TheUnited StateschallengestheQuestion assertingthatitisim perm issiblebecauseit
delvesintoissuesoforthodoxy.However,thecase1aw theUnitedStatesreliesondoesnotsay thatprison officialscannotusesuchaquestionaspartoftheirsincerity determination;instead, thecaseswarnagainstcourtsgettingtangledup in issuesoforthodoxywhen sineerityisthe
issue.W hileprisonofficialsmaynotbeprohibitedfrom usingtheQuestion,iftheychooseto
reinstateitsuse,theywillbewalkingatinelinethat,ifcrossed,willleavethem m aking orthodoxy determ inations,which the 1aw clearly prohibitsthem from m aking.
RegardlessofwhetherDefendantschoosetoreinstateuseoftheQuestion,theUnited Stateshasnotshownhow theQuestion,asonepartoftheRDP'Sapplicationandsincerity
testing,createsany burden,1etaloneasubstantialburden,on aprisoner'sreligiousexercise,
29

especiallybecausethereisnoevidencethataprisoner'sabilitytoanswerthisQuestionisatal1

determ

inativeinD efendants'decision to

adm itaprisonerto theR DP .

TheU nited Stateshasnot

presentedanyevidencedem onstratingthataskingtheQuestionontheRDP application

com pletelypreventsaprisonerfrom

engaging

in

religiously

m

andated

activity
,

or forces a

prisonertoparticipatein an activityprohibited byhisorherreligion .

Thus,theU nited

States has

notmetitsburdenofestablishingthattheuseoftheQuestionsubstantiallyburdensreligious

exercise.SeeSmithv.GovernorforAlabama,562F.App'x806,813(11thCir. 2014)(prisoner
failedtodemonstratethataskingforauthoritativesourcesin supportofrequestsforreligious

itemsconstitutedasubstantialbtlrden whenthefailuretonameasourcedidnotm andatethatthe

requestbedenied).Consequently,theCourtneednotreachtheissueofwhethertheuseofthe

Questionistheleastintrusivem eansofachievingacompellingstateinterest.

PlaintW isNotEntitledtoaPermanentInjunctionPreventingUseofDoctrinal
Sincerity Testing

BecausetheUnited StateshasnotestablishedaviolationofRLUIPA ,itisnotentitledto

entryofapermanentinjunctionenjoiningtheuseoftheQuestion.However,ifeircumstances

w ereto change and evidence indicatedthatDefendantsw ereusing aprisoner'sdoctrinal

know

ledge

as the determ

inantforadm

ittance

into

the

RD

P ,

theUnited

States

would

be

free

to

seekmodificationofthisOrderandanypermanentinjunctionentered.

Accordingly,itis

O RDERED that:

TheUnitedStates'M otionforSummaryJudgment(DE-443)isGRANTED in
partand DEN IED in part:

a. TheM otion isG RAN TED asto D efendants'blanketdenialofkosher m eals,theten percentrule,and thezero tolerance rule. TheM otionisDEN IED astodoctrinalsinceritytesting.
Defendants'RenewedM otionforSummaryJudgment(17E-4421isGRANTED in
partand D EN IED in part: a. TheM otion isGRANTED astothedoctrinalsinceritytestingandtheantibartering policy. b. TheM otionisDENIED inallotherrespects.
3. ByM ay6,2015at10:00a-m.thepartiesshallsubmitproposedfnaljudgments andpermanentinjunctionsinaccordancewiththisOrder.TheCourtencouragesthepartiesto meetandconferinordertosubmitajointproposedfinaljudgmentandpermanentinjunction.
4. A1lpending m otionsareD EN IED asm oot. Thiscase isCLO SED .
e
DONEandORDEREDinMiami,Florida,this YD dayofApril,2015.

A llCounselofRecord

PA TRICIA A . lTZ U N ITED STATES D ISTR ICT JUD G E

 </s> Case 1:12-cv-22958-PAS Document 526 Entered on FLSD Docket 07/10/2015 Page 1 of 4

SotlthFloritcqeceptiorCeqtet

opN -î-$5 for71Q'lj'lqg'UsonuittehdersntaoteisstoriicsttroifcFtlcooriudratso o uyjp o?ac.

l/M irticls

c aseN o.:12-cv-229s8-seitz .jtjk gg 2gjg

U nited States, Plaintiff,

STEVENM LARIMQRE

* @

CLERKu à @s#cT.

@ @

f
-

pm

plaintfor

Interpleader

s.D.offté.-MIhvI

V

Secretary,F lorida

:

D epartm entofC orrections , :

D efendant.

:

JqinderpfClaim s

COM ES NOW ,Jeffrey Levine (d$Levine''),pro se and Elesthis Complaintfor
Interpleaderand Joinderofclaim spursuantto FederalRules ofC ivilProcedure m les 18
ubl20,andavers:
Levinehasstandingto participateandjointhePlaintiff,United States,asan interested
pal'ty whoseFirstA m endm entrightsandksRIVUIPA protectionsarecurrently atissuein
the above styled case.To the extentthata finalruling thatissues from this Courtw ill
substantially eithergrantorlim itLevine'srightto expresshisreligiousbeliefspursuant
thereto,Levinerespectfully movesthisHonorable Courttotakejudicialnotice ofthe
follow ing'.
1. The ruling that issues from this Court m ust recognize: that the rights
grantèd by the FirstAm endment and the RLUIPA extend beyond the
provision ofK osherfood and include the m andated preparation,handling and appropriate environm entforconsum ption ofthe K osherfood product.
The agreem entdefining the foods thatm ay be served in order to com ply w ith RLU IPA m ustalso clarify and asskll'tthatthose foodsm ustalso be in fullcom pliancew ith the m inim um dietcury requirem entsofthe D epartm ent ofH ealth and R ehabilitative ServicesStandard asw ellasthe recom m ended

Case 1:12-cv-22958-PAS Document 526 Entered on FLSD Docket 07/10/2015 Page 2 of 4

dietary allow ances of the N ational R esearch Council, N ational A cadem y of Sciences,pursuantto Chapter-6 Food ofFlorida M odel JailStandardT loridaA dm inistrative Code.

To the extentthatthe decision in D ellartv.H orn,227 F.3d 47,

(Third DistrictCourtofAppeal Cir.2000)could im ply thattheprovisionof
an all-cold K osher diet alone, w ithout regard to the m inim um dietary

requirem entsprescribed in the abovenoted regulations such a religiousdiet

cannotbedeem ed to be com pliantw ith RLU IPA .

Equalprotection requiresthatparticipantsin a religious dietprogram

should notbe otherw ise disadvantaged due to theirelecting to practice their

religiousbeliefs.

R pect ysqbmitted,

,.
J r

*'
evine-S21005

-S h lo ida R eception C enter

South U nit

13910 N .W .41StStreet

D oral,Florida 33178-3014

A LT ER NA TIV E O ATH

lhereby swear,underpenalty ofperjury,thatlhave read the foregoing
Com plaint for lntem leader and Joinder of Claim s and that a11 of the facts and

assertions contained therein are true and correct.

.
L .
J .$ ,
,..2,

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L vine-S21005

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Case 1:12-cv-22958-PAS Document 526 Entered on FLSD Docket 07/10/2015 Page 3 of 4

CERTIFICATE OF SERW CE

1 hereby certify that 1 have provided a true and correct copy of the

foreg/o'ngComplaintforlnterpleaderandJoinderofClaimsbyU.S.M ailon thist- dayofJuly,20-15tothefollowing:

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 </s> UN ITED STA TE S DISTR ICT C O U R T SO UTH ER N DISTRICT O F FLO R IDA CA SE NO.12-22958-CIV-SElTZ/TURNOFF
UNITED STATESOF AM ERICA,
Plaintiff,
VS.
SECRETA RY ,FLO RIDA D EPAR TM EN T OF COR RECTION S,etal.,
D efendants. /
O RD ER R E:C O N TEN TS O F INJUN C TIO N
OnApril30,2015,theCourtentereditsOrderonM otionsforSummaryJudgment(DE-
4981.lnthatorder,theCourtfoundthatPlaintiffwasentitledtoentryofapermanentinjunction
based on D efendants'violationsofRLU IPA . Subsequently,the Courtordered the partiesto
submitproposedinjunctivelanguage.Plaintiffsproposedlanguageincludedtermsfor
monitoringandenforcementoftheinjunction,towhichDefendantsobjected.Afteradditional
filingsandahearingonJuly 15,2015,atwhichthepartidsstatedthattheybelievedthatthey
could w ork togetherto presentagreed m onitoringand enforcem entlanguagetothe Court,
Plaintifffiledtheparties'proposedlanguagewiththeCourt(DE-537j1onJuly24,2015.
1In afootnote,theU nited StatesindicatesthatD efendanttheFloridaD epartm entof
CorrectionsiscontestingtheCourt'sjurisdictionoveritbecauseitwasallegedlynotproperly
served.First,theCourtnotesthattheFloridaDepartm entofCorrectionshasnotactuallyraised thisissuew ith theCourt. Second,and m oreim portantly,theFloridaD epartm entofCorrections
haswaivedanyobjectiontopersonaljurisdiction.AttorneyJasonVailfiledanoticeof appearance(DE-48jonbehalfofû'defendants''onM ay24,2013.Noobjectiontoserviceorto personaljurisdictionhaseverbeenraised.Further,theCourt'sOrderonM otionsforSummary JudgmentgDE-498)clearlyappliestoSr efendants''andtheFloridaDepartmentofCorrections didnotraiseanyobjectionsafterentryofthatorder.Consequently,boththatorderandthe Court'sforthcom inginjunction applytoboth Defendants,theSecretaryoftheFlorida

Becausethisinjunctioninvolvesprisonconditions,anytermsoftheinjunctionmustmeetthe
requirementsofthePrisonLitigationReform Ad IPLRAI.Thisorderaddresseswhetherthe
parties'proposed languagem eetstheserequirem ents.
UnderthePLRA,beforetheCourtcanissueaninjunction,theCourtmustensurethatthe
injunctivereliefsoughtcomplieswiththedictatesofthePLRA.UnderthePLRA,anyinjunctive
relief:
shallextend no furtherthan necessary to correcttheviolation oftheFederalrightofa particularplaintifforplaintiffs.The courtshallnotgrantorapprove any prospectiverelief unlessthecourtfindsthatsuchreliefisnarrowly drawn,extendsnofurtherthan necessary to correcttheviolation oftheFederalright,and istheleastintrusive m eans necessaryto correcttheviolation oftheFederalright.The courtshallgivesubstantial
weighttoanyadverseimpactonpublicsafetyortheoperationofacriminaljustice
system caused by the relief.
18U.S.C.j3626(a)(1).TheEleventhCircuitintemretsthisprovisiontorequireadistrictcourt
tomakeparticularizedfndingsastoeachelementoftheinjunctionandperform aneed-
narrowness-intrusivenessanalysisthatprovidesa separateexplmzation asto each elem ent. Cason
v.Seckinger,231F.3d777,785(11thCir.2000).However,acourtneednotdothisaboutany
factsorfactorsnotin dispute. 1d.at785 n.8.
In discussing the requirem entsofthePLRA ,theSuprem e Courthasexplained:
N arrow tailoring requiresaççfit''betw een therem edy'sendsand the m eanschosento accom plish thoseends. Thescopeoftherem edy m ustbeproportionalto thescopeofthe violation,andtheordermustextendno furtherthannecessarytoremedytheviolation.
ThisCourthasrejectedremedialordersthaturmecessarilyreachouttoimproveprison
conditionsotherthan thosethatviolatetheConstitution.Buttheprecedentsdo not suggestthatanarrow andotherwiseproperrem edyforaconstitutionalviolationisinvalid sim ply becauseitw illhavecollateraleffects.
Departm entofCorrectionsandtheFloridaD epartm entofCorrections.

Brownv.Plata,131S.Ct.1910,1939-40 (2011)(internalcitations,quotationmarks,and bracketsomitted).
W hilethepartiesagreetom ostofthem onitoringandenfoxcem entterm softhe
injunction,zDefendantsobjecttothenecessityofincludingthesetermsintheinjunction.
Consequently,theCourtwillanalyzeeachoftheterm sunderthePLRA 'Sneed-narrownessintrusiveness standard. PoliciesandProcedures
Thepm iesproposedlanguageincludesadetinition oftskosherdiet,''anauditing procedure,andatrainingprocedureforthechaplainsadm inisteringtheReligiousDietPlan
(RDP).TheCourtfindsthateachoftheseprovisionsisnecessary.A definitionoflçkosherdiet'' isnecessarytoavoidanyclaimsthattheinjunction,requiringserviceofakosherdiet,isvague.
Further,givenDefendants'continualrefusalto acknowledgethattheyarerequiredbylaw to provideakosherdiettothoseprisonerswithasincerereligiousbeliefrequiringthem tokeep kosher,auditing proceduresarenecessary.Trainingproceduresare also necessaryto ensurethat prison personnelare unifonulyapplying therulesand proceduresofthe RDP acrossthe State's sixty-plus prison institutions.
A1loftheseterm sarenarrowlydrawn toachievethegoalofprovidingkosherdietsand continuingtom aintainthestandardsnecessaryforprovidingkosherfood.Further,theseterm s
aretheleastintrusivemeansofachievingthegoalsoftheinjunctionbecausethesetel'msadopt
policiesalreadyputin place by D efendants. Thedefinition ofa Slkosherdiet''utilizesthe
2Thepartiesdonotagreeonthelanguagetobeusedintheinjunctionthatwouldgive
Plaintiffaccesstoprison facilities,persorm el,and prisoners.Thepartieslanguage also differsas toaccessto Defendants'recordsrelatedtotheReligiousDietPlan.

certifying authority already used by D efendants. Theauditing policy w asdeveloped andputin
placebyDefendantspriortotheCourt'srequestforthepartiestoprovideinjunctivelanguage.
TheD efendantsalso began developingthechaplain training policy priorto the Court'sorder. Further,theD efendantshave leew ay to changetheseproceduresw ithoutfirstobtaining Court approval.Thus,theCourttindsthattheparties'proposed policiesand procedureslanguage m eetstherequirem entsofthePLR A. M onitoring andAccountability
Thepartiesproposem onthly reportsand quarterly reports. Them onthly reportswould containthetotalnum berofprisonerserlrolledin theRDP onthe15thdayofthepriormonth and abreakdownofthatnumberbyfacility.Thequarterlyreportwouldcontain thenum berof prisonerswhoviolatedtheRDP,thebasisoftheviolations,thenum berofviolationsduringthe quarter,andthedispositionofeach violation.ln addition,thequarterlyreportwould alsoinclude
thefollowinginform ationregardingthenoticesofviolation:(a)thenameoftheprisonerswho wereissuedanotice;(b)whetherthedispositionwasbasedonwritten noticeonlyorwhethera fact-to-faceinterview wasscheduled;and(c)theresultofeachnotice.
TheCourtfindsthatboththem onthlyandquarterlyreportsarenecessary.The inform ationrequiredbythereportswillhelptheCourtandPlaintiffensurethatDefendants
complywiththeCourt'sinjunction.GivenDefendants'continuedinsistencethattheyarenot
obligatedtocomplywithRLUIPA andtheCourt'spow erto enforceitsorders,suchm onitoring isnecessaryto ensurethatD efendantscontinueto com ply w ithR LUIPA . Further,theCourt findsthatthese reporting provisionsarenanowlytailored.A 1lofthe infonnation requested is
relevanttocompliancewithspecifcallyenjoinedactivities.Thereportingprovisionsarethe
4

leastintrusivemeansofachievingthegoalsoftheinjunction.Defendantswillbeself-reporting,
farlessintrusivethanhavingathird-partyorPlaintiffconductm onthlyon-sitevisitsorhaving Plaintiffserve regulardiscovery requests.
Thepartiesalso proposethat,each quarter,the United Statesshallidentify five institutionsforwhich D efendantsshallprovidecopiesoftheD epartm entofCorrections'form 17C5-325.Form DC5-325istheform usedtoprovideprisonersnoticeofaviolationoftheRDP.
TheForm hasfiveparts:(1)thereasonfortheviolation;(2)aspacefortheprisonertoexplain hisviolationandwhyheshouldrem ainintheprogram ;(3)anexplanationofthetypeofreview thechaplainhasdone;(4)thedisposition oftheviolation;and(5)aspaceforthechaplain's
notes.A copyoftheform isattachedheretoasExhibitA. TheCourtfindsthatprovidingthe17C5-325form sisnecessarytoallow thePlaintiffto
monitorcompliancewiththeCourt'sinjunction,specificallytheprovisionsoftheinjunction
which prohibittheuseoftheten percentruleand prohibitDefendantsfrom suspendingor removingprisonersw ithoutfirstprovidinganopportunityforaprisonertocontestthesuspension orrem oval.Theprovisionisnanowlydrawnbecauseitonlyrequiresrecordsrelatedtoalleged violationsoftheRDPandhow theviolationswereaddressedbyDefendants.Theprovisionis notintrusivebecauseitusesrecordsalreadykeptby D efendantsand each quarterD efendants needonlyprovidetherecordsforthefivechosen institutions. Consequently,theparties' proposedaccountabilityandmonitoringprovisionsm eettherequirem entsofthePLRA. AccesstolnspectFacilities
Thepartiescould notagreeon thelanguageofthistenn. Plaintiffhasproposed the follow ing language:

DefendantsshallprovidetheUnited Statesreasonableaccesstopersonnel,prisoners,and facilitiesaspertinenttotheUnited States'assessmentofDefendants'compliancewith
thisInjunction.Reasonableaccesswillbepxovidedtoattorneys,experts,orotherJustice Departmentpersolmel.TheDefendantsshall,tmtiltheterminationofthislnjunction,
retainandprovidetheUnitedStateswithreasonableaccesstodocum entsrelevanttothe
issuesinthiscase(includingprisonerrequeststojointheRDP,responsesthereto,records
ofprisonerviolationsrelatedtotheRDP,anddocum entsshow ingthecostofRDP
meals).
D efendantsproposethefollow ing;
ThePartiesshallhaveaccesstoinfonnationrelevanttocompliancewith theCourt's
injunctionsconcerningprovisionofthekosherdiet,enforcementofthe$t10percent''rule,
and provision ofa pre-suspension opportunity to contesta suspension pursuantto the discovery provisionsofthe RulesofCivilProcedure. How ever,the Courtanticipatesthat thePartieswillresolveany inform ationalinquirieswithoutresorttothediscoveryrules.
Thesetw o pxovisionsdiffersignificantly. Defendants'proposed languagedoesnotinclude
accessto personnel,facilities,orprisoners.lnstead,Defendantspropose givingPlaintiffaccess
onlytocertainrecords.M orethanrecordaccessisnecessaryinthiscase.
Giventhenatureofprovidingakosherdiet,which includesproperpreparationofthe
food,accessto the facilitiesisnecessaryto ensurecom pliancew ith the Court'sorders.A ccessto
prisonersand personnelisalsonecessary in thiscase.The record inthiscaseisfullofprisoner
lettersalleging non-com pliancew ith both the RDP and Courtordersand alleging thatprisoners
have sufferedretaliation forpartaking in the RDP.In orderto ensurethatD efendantsare
com plying w ith Courtorders,Plaintiffm usthavereasonableaccessto prisonersand personnelto
investigatetheprisoners'claim sand enslzrethatpersonnelarecom plying w ith theCourt'sorders.
Thus,accessto personnel,prisoners,and facilitiesisnecessary.3
3AttheJuly 15, 2015 hearing,allpartiesindicated thatthey did notthink thata neutral m onitorwasnecessary.Defendantsnow seem toindicatethatnoon-sitemonitoringisnecessary
becausetheywillpolicethem selvesthroughtheirowninternalauditingprocess.Quitesim ply,
given D efendants'refusaltorecognizetheirlegalobligation to providekosherm eals,to relyonly

Plaintiffsproposedlanguage,however,maybeslightlyoverbroadastofacilities. Thus, theCourtw illlim itfacility accessto thefood prepazation areas,m ealservingareas,and dining areas.GivingPlaintiffaccesstofacilitiestoinspectthefoodpreparation areasandensurethat proceduresarefollow ed isnarrow lytailored andextendsnofurtherthan necessat'y.Further,such aprovision isnotoverly intrusivebecauseitdoesnotrequireconstantm onitoringortheregular presenceofanon-party.G ivingPlaintiffaccessto them ealserving and dining areasisnecessary given thenum erousprisonercom plaintsaboutthe lack ofproperkosherproceduresin the serving ofthem ealsand problem sin the dining areas. Further,such aprovision isnotoverly intrusivebecauseitdoesnotrequireconstantm onitoring,thepresenceof anon-partymonitor, and doesnotextend to non-food related areasofthe Defendants'facilities.Consequently,access to food preparation,serving,and dining areasm eetstheneed-naaow ness-intrusivenesstestofthe PLR A .
Accesstopersolm elandprisonerstoaccesscompliancewithCoul'tordersisnarrowly drawn to allow Plaintiffto gatherinform ation abouttraining,com pliance,and treatm entof prisonersw ho choosetopartakein theRD P. Such aprovision isnotoverly intrusive because it doesnotrequire theconstantpresenceofancm -party oraparty. Consequently,accessto persozmelandprisonersm eetstheneed-nazrowness-intrusivenessrequirem entsofthePLRA.
Finally,both sidesagreethatPlaintiffshouldhaveaccesstorecordsrelatedtotheRDP. SuchaccessisnecessarytoensurethatDefendantscontinuetocom plywith theCourt'sorders. A ccesstorecordsrelated to the RDP isanarrowly tailored provision becauseitonly provides
onDefendants'own selfm onitoringasthesoleform ofon-sitem onitoringoftheRDP wouldbe unreasonable.

accesstotherelevantrecords-thoserelatingtothesubjectofthislitigation.Becauseitonly
providesaccesstolim itedrecordsanddoesnotrequirethattherecordsbeproducedinany pm icularway,thisprovisionisnotintrusive.Consequently,therecordsaccessprovisionm eets therequirem entsofthePLR A. O therTerm s
ThepartiesproposethatPlaintiffgiveDefendantsthirty(30)daysnoticetocureany allegedviolationoftheinjunction.Iftheviolationisnotcuredwithinthattime,Plaintiffmay
initiatea courtproceedingto addressthe violation.Thepartieshaveagreed to thisprovision and, giventhatitisnon-substantiveandisnotafonnofprospectiverelief,itneednotm eetthe requirem entsofthePLR A .Finally,thepartiesw ish toincludelanguagestatingthatthe
modificationandterminationoftheinjunctionaregovemedbythetennsofthePLRA and
FederalRuleofCivilProcedure60.Thisterm issimplyastatementofexisting1aw andtherefore doesnotneed to m eetthe need-narrow ness-intrusivenessrequirem entsofthePLR A.
Accordingly,itis OR DER ED that:
1.Theparties'jointproposedlanguagem eetstherequirem entsofthePLRA.TheCourt willutilizethejointproposedlanguageinitsfinalinjunction.
2. TheCourtw illutilizeanarrow erversion ofPlaintiffsaccessto facilities,personnel, and prisonerslanguagewhich w illcom ply w ith thePLRA .
3.TheCourtwillenteraseparateinjunction.
DONEandORDERED inMiami,Florida,this /W dayofAugust, 015.

cc: A 1lCounselofRecord

PA TR IC A A .SEI UN ITED STA TES D IS CT JU D GE

ALORIDA HEPAA/ MENTDF-CIJRRECTIDNN'

R ELIGIOUSDIETPROGM M

N O TICE O F V IO LA TIO N
((l-è(..q(..

IN M ATE NAM E:

FAC ILITY :

DC#:

H O USING UN IT :

RELIGION OFRECORD (OT23):

NO TICE DATE:

PleasebeadvisedthatyouareinviolationoftheReligiousDietProgram (;$1tDP'')forthefollowingreason: lthasbeendeterminedthatyouhavepurchase; possessedaorconsumedfoodproductsorattemptedtopurchase,possess orconsumefoodproductsthatarenotconsistentwithorthatspecitkallyviolatetheskndardsoftheCFO diet.(See attached.)
You havebeen foundto beunableto m anagethereligiotlsdietin am annerconsistentw ith institutionalsafety orsecurity.
Youhavebeenfoundtohavebartered,stolen,orimproperlym ssessedfoodfrom theCFO meals.(Seeattached.)
Youarebeingconsidered forstspension 9om theRDP.lfyou areinterestedincontinuingyourparticipationintheRDPyou
mustcompletethisfrom andretum ittotheChaplainwithintive(5)daysofthek'NoticeDate''listedabove.TheChaplainwill
consideranyresponseyou providebeforeasuspensionorrem ovaldecision ism ade.
PART A:FACTSFO R CO NSIDEM TION PleaseexplainIN DETAIL whyyouviolatedtheRDPprogram,andwhyyoushouldbeallowedtoremain intheprogram :

PART B:CH APLAINCY REW EW

(Addt'z/lï/ïtp?'ltWsheetsfnecessary)

Ihavereviewedtheinformationaboveandhavedeterm inedthattheabovenmnedinm ateshallcometoaninterview to
furtherexplaintheviolation.(Intelview noteswilllxmadeonPM D:ChaplaincyNotes.)
lhavereviewedtheinfonnationaboveandhavedetenninedthatnointerview isnecessary.'Thedism sitionnotedbelow is supportedbytheinformationsuppliedinPM A,PM D andanyadditionalinformationattachedhereto.

Inmatedidnotretum theform orforwardanyexplanationfortheviolation.

lnm atefailedtorespondto thecall-out.

Chaplain

Date

PART C:DISPOSITION

Aflercompletingmyreview,Ihavedeterminedthefollowingdism sitiontotheviolation:

Counseling only;no suspension. 1kViolation:Susm ndedfor30days. 2ndv iolation:Suspended for120days.
3rdViolationorSubjçqpent:Suspendedftyplpç(J)year.

PART D:CHAPLAINCY NOTES %orlzsebyC/ltzlflïncyOnlyl

Chaplain

Date

(7C5-325(Revised7/28/15)

R ktb't# A

 </s> Case 1:12-cv-22958-PAS Document 548 Entered on FLSD Docket 08/12/2015 Page 1 of 7
UN ITED STA TES DISTR ICT C O U RT SO UTH ER N DISTR ICT O F FLO R IDA CASE NO.12-22958-C1V-SElTZ/TURN OFF U N ITED STA TES OF AM ERICA , Plaintiff,
VS.
SECRETA RY ,FLO RIDA DEPARTM EN T OF CO RRECTION S and FLO RID A D EPAR TM ENT O F C ORRECTION S,
D efendants. /
FINAL JUDGM ENT AND PERM ANENT INJUNCTION
PursuanttotheCourt'sOrderonM otionsforSummaryJudgment(DE-4981enteredon April30,2015,andtheCourt'sOrderre:ContentsofInjunction,itis
ORD ERED that: D eclaratory Judgm ents
Judgm entisenteredinfavorofDefendantsandagainstPlaintiffonPlaintiff's claim challenging D efendants'doctrinalsincerity testing.The CourtdeclaresthatD efendants' doctrinalsinceritytesting doesnotviolateRLUIPA provideditisnotthesoledeterm iningfactor in D efendants'sincerity testing orisnotunduly w eighted by Defendantsin m aking sincerity determinations,suchthatitisineffectthesoledeterm iningfactor.
2. Judgmentisentered infavorofDefendantsandagainstPlaintiffonPlaintiffs claim challengingD efendants'anti-bartering policy. The CourtdeclaresthatD efendants'antibarteringpolicydoesnotviolateRLUIPA .

Case 1:12-cv-22958-PAS Document 548 Entered on FLSD Docket 08/12/2015 Page 2 of 7
3. Judgm entisentered in favorofPlaintiffand againstD efendantson Plaintifps claim challengingD efendants'denialofakosherdietto sincereprisoners. TheCourtdeclares thatD efendants'policy ofdenyinga kosherdietto sincereprisonersviolatesRLU IPA .
Judgm entisentered in favorofPlaintiffand againstD efendantson Plaintiffs claim challengingDefendants'tenpercentrule,whichremovesaprisonerfrom theReligious
DietProgram (lkDP)ifheorshemissestenpercentormoreofhisorherCertifiedFoodOption (CFO)mealswithinaonemonthperiod. TheCourtdeclaresthatDefendants'tenpercentrule
violatesRLU IPA . 5. Judgm entisenteredinfavorofPlaintiffandagainstDefendantsonPlaintiff's
claim challengingthezero tolerancerule,whichrem ovesaprisonerfrom theRDPifheorshe purchases,possess,orconsum esfoodfrom thecanteen orothersourcethatviolatestheRDP requirem ents,andanypolicythatsuspendsprisonersfrom thekosherdietwithoutfirstproviding an opportunity fortheprisonersto contesttheirrem oval.The CourtdeclaresthatDefendants' zerotoleranceruleandanypolicythatsuspendsprisonersfrom thekosherdietwithoutfirst providinganopportunity fortheprisonerstocontesttheirrem ovalviolatesRLUIPA.
Perm anentInjunction
6. ForthereasonssetoutintheOrderonM otionsforSumm aryJudgm ent,theCourt
entersapermanentinjunctionthat:
a. OrdersDefendantstoofferakosherdiet,asdefnedherein,toa11prisoners w ith a sincerereligiousbasisforkeeping kosher.
b. EnjoinsDefendantsfrom enforcingthetenpercentnzle.

Case 1:12-cv-22958-PAS Document 548 Entered on FLSD Docket 08/12/2015 Page 3 of 7
C. EnjoinsDefendantsfrom enforcingthezerotoleranceruleandanypolicy
thatsuspendsprisonersfrom thekosherdietwithoutfirstprovidingan opportunity fortheprisonersto contesttheirrem ovalorsuspension. Policiesand Procedures A ilkosherdiet''meansfoodpreparedconsistentwiththerequirementsrecognized byareligiousauthorityqualifiedto detenninewhetherfoodiskosher.Forpre-packaged food, forinstance,thismeansthataqualifiedreligiousauthoritym usthaveapprovedthefoodsas kosher.TheDefendantscurrentlyrelyupon thecertifiedkosherlistingsonthewebsite
m aintainedbytheChicagoRabbinicalCouncil(http://www .crcweb.org/).Theselistingsare acceptableforcomplyingwiththisinjunction.TheDefendantsmayalsoacceptcertifications
from otherauthoritiesuponashowingthatthesecertificationsarereliable.Al1food,including food considered pareve,shallbehandled and prepared in accordance with theproceduresset fol'thintheDepartm entofCorrectionsProcedurt503.006,which isattachedheretoasExhibitA .
8. ToensurethatDefendants'personnelconsistentlyapplytheproceduresfor procuringandhandlingthefoodproductsused inthekosherdiet,Defendantsshallperiodically conductauditsaccording totheirestablishedauditprocedurestoensurethatthefoodbeingused in the kosherdietand the preparation ofthekosherdietm ealscom portsw ith therequirem entsof Paragraph 7.DefendantswillsharetheseprocedureswiththeUnitedStateswithinoneweekof
theissuanceofthisinjunctionandwithinoneweekofanychangesbeingmadetotheprocedures.
9. To ensurethatDefendants'chaplainsapplyconsistentstandardswhenprocessing prisonerviolationspursuantto Procedure503.006,D efendantsshalltrain a1lchaplainsin processingnoticesofviolationsinaccordancewith Procedure503.006.TheDefendantsare

Case 1:12-cv-22958-PAS Document 548 Entered on FLSD Docket 08/12/2015 Page 4 of 7
currentlydevelopingtrainingm aterialsforprocessingviolationsanduponcompletionwill providethetrainingm oduletotheCourtandtheUnitedStates.
10. Defendantsmaymodifytheauditingandtrainingproceduresdescribedabove.lf Defendantsm odifytheseprocedures,theyshallnotifytheUnitedStatesandprovidetheUnited Stateswith the m odified procedurew ithin oneweek ofthem odified procedurebeing fnalized. M onitoring & Accountability
M onthly Reports 11. DefendantsshallfilewiththeCourtamonthlyreportcontainingtheinformation listedbelow.Thefirstreportshallbedueonthefirstdayofthem onth following thefirstfull month from thedateofthisOrder,withsubsequentreportsduethefirstday ofeachm onth
thereafter(Septem ber1,October1,etc.).Eachreportshallcontainthefollowinginfonnation: a. ThetotalnumberofprisonersenrolledintheReligiousDietProgram (ççlkDP'')on
the 15thdayofthepriormonth;and b. A breakdownofthenumberofprisonersenrolledintheRDP onthe15thdayof
thepriormonth ateachfacilityoftheFloridaDepartm entofCorrections, including privately-operated facilities.
QuarterlyReportsandDocumentation
12. Defendantsshallalsoprovideon aquarterlybasisreportsanddocum entationof processingprisoners'RDP violations.ThefirstreportshallbedueJanuary 15,2016,forthelast quarterof2015,w ith subsequentdocum entsprovided on theffteenth day ofthe m onth after
eachquarterthereafter(April15,2016;July 15,2016,etc).Thereportsanddocum entation shall
include:
4

Case 1:12-cv-22958-PAS Document 548 Entered on FLSD Docket 08/12/2015 Page 5 of 7
a. D efendantsshallprovideto theCourtand theU nited Statesa sum m ary report
showing:(1)thetotalnumberofprisonerswhopotentiallyviolatedtheRDP duringthemostrecentquarterlyperiod;(2)thebasisofthoseviolations;(3)the numberofnoticesofviolation issuedduringthequarterlyperiod;and(4)the
disposition ofthenoticesofviolation fullyprocessed during thatperiod.The summ aryreportshallincludethefollowinginform ationonnoticesofviolation
issued:(a)thenam esoftheprisonersin each institution whowereissuedanotice ofviolation;(b)ifdispositionwasreachedduringthatquarter,whetherthe
dispositionwasbaseduponm ittennotificationonly orwhetherafacetoface
pastoralinterview wasscheduled;and(c)theresultsofeachdisposition.Forany
dispositionthatresultsinasuspension,thelengthofsuspension shallbe indicated.
b. Bythefirstofthemonthpriortoeachquarterlyreportingperiod(September1, 2015;December1,2015;M arch 1,2016;June1,2016,etc.),theUnitedStates shallidentifyfive(5)institutionsforwhichtheDefendantsshallprovidecopiesof
theDepartmentofCorrections'form DC5-325.N olaterthantheendofthemonth
inwhichthequarterlyreportissubm itted(January31,2016;July31,2016,etc.),
DefendantsshallprovidetotheUnited StatescopiesoftheDC5-325foreach
prisonerlistedonthequarterlysum maryreportforeachofthefive(5)institutions
previously identified by the United States.

Case 1:12-cv-22958-PAS Document 548 Entered on FLSD Docket 08/12/2015 Page 6 of 7
A ccesstoInspectFD O C Facilities 13. DefendantsshallprovidetheUnited Statesreasonableaccesstopersonnel,
prisoners,and thefood preparation,food serving,and dining areasofD efendants'facilitiesas
pertinenttotheUnitedStates'assessmentofDefendants'compliancewiththislnjtmction.
Reasonableaccessw illbeprovided to attorneys,experts,orotherJusticeD epartm entpersorm el.
TheDefendantsshall,untiltheterminationofthisInjunction,retainandprovidetheUnited Stateswithreasonableaccesstodocumentsrelevanttotheissuesinthiscase(includingprisoner requeststojointheRDP,responsesthereto,recordsofprisonerviolationsrelatedtotheRDP, anddocum entsshowingthecostofRDPm eals).
N oticeand Opportunity To Cure Violations 14. IftheUnited StatesbelievesthatDefendantshavefailedtofulfillanyobligation
underthislnjunction,theUnitedStatesshall,priortoinitiatinganycourtproceedingtoremedy
such failure,givewritten noticeofthefailureto D efendants. D efendantsshallhave 30daysfrom thedateofsuchnoticetocurethefailure,andprovidetheUnitedStateswith sufficientproofof itscure.Duringthisperiod,theUnited Statesand theDefendantsshallcoordinateanddiscuss areasofdisagreem entandattempttoresolveoutstandingdifferences.Attheendofthe30-day period,intheeventthattheUnited StatesdeterminesthatDefendantshavenotcuredthefailure, theUnitedStatesm ay,withoutfurthernotice,initiateacourtproceedingtoremedythefaillzre.
6

Case 1:12-cv-22958-PAS Document 548 Entered on FLSD Docket 08/12/2015 Page 7 of 7

M od6 cationandTermination ModificationandterminationofthisinjunctionaregovernedbythePrison
LitigationReform Act,18U.S.C.j3626,andFederalRuleofCivilProcedure60.
DONE andORDEREDinMiami,Florida,this /W PdayofAugust,2015.

e

l

PA TRICIA A .S ITZ UN ITED STA TES D ISTRICT JUD GE

cc; A 1lCounselofRecord

 </s> No. 14-10086-D
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS; FLORIDA DEPARTMENT OF CORRECTIONS,
Defendants-Appellants ____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA ____________________
BRIEF FOR THE UNITED STATES AS APPELLEE ____________________
JOCELYN SAMUELS Acting Assistant Attorney General
DENNIS J. DIMSEY MARK L. GROSS CHRISTOPHER C. WANG Attorneys
Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 514-9115 Chris.Wang@usdoj.gov

TABLE OF CONTENTS PAGE
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT STATEMENT REGARDING ORAL ARGUMENT ...............................................1 STATEMENT OF JURISDICTION..........................................................................1 STATEMENT OF THE ISSUE.................................................................................2 STATEMENT OF THE CASE..................................................................................2
1. Nature Of The Case...............................................................................2 2. Course Of Proceedings And Dispositions In The Court
Below .....................................................................................................3 STATEMENT OF THE FACTS ...............................................................................4
1. The FDOC’s History Of Providing Kosher Meal Plans .......................4 2. The FDOC’s Implementation Of Its New Religious Diet
Program ................................................................................................. 6 3. The Decision Below.............................................................................15 4. Post-Order Proceedings And Developments ......................................19 STATEMENT OF STANDARD OF REVIEW ......................................................21 SUMMARY OF ARGUMENT ...............................................................................22

TABLE OF CONTENTS (continued):

PAGE

ARGUMENT

THE DISTRICT COURT ACTED WITHIN ITS DISCRETION IN ORDERING PRELIMINARY INJUNCTIVE RELIEF .................................................................................25

A. The United States Demonstrated A Substantial Likelihood Of Success On The Merits Of Its RLUIPA Section 3 Claim ...............26

1. General Standards For Applying Section 3.............................27

2. The FDOC’s Blanket Ban On Kosher Meals Does Not Advance A Compelling Governmental Interest..................31

3. The FDOC’s Blanket Ban On Kosher Meals Is Not The Least Restrictive Means Of Advancing A Compelling Governmental Interest...........................................38

4. The Disputed Provisions Of The Religious Diet Program Are Not The Least Restrictive Means Of Advancing A Compelling Governmental Interest .....................40

B. The United States Satisfied The Remaining Factors For Preliminary Injunctive Relief In This Case.........................................45

C. The District Court Acted Within Its Discretion In Preliminarily Enjoining Provisions Of The Religious Diet Program That It Determined Violated RLUIPA .................................48

1. The District Court Properly Enjoined The FDOC’s Implementation Of The Religious Diet Program’s Religious Dogma Testing..........................................................49

2. The District Court Properly Enjoined The FDOC’s Implementation Of The Religious Diet Program’s Ten-Percent Rule And Zero-Tolerance Rule ............................51

CONCLUSION ........................................................................................................57 - ii -

TABLE OF CONTENTS (continued): CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

PAGE

- iii -

TABLE OF CITATIONS

CASES:

PAGE

A.O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir. 1976) ..........................................46

Allapattah Servs., Inc. v. Exxon Corp., 362 F.3d 739 (11th Cir. 2004) ..................36

American Hosp. Ass’n v. Harris, 625 F.2d 1328 (7th Cir. 1980)............................46

Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 124 S. Ct. 2783 (2004)...................................................................................29

Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002) ............................................35

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217 (1993) ...........................................................32

Combs v. Ryan’s Coal Co., 785 F.2d 970 (11th Cir.), cert. denied, 479 U.S. 853, 107 S. Ct. 187 (1986).........................................54

Cumulus Media, Inc. v. Clear Channel Comm’n, Inc., 304 F.3d 1167 (11th Cir. 2002) .....................................................................48

*Cutter v. Wilkinson, 544 U.S. 709, 125 S. Ct. 2113 (2005) ...........................passim

Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673 (1976)..............................................46

Employment Div. v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990)..........................28

Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112 (2d Cir. 2005)............................46

Garrido v. Dudek, 731 F.3d 1152 (11th Cir. 2013).................................................54

Grayson v. Schuler, 666 F.3d 450 (7th Cir. 2012) ..................................................52

Harris v. Garner, 216 F.3d 970 (11th Cir. 2000), cert. denied, 532 U.S. 1065, 121 S. Ct. 2214 (2001).....................................36

- iv -

CASES (continued):

PAGE

Hughey v. JMS Dev. Corp., 78 F.3d 1523 (11th Cir.), cert. denied, 519 U.S. 993, 117 S. Ct. 482 (1996).........................................53

Keeton v. Anderson-Wiley, 664 F.3d 865 (11th Cir. 2011) .....................................21

Knight v. Thompson, 723 F.3d 1275 (11th Cir. 2013), petition for cert. pending, No. 13-955 (filed Feb. 6, 2014) ...........................39

*Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008).................................................33, 50

LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1189 (1994).....................................48

Lebron v. Secretary, Fla. Dep’t of Children & Families, 710 F.3d 1202 (11th Cir. 2013) .....................................................................21

Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006) ..................................................26, 28

Martinelli v. Dugger, 817 F.2d 1499 (11th Cir. 1987), cert. denied, 484 U.S. 1012, 108 S. Ct. 714 (1988).......................................50

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 115 S. Ct. 1511 (1995)...................................................................................28

*Moussazadeh v. Texas Dep’t of Criminal Justice, 703 F.3d 781 (5th Cir. 2012) ..................................................................passim

Murphy v. Missouri Dep’t of Corr., 372 F.3d 979 (8th Cir.), cert. denied, 543 U.S. 991, 125 S. Ct. 501 (2004)................................... 43-44

Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279 (5th Cir. 2012) .........................................................................45

Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874 (1989) ...........................................................29

Pugh v. Goord, 571 F. Supp. 2d 477 (S.D.N.Y. 2008) ...........................................28 - v -

CASES (continued):

PAGE

*Rich v. Secretary, Fla. Dep’t of Corr., 716 F.3d 525 (11th Cir. 2013) ..........passim

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223 (11th Cir. 2005) ...................21

Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790 (1963).................................. 28-29

Smith v. Allen, 502 F.3d 1255 (11th Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 131 S. Ct. 1651 (2011)............................................................................. 26-27

Sossamon v. Texas, 131 S. Ct. 1651 (2011) ............................................................27

*Spratt v. Rhode Island Dep’t Of Corr., 482 F.3d 33 (1st Cir. 2007)..........................................................31, 33, 38, 41

Starter Corp. v. Converse, Inc., 170 F.3d 286, 299 (2d Cir. 1999).........................48

Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010).................................................48

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012), cert. denied, 133 S. Ct. 2022 (2013)..............................................................46

United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) ...................................29

*Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) .................................passim

Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)...................................... 33, 43-44

Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972).......................................28

World Outreach Conference Ctr. v. City of Chi., 591 F.3d 531 (7th Cir. 2009) .........................................................................28

Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) ............................................28

Young v. McNeil, No. 4:08cv44-SPM/WCS, 2009 WL 2058923 (N.D. Fla. July 13, 2009) .................................................................................5

- vi -

STATUTES:

PAGE

Prison Litigation Reform Act of 1995 (PLRA), 18 U.S.C. 3626(a)(2) ......................................................................... 48, 50-52

Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq...................................................................................2 42 U.S.C. 2000cc-1(a) .........................................................................3, 22, 26 42 U.S.C. 2000cc-1(b)(1) ..............................................................................31 42 U.S.C. 2000cc-2(b) ...................................................................................27 42 U.S.C. 2000cc-2(e) ...................................................................................48 42 U.S.C. 2000cc-2(f)......................................................................................2 42 U.S.C. 2000cc-3(c) ...................................................................................34 42 U.S.C. 2000cc-3(g) ...................................................................................47 42 U.S.C. 2000cc-5(2) ...................................................................................27

28 U.S.C. 1292(a)(1)..................................................................................................2

28 U.S.C. 1331...........................................................................................................2

28 U.S.C. 1345...........................................................................................................2

REGULATION:

28 C.F.R. 548.20(b) .................................................................................................56

LEGISLATIVE HISTORY:

S. Rep. No. 111, 103d Cong., 1st Sess. (1993)........................................................27

146 Cong. Rec. 16,699 (2012) .................................................................................27

RULES:

Fed. R. Civ. P. 60(b) ................................................................................................35

Fed. R. Civ. P. 65(d) ................................................................................................53

Fed. R. Civ. P. 65(d)(1)............................................................................................53

- vii -

MISCELLANEOUS 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure (2d ed. 1995)...............................................53 *Federal Bureau of Prisons Program Statement, Religious Beliefs and
Practices, http://www.bop.gov/policy/progstat/5360_009.pdf................13, 56
- viii -

Case No. 14-10086-D United States v. Secretary, Florida Department of Corrections, et al.
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1-1, counsel for appellee United States certifies that in addition to the persons and entities identified in the defendants-appellants’ brief, the following persons may have an interest in the outcome of this case:
Blumberg, Jeff, Attorney, United States Department of Justice, Civil Rights Division, Special Litigation Section, counsel for the United States
Dimsey, Dennis J., Deputy Chief, United States Department of Justice, Civil Rights Division, Appellate Section, counsel for the United States
Mygatt, Timothy, Special Litigation Counsel, United States Department of Justice, Civil Rights Division, Special Litigation Section, counsel for the United States
Samuels, Jocelyn, Acting Assistant Attorney General, United States Department of Justice, Civil Rights Division, counsel for the United States
The Honorable Patricia A. Seitz, Judge, United States District Court for the Southern District of Florida
C1 of 2

Case No. 14-10086-D United States v. Secretary, Florida Department of Corrections, et al.
The Honorable Andrea M. Simonton, United States Magistrate Judge

Date: May 21, 2014

s/ Christopher C. Wang CHRISTOPHER C. WANG Attorney

C2 of 2

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________
No. 14-10086-D
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS; FLORIDA DEPARTMENT OF CORRECTIONS,
Defendants-Appellants ____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA ____________________
BRIEF FOR THE UNITED STATES AS APPELLEE ____________________
STATEMENT REGARDING ORAL ARGUMENT
The United States has no objection to the appellants’ request for oral
argument in this case.
STATEMENT OF JURISDICTION
The United States brought this suit against the appellants, the Secretary of
the Florida Department of Corrections (Secretary) and the Florida Department of
Corrections (FDOC), to enforce the Religious Land Use and Institutionalized

- 2 Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq., pursuant to 42 U.S.C. 2000cc-2(f). The district court had jurisdiction under 28 U.S.C. 1331, 1345. The district court entered its order granting the United States’ motion for a preliminary injunction on December 6, 2013. The appellants filed a timely notice of interlocutory appeal from the district court’s order on January 6, 2014. This Court has jurisdiction under 28 U.S.C. 1292(a)(1).
STATEMENT OF THE ISSUE Whether the district court acted within its discretion in granting the United States’ motion for a preliminary injunction that ordered the appellants to provide a certified kosher diet to all prisoners with a sincere religious belief for keeping kosher and enjoined the appellants from implementing aspects of their newlyadopted Religious Diet Plan that the court determined violated RLUIPA.
STATEMENT OF THE CASE 1. Nature Of The Case
This is an interlocutory appeal from the district court’s grant of the United States’ motion for a preliminary injunction in a case the federal government brought against the appellants to enforce Section 3 of RLUIPA. Section 3 prohibits state and local governments from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution” unless the government shows that the burden furthers “a compelling governmental interest”

- 3 and does so by “the least restrictive means.” 42 U.S.C. 2000cc-l(a). The statute thus “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721, 125 S. Ct. 2113, 2122 (2005). 2. Course Of Proceedings And Dispositions In The Court Below
On August 14, 2012, the United States filed a complaint for declaratory and injunctive relief in the Southern District of Florida, alleging that the FDOC’s refusal to offer kosher meals violated the rights of hundreds of its prisoners under RLUIPA. Doc. 1.1 After the district court denied the appellants’ motion to dismiss or to transfer venue, the parties entered mediation. Doc. 13-14. While mediation was ongoing, and without informing the United States, the appellants adopted a new Religious Diet Program (RDP) procedure on March 22, 2013. Doc. 29 at 4-5. The RDP would ostensibly offer a kosher diet in most FDOC facilities by September 2013, but imposed several conditions on participation that the United States believes violate RLUIPA. Doc. 29, Ex. F.
1 This brief uses the following abbreviations: “Doc. __ at __” refers to the document number assigned on the district court’s docket sheet; “Ex. _” for an exhibit attached to a document; and “Br. __” for the appellants’ amended opening brief filed with this Court.

- 4 In April 2013, the United States moved for a preliminary injunction seeking an order requiring the appellants to provide kosher meals to all prisoners with a sincere religious belief for keeping kosher, and enjoining the implementation of the aspects of the RDP that the United States asserted violated RLUIPA. Doc. 29. The district court held a two-day hearing on the United States’ motion in June 2013, and a second hearing in November 2013. Doc. 62-63, 105. On December 6, 2013, the district court issued an order granting the United States’ motion for a preliminary injunction. Doc. 106. The district court ordered the appellants to provide a certified kosher diet to all prisoners with a sincere religious belief for keeping kosher no later than July 1, 2014, and preliminarily enjoyed them from implementing certain provisions of the RDP to the extent that those provisions violated RLUIPA. Doc. 106 at 31-32. This interlocutory appeal followed. Doc. 120.
STATEMENT OF THE FACTS 1. The FDOC’s History Of Providing Kosher Meal Plans
In 2004, the FDOC adopted a kosher meal program known as the Jewish Diet Accommodation Program (JDAP) after settling a lawsuit brought by a Jewish prisoner. See Cotton v. Department of Corr., No. 1:02-cv-22760 (S.D. Fla.); Doc. 106 at 2. The FDOC offered the JDAP in 13 of its facilities; prisoners eligible to participate in the program were transferred to one of these facilities. Doc. 67 at 29-

- 5 30; Doc. 68 at 114; Doc. 106 at 3. Although the JDAP was initially open to Jewish prisoners only, in 2006 the FDOC opened the program to prisoners of all faiths. Doc. 68 at 86, 88; Doc. 106 at 3. In August 2007, the FDOC terminated the JDAP due to several alleged security issues. See Young v. McNeil, No. 4:08-cv-44– SPM/WCS, 2009 WL 2058923, at *2-3 (N.D. Fla. July 13, 2009); Doc. 52 at 2. The FDOC made this decision against the advice of its own Study Group on Religious Dietary Accommodation in Florida’s State Prison System, which advised the FDOC that discontinuing the program would violate RLUIPA, because a prisoner desiring to keep kosher “is substantially burdened” by the denial of kosher food and “it is improbable that [the FDOC] can satisfy a court’s inquiry into whether the department is furthering a compelling interest, let alone that denying inmates’ religious accommodation is the least restrictive means available.” Doc. 29 at 3 (citation omitted); Doc. 67 at 55; Doc. 106 at 3.
Three years later, in August 2010, the FDOC initiated a pilot kosher diet program (the Pilot Program) at the South Unit of the South Florida Reception Center near Miami. Doc. 29 at 3, Ex. B; Doc. 67 at 44, 56. In contrast to the JDAP that the FDOC discontinued in 2007, which averaged approximately 250 prisoners per day, the Pilot Program began with 11 prisoners and has accommodated between 8 and 18 prisoners during its operation. Doc. 29 at 3, Ex. B; Doc. 67 at 56, 152; Doc. 68 at 88. The FDOC agreed in October 2010 to

- 6 expand the Pilot Program, but never did so. Doc. 67 at 58-59; Doc. 68 at 13; Doc. 106 at 4. Thus, from 2007 to 2013, the FDOC did not offer a kosher diet to any prisoners except for the small number of participants in the Pilot Program. Doc. 67 at 56; Doc. 106 at 4.
In May 2011, the United States Department of Justice opened up a formal investigation into the FDOC’s food operations pursuant to RLUIPA. Doc. 29 at 4, Ex. C. The 15-month investigation concluded that the FDOC could provide a kosher diet consistent with its penological interests, and that its failure to do so violated RLUIPA. Doc. 29 at 4. The United States notified the FDOC of its conclusion on August 1, 2012, and offered to negotiate a mutually agreeable plan to make kosher meals available at FDOC facilities. Doc. 29 at 4, Ex. E. The FDOC rejected the offer to negotiate, which led the United States to bring suit against the appellants on August 14, 2012. Doc. 29 at 4. 2. The FDOC’s Implementation Of Its New Religious Diet Program
On March 4, 2013, while the parties were in mediation, the appellants presented the RDP proposal to the United States. Doc. 29 at 4-5. On March 20, 2013, the appellants presented to the United States a revised proposal, which the parties discussed but on which they could not reach an agreement. Doc. 29 at 5. One day later, without notifying the United States, the appellants issued the new RDP policy, Procedure 503.006, which they pledged to implement statewide by

- 7 September 2013. Doc. 29 at 5, Ex. F at 2; Doc. 67 at 47. The new policy stated that it would go into effect at Union Correctional Institution (UCI) on April 5, 2013, and statewide on September 1, 2013. Doc. 29 at 5, Ex. F at 2. The United States learned about the new policy on April 2, 2013, from counsel in separate litigation against the appellants’ dietary policies involving a Jewish prisoner at UCI. Doc. 56 at 5-6. One week after learning about the new policy, the United States moved for a preliminary injunction. Doc. 56 at 6.
The RDP the appellants issued in March 2013 imposed several conditions on participation that violate RLUIPA, warranting preliminary injunctive relief. First, the RDP required as a threshold matter that a potential participant pass a “sincerity test” that examines the prisoner’s “basic knowledge of the religion and the requirements of keeping a religious diet” (religious dogma testing).2 Doc. 29, Ex. F at 4; Doc. 67 at 148; Doc. 68 at 54, 92. Second, the RDP included the requirement (since removed) that all admitted participants eat non-kosher food exclusively for 90 days prior to joining the program (the 90-day rule). Doc. 29, Ex. F at 5-6; Doc. 67 at 147; Doc. 68 at 54-55, 106. Finally, the new RDP also
2 A later version of the RDP, promulgated on October 21, 2013, required prisoners to identify the “specific laws” that formed the basis for their religious diet request. Doc. 99 at 2-4; Doc. 99-8; Doc. 105 at 13-17, 43-45.

- 8 established several bases for removing prisoners from the CFO3 for increasing lengths of time depending on the number of previous infractions, including a prisoner’s electing not to eat ten percent of his or her meals (the ten-percent rule), or bartering a kosher food item or consuming a single item that FDOC officials deem to be non-kosher (the zero-tolerance rule).4 Doc. 29, Ex. F at 7-8; Doc. 67 at 122, 143-144, 150; Doc. 68 at 57-58, 99, 107. The policy made these removals mandatory – i.e., prison officials had no discretion to allow the prisoner to remain in the CFO and continue to receive kosher meals – and provided no prior opportunity for the prisoner to explain the circumstances. Doc. 29, Ex. F at 8; Doc. 67 at 155-156; Doc. 68 at 99-101.
At the district court’s first preliminary-injunction hearing in June 2013, the appellants’ witnesses described the implementation of the CFO in detail. The rollout for the CFO would begin at UCI on July 1, 2013, and would expand statewide to approximately 60 facilities by September or October 2013. Doc. 67 at 47-48, 116, 119-121; Doc. 68 at 70; Doc. 106 at 7. In place of the JDAP’s
3 The RDP’s kosher meal program is known as the certified food option (CFO). See Doc. 67 at 107-108.
4 In the original version of the RDP, the Compliance and Termination section was set forth in Procedure 503.006(7). See Doc. 29, Ex. F at 7-8. Following removal of the 90-day rule, this section became Procedure 503.006(6). See Doc. 162 at 1 n.1.

- 9 requirement that a separate kosher kitchen be constructed, the CFO would consist of shelf-stable, double-wrapped, prepackaged, certified kosher entrees, as well as kosher items from the FDOC’s normal food service operations. Doc. 67 at 48, 54, 111; Doc. 106 at 7. FDOC assistant secretary for institutions James Upchurch conceded that this process avoided the issues that had purportedly plagued the JDAP. Doc. 67 at 48-49, 53-54. FDOC operations manager Shane Phillips testified that the CFO would cost the FDOC approximately an extra $5.81 per prisoner each day, or $2100 per prisoner each year, while FDOC chaplaincy service administrator Alex Taylor testified that “[i]t wouldn’t be unreasonable” to expect that 500 inmates statewide out of 100,000 prisoners total would participate in the CFO. Doc. 67 at 114-115; Doc. 68 at 113. The FDOC’s annual budget is approximately $2.1 billion, about $50 million of which currently is allotted to food services. Doc. 68 at 3-4, 22.
Several of these witnesses also testified that the FDOC could provide a statewide kosher meal plan consistent with its interests. Upchurch acknowledged that it was “fair to say” that the FDOC had determined that it could “provide a statewide kosher diet plan consistent with its interests.” Doc. 67 at 52. He also conceded that the FDOC “has been able to successfully manage any issues relat[ing] to providing these special diets [such as vegan, medical, and therapeutic] to certain prisoners for at least a number of years.” Doc. 67 at 60. Taylor similarly

- 10 admitted that the FDOC had determined that it could “provide a kosher diet in every facility using certified prepackaged kosher meals” and could do so “even with the burden[s] on the chaplains that might entail.” Doc. 68 at 80. Phillips expressed his personal disagreement with the statement that the FDOC could “provide kosher meals consistent with its budgetary interests,” but testified that he was told by the FDOC’s executive leadership team that the FDOC “will make the necessary sacrifices to make sure this [CFO] program is implemented.” Doc. 67 at 153.
The appellants’ witnesses also testified as to the RDP provisions that the United States believes violate RLIUPA. Phillips acknowledged that the FDOC had not conducted any analysis as to whether removing a prisoner from the CFO for 30 days for a single act of consuming a non-kosher item would save the FDOC money, and that he did not know “off of the top of [his] head” how much money the zero-tolerance rule would save the FDOC. Doc. 67 at 144. Phillips also conceded that he was not aware of any savings the RDP’s current sincerity testing provision would generate. Doc. 67 at 148. With regard to the ten-percent rule, Upchurch testified that the purposes of this rule are (1) to save costs on meals that are prepared and discarded because they are not eaten, and (2) to gauge sincerity. Doc. 67 at 49-50. Phillips reiterated Upchurch’s concern about waste. Doc. 67 at 156-157. Phillips also testified that the ten-percent rule existed because it was

- 11 difficult to project the number of inmates who would miss kosher meals due to the small population of inmates participating in the CFO compared to the overall prison population and the fluctuations in the numbers of inmates interested in the CFO. Doc. 67 at 124, 146, 158. Phillips conceded, however, that the FDOC has successfully tracked inmate participation in the FDOC’s medical and therapeutic diets. Doc. 67 at 146-147. Neither Phillips nor Upchurch attempted to quantify the magnitude of this alleged waste or the amount of money the ten-percent rule would save the FDOC.
The United States offered evidence of how the Federal Bureau of Prisons (BOP) and other state correctional institutions implement kosher meal programs. The BOP instituted a kosher meal program at one facility in 1979 and introduced a pilot “common fare program” to accommodate the dietary requirements of several different faiths in 1983; the common fare program went nationwide in 1995. Doc. 67 at 82-83; Doc. 68 at 119-121. The participation rate in the BOP’s common fare program started off between 2% and 2.5% of the total prison population and decreased to 1.2% to 1.3% of the total prison population by 2000. Doc. 68 at 123. As of 2013, the BOP is administering a “[c]ertified [r]eligious [m]enu” for religious meals, in which 1.3% of the total prison population is participating. Doc. 56 at 9; Doc. 68 at 136, 141. The BOP offers this menu in all of its facilities, including the maximum security facilities and all federal facilities in Florida. Doc.

- 12 56 at 9; Doc. 68 at 134-135. At least 35 state departments of corrections, including the New York Department of Correctional Services, the California Department of Corrections and Rehabilitation, the Texas Department of Criminal Justice, and the Illinois Department of Corrections, also offer kosher meals to their inmates. Doc. 56 at 9.
The United States also presented evidence that the kosher meal programs of the BOP and other state correctional institutions do not contain the same RDP provisions that the United States finds problematic. Former BOP assistant director John Clark testified that the BOP does not have a sincerity test that examines knowledge of religious dogma for admission to the BOP’s religious meal program because “there’s no nexus between being able to articulate a knowledge and whether or not there’s a sincere religious belief.” Doc. 67 at 90. Eight of eleven state correctional institutions surveyed by the appellants reported using no sincerity testing at all for fear that such a test might violate RLUIPA; the New York state correctional institution provides a kosher diet to all prisoners who self-identify with a qualifying religion. Doc. 56 at 9; Doc. 68 at 101-104; Doc. 106 at 26. Former BOP regional food director Dennis Watkins testified that the BOP has never imposed sanctions on participants in the common fare kosher diet program who failed to eat a certain percentage of their meals, and that he has not encountered any facilities that had such a provision. Doc. 68 at 127, 139; see also

- 13 Doc. 68 at 107 (acknowledgement of Taylor that the BOP has no equivalent of the ten-percent rule). According to Watkins, the kitchen knew from past service roughly how many inmates would show up for each meal, and in the event the kitchen did not prepare enough meals, it “wasn’t a major issue” to pull an additional kosher meal from the freezer and reheat it in the microwave. Doc. 68 at 127. Moreover, the BOP’s policy is to provide prisoners with the opportunity to speak with the chaplain about alleged violations before they are removed or suspended from the kosher meal program. Federal Bureau of Prisons Program Statement, Religious Beliefs and Practices 19, http://www.bop.gov/policy/progstat/5360_009.pdf (BOP Program Statement).
The FDOC implemented the CFO at UCI beginning on July 1, 2013. Doc. 67 at 47, 119; Doc. 75 at 1. In August 2013, the appellants submitted to the district court an opposition to the United States’ preliminary-injunction motion purportedly showing a participation rate of 41% of UCI’s overall population in the CFO if all the pending applications were approved – a percentage that if extrapolated statewide would result in 41,000 participants statewide. Doc. 75 at 23. The FDOC filed a status report with the district court in October 2013 revisiting its plan to implement the RDP statewide beginning on September 1, 2013, due to the “overwhelming response” from UCI inmates, in favor of a “more gradual staging process” that would extend the program to six additional FDOC

- 14 institutions. Doc. 79 at 1-4. The FDOC delayed its target date for full statewide implementation of the RDP to mid-to-late 2014. Doc. 99 at 6.
The United States responded that the appellants’ status report made clear that an injunction was both appropriate and necessary. Doc. 88 at 1. First, the United States contended, an injunction was appropriate because the appellants’ voluntary decision to offer a kosher diet and admission that they could do so consistent with their interests vitiated any argument that they have a compelling interest in not providing a kosher diet. Doc. 88 at 1. Second, the United States asserted, an injunction was necessary to ensure that the appellants would keep the promise they made at the preliminary injunction hearing to provide a kosher meal statewide by September 2013, because the appellants had made several promises to provide a kosher diet in the past which they had not fulfilled. Doc. 88 at 2; see also Rich v. Secretary, Fla. Dep’t of Corr., 716 F.3d 525, 532 (11th Cir. 2013) (“There is nothing to suggest that Florida will not simply end the new kosher meal program at some point in the future, just as it did in 2007.”). The United States dismissed the alleged participation rate at UCI as probative of the appellants’ ability to implement the CFO, observing that this “anomalous” rate “is evidence that the Religious Diet Program is attractive to prisoners, but it is not evidence that implementing a kosher diet program is necessarily costly or that the FDOC has a compelling interest in denying kosher food to sincere prisoners.” Doc. 88 at 2.

- 15 The court held a second heading on the preliminary injunction motion on November 22, 2013. At the hearing, counsel for the appellants conceded that the participation rate was artificially inflated for reasons that had nothing to do with the accommodation of sincere religious belief, including its current food contract that provides inmates with the “Cadillac” version of the kosher meal. Doc. 105 at 42-45. 3. The Decision Below On December 6, 2013, the district court issued an order (the December 6 Order) granting the United States’ motion for a preliminary injunction. After reciting its factual findings and disposing of the appellants’ jurisdictional arguments, the district court held that the United States was entitled to preliminary relief. Doc. 106 at 17. Applying the first element of the four-factor preliminaryinjunction test, the district court found that the United States was likely to succeed on the merits of its RLUIPA claim. The district court first determined that the appellants’ blanket denial of a kosher diet and the four provisions of their RDP cited above (sincerity test focusing on specific religious laws, 90-day rule, tenpercent rule, and zero-tolerance rule) substantially burdened the religious exercise of Florida’s prisoners. Doc. 106 at 17-18. The district court then held that the appellants failed to carry their burden under RLUIPA to show that the challenged dietary policies were the least

- 16 restrictive means of furthering a compelling government interest. Doc. 106 at 18. The district court first determined that the appellants’ admission that they can provide a kosher diet consistent with the interests vitiated their argument that they have a compelling interest in not providing such a diet. Doc. 106 at 19-20 & n.6. The district court then added that the appellants failed to identify a compelling government interest furthered only by a blanket denial of kosher diets because the costs they identify “are not of a compelling magnitude.” Doc. 106 at 20. In this regard, the district court first observed that using the JDAP’s average enrollment figure of 250 prisoners per day, and the FDOC’s estimate that kosher meals would cost an extra $5.81 per prisoner each day, yields a total cost of providing kosher meals (above the cost of preparing regular meals) of approximately $530,000 per year. Doc. 106 at 20. The district court then determined that using FDOC chaplaincy service administrator Alex Taylor’s estimate that 500 prisoners may participate in the CFO results in a total cost of $1.06 million per year, or .0005 of the FDOC’s budget. Doc. 106 at 20. Finally, even assuming that the kosher meal program served four times as many inmates as the JDAP, the total cost of the program would be only $2.12 million, a small fraction of the FDOC’s budget. Doc. 106 at 20. The district court concluded that “[n]o compelling interest is furthered by avoiding such a relatively minor expense.” Doc. 106 at 20.

- 17 The district court also expressed doubt that the initial high participation rate at UCI the appellants cited would continue unabated. In this regard, the court noted that the appellants “admit[ted] that the high participation rate is not based on religious reasons.” Doc. 106 at 21. The court further observed that high participation rate has dropped off as the meal plan was implemented, and that RLUIPA does not require that a kosher meal plan be more attractive than the standard meal option. Doc. 106 at 21. Based on these observations, the court concluded that “the high participation rate will not be maintained as the RDP continues and the ‘bugs’ in the system * * * are worked out,” and that the appellants “have not shown that the high participation rate is representative of the long-term participation rate.” Doc. 106 at 21. Finally, the district court concluded that the ability of the Federal Bureau of Prisons and more than 30 state correctional facilities to offer a kosher diet option demonstrated that the FDOC could do the same “consistent with its penological interests.” Doc. 106 at 22-23. The district court then rejected the appellants’ asserted justifications for the four RDP provisions the United States challenged. First, the district court found that the appellants did not identify any compelling interest the 90-day rule furthered, and in fact, announced that they were removing this provision after briefing on the United States’ motion had concluded. Doc. 106 at 23-24. Second, the district court determined that precedent from other courts of appeals and the

- 18 experience of other correctional institutions repudiated the appellants’ religious dogma testing, which impermissibly “exclud[ed] prisoners from a kosher diet based on clergy interpretations of religious doctrine or on prisoners’ knowledge of religious laws and doctrine.” Doc. 106 at 24-26. Third, the district court concluded that precedent from other circuits also contradicted the RDP’s zerotolerance rule, and moreover, that the appellants failed to present any evidence of how much money this rule would save or to identify any other institution that imposed a similar restriction. Doc. 106 at 26-27. Finally, the district court determined that the appellants’ waste-avoidance rationale for the RDP’s tenpercent rule was impermissible “mere speculation” because they failed to provide any evidence of savings attributable to this provision, much less that this rule was the least restrictive means to avoid waste. Doc. 106 at 27-28.
The district court then concluded that the United States satisfied the three remaining preliminary-injunction factors. The district court first found that the RDP’s unlawful restrictions on FDOC inmates’ religious exercise constituted irreparable injury. Doc. 106 at 28-29. The district court then determined that the irreparable harm to prisoners outweighed any harm to the appellants, who conceded that providing a kosher diet is consistent with their interests and would not be harmed in any meaningful way by the enjoining of any of the challenged RDP provisions. Doc. 106 at 29-30. Finally, the district court concluded that “[a]n

- 19 injunction that vindicates religious freedoms protected by federal law is in the public interest.” Doc. 106 at 30-31. Accordingly, the district court ordered the appellants, no later than July 1, 2014, to provide a certified kosher diet to all prisoners with a sincere religious belief requiring them to eat a kosher diet. Doc. 106 at 31-32. The district court also preliminarily enjoined the appellants from implementing the four provisions of the RDP the district court determined violated RLUIPA. Doc. 106 at 32. 4. Post-Order Proceedings And Developments
After granting the United States’ preliminary-injunction motion, the district court held regular status conferences to monitor compliance with its grant of relief and to resolve any issues that arose. During status conferences in February and March 2014, the parties expressed disagreement on the correct interpretation of the district court’s preliminary injunction. In particular, the parties disagreed about the scope of the injunction as it relates to RDP suspensions and removals from the CFO. Doc. 148 at 1. The appellants argued that the injunction prevented them from implementing any suspension or removal provisions in the RDP, while the United States argued that the injunction merely enjoined “zero tolerance” suspensions and removals – i.e., automatic, mandatory suspensions from the CFO for bartering kosher food or consuming a non-kosher item with no opportunity for

- 20 -
a prisoner to discuss the violation with a chaplain before suspension. Doc. 148 at
1-2.
In response, the district court issued an order (March 24 Order) granting the
parties leave to file a statement of clarification. Doc. 147. On March 26, 2014, the
appellants filed a response to the March 24 Order asserting that the court lacked
jurisdiction to clarify its order, and moved for a partial stay of the provisions in
dispute pending this Court’s decision on this appeal. Doc. 149-150. On the same
date, the United States filed a motion to clarify memorializing its understanding of
the injunction. Doc. 148. On April 3, 2014, the district court issued an order (the
April 3 Order) granting the United States’ motion, clarifying that the injunction is
consistent with the United States’ understanding, and denying the appellants’
motion to stay the preliminary injunction.5 Doc. 162.
5 Even after the district court clarified the scope of the preliminary injunction, the appellants continued to assert that they cannot use basic screening and monitoring provisions (see, e.g., Doc. 246 at 2), thus increasing participation in the CFO. On May 1, 2014, the district court issued an order (Doc. 237) requiring the appellants to “file a proposed order which sets forth the options still available to the State and its authority to exercise those options to ensure that only those with sincere religious beliefs receive the benefits of the Religious Diet Program.” Following an exchange of pleadings (Doc. 246, 251-252), the parties reached substantial – but not complete – agreement concerning the steps the RDP permits the appellants to take to assess the sincerity of program applicants and to monitor participant compliance. See, e.g., Doc. 251 at 1 (“The United States interprets the Court’s Preliminary Injunction to permit the Defendants to implement nearly all of the proposed policy changes and encourages the
(continued…)

- 21 STATEMENT OF STANDARD OF REVIEW To prevail on a motion for a preliminary injunction, a movant must establish: “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction is issued; (3) the threatened injury to the moving party outweighs whatever damage the proposed injunction might cause the non-moving party; and (4) if issued, the injunction would not be adverse to the public interest.” Keeton v. Anderson-Wiley, 664 F.3d 865, 868 (11th Cir. 2011). A district court’s grant of a preliminary injunction is reviewed for abuse of discretion, its underlying legal conclusions are reviewed de novo, and its factual determinations are reviewed for clear error. See Lebron v. Secretary, Fla. Dep’t of Children & Families, 710 F.3d 1202, 1206 (11th Cir. 2013). “This scope of review will lead to reversal only if the district court applies an incorrect legal standard, or applies improper procedures, or relies on clearly erroneous factfinding, or if it reaches a conclusion that is clearly unreasonable or incorrect.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. 2005).
(…continued) Defendants to implement those that are consistent with the Court’s Injunction immediately.”).

- 22 SUMMARY OF ARGUMENT The district court acted well within its discretion in granting the United States’ motion for a preliminary injunction. The United States established the first factor of the preliminary injunction test – a substantial likelihood of success on the merits of its claim under Section 3 of RLUIPA. The district court found, and the appellants do not dispute, that the United States satisfied its burden of proving that the FDOC’s blanket ban on a kosher diet, and the disputed provisions of the RDP, “substantially burden[ed]” the religious exercise of FDOC inmates who have a sincere belief that their faith requires kosher meals. 42 U.S.C. 2000cc-1(a). After the United States satisfied its burden of proof under Section 3, the burden of proof shifted to the appellants to show that their policies not only further “a compelling governmental interest,” but do so by “the least restrictive means.” 42 U.S.C. 2000cc-1(a). The district court correctly held that the appellants could not show that the FDOC’s blanket denial of a kosher diet furthers compelling governmental interests, because of their concession that – consistent with their interests – they are capable of, and committed to, providing kosher meals statewide. The district court also reasonably determined that the projected costs of implementing a statewide kosher meal plan were not sufficiently high to make avoiding them a compelling governmental interest. Furthermore, the ability of comparably sized correctional institutions to offer a kosher diet, and the FDOC’s

- 23 failure to distinguish its operations from the operations of these institutions, demonstrate that the FDOC’s blanket denial of a kosher diet is not the least restrictive means to further the cost interest it asserts.
The appellants also failed to show that the disputed provisions of the RDP are the least restrictive means of advancing a compelling governmental interest. The appellants failed to present any evidence that the aspects of the sincerity test that tested a prisoner’s knowledge of religious dogma furthered the FDOC’s claimed interest in containing costs, and the experience of other correctional institutions indicates that this type of testing is not the least restrictive means to further this interest. The appellants also failed to present any evidence that the zero-tolerance rule furthered the interest in containing costs, and failed to present evidence that they could not implement less restrictive alternatives, such as the alternative employed by the BOP that makes removals discretionary and gives inmates the prior opportunity to explain the circumstances. Finally, the appellants failed to present any evidence of the costs the ten-percent rule would save, and failed to present evidence that they could not implement less restrictive alternatives, such as the BOP’s alternative of tracking average participation in the kosher meal program and adjusting the food order and its alternative of microwaving a kosher meal when needed.

- 24 The United States also satisfied the remaining factors for preliminary injunctive relief. Indeed, the appellants do not contend otherwise. Because RLUIPA enforces First Amendment freedoms, the FDOC’s blanket ban on kosher meals and its implementation of the RDP provisions that violate RLUIPA will inflict irreparable harm on FDOC inmates who wish to exercise their faith freely by keeping kosher. Balanced against this irreparable harm to inmates if an injunction does not issue is the ordinary cost of compliance with RLUIPA that the FDOC will sustain if the injunction is granted pending the end of this litigation. The public interest weighs heavily in favor of the district court’s preliminary injunction, as RLUIPA passed both houses of Congress unanimously as “the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens.” Cutter v. Wilkinson, 544 U.S. 709, 714, 125 S. Ct. 2113, 2117 (2005). Finally, contrary to the appellants’ contentions, the district court acted well within its discretion in preliminarily enjoining provisions of the RDP that it determined violated RLUIPA. The court’s preliminary enjoining of subsections (b) through (e) of the RDP’s section of its Specific Procedures titled Sincerity Assessment Process for the Certified Food Option was narrowly drawn to correct the RLUIPA violation, as it barred a detailed investigation into the inmate’s fidelity to his claimed faith and ability to specify the religious laws that formed the

- 25 basis of his diet needs, but allowed a chaplain to conduct an in-person assessment of an inmate’s sincerity. The court’s preliminary enjoining of subsection (c) of the RDP’s section of its Specific Procedures titled Compliance and Termination also was narrowly drawn, because the December 6 Order prohibited the automatic and mandatory (non-discretionary) removal of a CFO participant who missed ten percent of his CFO meals in one month. The court’s preliminary enjoining of subsections (e)(2) through (3) of the RDP’s Compliance and Termination section was narrowly drawn, because it forbade the automatic and mandatory suspension of a prisoner for a single act of bartering CFO food items or consuming non-kosher food without giving him the opportunity to explain the circumstances prior to removal, but permitted the FDOC to monitor participants, to suspend them for violating terms of the CFO, and to discipline them for bartering CFO food items.
ARGUMENT THE DISTRICT COURT ACTED WITHIN ITS DISCRETION IN
ORDERING PRELIMINARY INJUNCTIVE RELIEF All four factors for granting a preliminary injunction weigh strongly in the United States’ favor. First, the United States demonstrated a likelihood of success on the merits of its RLUIPA Section 3 claim. After the United States demonstrated that a blanket ban on kosher diets and the disputed provisions of the RDP substantially burdened the religious exercise of FDOC inmates who have a sincere

- 26 belief that their faith requires kosher meals, the appellants failed to carry their burden of showing that their policies furthered a compelling governmental interest by the least restrictive means. The United States also showed, and the appellants do not dispute, that religiously sincere inmates would suffer irreparable injury unless the injunction is issued; that this threatened injury outweighs whatever damage the proposed injunction might cause the appellants; and that the injunction would serve the public interest. The district court’s injunction was narrowly drawn to enjoin only conduct that violated RLUIPA. A. The United States Demonstrated A Substantial Likelihood Of Success On
The Merits Of Its RLUIPA Section 3 Claim The United States established the first factor of the preliminary injunction test – a substantial likelihood of success on the merits of its RLUIPA Section 3 claim. Section 3 prohibits state and local governments from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government shows that the burden furthers “a compelling governmental interest” and does so by “the least restrictive means.” 42 U.S.C. 2000cc-1(a). This Court has recognized that “section 3 affords confined persons ‘greater protection of religious exercise than what the Constitution itself affords.’” Smith v. Allen, 502 F.3d 1255, 1266 (11th Cir. 2007) (quoting Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006)), abrogated on other grounds by

- 27 Sossamon v. Texas, 131 S. Ct. 1651 (2011). The district court correctly concluded that the appellants did not satisfy their heightened burden of showing that a blanket ban on kosher meals and the disputed provisions of the RDP further a compelling governmental interest by the least restrictive means.
1. General Standards For Applying Section 3 Under Section 3 of RLUIPA, the United States bore the initial burden to show that the FDOC’s blanket ban on a kosher diet, and the disputed provisions of the RDP, substantially burdened the religious exercise of FDOC inmates who have a sincere belief that their faith requires kosher meals. See 42 U.S.C. 2000cc-2(b). The district court found (Doc. 106 at 17-18), and the appellants do not dispute, that the United States satisfied this burden. Accordingly, the burden of proof shifted to the appellants to show that their policies not only further a compelling governmental interest, but do so by the least restrictive means. See 42 U.S.C. 2000cc-2(b), 2000cc-5(2). RLUIPA’s legislative history establishes that the appellants cannot satisfy this burden with “policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations.” 146 Cong. Rec. 16,699 (2012) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (quoting S. Rep. No. 111, 103d Cong., 1st Sess. 10 (1993)). RLUIPA does not define “compelling governmental interest” or “least restrictive means,” but case law from the Supreme Court and this Court provides

- 28 -
guidance on the meaning of these terms.6 In the First Amendment context, the Supreme Court has defined a “compelling governmental interest” as an “interest[] of the highest order,” Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S. Ct. 1526, 1533 (1972), and an “overriding state interest,” McIntyre v. Ohio Elections Commission, 514 U.S. 334, 347, 115 S. Ct. 1511, 1519 (1995). This Court has recognized that “safety and cost can be compelling governmental interests” for purposes of Section 3, but a state prison must satisfy its burden of showing that the policy in question “in fact furthered these two interests.” Rich v. Secretary, Fla. Dep’t of Corr., 716 F.3d 525, 533 (11th Cir. 2013) (emphasis added); see, e.g., Yellowbear v. Lampert, 741 F.3d 48, 59 (10th Cir. 2014) (“[T]he deference this court must extend the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.”); Lovelace, 472 F.3d at 190 (prison defendants who asserted a “legitimate interest in removing inmates from religious dietary programs” for violations of prison rules without presenting any evidence of security or budget considerations that justify this policy failed to establish compelling governmental interests) (citation omitted). The
6 Several courts have observed that in RLUIPA, Congress sought to restore the compelling interest standard that the Supreme Court set forth in Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790 (1963), but later abandoned in Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990). See, e.g., World Outreach Conference Ctr. v. City of Chi., 591 F.3d 531, 534 (7th Cir. 2009); Pugh v. Goord, 571 F. Supp. 2d 477, 504 n.11 (S.D.N.Y. 2008).

- 29 prison fails to carry its burden where the evidence the prison submits in support of its position is insubstantial, the policy at issue singles out religious exercise for disfavored treatment, or the record as a whole raises doubt as to “whether cost control and security are furthered by” the policy. Rich, 716 F.3d at 533.
Supreme Court precedent in the First Amendment area also provides insight into the meaning of the phrase “least restrictive means.” This standard requires the defendant to “demonstrate that no alternative forms of regulation would [accomplish the governmental interest] without infringing First Amendment rights.” Sherbert v. Verner, 374 U.S. 398, 407, 83 S. Ct. 1790, 1796 (1963); see also Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666, 124 S. Ct. 2783, 2791 (2004) (least restrictive means test in free speech context requires court to compare challenged regulation to available, effective alternatives). In other words, “the imposition by the government on religious worship must be the minimal imposition to accomplish the government’s compelling ends.” United States v. Hardman, 297 F.3d 1116, 1145 (10th Cir. 2002) (Hartz, J., concurring).
It is well-established that “the policies followed at other well-run [correctional] institutions [are] relevant to a determination of the need for a particular type of restriction.” Procunier v. Martinez, 416 U.S. 396, 414 n.14, 94 S. Ct. 1800, 1812 n.14 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874 (1989). It follows that a prison’s claim that

- 30 a specific restriction on religious exercise is the least restrictive means of advancing compelling governmental interests is significantly undermined by evidence that many other prisons, with the same compelling interests, allow the practice at issue. See, e.g., Rich, 716 F.3d at 534 (“While the practices at other institutions are not controlling, they are relevant to an inquiry about whether a particular restriction is the least restrictive means by which to further a shared interest.”); Warsoldier v. Woodford, 418 F.3d 989, 1000 (9th Cir. 2005) (“[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 restrictive means.”).
The BOP’s treatment of a specific prison practice is particularly relevant in this analysis, as the BOP for many years “has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners.” Cutter v. Wilkinson, 544 U.S. 709, 725, 125 S. Ct. 2113, 2124 (2005) (quoting U.S. Br. at 24 (No. 03-9877)). Where the BOP accommodates a particular religious exercise, a state prison defendant that substantially burdens that same exercise is unlikely to satisfy RLUIPA’s strict-scrutiny inquiry “in the absence of any explanation by [the defendant] of significant differences between the [state prison] and a federal prison that would render the federal policy

- 31 unworkable.” Spratt v. Rhode Island Dep’t Of Corr., 482 F.3d 33, 42 (1st Cir. 2007); see also Warsoldier, 418 F.3d at 999 (enjoining prison’s hair-length policy where “[p]risons run by the federal government, Oregon, Colorado, and Nevada all meet the same penological goals without such a policy”).
2. The FDOC’s Blanket Ban On Kosher Meals Does Not Advance A Compelling Governmental Interest
An overarching theme of the appellants’ opening brief is that RLUIPA does not compel a state prison to provide kosher meals to religiously sincere inmates, but merely gives the prison the choice to adopt a religious diet program that the prison is free to disregard if and when competing fiscal priorities arise. See Br. 1920, 24, 28-29. In fact, RLUIPA’s text expressly requires all States that receive federal prison funds, including Florida, to comply with Section 3. See 42 U.S.C. 2000cc-1(b)(1). The district court correctly concluded that the appellants failed to carry their burden under this statutory provision of showing that the FDOC’s blanket ban on kosher meals is the least restrictive means of advancing a compelling governmental interest.
First, the district court correctly concluded that the appellants’ decision to offer a kosher diet statewide, and their admission that the FDOC can do so consistent with its interests, demonstrates that the FDOC has no compelling government interest in denying such a diet. See, e.g., Doc. 106 at 19 n.6 (quoting

- 32 James Upchurch’s testimony that “it’s fair to say that the Department of Corrections has now determined that it can provide a statewide kosher diet plan consistent with its interests”) (emphasis added). Since their adoption of the RDP, the appellants have consistently maintained that they are committed to providing a kosher diet statewide. The RDP itself states that it will be implemented statewide. Doc. 29, Ex. F at 2. At the preliminary-injunction hearing and in subsequent status reports, the FDOC reiterated that it would implement the CFO statewide after implementing the CFO at UCI. Doc. 67 at 47-48, 116, 120-121; Doc. 99 at 6. The FDOC cannot state that it is committed to, and capable of, providing kosher meals statewide, consistent with its interests, and simultaneously argue that it has a compelling interest in not providing such meals.
As the district court noted, numerous courts have upheld the unexceptional proposition that a government cannot argue that it has a compelling interest in prohibiting something it already permits. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-547, 113 S. Ct. 2217, 2233-2234 (1993) (city failed to establish compelling interest in preventing the slaughter of animals in one context while allowing it in another). In the RLUIPA context, several federal courts of appeals have similarly recognized that a prison lacks a compelling interest in banning an activity that it expressly allows. In Moussazadeh v. Texas Department of Criminal Justice, 703 F.3d 781 (5th Cir. 2012), for

- 33 example, the Fifth Circuit held that a prison’s argument that it had a compelling governmental interest in minimizing costs by denying a kosher meal to an inmate “is dampened by the fact that it has been offering kosher meals to prisoners for more than two years.” Id. at 794. In Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008), the Seventh Circuit similarly held that a prison lacked a compelling governmental interest in denying a non-meat diet to an inmate where “the prison already served two diets that would have satisfied his request.” Id. at 800; see also Spratt, 482 F.3d at 40 (prison lacked compelling governmental interest in banning inmate preaching where the prison previously allowed such preaching); cf. Washington v. Klem, 497 F.3d 272, 285 (3d Cir. 2007) (restriction on the number of religious books a prisoner could possess failed strict scrutiny where other facilities in state prison system did not impose same restriction); Warsoldier, 418 F.3d at 1001 (hair-length restriction applied only to male inmates failed strict scrutiny). Similarly, the appellants’ voluntary decision to provide a kosher diet, along with their concession that they are capable of doing so statewide consistent with their interests, vitiates any argument that they have a compelling interest in not providing a kosher diet.
Second, the district court correctly concluded that the United States is likely to succeed on the merits of its RLUIPA claim because the appellants failed to show a compelling interest that is furthered by a blanket denial of kosher meals.

- 34 -
RLUIPA provides that a government may need “to incur expenses in its own operations to avoid imposing a substantial burden.” 42 U.S.C. 2000cc-3(c); cf. Cutter, 544 U.S. at 726, 125 S. Ct. at 2125 (“Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition.”). Based on the evidence presented, the district court correctly found that the projected costs of providing kosher meals statewide “are not of a compelling magnitude” under RLUIPA. Doc. 106 at 20. The district court accepted the appellants’ own estimate that long term participation in the kosher diet program would average around 500 prisoners per day, requiring a marginal expenditure of only $1.06 million, or .0005 of the FDOC’s annual budget. 7 Doc. 106 at 20. The court further reasoned that even assuming that 1000 FDOC inmates – four times the number of inmates that participated in the JDAP – requested and were qualified to consume kosher meals, the additional cost of providing kosher meals would amount to $2.12 million per year, or .001 of the FDOC’s annual budget. Doc. 106 at 20. Other federal courts
7 The district court noted that the FDOC had experienced an initial surge in applications while implementing the kosher diet program at one facility, but correctly concluded that “the high participation rate will not be maintained” because the FDOC “admit[ted] that the high participation rate is not based on religious reasons.” Doc. 106 at 21.

- 35 -
of appeals have suggested that avoiding expenses for kosher meals that constitute a small percentage of a prison’s costs is not a compelling governmental interest.8
Cf. Moussazadeh, 703 F.3d at 795 (expressing skepticism that “saving less than
.05% of the food budget constitutes a compelling interest”); Beerheide v. Suthers,
286 F.3d 1179, 1191 (10th Cir. 2002) (avoiding expense of free kosher meals that
amount to .158% of the food budget was not rationally related to penological goal
of controlling costs and prisoner abuse of program).
The appellants’ arguments on appeal do not undermine the district court’s
determination. First, they contend (Br. 31-32) that the district court failed to
reconcile an asserted “tension” between RLUIPA’s statement that the government
may need to incur expenses to avoid imposing a substantial burden and RLUIPA’s
legislative history, which requires courts to apply the Section 3 standard consistent
with consideration of costs and limited resources. In support of this assertion, the
appellants contend (Br. 25-27) that this Court has “repeatedly concluded,” in light
8 The appellants argue that, because some unforeseen future fiscal crisis may arise, Congress could not have intended to require States to accommodate religious exercise if accommodation would impose any cost on the State. See Br. 28-29. Congress was surely aware, however, that if changed circumstances occur, a court may modify its injunction. See Fed. R. Civ. P. 60(b). If such a fiscal crisis occurs that somehow differentiates the appellants from the BOP and the many States that have successfully implemented a kosher diet for years, the appellants are free to return to the district court and request that the court modify its December 6 Order accordingly.

- 36 of RLUIPA’s legislative history, that controlling costs is a compelling governmental interest that justifies a refusal to provide a religious diet.
This argument fails for several reasons. Because RLUIPA’s provision stating that the government may need to incur expenses to avoid imposing a substantial burden on religious exercise is clear, there is no need for this Court to resolve any “tension” with RLUIPA’s legislative history. See, e.g., Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000) (“When the import of the words Congress has used is clear, as it is here, we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.”), cert. denied, 532 U.S. 1065, 121 S. Ct. 2214 (2001); Allapattah Servs., Inc. v. Exxon Corp., 362 F.3d 739, 750 (11th Cir. 2004) (Tjoflat, J., dissenting from denial of rehearing en banc) (“When the plain language and the legislative history of a statute conflict, the plain language should control unless its application would lead to absurd results.”) (citations and internal quotation marks omitted). In any event, controlling costs cannot be a compelling governmental interest where, as here, the State has voluntarily committed to spend the funds and asserts it can do so without jeopardizing its penological interests. See pp. 31-33, supra.
Appellants are incorrect (Br. 32-35) that the district court erred in concluding that the projected costs of the kosher diet were not of a compelling magnitude because they constituted a small percentage of the FDOC’s total annual

- 37 budget. The appellants contend that the circuit court cases the district court cited are inapplicable because they compared the costs of the diet to the agency’s food budget rather than total budget. But these cases in fact support the district court’s decision, because they stand for the proposition that avoiding costs for kosher meals that constitute only a miniscule percentage of a prison system’s expenses do not constitute a compelling governmental interest for purposes of RLUIPA.
The appellants also err in contending that Congress intended for the courts to examine the gross number of dollars to be expended to determine whether costs are sufficiently high to consider avoiding them a compelling governmental interest. The appellants, however, provide no legal support for their view on congressional intent. Indeed, using a gross dollar amount instead of a percentage of the total agency budget ignores the reality that some state correctional institutions are more capable of absorbing costs than others due to the size of their budget, and thus what may constitute a significant figure for one institution will be a minor figure for another. The district court therefore correctly held that the projected costs of providing a kosher diet statewide, when viewed in light of the FDOC’s annual budget, were insufficient to make avoiding such costs a compelling governmental interest.

- 38 3. The FDOC’s Blanket Ban On Kosher Meals Is Not The Least
Restrictive Means Of Advancing A Compelling Governmental Interest The appellants also failed to carry their burden of proof on the least restrictive means factor. As the district court recognized, the BOP, state prisons in California, New York, Texas, and Illinois, and state prisons in at least 31 other states offer a kosher meal option to prisoners with a sincere religious basis for requesting one. Doc. 56 at 9; Doc. 106 at 22. The appellants do not even attempt in their opening brief to identify any meaningful distinction between the FDOC’s operation and the operation of these institutions that justifies the FDOC’s denial of a kosher diet. This omission strongly suggests that the FDOC’s blanket denial of a kosher diet is not the least restrictive means to further the cost interest it asserts. See, e.g., Rich, 716 F.3d at 534; Spratt, 482 F.3d at 42; Warsoldier, 418 F.3d at 999-1000. Indeed, in Rich, this Court reversed a grant of summary judgment to the Secretary and other FDOC officials in another Section 3 case brought by a prisoner seeking a kosher diet, “in light of the Defendants’ meager efforts to explain why Florida’s prisons are so different from the penal institutions that now provide kosher meals such that the plans adopted by those other institutions would not work in Florida.” Rich, 716 F.3d at 534. Florida’s own history of providing special diets to its inmates buttresses this conclusion. The FDOC has long offered vegan, therapeutic, and medical meal

- 39 plans, which cost more than the mainline meal plan, despite budget shortfalls. Upchurch admitted that the FDOC “has been able to successfully manage any issues relat[ing] to providing these special diets to certain prisoners for at least a number of years.” Doc. 67 at 60. This ability to offer alternative meals further suggests that there are less restrictive alternatives to further the FDOC’s interest in cost savings than a blanket denial of kosher meals. See Rich, 716 F.3d at 534.
The appellants’ lone challenge (Br. 27-28) to the district court’s finding on this issue is their assertion that “this court has rejected reliance on what other institutions choose to do,” accompanied by a citation to this Court’s decision in Knight v. Thompson, 723 F.3d 1275, 1286-1287 (11th Cir. 2013), petition for cert. pending, No. 13-955 (filed Feb. 6, 2014). Knight is readily distinguishable from this case. Knight held that “[w]hile the practices of other institutions are relevant to the RLUIPA analysis, they are not controlling,” and concluded that the defendant state prison justified its ban on long hair for male inmates by “show[ing] that no efficacious less restrictive measures exist,” based in large measure on a “detailed” record of actual security incidents caused by male prisoners wearing long hair. 723 F.3d at 1284, 1286. In this case, by contrast, there is no evidence of security concerns related to providing kosher meals, and Upchurch conceded that the new process of providing kosher meals would avoid the security issues that had purportedly plagued the JDAP. Doc. 67 at 48-49, 53-54. To the extent that Knight

- 40 -
has any relevance to this case, it is to underscore that the appellants failed to demonstrate that its blanket denial of kosher meals is the least restrictive means of advancing a compelling government interest.
4. The Disputed Provisions Of The Religious Diet Program Are Not The Least Restrictive Means Of Advancing A Compelling Governmental Interest
The district court also correctly concluded that the appellants failed to carry their burden under RLUIPA of showing that the disputed provisions of the RDP are the least restrictive means of advancing a compelling governmental interest. To implement its findings, the court issued a narrow preliminary injunction that enjoined provisions of the RDP only to the extent that those provisions violated RLUIPA. The appellants’ challenges to the district court’s rulings on these matters are without merit.
First, the district court correctly determined that the appellants failed to show that the aspects of the RDP’s sincerity test that test a prisoner’s knowledge of religious dogma are the least restrictive means of advancing a compelling governmental interest. To implement this determination, the court barred a detailed investigation into the inmate’s fidelity to his claimed faith and ability to specify the religious laws that formed the basis of his diet needs, but allowed a chaplain to conduct an in-person assessment of an inmate’s sincerity. Doc. 99-8 at 4-5; Doc. 106 at 32. The appellants failed to offer any evidence that the aspects of

- 41 the FDOC’s sincerity assessment that focus on knowledge and dogma further a compelling interest in controlling costs; indeed, FDOC operations manager Shane Phillips admitted that he is not aware of any savings the RDP’s current sincerity testing provision would generate. Doc. 67 at 148. Because the claim of cost savings is speculative, the appellants failed to carry their burden on the compelling governmental interest factor. See Rich, 716 F.3d at 533.
The appellants also failed to satisfy their burden of showing that the religious dogma testing is the least restrictive means of furthering their alleged interest in containing costs. The evidence adduced at the hearing indicated that many correctional institutions, including the BOP and the New York Department of Correctional Services, provide kosher meals without engaging in a detailed inquiry into an inmate’s fidelity to religious orthodoxy. Doc. 56 at 9; Doc. 67 at 90, 101-104; Doc. 106 at 26. The appellants failed to distinguish the FDOC’s operation from the operations of these institutions, and thus failed to carry their burden on the least restrictive means factor. See, e.g., Rich, 716 F.3d at 534; Spratt, 482 F.3d at 42; Warsoldier, 418 F.3d at 999-1000.
Next, the district court correctly determined that the appellants failed to show that the RDP’s zero-tolerance rule is the least restrictive means of advancing a compelling governmental interest. To implement this determination, the court forbade the automatic and mandatory suspension of a prisoner for a single act of

- 42 bartering CFO food items or consuming non-kosher food without giving him the opportunity to explain the circumstances prior to removal and without any discretion for chaplains or prison officials. Doc. 99-8 at 6-7; Doc. 106 at 32. As with the religious dogma testing, the appellants failed to offer any evidence that the zero-tolerance rule furthered their claimed interest in costs. Again, Phillips acknowledged that the FDOC had not conducted any analysis as to whether a rule requiring that prison officials remove a prisoner from the CFO for 30 days for a single act of consuming a non-kosher item without an opportunity to meet with a chaplain first would save the FDOC money, and that he did not know how much money the zero-tolerance rule would save the FDOC. Doc. 67 at 144. This omission renders the appellants’ claim of a compelling governmental interest in controlling costs speculative. See Rich, 716 F.3d at 533.
The appellants also failed to satisfy their burden of showing that the zerotolerance rule is the least restrictive means of furthering their alleged interest in containing costs. The appellants allude (Br. 44-45) to the BOP’s allegedly similar zero-tolerance policy, but the BOP’s policy is different in critical respects: it makes the removal of inmates from the kosher meal program discretionary and removal only occurs after the prisoner has an opportunity to explain the circumstances. See pp. 55-56, infra. The opportunity for consultation prior to removal is paramount, because under RLUIPA “few lapses in perfect adherence do

- 43 not negate [a prisoner’s] overarching display of sincerity.” Moussazadeh, 703 F.3d at 792. The appellants produced no evidence before the district court that a policy similar to the BOP’s would not work for the FDOC. Without producing any evidence to support their zero-tolerance rule, the appellants cannot demonstrate that it is the least restrictive means of advancing their claimed interest in controlling costs. See Rich, 716 F.3d at 534; see also Warsoldier, 418 F.3d at 999; Washington, 497 F.3d at 284; Murphy v. Missouri Dep’t of Corr., 372 F.3d 979, 988 (8th Cir.), cert. denied, 543 U.S. 991, 125 S. Ct. 501 (2004).
Finally, the district court correctly determined that the appellants failed to show that the RDP’s ten-percent rule advances a compelling governmental interest. To implement this determination, the court prohibited the automatic and mandatory removal of a CFO participant who missed ten percent of his CFO meals in one month. Doc. 99-8 at 6; Doc. 106 at 32. To support their argument that the tenpercent rule furthers their compelling interest in containing costs, the appellants offered the testimony of Phillips and FDOC assistant secretary for institutions James Upchurch that the ten-percent rule saves costs on meals that are prepared and discarded if not eaten. Doc. 67 at 49-50, 157. Because neither Phillips nor Upchurch attempted to quantify the magnitude of this waste or the amount of money the ten-percent rule would save the FDOC, this testimony is speculative and

- 44 does not satisfy the appellants’ burden on the compelling governmental interest factor. See Rich, 716 F.3d at 533.
The appellants also failed to satisfy their burden of showing that the tenpercent rule is the least restrictive means of furthering their ostensible interest in avoiding costs. Former BOP regional food director Dennis Watkins testified that the officials who operated BOP’s prison kitchens knew from past service roughly how many inmates would show up for each meal, and in the event the kitchens did not prepare enough meals, it “wasn’t a major issue” to pull an additional kosher meal from the freezer and reheat it in the microwave. Doc. 68 at 127. Phillips, FDOC’s operations manager, testified that it would be difficult to project the number of inmates who would consume kosher meals, but conceded that the FDOC has successfully tracked inmate participation in the FDOC’s medical and therapeutic diets. Doc. 67 at 124, 146-147, 158. In light of the existence of the BOP’s less restrictive alternative, and the appellants’ concession that they have used this alternative in the past for other dietary options, the appellants failed to demonstrate that the ten-percent rule is the least restrictive alternative for their claimed interest in controlling costs. See Rich, 716 F.3d at 534; see also Warsoldier, 418 F.3d at 999; Washington, 497 F.3d at 284; Murphy, 372 F.3d at 988.

- 45 B. The United States Satisfied The Remaining Factors For Preliminary
Injunctive Relief In This Case The remaining factors a court must consider in deciding whether to grant preliminary injunctive relief essentially involve a balancing of the relevant benefits and harms of a preliminary injunction to the affected parties and to the public: whether irreparable injury will be suffered unless the injunction is issued; whether the threatened injury to the moving party outweighs whatever damage the proposed injunction might cause the non-moving party; and whether the injunction would serve the public interest. The United States easily satisfied the factors, and indeed, the appellants do not challenge in their opening brief the district court’s legal analysis or factual determinations on these factors. It is clear that FDOC inmates who have a sincere belief that their faith requires them to keep kosher will sustain irreparable injury if an injunction does not issue. “RLUIPA enforces First Amendment freedoms,” and the FDOC’s blanket ban on kosher meals and its implementation of the RDP provisions that violate RLUIPA will inflict irreparable harm on many FDOC inmates who wish to exercise their faith freely by keeping kosher. Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) (finding irreparable harm when RLUIPA is violated); see also Warsoldier, 418 F.3d at 1001-1002 (observing that a prisoner’s “colorable” RLUIPA claim “sufficiently established that he will suffer

- 46 an irreparable injury absent an injunction”). Moreover, because irreparable injury occurs where First Amendment freedoms are deprived “for even minimal periods of time,” Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976), the availability of a post-suspension grievance procedure in the RDP (see Br. 50; Doc. 67 at 155-156) does not mitigate the harm imposed by the zero-tolerance rule’s removal of inmates for a single violation.
Balanced against the substantial threatened harm to religiously sincere FDOC inmates if a preliminary injunction is denied is the minimal harm to the appellants that will result if the injunction is granted pending the end of this litigation. The December 6 Order merely enjoined the FDOC from implementing provisions of the RDP that the court determined violated RLUIPA, leaving the FDOC with significant discretion to manage the RDP to ensure the religious sincerity of those prisoners asking for kosher meals. See Doc. 106 at 32; Doc. 162; cf. Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 115 (2d Cir. 2005) (“[O]rdinary compliance costs [with a statute] are typically insufficient to constitute irreparable harm.”); American Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (7th Cir. 1980) (“[I]njury resulting from attempted compliance with government regulation ordinarily is not irreparable harm.”); A.O. Smith Corp. v. FTC, 530 F.2d 515, 527-528 (3d Cir. 1976) (“Any time a corporation complies with a government regulation that requires corporation action, it spends money and

- 47 loses profits; yet it could hardly be contended that proof of such an injury, alone, would satisfy the requisite for a preliminary injunction.”).
Finally, the public interest weighs heavily in favor of a preliminary injunction. Enforcement of federal statutes is in the public interest. See United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012) (“Frustration of federal statutes and prerogatives are not in the public interest.”), cert. denied, 133 S. Ct. 2022 (2013). This principle is particularly applicable in the case of RLUIPA, which passed both houses of Congress unanimously as “the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens.” Cutter, 544 U.S. at 714, 125 S. Ct. at 2117. To that end, RLUIPA provides that it “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by [the statute] and the Constitution.” 42 U.S.C. 2000cc-3(g). Because the December 6 Order interprets RLUIPA to protect broadly the religious exercise of FDOC inmates with a sincere religious belief in keeping kosher, preliminary injunctive relief prohibiting implementation of the blanket ban on kosher meals and the RDP’s religious dogma testing, ten-percent rule, and zero-tolerance rule best serves the public interest.

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C. The District Court Acted Within Its Discretion In Preliminarily Enjoining Provisions Of The Religious Diet Program That It Determined Violated RLUIPA This Court should also reject the appellants’ challenges to the terms of the
preliminary injunction (Br. 39-54). A district court possesses wide discretion to craft injunctive relief to address ongoing or potential harm. See, e.g., Thomas v. Bryant, 614 F.3d 1288, 1317-1318 (11th Cir. 2010); LaMarca v. Turner, 995 F.2d 1526, 1543 (11th Cir. 1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1189 (1994). This authority is not without limits, however. The Prison Litigation Reform Act of 1995 (PLRA) provides that “[i]n any civil action with respect to prison conditions, * * * [p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.”9 18 U.S.C. 3626(a)(2); see also Cumulus Media, Inc. v. Clear Channel Comm’n, Inc., 304 F.3d 1167, 1178 (11th Cir. 2002) (“[A] preliminary injunction must be ‘narrowly tailored to fit specific legal violations, because the district court should not impose unnecessary burdens on lawful activity.’”) (quoting Starter Corp. v. Converse, Inc., 170 F.3d 286, 299 (2d Cir. 1999)).
9 RLUIPA itself anticipates that the PLRA applies to RLUIPA claims. See 42 U.S.C. 2000cc-2(e) (“Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).”).

- 49 Applying this standard makes clear that the district court acted well within its wide discretion in preliminarily enjoining the provisions of the RDP that it determined violated RLUIPA. The district court considered extensive evidence on each of the provisions of the RDP that it enjoined and made express findings supporting its injunction. The relief it granted in the December 6 Order was narrowly drawn, extended no further than necessary to correct the harm, and was the least intrusive means of doing so. Indeed, the court’s April 3 Order clarifying its preliminary injunction makes clear that the relief the court granted was narrowly drawn. 1. The District Court Properly Enjoined The FDOC’s Implementation Of
The Religious Diet Program’s Religious Dogma Testing The district court properly enjoined the FDOC’s implementation of the aspects of the RDP’s sincerity test that examined a prisoner’s knowledge of religious dogma, which is a threshold barrier an inmate must pass before being admitted to the RDP. The court correctly found that this test violates RLUIPA by conditioning enrollment in the RDP on a potential participant’s knowledge of religious orthodoxy. See Doc. 106 at 24-26. Based on this finding, the district court preliminarily enjoined subsections (b) through (e) of the RDP’s section of its Specific Procedures titled Sincerity Assessment Process for the Certified Food Option. See Doc. 99-8 at 4-5; Doc. 106 at 32. This relief was “narrowly drawn”

- 50 and “extend[ed] no further than necessary to correct” the violation, 18 U.S.C. 3626(a)(2), as it barred a detailed investigation into the inmate’s fidelity to his claimed faith and ability to specify the religious laws that formed the basis of his diet needs, but allowed a chaplain to conduct an in-person assessment of an inmate’s sincerity. See, e.g., Moussazadeh, 703 F.3d at 792 (observing that the sincerity test is limited to a credibility determination because “[t]o examine religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread”); Koger, 523 F.3d at 799 (“[C]lergy opinion has generally been deemed insufficient to override a prisoner’s sincerely held religious belief.”).
The appellants challenge (Br. 50-54) the district court’s preliminary enjoining of the religious dogma testing on the ground that this Court’s decision in Martinelli v. Dugger, 817 F.2d 1499 (11th Cir. 1987), cert. denied, 484 U.S. 1012, 108 S. Ct. 714 (1988), requires an inmate who challenges a prison policy as burdening his religious exercise to show a sincere belief that is rooted in religion, not just a sincere belief. This point is correct, but hardly persuasive. RLUIPA allows prison officials to “question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic.” Cutter, 544 U.S. at 725 n.13, 125 S. Ct. at 2124 n.13. Nowhere in RLUIPA or in Martinelli, however, is there any indication that prison officials may go beyond this inquiry to test an inmate’s

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religious orthodoxy and exclude inmates who do not know religious laws or are unable to cite a specific law to support their request for a kosher diet.
2. The District Court Properly Enjoined The FDOC’s Implementation Of The Religious Diet Program’s Ten-Percent Rule And Zero-Tolerance Rule
The district court also properly enjoined the FDOC’s implementation of the RDP’s ten-percent rule and zero-tolerance rule. The court correctly determined that ten-percent rule violates RLUIPA by removing a prisoner from the CFO for consuming less than 90 percent of available meals even if every meal he consumes is kosher. See Doc. 106 at 27-28. Based on this determination, the district court preliminary enjoined subsection (c) of the RDP’s section of its Special Procedures titled Compliance and Termination. See Doc. 99-8 at 6; Doc. 106 at 32. This relief was “narrowly drawn” and “extend[ed] no further than necessary to correct” the violation, 18 U.S.C. 3626(a)(2), because it prohibited the automatic and mandatory removal of a CFO participant who missed ten percent of his CFO meals in one month.
The court also correctly determined that the zero-tolerance rule violates RLUIPA by removing a prisoner from the CFO for a single act of consuming a non-kosher item without giving the prisoner the opportunity to explain how this item fits within his religious beliefs prior to removal from the program. See Doc. 106 at 26-27. Based on this determination, which applies to both compliance with

- 52 the RDP and bartering, the district court preliminarily enjoined subsections (e)(2) through (3) of the RDP’s Compliance and Termination section. See Doc. 99-8 at 6-7; Doc. 106 at 32. This relief was “narrowly drawn” and “extend[ed] no further than necessary to correct” the violation, 18 U.S.C. 3626(a)(2), because it forbade the automatic and mandatory suspension of a prisoner for a single act of bartering CFO food items or consuming non-kosher food without giving him the opportunity to explain the circumstances prior to removal, but permitted the FDOC to monitor participants, to suspend them for violating terms of the CFO, and to discipline them for bartering CFO food items. See, e.g., Moussazadeh, 703 F.3d at 791-792 (observing that purchase of non-kosher foods alone does not establish insincerity because “sincerity does not require perfect adherence to beliefs expressed by the inmate, and even the most sincere practitioner may stray from time to time”); Grayson v. Schuler, 666 F.3d 450, 454 (7th Cir. 2012) (“[A] sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?”).

- 53 The appellants pose several challenges to the district court’s grant of injunctive relief on the zero-tolerance rule, none of which is persuasive.10 The appellants argue (Br. 41-42) that the district court’s preliminary injunction of subsection (e)(2), which authorized the automatic and mandatory removal from the CFO of prisoners who barter CFO food items, is defective because the court failed to make the findings concerning bartering required by Federal Rule of Civil Procedure 65(d)(1) and the PLRA. Rule 65(d)(1) requires that a district court order granting an injunction “state the reasons why it issued; state its terms specifically; and describe in reasonable detail -- and not by referring to the complaint or other document -- the act or acts restrained or required.” Fed R. Civ. P. 65(d). The purpose of this specificity requirement is “to protect those who are enjoined ‘by informing them of what they are called upon to do or to refrain from doing in order to comply with the injunction or restraining order.’” Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531 (11th Cir.) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2955 (2d ed. 1995)), cert. denied, 519 U.S. 993, 117 S. Ct. 482 (1996). The district court’s findings as to zero tolerance apply to both the monitoring and bartering subsections of the RDP, because the problem the court was trying to address is the same for 10 The appellants do not challenge in their opening brief the district court’s grant of preliminary injunctive relief on the ten-percent rule.

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both. The district court’s December 6 Order, along with the April 3 Order, made clear to the appellants that the FDOC could not mandate removal of an inmate from the CFO for any bartering with no opportunity for the inmate to discuss the violation with a chaplain before suspension. See Garrido v. Dudek, 731 F.3d 1152, 1159 (11th Cir. 2013); Combs v. Ryan’s Coal Co., 785 F.2d 970, 978 (11th Cir.), cert. denied, 479 U.S. 853, 107 S. Ct. 187 (1986).
The appellants also contend (Br. 41-42) that the district court’s preliminary injunction of subsection (e)(2) is overbroad because it exempts kosher food from the FDOC’s general disciplinary measures that punish inmate bartering.11 This argument is based on a misunderstanding of the injunction. Although the language on the final page of the December 6 Order is general, when read in the context of the complete decision, the most logical interpretation of the injunction is that it enjoins only the automatic and mandatory removal of a prisoner from the CFO for bartering. Indeed, in its motion to clarify, the United States asserted that it “does not read the Injunction to prohibit all discipline for bartering of RDP food,” but rather “understands the Injunction to prohibit a ‘zero tolerance’ standard that
11 The appellants also argue (Br. 40-41) that there is no case or controversy as to subsection (e)(2) because the United States did not attack this provision in the district court. This argument is without merit, because it is based on a false premise. In two separate Proposed Findings of Facts and Conclusions of Law, filed with the district court on May 24, 2013, and July 5, 2013, the United States requested that the court enjoin subsection (e)(2). Doc. 56 at 27; Doc. 71 at 30.

- 55 results in automatic removal of the prisoner from the RDP program for bartering, because bartering is not per se evidence of insincerity.” Doc. 148 at 2. The April 3 Order granted the United States’ motion to clarify (Doc. 162), indicating that the district court agreed that its injunction did not prohibit the FDOC from enforcing its general disciplinary measures that punish inmate bartering against CFO participants who barter kosher food.
The appellants also dispute (Br. 42-50) the district court’s preliminary enjoining of subsection (e)(3), which authorized the automatic and mandatory suspension from the RDP of inmates who consume non-kosher food items. This argument also is based on a misreading of the district court’s grant of relief and a misunderstanding of the court’s use of the term “zero tolerance.” Far from preventing the FDOC from weeding out insincere inmates from the RDP or “from imposing any remedial action for inmates’ disobedience of the diet policy” (Br. 4750), the December 6 Order, as clarified by the April 3 Order, plainly allows the FDOC to monitor participants and suspend them for violating the terms of the CFO. As noted above, the district court merely enjoined the RDP’s automatic, mandatory suspension of an inmate found to violate the CFO without giving him the opportunity to explain the circumstances prior to removal.
The sources of law the appellants cite (Br. 44-46) in support of their argument make clear their confusion on this issue. First, a BOP regulation and

- 56 internal policy that the appellants describe (Br. 44) as “‘zero tolerance’ policies” expressly make discretionary, through their use of the term “may,” the removal of inmates who violate the terms of their religious diet. See 28 C.F.R. 548.20(b); BOP Program Statement 19, http://www.bop.gov/policy/progstat/5360_009.pdf. Importantly, the BOP’s policy is to provide prisoners with the opportunity to speak with the chaplain about alleged violations before they are removed or suspended from the kosher meal program. See ibid. Second, the appellants fail to show that the decisions they cite (Br. 44-46) as upholding a state prison’s removal of an inmate from a religious diet program for non-compliance condone an automatic and mandatory suspension without the prior opportunity to explain the circumstances. Indeed, none of these cases address whether a prisoner should be afforded an opportunity to explain before being suspended from a diet program. These cases thus do not undermine the district court’s exercise of discretion on this issue.

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CONCLUSION
This Court should affirm the district court’s order granting the United States’
motion for a preliminary injunction.
Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General
s/ Christopher C. Wang DENNIS J. DIMSEY MARK L. GROSS CHRISTOPHER C. WANG Attorneys
Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 514-9115 Chris.Wang@usdoj.gov

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Federal Rules of Appellate Procedure 32(a)(7)(B), because: This brief contains 13,252 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Federal Rules of Appellate Procedure 32(a)(5), and the type style requirements of Federal Rules of Appellate Procedure 32(a)(6), because: This brief has been prepared in a proportionally spaced typeface using Word 2007 in 14-point Times New Roman font.

Date: May 21, 2014

s/ Christopher C. Wang CHRISTOPHER C. WANG Attorney

CERTIFICATE OF SERVICE I hereby certify that on May 21, 2014, I electronically filed the foregoing BRIEF FOR THE UNITED STATES AS APPELLEE with the United States Court of Appeals for the Eleventh Circuit by using the CM/ECF system, and that seven paper copies identical to the electronically filed brief were sent to the Clerk of the Court by certified First Class mail, postage prepaid. I further certify that all counsel of record are CM/ECF registered and will be served by the appellate CM/ECF system.
s/ Christopher C. Wang CHRISTOPHER C. WANG Attorney

 </s> Case: 15-14117 Date Filed: 07/14/2016 Page: 1 of 15
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ No. 15-14117 ________________________
D.C. Docket No. 1:12-cv-22958-PAS
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, FLORIDA DEPARTMENT OF CORRECTIONS
Defendants-Appellants.
________________________ Appeal from the United States District Court
for the Southern District of Florida _______________________ (July 14, 2016)
Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and STORY,* District Judge. WILLIAM PRYOR, Circuit Judge:
* Honorable Richard W. Story, United States District Judge for the Northern District of Georgia, sitting by designation.

Case: 15-14117 Date Filed: 07/14/2016 Page: 2 of 15
This appeal requires us to decide whether the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., prevents the Secretary of the Florida Department of Corrections from denying kosher meals to inmates whose sincere religious beliefs require them to keep kosher. After the United States sued the Secretary to compel the Department to provide kosher meals, but before the entry of an injunction, the Secretary voluntarily created a religious diet program. Even so, the Secretary continues to insist that the Department need not provide kosher meals because denying them is the least restrictive means of furthering a compelling governmental interest in containing costs. But the Secretary’s argument lacks any support in the record. We affirm the summary judgment for the United States and the permanent injunction requiring the Secretary to provide kosher meals to the inmates.
I. BACKGROUND Since the 1990s, the Florida Department of Corrections has offered inmates regular meals, meatless meals, and vegan meals. It began offering kosher meals in 2004, but it stopped in 2007. It resumed offering kosher meals in 2010, but only as part of a pilot program at one facility. In 2011, the Civil Rights Division of the United States Department of Justice opened an investigation into the denial of kosher food by the Department of Corrections. At the time, the Department of Corrections offered regular, vegan,
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meatless, medical, and therapeutic options to prisoners outside of the pilot program. None of these diets satisfied the most orthodox version of the laws of kashrut, which prohibit certain food, such as pork, and “demand that food be stored, prepared, and served in a certain manner.” Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 786 (5th Cir. 2012). The only choice for prisoners outside the pilot program with these religious obligations was, in the words of one prisoner, to “d[o] what a hungry man does, and pray[] for understanding.”
In 2012, the Civil Rights Division concluded that the Department of Corrections was violating the Religious Land Use and Institutionalized Persons Act and asked the Secretary to comply. The Secretary refused, and the United States sued for declaratory and injunctive relief in August 2012.
In March 2013, the Secretary issued Procedure 503.006, which created a religious diet program. The program offered inmates three choices: the existing non-meat option, the existing vegan option, and a new kosher certified food option for inmates for whom “no other meal option offered by the Department . . . is capable of meeting the diet requirements of that inmate’s professed religious faith.”
The certified food option initially used “nationally recognized, religiously certified prepackaged processed foods.” In October 2013, the Secretary revised the certified food option to allow “a standardized menu prepared in accordance with
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religious dietary guidelines in a dedicated work area established exclusively for preparation of certified food option meals.” In February 2014, the Secretary again revised the certified food option to allow “meals utilizing food items served in their natural state.” The certified food option now consists of peanut butter, cereal, bread, sardines, cabbage, beans, carrots, crackers, and “an occasional piece of fruit,” all served cold.
The religious diet program initially had several policies that limited admission and continued participation. The application tested prisoners’ sincerity by asking them to cite “specific law(s) connected to your belief or faith that require(s) you to eat a religious diet” and by creating a waiting period for admission to the Program. The rules provided for the removal of an inmate “who misses ten percent (10%) or more of her/his CFO meals within a month” (the tenpercent rule), who “is discovered purchasing, possessing, or consuming food from the canteen or other source that violates the religious diet requirements” (the zerotolerance rule), or who barters kosher food for non-kosher food (the anti-bartering rule). A prisoner could challenge his removal from the religious diet program, but he would have to eat from the mainline during the grievance process, which could last up to 30 days.
In April 2013, the United States moved for a preliminary injunction ordering the Secretary to provide a certified kosher diet to all inmates with a sincere
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religious basis for keeping kosher. The United States also asked the district court to enjoin the religious diet program to the extent that it violated the Religious Land Use and Institutionalized Persons Act.
In December 2013, the district court entered a preliminary injunction that ordered the Secretary to provide kosher meals. The district court also prohibited enforcement of the waiting period, the doctrinal sincerity testing, the ten-percent rule, and the zero-tolerance rule. The parties and the district court later agreed to modified versions of the ten-percent rule and the zero-tolerance rule. We vacated the injunction in 2015 because the district court failed to make certain findings required by the Prison Litigation Reform Act. See United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228–30 (11th Cir. 2015).
Meanwhile, the Department continued to implement the religious diet program. The certified food option began at one facility in July 2013, and the Department provided the option at all facilities by April 2015. As of March 2015, the Department had approved 9,543 prisoners out of a total population of over 100,000. But participation rates at individual institutions declined over time, in part because prisoners without sincere religious beliefs tired of the repetitive and cold meals.
Enforcement of the modified rules limiting participation in the program has been uneven. A food director employed by the Department testified that enrolled
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prisoners collected only 15 percent of their kosher meals overall one month, but the food director also testified that he was unaware of any prisoners being removed for eating from the mainline. A chaplain employed by the Department testified that he helps prisoners identify religious reasons for participating and that he has not suspended or removed prisoners for eating non-kosher food from the canteen. The chaplaincy administrator testified that he instructed chaplains not to remove prisoners who eat from the mainline and that he had no knowledge of such a removal. And a food service worker employed by the Department testified that the central office instructed him to stop suspending prisoners from the program.
The United States estimates a future annual cost of $384,400 for the program, but the Secretary estimates a future annual cost as high as $12.3 million. The United States uses a lower estimate of how many prisoners will participate and how often prisoners will skip meals. The parties also disagree about how to allocate the cost of staff and equipment assigned to both the program and the mainline.
Assuming that no prisoners skip meals, the certified food option costs $3.55 per prisoner per day, the mainline option costs $1.89 per prisoner per day, the vegan option costs $2.04 per prisoner per day, and the medical and therapeutic diets cost between $2.00 and $3.05 per prisoner per day. Participants in the mainline option eat 85 percent of their meals, and participants in the certified food
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option eat 75 percent of their meals. The Department reduces its cost for the mainline option by anticipating how many meals prisoners will eat, and it further reduces the cost of the mainline meal by using its farm produce program and reusing leftover food. In his deposition, the chief procurement officer for the Department testified that the cost of the program was sustainable.
In 2014–15, the total budget of the Department was $2.3 billion. The operating budget was $2.2 billion, including $54 million for food. The Department carried over a deficit of $15 million.
The parties agree that the Department has some budgetary tools that it can use to pay for at least part of the religious diet program without additional appropriations. The Department can freeze hiring and restrict nonessential travel by staff. The budget director also can transfer money from one program to another, but the amount that he can transfer is limited.
After we remanded the case in 2015, the parties filed cross motions for summary judgment. The district court granted summary judgment and entered a permanent injunction for the United States on the denial of kosher meals, the tenpercent rule, and the zero-tolerance rule. The injunction requires the Secretary “to offer a kosher diet . . . to all prisoners with a sincere religious basis for keeping kosher.” It defines “kosher diet” as “food prepared consistent with the requirements recognized by a religious authority qualified to determine whether
7

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food is kosher,” and it requires all food to be “handled and prepared” in accordance with Procedure 503.006. The district court also granted summary judgment for the Secretary on the doctrinal sincerity testing and the anti-bartering policy. The Secretary appealed only the permanent injunction requiring the provision of kosher food.
II. STANDARD OF REVIEW We review a summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in its favor. Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION The only issue on appeal is whether the Religious Land Use and Institutionalized Persons Act requires the Secretary to accommodate inmates with a sincere religious basis for keeping kosher. The Act provides that “[n]o government shall impose a substantial burden on the religious exercise” of an institutionalized person “unless the government demonstrates that imposition of the burden on that person” is both “in furtherance of a compelling governmental interest” and “the least restrictive means of furthering that compelling
8

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governmental interest.” 42 U.S.C. § 2000cc-1(a). The Secretary concedes that the United States met its burden of proving that the denial of kosher meals is “a substantial burden on the religious exercise” of a prisoner in the custody of the Secretary. Id. As a result, the Secretary had to prove that the denial of kosher meals is “the least restrictive means” of furthering a compelling governmental interest. Id.
The Secretary argues that Florida has a compelling interest in cost containment and that the complete denial of kosher meals is the least restrictive means of furthering that interest. We disagree on both counts. We address each argument in turn.
A. The Secretary Has Not Proved a Compelling Governmental Interest. The Secretary failed to create a genuine dispute of material fact that the cost of providing kosher meals is so high that it is compelling. Congress has stated that the Act “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” Id. § 2000cc-3(c). The Act “requires us to ‘“scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”’ and ‘to look to the marginal interest in enforcing’ the challenged government action in that particular context.” Holt v. Hobbs, 135 S. Ct. 853, 863 (2015) (alteration in original) (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014)). “[P]olicies grounded on
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mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the [A]ct’s requirements.” Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 533 (11th Cir. 2013) (quoting Lawson v. Singletary, 85 F.3d 502, 509 (11th Cir. 1996)).
The evidence offered by the Secretary is insufficient to survive summary judgment. She argues that the projected total cost for the meals is high, that the Department has a budget deficit, that she might have to eliminate 246 positions to pay for the meals, and that staff vacancies are high. But the Secretary offers no “concrete evidence concerning how other operations of the prison system would be affected by these increased costs,” Garner v. Kennedy, 713 F.3d 237, 246 (5th Cir. 2013), and we do not have enough information about the deficit or the vacancies to conclude that they might make the asserted interest compelling.
In Knight v. Thompson, 797 F.3d 934 (11th Cir. 2015), the Alabama Department of Corrections met its burden of proof to justify a prohibition on beards, and the sufficiency of the record in Knight makes apparent the insufficient record in this appeal. The Alabama Department presented testimony about “specific incidents in which male inmates had used long hair to conceal weapons and contraband, as well as a situation in which a male inmate had cut his long hair to significantly change his appearance after a successful escape.” Id. at 944. The same witness testified that “prison staff have cut their hands on hidden razors when
10

Case: 15-14117 Date Filed: 07/14/2016 Page: 11 of 15
searching male inmates’ long hair.” Id. Two witnesses testified that “long hair had concealed male inmates’ fungus outbreaks, sores, cysts, and tumors, and even a spider’s nest.” Id. And witnesses offered “credible opinions, based on decades of combined correctional experience, that inmates can grab long hair during fights, long hair impedes the ability of prison staff to readily identify inmates inside the prison, and an exceptionless short-hair policy promotes order and discipline while removing a physical characteristic that inmates can use to form gangs.” Id. at 944– 45.
Unlike the Alabama Department, the Secretary fails to explain how the denial of kosher food furthers an interest in containing costs. She failed to compile anything like the record in Knight, and indeed the chief procurement officer for the Department testified to the contrary that the cost of the program was “sustainable . . . going forward.”
The Secretary also fails to explain how she has a compelling governmental interest in not providing kosher meals to inmates now even though she voluntarily provided them in 2013. “[A] law cannot be regarded as protecting an interest ‘of the highest order’”—a compelling governmental interest—“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) (quoting Fla. Star v. B.J.F., 491 U.S. 524, 541–42 (1989) (Scalia, J., concurring in part and
11

Case: 15-14117 Date Filed: 07/14/2016 Page: 12 of 15
concurring in the judgment)). The creation of a program to serve kosher meals causes as much damage to the supposedly vital interest in not serving kosher meals as one could possibly appreciate. Our Circuit has “recognize[d] that the fact that Florida formulated a new kosher meal plan may be relevant to the question of whether a policy of not providing kosher meals is the least restrictive alternative to further a compelling interest.” Rich, 716 F.3d at 531 n.5. And the Fifth Circuit has stated that the strength of a state’s interest in denying kosher food “is dampened by the fact that it has been offering kosher meals to prisoners for more than two years and provides them at no cost to all observant Jewish inmates that accepted a transfer to [a certain prison].” Moussazadeh, 703 F.3d at 794–95. To be sure, changing circumstances can make an interest more compelling than it was before, but the Secretary has made no such showing.
The Secretary tries to avoid her evidentiary burden by shifting the blame to limited appropriations from the Florida Legislature, but the Act does not distinguish between parts of the government. See 42 U.S.C. § 2000cc-1(a). If the Secretary must provide kosher meals, then the legislature must appropriate enough funds to honor that obligation.
The Secretary also argues that costs will increase if the Department provides kosher meals because other inmates will seek their own accommodations, but this argument is a nonstarter. “At bottom, this argument is but another formulation of
12

Case: 15-14117 Date Filed: 07/14/2016 Page: 13 of 15
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.’” Holt, 135 S. Ct. at 866 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006)). The Supreme Court rejected this argument in Holt, and we do too.
Finally, the Secretary argues that the Federal Bureau of Prisons has denied kosher meals on the ground of cost, but it is mistaken. The Federal Bureau of Prisons instead has opposed efforts to modify the kosher diet because the kosher meal “[i]s the strictest diet and subsume[s] all other religious dietary needs.” Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 810 (8th Cir. 2008). Because the Secretary failed to do more than “simply utter the magic word[]” “costs,” Davila v. Gladden, 777 F.3d 1198, 1206 (11th Cir. 2015), we must affirm the summary judgment against her.
B. Even if the Secretary Had a Compelling Governmental Interest, She Has Not Proved That Denying Kosher Meals Is the Least Restrictive Means of Furthering That Interest. The Secretary also has failed to create a genuine dispute of material fact
about narrow tailoring. “‘The least-restrictive-means standard is exceptionally demanding,’ and it requires the government to ‘sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of
13

Case: 15-14117 Date Filed: 07/14/2016 Page: 14 of 15
religion by the objecting part[y].’” Holt, 135 S. Ct. at 864 (alterations in original) (quoting Hobby Lobby, 134 S. Ct. at 2780).
The Secretary argues that denying a kosher diet statewide is the least restrictive means of furthering Florida’s interest in cost containment, but she fails to rebut three arguments to the contrary. First, she fails to explain why the Department cannot offer kosher meals when the Federal Bureau of Prisons and other states do so. “[W]hen so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course . . . .” Id.at 866. In Rich, we reversed the summary judgment for the Secretary in another action challenging the denial of kosher food in part because of “meager efforts to explain why Florida’s prisons are so different from the penal institutions that now provide kosher meals such that the plans adopted by those other institutions would not work in Florida.” 716 F.3d at 534. The Secretary does no better in this appeal. Second, the Secretary fails to explain why the Department cannot offer kosher meals when it offers vegan, medical, and therapeutic diets at similar marginal costs. “‘[T]he proffered objective[] [is] not pursued with respect to analogous nonreligious conduct,’ which suggests that ‘th[e] interest[] could be achieved by narrower ordinances that burdened religion to a far lesser degree.’” Holt, 135 S. Ct. at 866 (quoting Church of the Lukumi Babalu Aye, 508 U.S. at 546). Third, the Secretary fails to explain why the less restrictive
14

Case: 15-14117 Date Filed: 07/14/2016 Page: 15 of 15
alternative of enforcing rules that limit access to, and continued participation in, the program would not further her stated interest. The United States produced evidence that the Department is not screening out insincere applicants or enforcing the rules of participation in the program, and the Secretary does not contest that evidence. She instead responds that enforcing the rules would be too timeintensive. But she fails to cite any evidence or explain why it would be too timeintensive, so she has not created a genuine dispute of material fact.
IV. CONCLUSION We AFFIRM the summary judgment and injunction in favor of the United States.
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Case: 15-14117 Date Filed: 07/14/2016 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

David J. Smith Clerk of Court

July 14, 2016

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 15-14117-X Case Style: USA v. Secretary, Department of Corre, et al District Court Docket No: 1:12-cv-22958-PAS

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later).
Pursuant to Fed.R.App.P. 39, costs taxed against appellants.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Stephanie Tisa at (305) 579-4432.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

 </s> Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA,

Plaintiff, v.

Case No. 1:12-cv-22958-SEITZ/TURNOFF

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL.,

Defendants. /

JOINT MOTION TO VACATE THIS COURT’S ORDER AND TERMINATE OUTSTANDING INJUNCTION

The Florida Department of Corrections (“Defendant”) and the United States of

America (“Plaintiff”), move to terminate this Court’s outstanding Permanent Injunction pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626 (2018). See (Doc. 548 at ⁋ 15).1 The Parties

have worked together since issuance of the injunction to ensure that the remedy this court ordered

is implemented in a sustainable manner. Both Parties now believe that Defendant offers and will

continue to provide a kosher diet to prisoners with a sincere religious basis for seeking the diet.

As a result, the Parties have been working together over the last few months to verify that all

requirements of the injunction have been fully met and to prepare this Motion to Terminate.

While the Parties were preparing this filing, this Court issued an order setting a hearing on

implementation of the Religious Diet Program (“RDP”). (Doc. 732). This Court held a hearing on

October 23, 2018 and the Parties updated the Court on progress implementing the Program. This

1 Each document filed in this case as part of the Electronic Case File will be referenced as “Doc.” followed by the document number.

1

Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 2 of 9
Motion provides additional information that demonstrates why further court oversight of the RDP in unnecessary.
In support of this Motion to Vacate this Court’s Order and Terminate Outstanding Injunction, the Defendant files the attached declarations. In further support of this Motion, the Parties state as follows:
STATEMENT OF THE FACTS 1. On August 12, 2015, this Court entered a permanent injunction against Defendant which
required Defendant to offer a kosher diet to all prisoners with a sincere religious basis for eating that diet, train chaplains on implementation of the religious diet program, regularly audit the program to ensure the diet is prepared in accordance with the procedure, report on participation in the program, and provide the Department of Justice with information and access to monitor implementation. See Doc. 548 at ⁋⁋ 2-7. Defendant was also enjoined from enforcing the “ten percent rule,” the “zero tolerance rule,” and any policy that suspends prisoners from the kosher diet without providing an opportunity for the prisoners to contest their removal or suspension. Id. at 2-3.2 2. As of September 15, 2018, Defendant provides a kosher diet to 5,500 prisoners across 127 facilities. See e.g. (Doc. 749-1). See also (Doc. 750-1). 3. Defendant has an auditing and inspection process in place to ensure that each Correctional Institution within the State is providing the RDP in an efficient, uniform, and appropriate fashion which complies with this Court’s requirements and the policies of Defendant. See (Defendant’s Exhibit A at ⁋⁋ 4-7).
2 This case has a lengthy procedural history which is unnecessary to restate. 2

Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 3 of 9
4. Defendant ensures that the RDP is nutritionally adequate on an annual basis and, through the auditing process, ensures that facilities implement the RDP menu as written. See (Defendant’s Exhibit A at ⁋ 8).
5. Defendant additionally ensures that proper training is provided to Canteen workers on serving RDP participants. See (Defendant’s Exhibit A at ⁋⁋ 14-16).
6. Defendant has further created processes for provision of the RDP to all participating inmates within Defendant’s custody. See (Defendant’s Exhibit B at ⁋⁋ 4-10). The process involves scanning inmate Identification Cards upon entry at the dining hall to ensure that RDP prisoners receive the RDP meal. Id. Defendant provides training for the security staff tasked with scanning IDs and supervising dining halls on the ID scanning process and technology. Id.
7. Moreover, all Chaplains have received training on implementation of the Religious Diet Program in accordance with this Court’s Order, most recently on June 5, 2018. (Defendant’s Exhibit C at ⁋ 7). There are currently 41 RDP chaplains and an additional 60 generalist chaplains who also assist in the implementation of the Religious Diet Program. Id. Religious Diet Program training for chaplains covers the process for assessing sincerity, the process for placing someone on the Religious Diet, the process for notifying prisoners of potential violations, the process for assessing potential violations, and the process for suspending or removing prisoners from the Religious Diet. See Id. at ⁋ 9.
8. Chaplains receive training on the Religious Diet Program annually. (Defendant’s Exhibit C at ⁋ 9). During the last year, chaplains have received sixteen and one-half hours of training across Defendant’s four regions. Id. Chaplains also received individual training on an as needed basis, totaling twenty-four hours in the past year. Id. 3

Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 4 of 9
9. Defendant has filed 44 reports on implementation to the Court. See (Docs. 579, 588, 593, 599, 603, 611, 620, 625, 632, 639, 640, 646, 651, 653, 654, 657, 658, 664, 668, 669, 677, 681, 682, 685, 687, 688, 689, 691, 697, 698, 699, 703, 705, 706, 710, 714, 716, 717, 722, 723, 724, 725, 729, 738, 749, 750, 752).
10. Plaintiff has conducted monitoring both on site and through review of documentation. Plaintiff conducted inspections at nine facilities accompanied by an expert. The inspections included interviews of staff and prisoners and observation of meal preparation and service. Plaintiff also reviewed the compliance reports filed by the Defendants, supplemental materials provided by the Defendant, filings on the docket, and correspondence from prisoners across the system. See (Doc. 678).
11. Since Defendant implemented the Court’s injunction, the Plaintiff has periodically identified concerns about implementation through monitoring efforts, such as uneven opportunity to contest a potential removal. When Plaintiff has identified concerns, Plaintiff has shared those with Defendant. Defendant has been open to addressing the concerns and has responded by taking steps including conducting follow up training for chaplains.
12. Defendant is in substantial compliance with this Court’s Order. 13. Because of the Defendant’s substantial compliance, Plaintiff has not initiated any court
proceedings to cure violations of this Order.
14. More than two years have passed since the Court issued injunctive relief.
4

Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 5 of 9
MEMORANDUM OF LAW On August 12, 2015, this Court issued an Order creating a Permanent Injunction against Defendant. Defendant is committed to continuing to comply with the requirements of the Religious Land Use and Institutionalized Persons Act by providing a kosher diet to all prisoners who have a sincere religious basis for keeping kosher. However, oversight by this Court is no longer necessary or appropriate. Since this Court’s Permanent Injunction was issued, Defendant has followed and continues to follow the terms of the Order. A kosher diet complying with the terms described within the Order is available to prisoners statewide. Further, Defendant has not enforced the “ten percent rule,” the “zero tolerance rule,” or any other policy that suspends prisoners from the kosher diet without providing an opportunity for the prisoners to contest their removal or suspension from the kosher diet program. See Id. at ⁋ 6. To ensure that the program is implemented as ordered, both Parties have conducted oversight. Defendant has conducted periodic audits of the program and provided them to Plaintiff as requested. Defendant has trained (and continues to train) its chaplains in the proper implementation and maintenance of the RDP. Defendant has filed Monthly and Quarterly Reports with this Court, in compliance with this Court’s Order. See (Docs. 579, 588, 593, 599, 603, 611, 620, 625, 632, 639, 640, 646, 651, 653, 654, 657, 658, 664, 668, 669, 677, 681, 682, 685, 687, 688, 689, 691, 697, 698, 699, 703, 705, 706, 710, 714, 716, 717, 722, 723, 724, 725, 729, 738, 749, 750, 752). Defendant has also allowed Plaintiff to inspect its facilities upon request, resulting in inspections of nine facilities. To the extent that Plaintiff has identified concerns with implementation of the Court’s injunction through its review of letters from prisoners, filings on the court docket, records produced by Defendant, and on-site inspections, Defendant has worked
5

Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 6 of 9
to cure those deficiencies and has provided Plaintiff with information about its efforts. See id. at ⁋ 14.
A. Prison Litigation Reform Act This Court should terminate the injunction in this matter under the terms of the Prison Litigation Reform Act. Specifically, the Act requires that: “In any civil action with respect to prison conditions in which prospective relief is ordered, such relief shall be terminable upon the motion of any party or intervener-- (i) 2 years after the date the court granted or approved the prospective relief[.]” 18 U.S.C. § 3626(b) (emphasis added). This relief must be granted unless “the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.” 18 U.S.C. § 3626(b)(3) (emphasis added). See also Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir. 2000) (explaining that “a “current and ongoing” violation is a violation that exists at the time the district court conducts the § 3626(b)(3) inquiry, and not a potential future violation.”). As the result of this litigation, Defendant has implemented the RDP. Neither Party has provided the Court with evidence of an ongoing violation of Federal law. As described above, Defendant has complied with this Court’s Order in good faith since its entry, and continued prospective relief is no longer necessary to force compliance from Defendant. B. Ongoing Compliance with the Law Going forward, Defendant must comply with the current findings of law established by the Eleventh Circuit in response to Defendant’s appeal of this Court’s order. U.S. v. FDOC, 828 F. 3d 1341 (11th Cir. 2016). Court oversight is no longer necessary given the clarity of RLUPIA’s
6

Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 7 of 9
requirements along with the Defendant’s commitment to continuing to provide a kosher diet to those with a sincere basis for seeking that diet.
CONCLUSION WHEREFORE, the Parties respectfully request that this Court’s Order creating a Permanent Injunction against Defendant be vacated, (Doc. 548), the Permanent Injunction be terminated, and that the Court relinquish its jurisdiction over Defendant and close the case file.
Respectfully Submitted, PAMELA JO BONDI ATTORNEY GENERAL Office of the Attorney General The Capitol PL-01 Tallahassee, Florida 32399-1050 Telephone: (850) 414-3300 Facsimile: (850) 488-4872 /s/ Erik Kverne Erik Kverne Assistant Attorney General Florida Bar No.: 99829 Erik.Kverne@myfloridalegal.com
7

Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 8 of 9

ARIANA FAJARDO ORSHAN United States Attorney Southern District of Florida
VERONICA HARRELL-JAMES Assistant United States Attorney Southern District of Florida

FOR THE UNITED STATES
PLAINTIFF:
ERIC S. DREIBAND Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief Special Litigation Section
TIMOTHY D. MYGATT Deputy Chief Special Litigation Section
/s/ Deena Fox____________ DEENA FOX Special Florida Bar # 5501822 Attorney United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 305-1361

8

Case 1:12-cv-22958-PAS Document 753 Entered on FLSD Docket 12/05/2018 Page 9 of 9 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Joint Motion to Vacate this Court’s Order and Terminate Outstanding Injunction was e-filed and served electronically through CM/ECF on December 5, 2018, on all counsel or parties of record.
/s/ Erik Kverne Erik Kverne Assistant Attorney General Florida Bar No.: 99829 Erik.Kverne@myfloridalegal.com
9

 </s> Case 1:12-cv-22958-PAS Document 756 Entered on FLSD Docket 01/10/2019 Page 1 of 3
U N ITED STA TES D ISTRIC T C O U RT SO U TH ER N DISTR IC T O F FLO R IDA
C A SE N O .12-22958-C IV -SEITZ
UN ITED STA TES OF AM ER ICA , Plaintiff,
VS.
SECRETARY,FLORIDA DEM RTMENT QFcolc crrloxs
andFLOmD: DEPARTMENToycoltu crrloNs,
D efendants.
O RD ER G R AN TIN G IN PA R T M O TIO N TO V A CA TE A N D TE RM IN A TE IN JU N CTIO N
THIS M ATTER isbeforètheCourtupontheparties'JointM otiontoVacatethisCourt's
OrderandTenninateOutstandingInjunction(DE 753j.ThepartiesseektovacatetheCourt's FinalJudgmentandPennanentInjtmctionenteredonAugust12,2015(DE548),which(1)
declaredthatDefendant'spolicyofdenyingkosherm ealstoprisonerswith sincerereligious
beliefsviolatedtheReligiousLandUseandInstitutionalizedPersonsActof2000(RLUIPA);(2)
declaredthatcertainportionsofDefendants'proposedplanforofferingkosherm ealsto
prisonersalsoviolatedRI,UIPA;Iand(3)enteredthePermanentInjunction.TheInjunction
ordered D efendantsto providekosherm ealsto allprisonersw ith asincerereligiousbasisfor
keepingkosher,enjoinedDefendantsfrom enforcingtheportionsoftheirplanthattheCourthad
declaredinviolation ofRLUIPA,andsetuppoliciesandproceduresforenforcingthe
lnjunction.W hileitisnotentirelyclearfrom the parties'motion,itappearsthattheyseekto vacatetheentireorder,notjusttheportionestablishingthePermanentlnjtmction.Underthe
lspecitk ally,theCourtfoundthatDefendants'zerotolerancepolicy,tenpercentnzle,andrules whichrem ovedprisonersfrom theprogram w ithoutan oppoltunitytocontestremovalviolatedRLUIPA.

Case 1:12-cv-22958-PAS Document 756 Entered on FLSD Docket 01/10/2019 Page 2 of 3
PrisonLitigationReform ActIPLRAI,18U.S.C.j3626,thepartiesareentitledtotermination oftheInjunction.However,theCotu.tdeclinestovacatetheentireorder.
ThePLRA statesthatGlgilnanycivilactionwithrespecttoprisonconditionsinwhich
prospectivereliefisordered,suchreliefshallbeterminableuponthem otion ofanyparty''two
yearsaftertheCourthasgrantedtheprospectiverelief 18U.S.C.j3626(b)(1).Underj 3626(b)(3),acourtmaynotterminateprospectivereliefifitfndsthatSçprospectiverelief
rem ainsnecessarytocorrectacurrentandongoingviolationoftheFederalright''TheEleventh Circuithasheldthatç1aGctlrrentandongoing'violationisaviolationthatexistsatthetim ethe
districtcourtconductsthej3626419(3)inquiry,andnotapotentialfutureviolation.?'Casonv. Seckinger,231F.3d777,784(11thCir.2000).Thus,thereisnota(ictlrrentandongoing''
violation ifthereisonlyapotentialfor,orevenalikelihoodof,afutureviolation.Id at783. Defendantm aintains,andtheGovernmentccmcurs,thatthereisnocurrentand ongoing violation. G iven thatneithersidearguesthatthereisa currentand ongoingviolation andthereis norecordevidencetothecontrary,andm orethantwoyearshavepassed sincetheentryofthe
PermanentInjunction,theM otiontoTerminatetheInjtmctionisgranted. W hiletheCourtwillterminatethePermanentInjlmction,itwillnotvacatetheentire
order. Thepartieshave given theCourtnoreason to vacatethatD eclaratoly Judgm entportion oftheorder.ThePLRA onlyaddressesterminationofprospectiverelieforderedbytheCourt;it doesnotaddressotherfonnsofrelief Further,while D efendants'currentR eligiousD iet Progrnm policy statesthatitGiisthepolicy oftheD epartm entofCorrectionsto aflbrd inm atesa reasonableopportuni'tyto observetheirreligiousdietpreferences...w ithintheconstraintsof budgetlimitationsand ...securiy ''thepolicydoesnotrecognizethattheDepartm entof Correctionshasalegalresponsibilitytodoso.SeeDE 753-3 at2.Giventhatthedeclarations
2

Case 1:12-cv-22958-PAS Document 756 Entered on FLSD Docket 01/10/2019 Page 3 of 3
madeintheDeclaratoryJudgmentportion oftheCourt'sorderrem ainaccuratestatementsofthe law,arldthepartieshavenotarguedothelw ise,theCourtwillnotvacatethisportionofthe
August12,2015FinalJudgmentandPermanentInjtmction.
A ccordingly,itis .
ORDERED thatthepàrties'JointM otion toVacatethisCourt'sOrderandTerminate
OutstandingInjunction(DE 753)isGRANTED inpartandDENIED inpart: a)TheM otiontoTerminateOutstandingInjunctionisGRANTED.The PermanentInjunctionintheCourt'sAugust12,2015FinalJudgmentand PennanentInjunction'isTERMINATED. b)TheM otiontoVacateisDENIED. JG
ooxsandoRosltsoinMiami,p'loridathisF dayofJ uars2019.
# t
PA TRICIA .SE1 Z UN ITED STA TES D ISTRICT JUD G E CC* A 11Cotm selofRecord
3

 </s> Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 1 of 50
U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:12−cv−22958−PAS

CLOSED,WCT

United States of America v. Secretary Department of Corrections et al Assigned to: Judge Patricia A. Seitz Case in other court: USCA, 14−10086−D
USCA, 14−13038−D
USCA, 15−14117−E Cause: 28:1331 Fed. Question: Civil Rights Violation
Plaintiff

Date Filed: 08/14/2012 Date Terminated: 04/30/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave, NW Washington, DC 20530

represented by Timothy D. Mygatt United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−514−6255 Email: timothy.mygatt@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deena Fox US Department of Justice Special Litigation Section Civil Rights Division 950 Pennsylvania Avenue Washington, DC 20530 202−305−1361 Fax: 202−514−0212 Email: deena.fox@usdoj.gov ATTORNEY TO BE NOTICED

Jeffrey S. Blumberg US Department of Justice Civil Rights Division 601 D. Strreet, NW, 5th Floor Washington, DC 20004 202−353−1072

Veronica Vanessa Harrell−James United States Attorney's Office 99 NE 4 Street Miami, FL 33132 305−961−9327 Fax: 530−7139 Email: Veronica.Harrell−James@usdoj.gov ATTORNEY TO BE NOTICED

Michael J. Songer U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 202.305.1762 Email: michael.songer@usdoj.gov ATTORNEY TO BE NOTICED

V.

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 2 of 50

Intervenor Plaintiff
Reginald E. Rose 101719 Lawtey Correctional Institution Inmate Mail/Parcels 7819 NW 228th Street Raiford, FL 32026 TERMINATED: 09/06/2013

represented by John Anderson Camp Ice Miller LLP Suite 2900 One American Square Indianapolis, IN 46282 305−588−5718 Email: john.camp@Icemiller.com LEAD ATTORNEY

Randall Challen Berg , Jr. Florida Justice Institute 100 SE 2nd Street 3750 Miami Tower Miami, FL 33131−2309 305−358−2081 Fax: 305−358−0910 Email: rberg@floridajusticeinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dante Pasquale Trevisani Florida Justice Institute 100 SE 2nd St Suite 3750 Miami, FL 33131 (305) 358−2081 Email: dtrevisani@floridajusticeinstitute.org ATTORNEY TO BE NOTICED

Jennifer Christianson Tache, Bronis, Christianson and Descalzo, P.A. 150 S.E. Second Ave. Suite 600 Miami, FL 33131 305−537−9565 Fax: 305−537−9567 Email: jchristianson@tachebronis.com

Intervenor Plaintiff
Mr. Vernon Alexander R15547 Columbia Correctional Institution Inmate Mail/Parcels 216 SE Corrections Way Lake City, FL 32025

represented by John Anderson Camp (See above for address) LEAD ATTORNEY
Randall Challen Berg , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dante Pasquale Trevisani (See above for address) ATTORNEY TO BE NOTICED

Jennifer Christianson (See above for address)

Intervenor Plaintiff
Jeffrey Miller R15547 Columbia Correctional Institution Inmate Mail/Parcels 216 SE Corrections Way

represented by John Anderson Camp (See above for address) LEAD ATTORNEY
Randall Challen Berg , Jr.

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 3 of 50

Lake City, FL 32025

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dante Pasquale Trevisani (See above for address) ATTORNEY TO BE NOTICED

Jennifer Christianson (See above for address)

Intervenor Plaintiff
Omar Shariff Jones Florida State Prison Inmate Mail/Parcels 7819 NW 228th Street Raiford, FL 32026

represented by John Anderson Camp (See above for address) LEAD ATTORNEY
Randall Challen Berg , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dante Pasquale Trevisani (See above for address) ATTORNEY TO BE NOTICED

Jennifer Christianson (See above for address)

V.
Defendant
Secretary Department of Corrections Secretary Florida Department of Corrections 501 Calhoun Street Tallahassee, FL 32399 (850) 488−7480

represented by Erik D Kverne Florida House of Representatives Judiciary Committee 417 House Office Building 402 South Monroe St. Tallahassee, FL 32399−1300 United Sta 8507175680 Email: Erik.Kverne@myfloridahouse.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan A. Maher Tallahassee, FL 32317 Email: bogart.sam@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Grimes Florida House of Representatives House Minority Office 402 S. Monroe Street Tallahassee,, FL 32399 850−4889622 Email: david.grimes@myfloridahouse.gov ATTORNEY TO BE NOTICED
Dean C. Kowalchyk Office of the Attorney General Corrections and Institutions Bureau Tallahassee, FL (850) 414−3669

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 4 of 50

ATTORNEY TO BE NOTICED

Jamie M. Braun Office of the Attorney General Tallahassee General Civil Corrections PL−01, The Capitol Tallahassee, FL 32399−1050 850−414−3640 Fax: 850−488−4872 Email: jamie.braun@myfloridalegal.com ATTORNEY TO BE NOTICED

Lisa Kuhlman Tietig JH Zidell, PA Suite 605 300 71st Street Suite 605 Miami Beach Miami Beach, FL 33141 3058656766 Fax: 305−865−7167 Email: lkuhlman.jhzidellpa@gmail.com ATTORNEY TO BE NOTICED

Jason Vail Attorney General Office Department of Legal Affairs The Capitol PL−01 Tallahassee, FL 32399−1050 850−414−3300 Fax: 488−4872 ATTORNEY TO BE NOTICED

Defendant
Florida Department of Corrections 501 Calhoun Street Tallahassee, FL 32399 (850) 488−7480

represented by Erik D Kverne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Kuhlman Tietig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dean C. Kowalchyk (See above for address) ATTORNEY TO BE NOTICED

Jason Vail (See above for address) ATTORNEY TO BE NOTICED

Defendant Dwayne R. Smith

represented by Dwayne R. Smith Florida State Prison−West Unit Inmate Mail/Parcels PO Box 800 Raiford, FL 32083 PRO SE

Intervenor
Douglas Marshall 823916

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 5 of 50

Okeechobee Correctional Institution Inmate Mail/Parcels 3420 NE 168th Street Okeechobee, FL 34972

Intervenor
Daniel Lugo TERMINATED: 03/28/2014

represented by Daniel Lugo M16321,6223 Union Correctional Institution 7819 NW 228 Street Raiford, FL 32026−4450 ppp PRO SE

Intervenor
Ronald Clark 812974 Union Correctional Institution Inmate Mail/Parcels 7819 NW 228th Street Raiford, FL 32026

Intervenor
Cameron Williams TERMINATED: 04/21/2014

Intervenor
Julio Gamez L85781 Everglades Correctional Institution Inmate Mail/Parcels 1599 SW 187th Avenue Miami, FL 33194 TERMINATED: 04/21/2014

Intervenor
Joshua Hubbert B08892 Everglades Correctional Institution Inmate Mail/Parcels 1599 SW 187th Avenue Miami, FL 33194 TERMINATED: 04/21/2014

Intervenor
Ian Spaziani B03808 Everglades Correctional Institution Inmate Mail/Parcels 1599 SW 187th Avenue Miami, FL 33194 TERMINATED: 04/21/2014

Intervenor
LaMar Hay TERMINATED: 04/28/2014

represented by LaMar Hay 302976−A2−106L Everglades Correctional Institution Inmate Mail/Parcels 1599 SW 187th Avenue Miami, FL 33194

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 6 of 50

PRO SE

Intervenor
Kenneth Patterson #450653 Everglades Correctional Institution PO Box 949000 Miami, FL 33194−9000 ppp TERMINATED: 05/01/2014

Intervenor
Alvin Hudson TERMINATED: 05/01/2014

represented by Alvin Hudson 554449 Everglades Correctional Institution Inmate Mail/Parcels 1599 SW 187th Avenue Miami, FL 33194 PRO SE

Intervenor
John H Nelson TERMINATED: 05/02/2014

represented by John H Nelson 180650 Dade Correctional Institution Inmate Mail/Parcels 19000 SW 377th Street Florida City, FL 33034 PRO SE

Intervenor Luis Vizcaino

represented by Luis Vizcaino x27434 Everglades Correctional Institution Inmate Mail/Parcels 1599 SW 187th Avenue Miami, FL 33194 PRO SE

Intervenor
Michael D Cambridge TERMINATED: 05/23/2014

represented by Michael D Cambridge R27131 Santa Rosa Correctional Institution Annex Inmate Mail/Parcels 5850 East Milton Road Milton, FL 32583 PRO SE

Intervenor Marzug Al−Hakim

represented by Marzug Al−Hakim Hamilton Correctional Institution−Annex Inmate Mail/Parcels 10650 SW 46th Street Jasper, FL 32052 PRO SE

Intervenor
William G Thomas 511504 Union Correctional Institution Inmate Mail/Parcels

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 7 of 50

7819 NW 228th Street Raiford, FL 32026 TERMINATED: 07/14/2014

Intervenor
David P. Kever Florida State Prison 7819 N.W. 228 St. Rainford, FL 32026 TERMINATED: 09/23/2014

Intervenor
Daniel J. Levitan 22977−037 Century Correctional Institution Inmate Mail/Parcels 400 Tedder Road Century, FL 32535 TERMINATED: 02/11/2015

Intervenor
Jeffrey Levine S21005 South Florida Reception Center−South Unit Inmate Mail/Parcels 13910 NW 41st Street Doral, FL 33178

Intervenor Douglas Marshall

represented by Douglas Marshall 823916 Hardee Correctional Institution Inmate Mail/Parcels 6901 State Road 62 Bowling Green, FL 33834 PRO SE

Intervenor
Clifford Green 618039 Sumter Correctional Institution Inmate Mail/Parcels 9544 County Road 476B Bushnell, FL 33513

Intervenor
David Riley Siplin 020899 Dade Correctional Institution Inmate Mail/Parcels 19000 SW 377th Street Florida City, FL 33034

Date Filed 08/14/2012

# Docket Text
1 COMPLAINT against All Defendants. Filing fee $ 350.00. USA Filer − No Filing Fee Required, filed by UNITED STATES OF AMERICA. (Attachments: # 1 Civil Cover Sheet, # 2 Certification Civil action certification)(Songer, Michael) (Entered: 08/14/2012)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 8 of 50

08/14/2012 08/14/2012 09/05/2012 09/06/2012 09/20/2012 09/20/2012 09/21/2012
10/11/2012 10/12/2012
10/29/2012
11/19/2012 12/19/2012 12/19/2012 12/20/2012 12/20/2012
01/01/2013 01/03/2013

2 Judge Assignment to Judge Patricia A. Seitz and Magistrate Judge Andrea M. Simonton (cqs) (Entered: 08/14/2012)
3 Summons Issued as to Secretary Department of Corrections. (cqs) (Entered: 08/15/2012)
4 Order Requiring Joint Scheduling Report −Joint Scheduling Report due by 11/19/2012 Signed by Judge Patricia A. Seitz on 9/5/2012. (cqs) (Entered: 09/05/2012)
5 SUMMONS (Affidavit) Returned Executed on 1 Complaint Secretary Department of Corrections served on 8/30/2012, answer due 9/20/2012. (cqs) (Entered: 09/06/2012)
6 NOTICE of Attorney Appearance by Susan A. Maher on behalf of Secretary Department of Corrections (Maher, Susan) (Entered: 09/20/2012)
7 Unopposed MOTION for Extension of Time to File Answer RE: Complaints re 1 Complaint by Secretary Department of Corrections. (Attachments: # 1 Text of Proposed Order)(Maher, Susan) (Entered: 09/20/2012)
8 ORDER granting 7 Motion for Extension of Time to Answer RE: Complaints re 1 Complaint Florida Department of Corrections answer due 10/11/2012; Secretary Department of Corrections answer due 10/11/2012. Signed by Judge Patricia A. Seitz on 9/21/2012. (cqs) (Entered: 09/24/2012)
9 Defendant's MOTION to Dismiss 1 Complaint, or In The Alternative, To Transfer Venue by Secretary Department of Corrections. Responses due by 10/29/2012 (Maher, Susan). Added MOTION to Transfer Venue on 10/12/2012 (jua). (Entered: 10/11/2012)
10 Clerks Notice to Filer re 9 Defendant's MOTION to Dismiss 1 Complaint for Improper Venue or In The Alternative, To Transfer Venue. Motion with Multiple Reliefs Filed as One Relief; ERROR − The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (jua) (Entered: 10/12/2012)
11 RESPONSE in Opposition re 9 Defendant's MOTION to Dismiss 1 Complaint for Improper Venue or In The Alternative, To Transfer Venue MOTION to Change Venue filed by United States of America. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Songer, Michael) (Entered: 10/29/2012)
12 JOINT SCHEDULING REPORT − Rule 26(f) by United States of America (Songer, Michael)Text Modified on 11/20/2012 (cqs). (Entered: 11/19/2012)
13 ORDER denying 9 Motion to Dismiss; denying 9 Motion to Change Venue Answer Deadline 12/31/2012 Signed by Judge Patricia A. Seitz on 12/19/2012. (cqs) (Entered: 12/19/2012)
Reset Answer Due Deadline: Secretary Department of Corrections response due 12/31/2012. (cqs) (Entered: 12/19/2012)
14 ORDER of Referral to Mediation. Mediation Deadline 10/30/2013. Signed by Judge Kathleen M. Williams on 12/20/2012. (cqs)Judge Modified on 12/26/2012 (cqs). (Entered: 12/20/2012)
15 Order Setting Trial Date, Pretrial Deadlines and Referral To Magistrate, SCHEDULING ORDER: ( Pretrial Conference set for 3/12/2014 09:00 AM before Judge Patricia A. Seitz., Jury Trial set for 3/24/2014 before Judge Patricia A. Seitz., Calendar Call set for 3/19/2014 01:15 PM before Judge Patricia A. Seitz., Discovery due by 9/30/2013., Dispositive Motions due by 10/31/2013., −Joint Scheduling Report due by 2/21/2014), ORDER REFERRING CASE to Magistrate Judge Andrea M. Simonton Signed by Judge Kathleen M. Williams on 12/20/2012. (cqs)Judge Modified on 12/26/2012 (cqs). (Entered: 12/20/2012)
16 ANSWER and Affirmative Defenses to Complaint by Secretary Department of Corrections.(Maher, Susan) (Entered: 01/01/2013)
17 NOTICE of Attorney Appearance by Dean C. Kowalchyk on behalf of Secretary Department of Corrections (Kowalchyk, Dean) (Entered: 01/03/2013)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 9 of 50

01/03/2013 01/03/2013 01/03/2013 01/04/2013
01/04/2013 01/09/2013 01/18/2013
01/18/2013 01/22/2013 01/23/2013
04/10/2013 04/10/2013
04/15/2013 04/25/2013 04/26/2013 04/29/2013 04/30/2013 05/03/2013 05/04/2013

18 NOTICE of Attorney Appearance by Deena Fox on behalf of United States of America (Fox, Deena) (Entered: 01/03/2013)
19 NOTICE by United States of America Selection of Mediator (Attachments: # 1 Proposed Order Scheduling Mediation)(Songer, Michael) (Entered: 01/03/2013)
20 Joint MOTION to Amend/Correct 14 Order Referring Case to Mediation by United States of America. Responses due by 1/22/2013 (Songer, Michael) (Entered: 01/03/2013)
21 ORDER granting 20 Motion to Amend/Correct. Clerks Notice: Filer must separately re−file the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge Miscellaneous Deadline 1/10/2013. Signed by Judge Patricia A. Seitz on 1/4/2013. (dj) (Entered: 01/04/2013)
22 ORDER Scheduling Mediation before Thomas H Bateman, III Mediation Hearing set for 1/17/2013 09:00 AM Signed by Judge Patricia A. Seitz on 1/4/2013. (dj) (Entered: 01/04/2013)
23 NOTICE of Attorney Appearance by Veronica Vanessa Harrell−James on behalf of United States of America (Harrell−James, Veronica) (Entered: 01/09/2013)
24 Joint MOTION to Stay re 15 Scheduling Order, Order Referring Case to Magistrate Judge,,,, by United States of America. Responses due by 2/4/2013 (Attachments: # 1 Text of Proposed Order)(Songer, Michael). Added MOTION for Extension of Time on 1/18/2013 (cqs). (Entered: 01/18/2013)
25 MEDIATION REPORT by Thomas H. Bateman III. Disposition: Adjourned.(Maher, Susan) (Entered: 01/18/2013)
26 MEDIATION REPORT by Thomas H. Bateman, III. Disposition: Adjourned.(yar) (Entered: 01/22/2013)
27 ORDER granting 24 Motion to Stay( Discovery due by 12/30/2013., Dispositive Motions due by 1/29/2014., Pretrial Stipulation due by 5/22/2014., Calendar Call set for 6/15/2014 01:15 PM before Judge Patricia A. Seitz., Jury Trial set for 6/30/2014 before Judge Patricia A. Seitz., Pretrial Conference set for 6/10/2014 09:00 AM before Judge Patricia A. Seitz.); granting 24 Motion for Extension of Time Signed by Judge Patricia A. Seitz on 1/23/2013. (cqs) (Entered: 01/23/2013)
28 STATUS REPORT by United States of America (Songer, Michael) (Entered: 04/10/2013)
29 MOTION for Preliminary Injunction by United States of America. (Attachments: # 1 Text of Proposed Order, # 2 Affidavit Declaration of Michael Songer, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Songer, Michael) (Entered: 04/10/2013)
30 ORDER LIFTING STAY Signed by Judge Patricia A. Seitz on 4/15/2013. (ots) (Entered: 04/15/2013)
31 MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Preliminary Injunction by Secretary Department of Corrections. (Attachments: # 1 Text of Proposed Order)(Maher, Susan) (Entered: 04/25/2013)
32 RESPONSE in Opposition re 31 MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Preliminary Injunction filed by United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit)(Songer, Michael) (Entered: 04/26/2013)
33 ORDER granting in part 31 Motion for Extension of Time to File Response Responses due by 5/3/2013 Signed by Judge Patricia A. Seitz on 4/29/2013. (cqs) (Entered: 04/29/2013)
Set/Reset Deadlines as to 29 MOTION for Preliminary Injunction . Responses due by 5/3/2013. SEE (DE 33) Order on Motion (dm) (Entered: 04/30/2013)
34 RESPONSE in Opposition re 29 MOTION for Preliminary Injunction filed by Secretary Department of Corrections. (Maher, Susan) (Entered: 05/03/2013)
35 NOTICE by Secretary Department of Corrections re 34 Response in Opposition to Motion of Filing Exhibits A through C (Attachments: # 1 Exhibit A − Declaration of

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 10 of 50

05/05/2013 05/06/2013 05/08/2013 05/10/2013
05/13/2013 05/14/2013 05/14/2013 05/21/2013
05/22/2013 05/24/2013 05/24/2013 05/24/2013 05/24/2013 05/24/2013

Shane Phillips, # 2 Exhibit B − Declaration of Alex Taylor, # 3 Exhibit Declaration of Mark Tallent)(Maher, Susan) (Entered: 05/04/2013)
36 MOTION for Leave to File Excess Pages by Secretary Department of Corrections. (Maher, Susan) (Entered: 05/05/2013)
37 NOTICE by Secretary Department of Corrections re 36 MOTION for Leave to File Excess Pages of Local Rule 7.1(a)(3) /Certification (Maher, Susan) (Entered: 05/06/2013)
38 ORDER granting 36 Motion for Leave to File Excess Pages Signed by Judge Patricia A. Seitz on 5/7/2013. (cqs) (Entered: 05/08/2013)
39 NOTICE Of Filing Supplemental Exhibits by Secretary Department of Corrections re 34 Response in Opposition to Motion (Attachments: # 1 Exhibit D − Supplemental Declaration of Shane Phillips, # 2 Exhibit D − Att 1 − Cost Spreadsheet, # 3 Exhibit E − Declaration of Kathleen Fuhrman, # 4 Exhibit E − Att 1 − USA's Initial Disclosures, # 5 Exhibit E − Att 2 − Keefe Canteen List, # 6 Exhibit E − Att 3−4 − Gray; Schuster, # 7 Exhibit E − Att 5−6 − Robbins; Shapiro, # 8 Exhibit E − Att 7 − Phillips, # 9 Exhibit E − Att 8−10 − Melton; Camacho; Breitberg, # 10 Exhibit E − Att 11−13 − Newkirk;Lopiano;Inkeles, # 11 Exhibit E − Att 14−15 − Katz; Schack, # 12 Exhibit F − Declaration of Rosalind Wromas, # 13 Exhibit F − Att 2−10 − Rodriguez; Bettis; Abrams; Burgess; Winikoff; Fishbone; Mullen; Rein; Robinson, # 14 Exhibit F − Att 11−19 − Drock; Spiegel; Rosenblum; Serieaux; Stearns; Schiere; Meizlik; Berkowitz; Sookov)(Maher, Susan)Text Modified on 5/10/2013 (cqs). (Entered: 05/10/2013)
40 REPLY to Response to Motion re 29 MOTION for Preliminary Injunction filed by United States of America. (Attachments: # 1 Exhibit Exhibit A, # 2 Motion for Leave to File Exhibit A)(Songer, Michael) (Entered: 05/13/2013)
41 ORDER Setting Preliminary Injuction Hearing, ( Motion for Preliminary Injuction, Hearing set for 6/4/2013 10:00 AM before Judge Patricia A. Seitz.) Signed by Judge Patricia A. Seitz on 5/14/2013. (cqs) (Entered: 05/14/2013)
42 NOTICE by United States of America of Relevant Authority (Attachments: # 1 Exhibit Rich v. Secretary opinion)(Songer, Michael) (Entered: 05/14/2013)
43 NOTICE by Secretary Department of Corrections re 39 Notice (Other),,,, of Filing Corrected Supplemental Exhibit F (Attachments: # 1 Exhibit F − Declaration of Rosalind Wromas, # 2 Exhibit F − Att 1 − Keefe Canteen List, # 3 Exhibit F − Att 2−10 − Rodriguez; Bettis; Abrams; Burgess; Winikoff; Fishbone; Mullen; Rein; Robinson, # 4 Exhibit F − Att 11−19 − Drock; Spiegel; Rosenblum; Serieaux; Stearns; Schiere; Meizlik; Berkowitz; Sookov)(Maher, Susan) Modified Text on 5/21/2013 (ls). (Entered: 05/21/2013)
44 ORDER REVISING DEADLINES FOR PRELIMINARY INJUNCTION HEARING Signed by Judge Patricia A. Seitz on 5/22/2013. (dgj) (Entered: 05/22/2013)
45 Exhibit List for Preliminary Injunction Hearing by Secretary Department of Corrections.. (Maher, Susan) (Entered: 05/24/2013)
46 Witness List for Preliminary Injunction Hearing by Secretary Department of Corrections.. (Maher, Susan) (Entered: 05/24/2013)
47 NOTICE by Secretary Department of Corrections, Florida Department of Corrections filing proposed findings of fact and conclusions of law. Attorney Jason Vail added to party Secretary Department of Corrections(pty:dft). (Vail, Jason) (Entered: 05/24/2013)
48 NOTICE of Attorney Appearance by Jason Vail on behalf of Secretary Department of Corrections (Vail, Jason) (Entered: 05/24/2013)
49 Exhibit List by United States of America.. (Attachments: # 1 Exhibit Exhibit1, # 2 Exhibit Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34)(Songer, Michael) (Entered: 05/24/2013)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 11 of 50

05/24/2013 05/24/2013 05/24/2013 05/24/2013 05/24/2013 05/24/2013
05/24/2013 05/24/2013 05/29/2013 05/30/2013
06/03/2013 06/03/2013

50 Witness List by United States of America.. (Songer, Michael) (Entered: 05/24/2013)
51 NOTICE by United States of America Joint Statement of Issues in Dispute (Songer, Michael) (Entered: 05/24/2013)
52 NOTICE by United States of America Joint Statement of Undisputed Material Facts (Songer, Michael) (Entered: 05/24/2013)
53 (STRICKEN PER DE # 57)Proposed Findings of Fact and Proposed Conclusions of Law by United States of America. (Songer, Michael)Text Modified on 5/28/2013 (cqs). (Entered: 05/24/2013)
54 Clerks Notice to Filer re 53 Proposed Findings of Fact. Proposed Order Docketed as Main Document; CORRECTIVE ACTION REQUIRED − Filer must File a Notice of Striking, then resubmit the proposed order as instructed in the CM/ECF Administrative Procedures (cqs) (Entered: 05/24/2013)
55 NOTICE by Secretary Department of Corrections re 45 Exhibit List of Filing Exhibits (Attachments: # 1 Exhibit 1 − Declaration of Alex Taylor, with attachments, # 2 Exhibit 2 − Supplemental Declaration of Shane Phillips, with attachments, # 3 Exhibit 3 − Declaration of Kathy Fuhrman, with attachments, # 4 Exhibit 4 − Declaration of Rosalind Wromas, with attachments, # 5 Exhibit 4 (cont'd) − Declaration of Rosalind Wromas, with attachments, # 6 Exhibit 4 (cont'd) − Declaration of Rosalind Wromas, with attachments, # 7 Exhibit 5 − Declaration of Mark Tallent, # 8 Exhibit 6 − JDAP Religious Study Group Report with Appendices [DE 29−3], # 9 Exhibit 7 − Special Religious Diet Pilot Program − Initial 30−Day Review [DE 29−4], # 10 Exhibit 8 −US Department of Justice, FBOP, Program Statement P5360.09, dated 12/31/2004, # 11 Exhibit 9 − US Department of Justice, FBOP, Religious Diet Interview form BP−S699.053, # 12 Exhibit 10 − Florida Department of Corrections Procedure 503.006, revised May 22, 2013, # 13 Exhibit 11 − Florida Department of Corrections Form DC5−324, revised May 22, 2013, # 14 Exhibit 12 − Canteen records for inmate applicants from Union Correctional Institution for participation in Certified Food Option (CFO), # 15 Exhibit 13 − Canteen Menu − Kosher Items Only)(Maher, Susan) (Entered: 05/24/2013)
56 NOTICE by United States of America proposed Findings of Fact and Conclusions of Law (Attachments: # 1 Proposed Findings of Fact and Conclusions of Law)(Songer, Michael) (Entered: 05/24/2013)
57 NOTICE of Striking Docket Entry 53 by United States of America (Songer, Michael) (Entered: 05/24/2013)
58 NOTICE by United States of America of Appearance by Attorney Timothy Mygatt (Songer, Michael) (Entered: 05/29/2013)
59 MOTION to Intervene With Incorporated Memorandum of Law and Attached Pleading of Applicants for Intervention by Reginald E. Rose, Vernon Alexander, Jeffrey Miller, Omar Shariff Jones. Attorney Randall Challen Berg, Jr added to party Reginald E. Rose (pty:intvp), Attorney Randall Challen Berg, Jr added to party Vernon Alexander(pty:intvp), Attorney Randall Challen Berg, Jr added to party Jeffrey Miller(pty:intvp), Attorney Randall Challen Berg, Jr added to party Omar Shariff Jones(pty:intvp). (Attachments: # 1 Exhibit 1− Complaint from Rose I, # 2 Exhibit 2 − Notice In Reference to Studay Group, # 3 Exhibit 3 − Letter from Sec. to Study Group, # 4 Exhibit 4− proposed Pleading of Intervenors)(Berg, Randall) (Entered: 05/30/2013)
60 NOTICE Judge Seitz notifies the parties that she worked with the former Secretary of the Florida Department of Corrections, James McDonough, form May 1996 until October 1997 in the Office of National Drug Control Policy in the White House Executive Office of the President. Her relationship with James McDonough will have no effect on her rulings in this case. (cbn) (Entered: 06/03/2013)
61 NOTICE The Court is part of the Courtroom Cameras Pilot Project and intends to have the heraing on June 4, 2013 video recorded as part of the Project. In order to do this, the parties and witnesses must consent. The parties are directed to review the Districts Cameras in the Courtroom Pilot Project guidance available at http://www.flsd.uscourts.gov/?page_id=5838 and submit a Party Response to Request for Video Recording, by e−mail only, to seitzcamera@flsd.uscourts.gov no later than June 3, 2013, at 5:00 p.m. These forms should NOT be filed via the CM/ECF system. (cbn) (Entered: 06/03/2013)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 12 of 50

06/04/2013 06/05/2013 06/10/2013
06/11/2013 06/13/2013 06/19/2013
06/19/2013
06/20/2013 07/05/2013 07/05/2013 07/19/2013 08/08/2013

62 Minute Entry for proceedings held before Judge Patricia A. Seitz: Motion Hearing held on 6/4/2013 re 29 MOTION for Preliminary Injunction filed by United States of America. Court Reporter: David Ehrlich, 305−523−5537 / David_Ehrlich@flsd.uscourts.gov (lw) (Entered: 06/04/2013)
63 Minute Entry for proceedings held before Judge Patricia A. Seitz: Motion Hearing held on 6/5/2013 re 29 MOTION for Preliminary Injunction filed by United States of America. Court Reporter: David Ehrlich, 305−523−5537 / David_Ehrlich@flsd.uscourts.gov (lw) (Entered: 06/06/2013)
64 NOTICE of Attorney Appearance by Dante Pasquale Trevisani on behalf of Vernon Alexander, Omar Shariff Jones, Jeffrey Miller, Reginald E. Rose. Attorney Dante Pasquale Trevisani added to party Vernon Alexander(pty:intvp), Attorney Dante Pasquale Trevisani added to party Omar Shariff Jones(pty:intvp), Attorney Dante Pasquale Trevisani added to party Jeffrey Miller(pty:intvp), Attorney Dante Pasquale Trevisani added to party Reginald E. Rose (pty:intvp). (Trevisani, Dante) (Entered: 06/10/2013)
65 RESPONSE in Opposition re 59 MOTION to Intervene With Incorporated Memorandum of Law and Attached Pleading of Applicants for Intervention filed by Secretary Department of Corrections. (Attachments: # 1 Exhibit, # 2 Exhibit)(Vail, Jason) (Entered: 06/11/2013)
66 RESPONSE to Motion re 59 MOTION to Intervene With Incorporated Memorandum of Law and Attached Pleading of Applicants for Intervention filed by United States of America. Replies due by 6/24/2013. (Songer, Michael) (Entered: 06/13/2013)
67 TRANSCRIPT of Preliminary Injunction Hearing held on 6−4−13 before Judge Patricia A. Seitz, Volume Number 1 of 2, 1−192 pages, Court Reporter: David Ehrlich, 305−523−5537 / David_Ehrlich@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/15/2013. Redacted Transcript Deadline set for 7/25/2013. Release of Transcript Restriction set for 9/20/2013. (de) (Entered: 06/19/2013)
68 TRANSCRIPT of Preliminary Injunction Hearing held on 6−5−13 before Judge Patricia A. Seitz, Volume Number 2 of 2, 1−220 pages, Court Reporter: David Ehrlich, 305−523−5537 / David_Ehrlich@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/15/2013. Redacted Transcript Deadline set for 7/25/2013. Release of Transcript Restriction set for 9/20/2013. (de) (Entered: 06/19/2013)
69 REPLY to Response to Motion re 59 MOTION to Intervene With Incorporated Memorandum of Law and Attached Pleading of Applicants for Intervention filed by Reginald E. Rose. (Attachments: # 1 Exhibit FDOCs Motion to Dismiss, or in the alternative Motion for Summary Judgment,)(Berg, Randall) (Entered: 06/20/2013)
70 Proposed Findings of Fact [Supplemental] by Secretary Department of Corrections. (Maher, Susan) (Entered: 07/05/2013)
71 NOTICE by United States of America proposed Findings of Fact and Conclusions of Law (Attachments: # 1 Exhibit Proposed Findings of Fact and Conclusions of Law)(Songer, Michael) (Entered: 07/05/2013)
72 NOTICE by Secretary Department of Corrections re 34 Response in Opposition to Motion, 29 MOTION for Preliminary Injunction of Submission of Supplemental Evidence in Support of Defendant's Opposition to Plaintiff's Motion for Preliminary Injunction (Attachments: # 1 Exhibit A − Declaration of Alex Taylor with Attachment)(Maher, Susan) (Entered: 07/19/2013)
73 NOTICE of Attorney Appearance by John Anderson Camp on behalf of Vernon Alexander, Omar Shariff Jones, Jeffrey Miller, Reginald E. Rose. Attorney John Anderson Camp added to party Vernon Alexander(pty:intvp), Attorney John Anderson Camp added to party Omar Shariff Jones(pty:intvp), Attorney John Anderson Camp added to party Jeffrey Miller(pty:intvp), Attorney John Anderson Camp added to party Reginald E. Rose (pty:intvp). (Camp, John) (Entered: 08/08/2013)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 13 of 50

08/08/2013
08/13/2013
08/13/2013 09/06/2013 09/13/2013 10/21/2013 10/28/2013 10/29/2013 10/31/2013 10/31/2013 11/01/2013 11/01/2013
11/04/2013 11/06/2013 11/07/2013

74 NOTICE of Attorney Appearance by Jennifer Christianson on behalf of Vernon Alexander, Omar Shariff Jones, Jeffrey Miller, Reginald E. Rose. Attorney Jennifer Christianson added to party Vernon Alexander(pty:intvp), Attorney Jennifer Christianson added to party Omar Shariff Jones(pty:intvp), Attorney Jennifer Christianson added to party Jeffrey Miller(pty:intvp), Attorney Jennifer Christianson added to party Reginald E. Rose (pty:intvp). (Christianson, Jennifer) (Entered: 08/08/2013)
75 NOTICE by Secretary Department of Corrections re 34 Response in Opposition to Motion, 29 MOTION for Preliminary Injunction of Submission of Supplement Evidence In Support of Defendant's Opposition to Plaintiff's Motion for Preliminary Injunction (Attachments: # 1 Affidavit Alex Taylor, # 2 Appendix 1)(Maher, Susan) (Entered: 08/13/2013)
76 Notice of Supplemental Authority by Secretary Department of Corrections (Attachments: # 1 Exhibit A − Knight v. Thompson)(Maher, Susan) (Entered: 08/13/2013)
77 ORDER denying 59 Motion to Intervene. Signed by Judge Patricia A. Seitz on 9/6/2013. (cqs) (Entered: 09/06/2013)
78 NOTICE/Letter to the Court by Tommy Lee Roberson (yar) (Entered: 09/13/2013)
79 STATUS REPORT and Notice of Intent to Submit Supplemental Evidence in Support of Defendant's Opposition to Plaintiff's Motion for Preliminary Injunction by Secretary Department of Corrections (Maher, Susan) (Entered: 10/21/2013)
80 MOTION to Compel by United States of America. Responses due by 11/15/2013 (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I)(Songer, Michael) (Entered: 10/28/2013)
81 ENDORSED ORDER striking 80 Motion to Compel for failure to comply with the Court's procedures on discovery disputes as set forth in attachment A to DE # 15 . Signed by Magistrate Judge Andrea M. Simonton. (eh00) (Entered: 10/29/2013)
82 MOTION for Leave to File Amended Complaint by United States of America. (Attachments: # 1 Exhibit Exhibit A, Amended Complaint)(Songer, Michael) (Entered: 10/31/2013)
83 NOTICE of Hearing by ATTORNEY: Discovery Hearing set for 11/14/2013 10:00 AM in Miami Division before Magistrate Judge Andrea M. Simonton. (Songer, Michael) (Entered: 10/31/2013)
84 ORDER Setting Hearing on Motion 82 MOTION for Leave to File Amended Complaint :( Motion Hearing set for 11/21/2013 09:00 AM in Miami Division before Judge Patricia A. Seitz.), ( Responses due by 11/15/2013) Signed by Judge Patricia A. Seitz on 11/1/2013. (cqs) (Entered: 11/01/2013)
85 ORDER REQUIRING BRIEFING ON DISCOVERY MATTER. Based upon a review of the notice of hearing and discovery materials, the undersigned has determined it is appropriate to require briefing regarding the issue of the inspection of the FDOC facilities. Therefore, on or before November 6, 2013, Plaintiff shall file a memorandum of law not to exceed five pages. Defendant shall file a response, not to exceed five pages, on or before November 11, 2013. Signed by Magistrate Judge Andrea M. Simonton. (eh00) (Entered: 11/01/2013)
86 NOTICE of Attorney Appearance by Jamie M. Braun on behalf of Secretary Department of Corrections. Attorney Jamie M. Braun added to party Secretary Department of Corrections(pty:dft). (Braun, Jamie) (Entered: 11/04/2013)
87 MOTION to Compel Entry Upon LandMemorandum of Law in Support by United States of America. Responses due by 11/25/2013 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Fox, Deena) Text Modified on 11/6/2013 (cqs). (Entered: 11/06/2013)
88 RESPONSE/REPLY to 79 Status Report by United States of America. (Fox, Deena) (Entered: 11/07/2013)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 14 of 50

11/12/2013
11/13/2013 11/13/2013 11/13/2013 11/13/2013 11/14/2013
11/15/2013 11/19/2013 11/19/2013 11/21/2013 11/22/2013
11/22/2013
11/22/2013 11/22/2013
11/22/2013

89 First MOTION for Extension of Time to respond to motion for leave to amend complaint re 82 MOTION for Leave to File Amended Complaint, 84 Order Setting Hearing on Motion,, Set/Reset Deadlines, by Florida Department of Corrections, Secretary Department of Corrections. Attorney Dean C. Kowalchyk added to party Florida Department of Corrections(pty:dft). Responses due by 11/29/2013 (Kowalchyk, Dean) (Entered: 11/12/2013)
90 ORDER granting 89 Motion for Extension of Time. Responses due by 11/13/2013 Replies due by 11/18/2013. Signed by Judge Patricia A. Seitz on 11/13/2013. (cqs) (Entered: 11/13/2013)
91 RESPONSE to Motion re 82 MOTION for Leave to File Amended Complaint filed by Florida Department of Corrections, Secretary Department of Corrections. Replies due by 11/25/2013. (Kowalchyk, Dean) (Entered: 11/13/2013)
92 STIPULATION Joint Stipulation Regarding Expert Inspection by United States of America (Songer, Michael) (Entered: 11/13/2013)
93 MOTION/Request For Hard Copies (Paper) of All Docket Entries Docket Documents by Tommy Lee Roberson. (yar) (Entered: 11/14/2013)
94 TEXT Minute Entry for proceedings held before Magistrate Judge Andrea M. Simonton: Discovery Hearing held on 11/14/2013. Attorneys Michael Songer, Deena Fox and Veronica Harrell−James telephonically appeared on behalf of the Government. Attorneys Dean Kowalchyk and Jaime Braun telephonically appeared on behalf of the Defendants. Discovery issues addressed. Written order to follow. (Digital 10:10:51 − 10:38:18.) (aw) (Entered: 11/14/2013)
95 REPLY to Response to Motion re 82 MOTION for Leave to File Amended Complaint filed by United States of America. (Fox, Deena) (Entered: 11/15/2013)
96 ORDER FOLLOWING DISCOVERY CONFERENCE. Signed by Magistrate Judge Andrea M. Simonton. (eh00) (Entered: 11/19/2013)
97 ORDER Resetting Hearing re 82 MOTION for Leave to File Amended Complaint filed by United States of America, as to 82 MOTION for Leave to File Amended Complaint. ( Motion/Miscellaneous Hearing reset for 11/22/2013 09:00 AM before Judge Patricia A. Seitz.) Signed by Judge Patricia A. Seitz on 11/19/2013. (cqs) (Entered: 11/19/2013)
98 Joint MOTION for Extension of Time to Complete Discovery by United States of America. (Fox, Deena) (Entered: 11/21/2013)
99 NOTICE by Secretary Department of Corrections re 79 Status Report, 88 Response/Reply (Other) of Filing Supplemental Evidence (Third) and Reply to United States' Response to Doc. 79 (Attachments: # 1 Affidavit Alex Taylor, # 2 Affidavit James Upchurch, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H)(Maher, Susan) (Entered: 11/22/2013)
100 ORDER granting 82 Motion for Leave to Amend. Clerks Notice: Filer must separately re−file the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge. Plaintiff shall file its Amended Complaint as a separate docket entry by November 25, 2013. Signed by Judge Patricia A. Seitz on 11/22/2013. (ra) (Entered: 11/22/2013)
101 ORDER denying 93 Request for Hard Copies of All Docket Entries. Signed by Judge Patricia A. Seitz on 11/22/2013. (ra) (Entered: 11/22/2013)
102 ORDER granting in part 98 Motion for Extension of Time to Complete Discovery. Discovery due by 3/31/2014. Dispositive Motions due by 4/30/2014. In Limine Motions due by 7/21/2014. Pretrial Stipulation due by 7/21/2014. Calendar Call set for 8/20/2014 01:15 PM before Judge Patricia A. Seitz. Jury Trial set for 8/25/2014 before Judge Patricia A. Seitz. Pretrial Conference set for 8/4/2014 09:30 AM before Judge Patricia A. Seitz. Signed by Judge Patricia A. Seitz on 11/22/2013. (cqs) (Entered: 11/22/2013)
103 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 11/22/2013. Court Reporter: Lisa Edwards, 305−523−5499 / Lisa_Edwards@flsd.uscourts.gov (lw) (Entered: 11/22/2013)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 15 of 50

11/25/2013 11/25/2013
12/06/2013
12/06/2013 12/11/2013 12/12/2013 12/17/2013 12/19/2013 12/23/2013 12/24/2013
12/24/2013 12/26/2013 12/30/2013 01/03/2014 01/03/2014

104 First AMENDED COMPLAINT against All Defendants filed in response to Order Granting Motion for Leave, filed by United States of America.(Songer, Michael) (Entered: 11/25/2013)
105 TRANSCRIPT of Hearing on Motion to Amend Complaint and on New Evidence held on November 22, 2013, before Judge Patricia A. Seitz, 1−77 pages, Court Reporter: Lisa Edwards, 305−523−5499 / Lisa_Edwards@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/19/2013. Redacted Transcript Deadline set for 12/30/2013. Release of Transcript Restriction set for 2/27/2014. (le) (Entered: 11/25/2013)
106 ORDER granting 29 Motion for Preliminary Injunction, Resetting Trial Date and Setting Status Conference. (see order for details) Miscellaneous Deadline 7/1/2014. In Limine Motions due by 7/21/2014. Pretrial Stipulation due by 7/21/2014. Jury Trial set for 8/25/2014 before Judge Patricia A. Seitz. Pretrial Conference set for 8/4/2014 09:30 AM before Judge Patricia A. Seitz. Status Conference set for 1/7/2014 09:30 AM before Judge Patricia A. Seitz. Signed by Judge Patricia A. Seitz on 12/5/2013. (cqs) (Entered: 12/06/2013)
107 MOTION for Order to Show Cause by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Songer, Michael) (Entered: 12/06/2013)
108 ORDER Of Reference to Magistrate Judge Andrea Simonton for Discovery Matters RE: 107 Motion To Show Cause Signed by Judge Patricia A. Seitz on 12/10/2013. (cqs) (Entered: 12/11/2013)
109 ANSWER and Affirmative Defenses to Amended Complaint by Secretary Department of Corrections. (Maher, Susan) (Entered: 12/12/2013)
110 Joint MOTION to Amend/Correct Modify Expert Inspection Schedule by United States of America. Responses due by 1/3/2014 (Songer, Michael) (Entered: 12/17/2013)
111 ORDER granting 110 Motion to Modify Expert Tour Schedule Inspection Deadline 2/7/2014. Signed by Judge Patricia A. Seitz on 12/19/2013. (cqs) (Entered: 12/19/2013)
112 ORDER Requiring Parties to File Agenda For Status Conference, (Agenda/ Miscellaneous Deadline 1/3/2014.) Signed by Judge Patricia A. Seitz on 12/23/2013. (cqs) (Entered: 12/23/2013)
113 RESPONSE in Opposition re 107 MOTION for Order to Show Cause [Verified Response] filed by Secretary Department of Corrections. (Attachments: # 1 Exhibit A − USA Email of 11.27.2013, # 2 Exhibit B− Defendant's Email of 11.27.2013, # 3 Exhibit C − Production of 14A Metadata with Bates Numbering Correlation, # 4 Exhibit D − Production of 14B Metadata with Bates Numbering Correlation, # 5 Exhibit E − Production of 14C Emails with Metadata−No Bates Numbering Correlation, # 6 Exhibit F − Production of Metadata with Bates Numbering Correlation, # 7 Exhibit G − Production of Privilege Logs for 14A, 14B, and 14C, # 8 Exhibit H − USA's First Request for Production)(Maher, Susan) (Entered: 12/24/2013)
114 Amended ANSWER and Affirmative Defenses to Amended Complaint by Secretary Department of Corrections. (Maher, Susan) (Entered: 12/24/2013)
115 NOTICE by United States of America of intent to participate in January 7, 2014 status conference by video conference (Fox, Deena) (Entered: 12/26/2013)
116 NOTICE by Secretary Department of Corrections re 106 Order on Motion for Preliminary Injunction,, of Intent to Appear at January 7, 2014, Status Conference by Video Conference (Attachments: # 1 Exhibit A − Video Conference Scheduling Form)(Maher, Susan) (Entered: 12/30/2013)
117 REPLY to Response to Motion re 107 MOTION for Order to Show Cause filed by United States of America. (Fox, Deena) (Entered: 01/03/2014)
118 NOTICE by Secretary Department of Corrections, Florida Department of Corrections re 112 Order, Set/Reset Deadlines [Joint Notice of the Parties] (Attachments: # 1 Exhibit A

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 16 of 50

01/04/2014 01/06/2014
01/07/2014 01/07/2014 01/07/2014 01/08/2014 01/13/2014 01/16/2014
01/17/2014
01/28/2014 01/28/2014 02/04/2014 02/25/2014 02/26/2014 02/28/2014 02/28/2014

− Procedure 503.006 − Revised December 13, 2013, # 2 Exhibit B − Form DC5−324 − Revised December 13, 2013)(Maher, Susan) (Entered: 01/03/2014)
119 ENDORSED ORDER denying as moot 107 Motion for Order to Show Cause based upon the withdrawal of the Motion due to the production of the discovery materials. Signed by Magistrate Judge Andrea M. Simonton on 1/4/2013. (AMS) (Entered: 01/04/2014)
120 Notice of Interlocutory Appeal as to 106 Order on Motion for Preliminary Injunction,, by Secretary Department of Corrections. Filing fee $ 505.00 receipt number 113C−6366844. Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (Attachments: # 1 Exhibit A − Order Granting Preliminary Injunction [Doc. 106])(Maher, Susan) (Entered: 01/06/2014)
Transmission of Notice of Appeal, Order and Docket Sheet to US Court of Appeals re 120 Notice of Interlocutory Appeal. Notice has been electronically mailed. (mc) (Entered: 01/07/2014)
121 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 1/7/2014. Court Reporter: Judy Wolff, 305−523−5294 / Judy_Wolff@flsd.uscourts.gov (lw) (Entered: 01/07/2014)
122 ORDER Requiring Parties To file Agenda For Status Conferences, ( Joint Proposed Agenda Deadline 2/4/2014.) Signed by Judge Patricia A. Seitz on 1/7/2014. (cqs) (Entered: 01/07/2014)
Set Status Conference set for 2/4/2014 before Judge Patricia A. Seitz. per order 122 (mr1) (Entered: 01/08/2014)
123 NOTICE of Attorney Appearance by Lisa Kuhlman Tietig on behalf of Secretary Department of Corrections. Attorney Lisa Kuhlman Tietig added to party Secretary Department of Corrections(pty:dft). (Tietig, Lisa) (Entered: 01/13/2014)
124 Acknowledgment of Receipt of NOTICE OF INTERLOCUTORY APPEAL from USCA re 120 Notice of Interlocutory Appeal, filed by Secretary Department of Corrections. Date received by USCA: 1/7/2014. USCA Case Number: 14−10086−D. (mc) (Entered: 01/16/2014)
125 TRANSCRIPT INFORMATION FORM by Secretary Department of Corrections re 120 Notice of Interlocutory Appeal,,. Preliminary Injunction Hearing transcript(s) ordered. Order placed by Susan A. Maher. Email sent to Court Reporter Coordinator. (Maher, Susan) (Entered: 01/17/2014)
126 NOTICE by Secretary Department of Corrections re 122 Order, Set/Reset Deadlines JOINT NOTICE OF PARTIES OF FILING PROPOSED AGENDA (Maher, Susan) (Entered: 01/28/2014)
127 NOTICE by Secretary Department of Corrections re 106 Order on Motion for Preliminary Injunction,, of Intent to Appear at February 4, 2014 Status Conference by Video Conference (Maher, Susan) (Entered: 01/28/2014)
128 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 2/4/2014. Court Reporter: Judy Wolff, 305−523−5294 / Judy_Wolff@flsd.uscourts.gov (lw) (Entered: 02/06/2014)
129 NOTICE of Filing Letter to the Court RE: Religious Diet Program by William Thomas (cqs) (Entered: 02/25/2014)
130 Unopposed MOTION for Discovery [for Leave to Depose Incarcerated Witnesses] by Secretary Department of Corrections. Responses due by 3/17/2014 (Maher, Susan) (Entered: 02/26/2014)
131 ORDER granting 130 Motion for Discovery. Signed by Magistrate Judge Andrea M. Simonton on 2/28/2014. (eh00) (Entered: 02/28/2014)
132 NOTICE by Secretary Department of Corrections re 106 Order on Motion for Preliminary Injunction,, [Of Filing Implementation Plan] (Attachments: # 1 Appendix

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 17 of 50

03/13/2014 03/14/2014 03/14/2014 03/14/2014 03/17/2014 03/17/2014 03/17/2014
03/18/2014 03/19/2014 03/19/2014 03/19/2014 03/20/2014 03/21/2014 03/24/2014
03/24/2014 03/26/2014

Implementation Plan, # 2 Exhibit 1 − Certified Food Option Menu 07−01−2013, # 3 Exhibit 2− Certified Food Option Menu 01−31−2014, # 4 Exhibit 3 − Certified Food Option Menu 02−28−2014, # 5 Exhibit 4 − Implementation Schedule by Date, # 6 Exhibit 5 − Implementation Schedule by Phase, # 7 Exhibit 6 − Procedure 503.006 Revised 02−27−2014)(Maher, Susan) (Entered: 02/28/2014)
133 NOTICE by United States of America of Intent to Participate in the Upcoming Status Conference by Video (Fox, Deena) (Entered: 03/13/2014)
134 NOTICE by Secretary Department of Corrections re 106 Order on Motion for Preliminary Injunction,, of Intent to Appear by Video Conference at March 21, 2014 Status Conference (Maher, Susan) (Entered: 03/14/2014)
135 Unopposed MOTION For Leave to Depose Federal Prisoner by Secretary Department of Corrections. (Attachments: # 1 Text of Proposed Order)(Maher, Susan) (Entered: 03/14/2014)
136 NOTICE by Secretary Department of Corrections re 112 Order, Set/Reset Deadlines of Filing Joint Proposed Agenda for March 21, 2014 Status Conference (Maher, Susan) (Entered: 03/14/2014)
137 Letter RE: Kosher Diet from Marc Miller (cqs) (Entered: 03/17/2014)
138 ORDER granting 135 Motion for Leave to Depose Prisoner. Signed by Magistrate Judge Andrea M. Simonton on 3/17/2014. (eh00) (Entered: 03/17/2014)
139 TRANSCRIPT of Status Conference held on 02/04/2014 before Judge Patricia A. Seitz, 1−46 pages, Court Reporter: Judy Wolff, 305−523−5294 / Judy_Wolff@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/10/2014. Redacted Transcript Deadline set for 4/21/2014. Release of Transcript Restriction set for 6/19/2014. (jsn) (Entered: 03/17/2014)
140 ORDER Granting 135 Unopposed MOTION For Leave to Depose Federal Prisoner filed by Secretary Department of Corrections Signed by Judge Patricia A. Seitz on 3/17/2014. (cqs) (Entered: 03/18/2014)
141 NOTICE of Hearing by ATTORNEY: Discovery Hearing set for 3/21/2014 11:00 AM in Miami Division before Magistrate Judge Andrea M. Simonton. (Maher, Susan) (Entered: 03/19/2014)
142 NOTICE by Secretary Department of Corrections re 141 Notice of Hearing by Attorney of Cancellation of Hearing (Maher, Susan) (Entered: 03/19/2014)
143 Emergency Interveners MOTION For Kosher For Passover April 14−21 2014 Accommodation by Douglas Marshall. (cqs) (Entered: 03/19/2014)
144 ORDER denying 143 Motion To Intervene. Signed by Judge Patricia A. Seitz on 3/20/2014. (cqs) (Entered: 03/20/2014)
145 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 3/21/2014. Order to follow. Court Reporter: Patricia Sanders, 305−523−5548 / Patricia_Sanders@flsd.uscourts.gov (wc) (Entered: 03/21/2014)
146 ORDER Granting The Parties Leave To file Memoranda Of Law On Proposed Clarifications of The Preliminary Injunction re 106 Order on Motion for Preliminary Injunction,,, ( Motions due by 3/26/2014.) Signed by Judge Patricia A. Seitz on 3/24/2014. (cqs) (Entered: 03/24/2014)
147 ORDER Granting the Parties Leave to File Memoranda of Law on Proposed Clarifications of the Preliminary Injunction, re 106 Order on Motion for Preliminary Injunction Signed by Judge Patricia A. Seitz on 3/24/14. (mg) (Entered: 03/25/2014)
148 Plaintiff's MOTION for clarification 146 Order, Set/Reset Deadlines,, Proposed Clarification of the Preliminary Injunction by United States of America. Responses due by 4/14/2014 (Fox, Deena) (Entered: 03/26/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 18 of 50

03/26/2014 03/26/2014
03/28/2014 03/28/2014 03/28/2014
03/28/2014
03/28/2014 03/31/2014 03/31/2014 04/03/2014 04/03/2014 04/03/2014 04/03/2014 04/03/2014 04/04/2014
04/04/2014 04/04/2014
04/04/2014 04/07/2014 04/07/2014 04/07/2014 04/07/2014 04/07/2014 04/07/2014

149 RESPONSE/REPLY to 146 Order, Set/Reset Deadlines,, 147 Order by Secretary Department of Corrections. (Maher, Susan) (Entered: 03/26/2014)
150 MOTION to Stay re 106 Order on Motion for Preliminary Injunction,, [Partial Stay] by Secretary Department of Corrections. Responses due by 4/14/2014 (Maher, Susan) (Entered: 03/26/2014)
151 EMERGENCY MOTION for Injunction by Daniel Lugo. (cqs) (Entered: 03/28/2014)
152 MOTION/Notice to Join 1 Complaint by Daniel Lugo. (cqs) (Entered: 03/28/2014)
153 ORDER denying 152 Construed Motion to Intervene; denying 151 Emergency Motion for Permanent Injunction. Signed by Judge Patricia A. Seitz on 3/28/2014. (lw) (Entered: 03/28/2014)
154 RESPONSE in Opposition re 150 MOTION to Stay re 106 Order on Motion for Preliminary Injunction,, [Partial Stay] filed by United States of America. (Attachments: # 1 Exhibit Feb. Hrg. Tr., # 2 Exhibit Letter)(Fox, Deena) (Entered: 03/28/2014)
155 NOTICE of Filing Re: Religious Diet Program by Ronald Clark (cqs) (Entered: 03/31/2014)
156 NOTICE of Filing RE: Religious Diet by Jerry Layne Rogers #092118 (cqs) (Entered: 03/31/2014)
157 NOTICE Of Filing Re: Religious Diet by Falonda Wilkins (cqs) (Entered: 03/31/2014)
158 NOTICE Of Filing Letter Re: Religious Diet By Lynn Keller (cqs) (Entered: 04/03/2014)
159 NOTICE Of Filing Re: Regilous Diet by Robert Purchase #K63576 (cqs) (Entered: 04/03/2014)
160 NOTICE Of Filing Re: Religious Diet By John Newland #B03836 (cqs) (Entered: 04/03/2014)
161 NOTICE Of Filing RE: Religious Diet by Karen Konopacki (family member) (cqs) (Entered: 04/03/2014)
162 ORDER granting 148 Motion for Clarification; denying 150 Motion to Stay. Signed by Judge Patricia A. Seitz on 4/3/2014. (cqs) (Entered: 04/03/2014)
163 Joint MOTION for Extension of Time to Complete Discovery Seeking Modification of Expert Deposition Schedule by United States of America. (Fox, Deena) (Entered: 04/04/2014)
164 NOTICE Of Filing Re: Religious Diet By Terrence Thompson #118890 (cqs) (Entered: 04/04/2014)
165 Case Reassignment of Paired Magistrate Judge pursuant to Administrative Order(s) 2013−63 to Magistrate Judge William C. Turnoff. Magistrate Judge Andrea M. Simonton no longer assigned to case. (vp) (Entered: 04/04/2014)
166 Letter to Deena Fox, U.S. Dept. of Justice from James Anthony (ls) (Entered: 04/07/2014)
167 NOTICE of Filing Re: Religious Diet by Robert Tackett #U03198 (cqs) (Entered: 04/07/2014)
168 NOTICE of Filing Re: Religious Diet by Mark Lawson #036376 (cqs) (Entered: 04/07/2014)
169 NOTICE of Filing Re: Religious Diet by Ivan Medina #823454 (cqs) (Entered: 04/07/2014)
170 NOTICE of Filing Re: Religious Diet by LaRay Samith #077941 (cqs) (Entered: 04/07/2014)
171 NOTICE of Filing Re: Religious Diet/ Motion to Intervene by Reginald Grant (cqs) (Entered: 04/07/2014)
172 MOTION for Leave To Premit Limited Emergency Discovery for Et al Prisoners by Edward Ingleton. Responses due by 4/24/2014 (cqs) (Entered: 04/07/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 19 of 50

04/08/2014
04/08/2014 04/08/2014 04/08/2014
04/08/2014 04/08/2014 04/08/2014 04/08/2014 04/08/2014 04/08/2014 04/08/2014 04/08/2014 04/09/2014
04/09/2014 04/09/2014 04/10/2014 04/10/2014 04/10/2014 04/10/2014 04/10/2014 04/10/2014 04/10/2014

173 ORDER granting 163 Motion for Extension of Time to Complete Expert Depositions. Miscellaneous Deadline 4/25/2014. Signed by Judge Patricia A. Seitz on 4/7/2014. (cqs) (Entered: 04/08/2014)
174 NOTICE of Filing Re: Religious Diet by Chris Nance # J17804 (cqs) (Entered: 04/08/2014)
175 MOTION To Join as Plaintiff Re: Religious Diet by Edward Ingleton. (cqs) (Entered: 04/08/2014)
176 NOTICE of Filing Supplemental Authoruty Exhibits Evidence In Support Of Kosher− For−Passovr Accommodation by Intervenors, Douglas Marshall (cqs) (Entered: 04/08/2014)
177 NOTICE of Filing Re: Religious Diet by Ronald Hasly # 167201 (cqs) (Entered: 04/08/2014)
178 NOTICE Of Filing Re: Religious Diet by Adrian Smith # 297578 (cqs) (Entered: 04/08/2014)
179 NOTICE of Filing Re: Religious Diet by Isaac Green, Jr. #106838 (cqs) (Entered: 04/08/2014)
180 NOTICE of Filing RE: Religious diet by Jimmie S. Nance #631424 (cqs) (Entered: 04/08/2014)
181 NOTICE of Filing RE: Religious diet by Daniel Papineau #091723 (cqs) (Entered: 04/08/2014)
182 NOTICE of Filing Re: Religious Diet by OBrian Hawks #X59666 (cqs) (Entered: 04/08/2014)
183 NOTICE of Filing Re: Religious Diet by otniel Calderon # O−T16352 (cqs) (Entered: 04/08/2014)
184 NOTICE of Filing Re: Religious diet by Shaown Jackson #818234 (cqs) (Entered: 04/08/2014)
185 NOTICE of Filing RE: Religious Diet/ Request for Judical Notice by Edward Surratt # 066573 (cqs) (Main Document 185 replaced with complete image on 4/16/2014) (ail). (Entered: 04/09/2014)
186 ORDER denying 172 Construed Motion to Intervene Signed by Judge Patricia A. Seitz on 4/9/2014. (cqs) (Entered: 04/09/2014)
187 ORDER Denying 171 Motion To Intervene Signed by Judge Patricia A. Seitz on 4/9/2014. (cqs) (Entered: 04/09/2014)
188 NOTICE of Filing Re: Religious Diet by German Delatorre #X80796 (cqs) (Entered: 04/10/2014)
189 ORDER denying 175 Motion To Intervene. Signed by Judge Patricia A. Seitz on 4/10/2014. (cqs) (Entered: 04/10/2014)
190 NOTICE of Filing Re: Religious Diet by Eric Powder #098286 (cqs) (Entered: 04/10/2014)
191 NOTICE of Filing Re: Religious Diet by Christopher Black (cqs) (Entered: 04/10/2014)
192 NOTICE Of Filing Re: Religious Diet by Teofilo Centeno (cqs) (Entered: 04/10/2014)
193 NOTICE Of Religious Diet by Velestin Stevens #199986 (cqs) (Entered: 04/10/2014)
194 TRANSCRIPT of Status Conference held on 01/07/2014 before Judge Patricia A. Seitz, 1−34 pages, Court Reporter: Judy Wolff, 305−523−5294 / Judy_Wolff@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/5/2014. Redacted Transcript Deadline set for 5/15/2014. Release of Transcript Restriction set for 7/14/2014. (jsn) (Entered: 04/10/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 20 of 50

04/11/2014 04/11/2014 04/11/2014 04/14/2014 04/14/2014 04/15/2014 04/15/2014 04/15/2014 04/15/2014 04/15/2014
04/15/2014
04/16/2014 04/16/2014 04/16/2014 04/17/2014 04/18/2014 04/18/2014 04/18/2014 04/18/2014 04/18/2014 04/21/2014 04/21/2014 04/21/2014 04/21/2014 04/21/2014

195 NOTICE Of Filing RE: Religious Diet by Lowell Huges #127748 (cqs) (Entered: 04/11/2014)
196 NOTICE Of Filing Re: Religious Diet by Hugo Lopez Martinez #C05121 (cqs) (Entered: 04/11/2014)
197 Unopposed MOTION for Leave to File Excess Pages by United States of America. (Songer, Michael) (Entered: 04/11/2014)
198 NOTICE of Filing Re: Religious Diet by Michael Ruggiero #U12723 (cqs) (Entered: 04/14/2014)
199 NOTICE of Filing RE: Religious Diet by Paulo Baskovich (cqs) (Entered: 04/14/2014)
200 NOTICE Of Filing Re: Religious Diet by Ira M. Amazon #087327 (cqs) (Entered: 04/15/2014)
201 NOTICE Of Filing Re: Religious Diet / Motion To Intervene by William Gibson (cqs) (Entered: 04/15/2014)
202 NOTICE of Filing Re: Religious Diet/ Motion To Intervene by Perry Hilton #096132 (cqs) (Entered: 04/15/2014)
203 NOTICE Of Filing RE: Religious Diet/ Motion To Intervene by Mark S. Wilson # m0417 (cqs) (Entered: 04/15/2014)
204 NOTICE by Secretary Department of Corrections re 122 Order, Set/Reset Deadlines of Intent to Appear By Video Conference at Status Conference of April 22, 2014 (Maher, Susan) (Entered: 04/15/2014)
205 NOTICE by Secretary Department of Corrections re 122 Order, Set/Reset Deadlines of Filing Joint Proposed Agenda for April 22, 2014 Status Conference (Maher, Susan) (Entered: 04/15/2014)
206 NOTICE Of Filing Re: Religious Diet/ Motion To Intervene by Muhammad Abdul Rahim (cqs) (Entered: 04/16/2014)
207 NOTICE by United States of America of Intent to Appear at April Status Conference by Video (Fox, Deena) (Entered: 04/16/2014)
208 Clerks Notice of Docket Correction re 185 Notice (Other). Correction: Image replaced with complete image; SEE attached. (ail) (Entered: 04/16/2014)
209 ORDER granting in part 197 Motion for Leave to File Excess Pages. Signed by Judge Patricia A. Seitz on 4/17/2014. (cqs) (Entered: 04/17/2014)
210 MOTION to Intervene by Cameron Williams. (dj) (Entered: 04/18/2014)
211 MOTION to Intervene by Julio Gamez. (dj) (Entered: 04/18/2014)
212 MOTION to Intervene by Joshua Hubbert. (dj) (Entered: 04/18/2014)
213 MOTION to Intervene by Ian Spaziani. (dj) (Entered: 04/18/2014)
214 MOTION for Permanent Injunction by Jill Coit. (dj) (Entered: 04/18/2014)
215 ORDER DENYING 201 MOTION TO INTERVENE Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)
216 ORDER DENYING 202 MOTION TO INTERVENE Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)
217 ORDER DENYING 203 MOTION TO INTERVENE Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)
218 ORDER DENYING 206 MOTION TO INTERVENE Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)
219 ORDER denying 210 Motion to Intervene. Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 21 of 50

04/21/2014 04/21/2014 04/21/2014 04/21/2014 04/22/2014
04/22/2014
04/22/2014 04/22/2014 04/22/2014 04/22/2014 04/22/2014 04/22/2014
04/22/2014
04/24/2014 04/28/2014 04/28/2014 04/29/2014 05/01/2014
05/01/2014 05/01/2014
05/02/2014 05/02/2014 05/02/2014 05/06/2014

220 ORDER denying 211 Motion to Intervene. Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)
221 ORDER denying 212 Motion to Intervene. Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)
222 ORDER denying 213 Motion to Intervene. Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)
223 ORDER denying Construed Motion To Intervene 214 Motion for Permanent Injunction. Signed by Judge Patricia A. Seitz on 4/21/2014. (cqs) (Entered: 04/21/2014)
224 Defendant's MOTION to Continue Trial and/or Extend Deadlines for Motions for Summary Judgment [Verified Motion] by Secretary Department of Corrections. Responses due by 5/9/2014 (Maher, Susan) (Entered: 04/22/2014)
225 NOTICE by Secretary Department of Corrections of Filing Updated Implementation Plan Charts by Date and Phase as of 04−22−2014 (Attachments: # 1 Exhibit A − Implementation Plan by Date as of 04−22−2014, # 2 Exhibit B − Implementation Plan by Phase as of 04−22−2014)(Maher, Susan) (Entered: 04/22/2014)
226 NOTICE of Filing Re: Religious Diet by Wilfredo A. Ferrer (cqs) (Entered: 04/22/2014)
227 NOTICE of Filing Re: Religious Diet by Daniel Selby (cqs) (Entered: 04/22/2014)
228 NOTICE of Filing Re: Religious Diet by Eduardo Toranzo (cqs) (Entered: 04/22/2014)
229 NOTICE of Filing Re: Religious Diet by Tommy Roberson#055093 (cqs) (Entered: 04/22/2014)
230 NOTICE of Filing Re: Religious Diet by Germaine Ruddick (cqs) (Entered: 04/22/2014)
231 ORDER granting in part and denying in part 224 Motion to Continue. Dispositive Motions due by 5/19/2014. Signed by Judge Patricia A. Seitz on 4/22/2014. (cqs) (Entered: 04/22/2014)
232 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 4/22/2014. Court Reporter: Stephanie McCarn, 305−523−5518 / Stephanie_McCarn@flsd.uscourts.gov (lw) (Entered: 04/22/2014)
233 MOTION to Intervene RE: Religious Diet by LaMar Hay. (cqs) (Entered: 04/24/2014)
234 MOTION to Intervene by Kenneth Patterson. (cqs) (Entered: 04/28/2014)
235 ORDER denying 233 Motion to Intervene Notice of Termination delivered by US Mail to LaMar Hay. Signed by Judge Patricia A. Seitz on 4/28/2014. (cqs) (Entered: 04/28/2014)
236 MOTION to Intervene by Alvin Hudson. (cqs) (Entered: 04/30/2014)
237 ORDER Granting Defendant's Leave To File Proposed Order Clarifying Perliminary Injunction, ( Proposed Order Deadline 5/6/2014.) (nunc pro tunc 4/22/2014) Signed by Judge Patricia A. Seitz on 5/1/2014. (cqs) (Entered: 05/01/2014)
238 ORDER denying 234 Motion to Intervene. Signed by Judge Patricia A. Seitz on 5/1/2014. (cqs) (Entered: 05/01/2014)
239 ORDER denying 236 Motion to Intervene Notice of Termination delivered by US Mail to Alvin Hudson. Signed by Judge Patricia A. Seitz on 5/1/2014. (cqs) (Entered: 05/01/2014)
240 MOTION to Intervene by John H Nelson. (cqs) (Entered: 05/02/2014)
241 NOTICE of Filing Letter Regarding Diet Issues Raised by Walter Kirby (ail) (Entered: 05/02/2014)
242 ORDER denying 240 Motion to Intervene Notice of Termination delivered by US Mail to John Nelson. Signed by Judge Patricia A. Seitz on 5/2/2014. (cqs) (Entered: 05/02/2014)
243 NOTICE by United States of America of Intent to Appear by Videoconference (Fox, Deena) (Entered: 05/06/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 22 of 50

05/06/2014 05/06/2014 05/06/2014
05/07/2014 05/08/2014 05/08/2014 05/08/2014
05/09/2014
05/11/2014 05/11/2014 05/11/2014 05/12/2014
05/12/2014 05/12/2014 05/12/2014 05/12/2014

244 NOTICE by Secretary Department of Corrections re 106 Order on Motion for Preliminary Injunction,, Of Intent to Appear By Videoconferencing (Maher, Susan) (Entered: 05/06/2014)
245 NOTICE by Secretary Department of Corrections re 122 Order, Set/Reset Deadlines of Filing Joint Proposed Agenda for May 12, 2014 Status Conference (Maher, Susan) (Entered: 05/06/2014)
246 RESPONSE/REPLY to 237 Order, Set/Reset Deadlines to Submit Proposed Order by Secretary Department of Corrections. (Attachments: # 1 Exhibit A − 503.006 Procedure & Form, # 2 Exhibit B − Proposed Addendumto Procedure, # 3 Exhibit C − RDP Compliance Notice Form, # 4 Exhibit D − FBOP Religious Diet Interview Form, # 5 Exhibit E − Smith Depo Excerpts, # 6 Exhibit F − FBOP RDP Procedure, # 7 Exhibit G − Clark Depo Excerpts)(Maher, Susan) (Entered: 05/06/2014)
247 NOTICE of Filing Re: Religious Diet by Victor L Parker#110847 (cqs) (Entered: 05/07/2014)
248 MOTION to Intervene by Luis Vizcaino. (cqs) (Entered: 05/08/2014)
249 MOTION to Intervene by Michael D Cambridge #R27131 (cqs) (Entered: 05/08/2014)
250 TRANSCRIPT of the Videoconferenced Status Conference held on 04/22/14, before Judge Patricia A. Seitz, 1−66 pages, Court Reporter: Stephanie McCarn, 305−523−5518 / Stephanie_McCarn@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/2/2014. Redacted Transcript Deadline set for 6/12/2014. Release of Transcript Restriction set for 8/11/2014. (smn) (Entered: 05/08/2014)
251 RESPONSE/REPLY to 246 Response/Reply (Other), to Defendants' Response to Court Order by United States of America. (Attachments: # 1 Deposition Hedrick, # 2 Deposition Lam, # 3 Deposition Taylor, # 4 Deposition Ortiz, # 5 Transcripts June 4, # 6 Deposition Creamer, # 7 Deposition Upchurch, # 8 Deposition Phillips, # 9 Deposition Jurado)(Fox, Deena) (Entered: 05/09/2014)
252 RESPONSE/REPLY to 237 Order, Set/Reset Deadlines Supplement with Revised Proposed Addendum by Secretary Department of Corrections. (Attachments: # 1 Exhibit A − Revised Proposed Addendum after USA Input, # 2 Exhibit B − Shane Phillips Depo − Excerpt Pages)(Maher, Susan) (Entered: 05/11/2014)
253 NOTICE by Secretary Department of Corrections of Filing Summary Report of Incidents (Attachments: # 1 Exhibit A − Summary Report of Incidents)(Maher, Susan) (Entered: 05/11/2014)
254 NOTICE by Secretary Department of Corrections of Filing RDP Fiscal Summary (Attachments: # 1 Exhibit A − RDP Fiscal Summary)(Maher, Susan) (Entered: 05/11/2014)
255 MOTION to Stay re 106 Order on Motion for Preliminary Injunction,, [Partial Stay of July 1, 2014 Implementation Deadline] by Secretary Department of Corrections. Responses due by 5/30/2014 (Attachments: # 1 Exhibit A − Declaration of Mark Tallent, # 2 Exhibit B − Extended Implementation Schedule, # 3 Exhibit C − Watkins Depo Excerpts, # 4 Exhibit D − Clark Depo Excerpts)(Maher, Susan) (Entered: 05/12/2014)
256 NOTICE Of Filing Complaint RE: Religious Diet by Cameron Williams (cqs) (Entered: 05/12/2014)
257 NOTICE Of Filing Cpmplaint Re: Religious Diet by Timothy Humphrey (cqs) (Entered: 05/12/2014)
258 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 5/12/2014. Court Reporter: Robin Dispenzieri, 305−523−5659 / Robin_Dispenzieri@flsd.uscourts.gov (lw) (Entered: 05/12/2014)
259 ORDER on Status Conference, Defendant shall file an amended Motion for Partial Stay of the Court's July 1, 2014 Implementation Date by 5/13/14.( Amended Pleadings due by 5/13/2014.) Signed by Judge Patricia A. Seitz on 5/12/2014. (mg) (Entered: 05/13/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 23 of 50

05/13/2014
05/13/2014 05/14/2014 05/14/2014 05/14/2014 05/15/2014 05/15/2014 05/16/2014 05/19/2014
05/19/2014 05/19/2014
05/21/2014 05/21/2014

260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Date by Secretary Department of Corrections. Responses due by 5/30/2014 (Attachments: # 1 Exhibit A − Declaration of Mark Tallent with Attachments, # 2 Exhibit B − Quarterly Implementation Plan, # 3 Exhibit C − Watkins Depo Excerpts, # 4 Exhibit D − Clark Depo Excerpts, # 5 Exhibit E − Watkins Depo Excerpts)(Maher, Susan) (Entered: 05/13/2014)
262 ORDER STRIKING 247 Notice (Other)of Complaint, 257 Notice (Other)of complaint, 256 Notice (Other)of complaint. Signed by Judge Patricia A. Seitz on 5/13/2014. (mg) (Entered: 05/14/2014)
261 MOTION for Expedited Response Deadlines on DE# 260 Amended Motion for Partial Stay of July 1, 2014 Implementation Date re 260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Date by Secretary Department of Corrections. (Maher, Susan) (Entered: 05/14/2014)
263 ORDER Denying 248 Motion to Intervene ; Denying 249 Motion to Intervene. Signed by Judge Patricia A. Seitz on 5/13/2014. (mg) (Entered: 05/14/2014)
264 RESPONSE in Opposition re 261 MOTION for Expedited Response Deadlines on DE# 260 Amended Motion for Partial Stay of July 1, 2014 Implementation Date re 260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Dat filed by United States of America. (Fox, Deena) (Entered: 05/14/2014)
265 NOTICE of Attorney Appearance by Deena Fox on behalf of United States of America (Fox, Deena) (Entered: 05/15/2014)
266 NOTICE of Attorney Appearance by Jeffrey S. Blumberg on behalf of United States of America. Attorney Jeffrey S. Blumberg added to party United States of America(pty:pla). (Blumberg, Jeffrey) (Entered: 05/15/2014)
267 Joint MOTION for Protective Order by United States of America. (Attachments: # 1 Text of Proposed Order Stipulated Protective Order)(Fox, Deena) (Entered: 05/16/2014)
268 MOTION for Summary Judgment by United States of America. Responses due by 6/5/2014 (Attachments: # 1 Affidavit Songer Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26)(Songer, Michael) Modified status per Chambers on 10/17/2014 (sk). (Entered: 05/19/2014)
269 STRICKEN MOTION for Summary Judgment by Secretary Department of Corrections. Responses due by 6/5/2014 (Tietig, Lisa) Modified on 6/6/2014 stricken per de# 291 (dj). (Entered: 05/19/2014)
270 NOTICE by Secretary Department of Corrections re 269 MOTION for Summary Judgment (Attachments: # 1 Affidavit Lisa Tietig − Authenticity of Exhibit Excerpts, # 2 Exhibit A − Deposition Excerpts − John Clark, # 3 Exhibit B − Deposition Excerpts − Dennis Watkins, # 4 Exhibit C − Deposition Excerpts − Karen Stiltner, # 5 Exhibit D − Deposition Excerpts − Michael R. Smith, Sr., # 6 Exhibit E − Declaration of Shane Phillips, # 7 Exhibit F − Deposition Excerpts − Jon Creamer, # 8 Exhibit G − Declaration of Mark Tallent, # 9 Exhibit H − Deposition Excerpts − James Upchurch, # 10 Exhibit I − Deposition Excerpts − Shane Phillips, # 11 Exhibit J − Declaration of Alex Taylor (April 18, 2014), # 12 Exhibit K − Declaration of Jon Creamer, # 13 Exhibit L − Declaration of Alex Taylor (May 19, 2014), # 14 Exhibit M − Deposition Excerpts − Bradley Greilick, # 15 Exhibit Declaration of Carl Wesley Kirkland, Jr., # 16 Exhibit O − Deposition Excerpts − Alex Taylor)(Maher, Susan) (Entered: 05/19/2014)
271 STIPULATED PRIVACY PROTECTION ORDER and Endorsed ORDER granting 267 Joint Motion for Protective Order. Signed by Magistrate Judge William C. Turnoff on 5/21/14. (lml) (Entered: 05/21/2014)
273 ORDER of USCA Appellant's Motion for Partial Stay of Preliminary Injunction Order Pending Appeal is DENIED WITHOUT PREJUDICE subject to Appellant's right to file a renewed motion to stay in the district court that addresses all of the relief that it seeks in

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 24 of 50

05/22/2014 05/22/2014 05/22/2014 05/22/2014 05/22/2014 05/23/2014 05/23/2014
05/27/2014 05/27/2014 05/28/2014
05/29/2014 05/31/2014
06/02/2014
06/03/2014 06/03/2014 06/03/2014 06/03/2014
06/04/2014

the present motion before this Court; re 120 Notice of Interlocutory Appeal, filed by Secretary Department of Corrections. USCA# 14−10086−DD (mc) (Entered: 05/22/2014)
272 ORDER granting In Part 261 Motion To Expedite. Responses due by 5/23/2014 Replies due by 5/28/2014. Signed by Judge Marcia G. Cooke on 5/21/2014. (cqs) (Entered: 05/22/2014)
274 MOTION for Hearing by Michael D Cambridge. (cqs) (Additional attachment(s) added on 5/22/2014: # 1 Proff of service) (cqs). (Entered: 05/22/2014)
275 MOTION to Intervene by Michael D Cambridge. (cqs) (Entered: 05/22/2014)
276 Objection/Response to 259 Order, by Michael D Cambridge. (cqs) (Entered: 05/22/2014)
284 MOTION to Object by Michael D Cambridge. (ail) (Entered: 06/02/2014)
277 ORDER denying 274 Motion for Hearing; denying 275 Motion to Intervene Notice of Termination delivered by US Mail to Michael Cambridge. Signed by Judge Patricia A. Seitz on 5/22/2014. (cqs) (Entered: 05/23/2014)
278 RESPONSE/REPLY to 260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Date by United States of America. (Attachments: # 1 Exhibit Tallent Deposition, # 2 Exhibit May 12 Transcript, # 3 Exhibit Feb 4 Transcript, # 4 Exhibit Apr 12 Transcript, # 5 Exhibit Clark Deposition)(Fox, Deena) (Entered: 05/23/2014)
279 Objection/ Motion to Object to 263 Order on Motion to Intervene, by Michael D Cambridge. (cqs) (Entered: 05/27/2014)
280 NOTICE of Filing RE: Religious Diet by Julius S. Davis (#L2−139s) (cqs) (Entered: 05/27/2014)
281 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Florida certifies that the record is complete for purposes of this appeal re: 120 Notice of Interlocutory Appeal, Appeal No. 14−10086−DD. The entire record on appeal is available electronically. (mc) (Entered: 05/28/2014)
282 NOTICE of Filing Re: Religious Diet by William Files # 058553 (cqs) (Entered: 05/29/2014)
283 REPLY to Response to Motion re 260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Date filed by Secretary Department of Corrections. (Attachments: # 1 Exhibit A − Creamer Declaration with Attachments, # 2 Exhibit B − Excerpt Watkins Expert Depo)(Maher, Susan) (Entered: 05/31/2014)
285 Unopposed MOTION Unopposed Motion to Accept As Timely Filed Defendant's Reply to Plaintiff's Response to Defendant's Amended Motion for Partial Stay of Court's July 1, 2014 Implementation Date re 278 Response/Reply (Other), by Secretary Department of Corrections. (Maher, Susan) (Entered: 06/02/2014)
286 NOTICE Of Filing Re: REligiou Diet by Pressley Alston #709795 (cqs) (Entered: 06/03/2014)
287 ORDER granting 285 Motion To Accept As Timely. Signed by Judge Patricia A. Seitz on 6/3/2014. (cqs) (Entered: 06/03/2014)
288 ORDER denying 284 Motion To Object. Signed by Judge Patricia A. Seitz on 6/3/2014. (cqs) (Entered: 06/03/2014)
289 ORDER SETTING HEARING, Defendant's Motion for Partial Stay of the Court's 7/1/2014 Implementation Date 255 is denied as moot. 260 Defendant's AMENDED Motion for Partial Stay of the Court's 7/1/2014 Implementation Date is hereby set for Friday, 6/6/2014 09:30 AM in Miami Division before Judge Patricia A. Seitz. Signed by Judge Patricia A. Seitz on 6/3/2014. (mno) (Entered: 06/03/2014)
290 NOTICE OF COMPLAINT (lh) (Entered: 06/04/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 25 of 50

06/05/2014 06/05/2014 06/05/2014 06/05/2014
06/06/2014 06/06/2014
06/06/2014 06/09/2014 06/09/2014 06/09/2014

291 ORDER striking 269 Motion for Summary Judgment. Signed by Judge Patricia A. Seitz on 6/5/2014. (ra) (Entered: 06/05/2014)
292 NOTICE by Secretary Department of Corrections re 291 Order on Motion for Summary Judgment of Filing Procedure 503.006, Addendum and Forms (Attachments: # 1 Exhibit A − RDP Procedure 503.006, # 2 Exhibit B − Addendum to Procedure 503.006, # 3 Exhibit C − DC5−324 − Revised Application for CFO, # 4 Exhibit D − DC5−325 − Notice of Violation Form)(Maher, Susan) (Entered: 06/05/2014)
293 RESPONSE in Opposition re 268 MOTION for Summary Judgment filed by Secretary Department of Corrections. (Maher, Susan) (Entered: 06/05/2014)
294 NOTICE of Filing Evidence by Secretary Department of Corrections re 293 Response in Opposition to Motion, 268 MOTION for Summary Judgment (Attachments: # 1 Deposition Ex. A Deposition Transcript of John Clark, # 2 Affidavit Ex. B Declaration of Chaplain Joe Henkle, # 3 Deposition Ex. C Deposition Transcript of Karen Stiltner, # 4 Deposition Ex. D Deposition Transcript of Michael Smith, # 5 Deposition Ex. F Deposition Transcript Excerpts of Shane Phillips, # 6 Affidavit Ex. G Declaration of Mark Tallent, # 7 Deposition Ex. H Deposition Transcript Excerpts of Alexander Taylor, # 8 Affidavit Ex. I Declaration of James Upchurch, # 9 Affidavit Ex. J Declaration of Mark Tallent)(Maher, Susan) Modified Text on 6/6/2014 (ls). (Entered: 06/05/2014)
295 Minute Entry for proceedings held before Judge Patricia A. Seitz: Motion Hearing held on 6/6/2014 re 260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Date filed by Secretary Department of Corrections. Court Reporter: William Romanishin, 305−523−5558 / Bill_Romanishin@flsd.uscourts.gov (lw) (Entered: 06/06/2014)
296 ORDER re 260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Date filed by Secretary Department of Corrections, as to 260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Date. ( Motion for partial remand Deadline 6/13/2014., In Limine Motions due by 2/18/2015., Motion for summary judgment due by 6/9/2014 and Responses to motion for summary judgment due by 6/10/2014,, Pretrial Stipulation due by 2/18/2015., Calendar Call set for 3/18/2015 01:15 PM in Miami Division before Judge Patricia A. Seitz., Jury Trial set for 3/23/2015 in Miami Division before Judge Patricia A. Seitz., Pretrial Conference set for 3/5/2015 09:30 AM in Miami Division before Judge Patricia A. Seitz.). Motions terminated: 260 Amended MOTION to Stay re 259 Order, Set/Reset Deadlines [Partial Stay of July 1, 2014 Implementation Date filed by Secretary Department of Corrections. Signed by Judge Patricia A. Seitz on 6/6/2014. (tas) (Entered: 06/06/2014)
297 NOTICE by Secretary Department of Corrections re 293 Response in Opposition to Motion of Filing Exhibit F (Attachments: # 1 Deposition Ex. E Deposition Transcript of Dennis Watkins)(Tietig, Lisa) Modified Text on 6/6/2014 (ls). (Entered: 06/06/2014)
298 NOTICE RE: Religious Diet by Dawson Pressely #209795 (cqs) (Entered: 06/09/2014)
299 MOTION for Summary Judgment by Secretary Department of Corrections. Responses due by 6/26/2014 (Tietig, Lisa) Modified status per Chambers on 10/17/2014 (sk). (Entered: 06/09/2014)
300 NOTICE by Secretary Department of Corrections re 299 MOTION for Summary Judgment of Filing Evidence (Attachments: # 1 Affidavit Declaration of Lisa Kuhlman Tietig, # 2 Deposition Exhibit A Excerpts from the deposition of John L. Clark, # 3 Deposition Exhibit B Excerpts from the deposition of Dennis Watkins, # 4 Deposition Exhibit C Excerpts from the deposition of Karen Stiltner, # 5 Deposition Exhibit D Excerpts from the deposition of Michael R. Smith, Sr., # 6 Affidavit Exhibit E Declaration of Sane Phillips, # 7 Deposition Exhibit F Excerpts from the deposition of Jon Creamer, # 8 Affidavit Exhibit G Declaration of Mark Tallent, # 9 Deposition Exhibit H Excerpts from deposition of James Upchurch, # 10 Deposition Exhibit I Excerpts from the deposition of Shane Phillips, # 11 Affidavit Exhibit J Declaration of Alexander Taylor dated 4/18/14, # 12 Affidavit Exhibit L Declaration of Alexander Taylor dated 5/22/14, # 13 Deposition Exhibit M Excerpts from the deposition of Bradley Greilick, # 14 Affidavit Exhibit N Declaration of Carl Wesley Kirkland, Jr., # 15 Deposition Exhibit O Excerpts from deposition of Alexander Taylor)(Tietig, Lisa) (Entered: 06/09/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 26 of 50

06/10/2014 06/10/2014 06/10/2014 06/10/2014
06/10/2014 06/10/2014
06/11/2014 06/11/2014 06/12/2014 06/13/2014 06/13/2014 06/16/2014 06/17/2014 06/17/2014
06/17/2014 06/17/2014 06/19/2014 06/20/2014 06/24/2014 06/24/2014

301 AFFIDAVIT of Akeem Muhammad in Opposition re 269 MOTION for Summary Judgment by Akeem Muhammad #706732. (cqs) (Entered: 06/10/2014)
302 "STRICKEN" NOTICE Of Filing re 301 Affidavit in Opposition to Motion by Akeem Muhammad (cqs) Modified on 6/13/2014 (ls). (Stricken per DE # 311 ) (Entered: 06/10/2014)
303 MOTION for Leave to File 301 Affidavit.by Akeem Muhammad. (cqs) (Entered: 06/10/2014)
304 NOTICE by Secretary Department of Corrections re 296 Order, Set/Reset Deadlines/Hearings, Terminate Motions,,,,,,,,,,,, to the Court Regarding Court's Order of June 6, 2014 [DE 296] Directing Parties to File Motion for Partial Remand in Eleventh Circuit Appeal Proceeding (Maher, Susan) (Entered: 06/10/2014)
305 Renewed MOTION to Stay [For Partial Stay of July 1, 2014 Implementation Date] by Secretary Department of Corrections. Responses due by 6/27/2014 (Attachments: # 1 Text of Proposed Order)(Maher, Susan) (Entered: 06/10/2014)
306 RESPONSE in Opposition re 299 MOTION for Summary Judgment filed by United States of America. (Attachments: # 1 Affidavit Blumberg, # 2 Exhibit June 6 hearing transcript, # 3 Exhibit April 22 hearing transcript, # 4 Exhibit Smith deposition, # 5 Exhibit Interrogatories)(Fox, Deena) (Entered: 06/10/2014)
307 ORDER denying 305 Motion to Stay. Signed by Judge Patricia A. Seitz on 6/11/2014. (cqs) (Entered: 06/11/2014)
308 AFFIDAVIT signed by : Preston S. Allen. by Preston S. Allen (mg) (Entered: 06/12/2014)
309 NOTICE of inquiry (dj) (Entered: 06/13/2014)
SYSTEM ENTRY − Docket Entry 310 [motion] restricted/sealed until further notice. (nc) (Entered: 06/13/2014)
311 ORDER denying 303 Motion for Leave to File Affidavit; Striking 302 Notice of Filing Affidavit of Akeem Muhammand in Opposition to Defendant's Motion for Summary Judgment. Signed by Judge Patricia A. Seitz on 6/13/2014. (ls) (Entered: 06/13/2014)
312 REPLY to Response to Motion re 268 MOTION for Summary Judgment filed by United States of America. (Attachments: # 1 Affidavit Fox, # 2 Exhibit Tallent Dep, # 3 Exhibit Taylor Dep)(Fox, Deena) (Entered: 06/16/2014)
313 NOTICE by United States of America of Intent to Appear by Video (Fox, Deena) (Entered: 06/17/2014)
314 REPLY to Response to Motion re 299 MOTION for Summary Judgment filed by Florida Department of Corrections, Secretary Department of Corrections. Attorney Jason Vail added to party Florida Department of Corrections(pty:dft). (Vail, Jason) (Entered: 06/17/2014)
315 NOTICE by Secretary Department of Corrections [Joint Notice of Filing Proposed Agenda for June 24, 2014 Status Conference] (Maher, Susan) (Entered: 06/17/2014)
316 NOTICE by Secretary Department of Corrections re 106 Order on Motion for Preliminary Injunction,, of Intent to Appear by Videoconferening for June 24, 2014 Status Conference (Maher, Susan) (Entered: 06/17/2014)
317 ORDER Striking Document and Denying Motion to Seal Signed by Judge Patricia A. Seitz on 6/19/2014. (tp) (Entered: 06/19/2014)
318 Letter from Reginald E.Rose (lh) (Main Document replaced with complete copy of exhibits (ail). (Entered: 06/20/2014)
319 NOTICE of Filing Re: Religious Diet by James Hoppert #267525. (cqs) (Entered: 06/24/2014)
320 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 6/24/2014. Court Reporter: William Romanishin, 305−523−5558 / Bill_Romanishin@flsd.uscourts.gov (jcy) (Entered: 06/24/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 27 of 50

06/25/2014 06/27/2014 06/27/2014 06/27/2014 06/27/2014 06/27/2014 06/30/2014 07/01/2014 07/02/2014
07/02/2014
07/08/2014
07/08/2014 07/08/2014

321 ORDER Setting Status Conference, ( Status Conference set for 7/16/2014 10:00 AM before Judge Patricia A. Seitz.) See Order for Additional Dates. Signed by Judge Patricia A. Seitz on 6/24/2014. (cqs) (Entered: 06/25/2014)
322 NOTICE by Secretary Department of Corrections of Filing Eleventh Circuit Order Granting Limited Remand (Attachments: # 1 Exhibit A − Eleventh Circut Order Granting Limited Remand)(Maher, Susan) (Entered: 06/27/2014)
323 (STRICKEN PER ORDER DE # 328) MOTION To Apply Rulings To Next Status Conference Re: Religious Diet by Pressly. (cqs)Text Modified on 7/2/2014 (cqs). (Entered: 06/27/2014)
324 ORDER of LIMITED REMAND from USCA. Appellants Motion for Partial Remand is GRANTED. This matter is REMANDED for the limited purpose of allowing the district court to modify Appellants deadline for providing a kosher diet to all inmates in the Florida prison system re 120 Notice of Interlocutory Appeal,, filed by Secretary Department of Corrections. USCA #14−10086−DD (amb) (Entered: 06/27/2014)
325 Consent MOTION Time Sensitive Unopposed Motion to Modify Preliminary Injunction Order and to Extend July 1, 2014 Implementation Deadline on Limited Remand from Eleventh Circuit by Secretary Department of Corrections. (Attachments: # 1 Text of Proposed Order Order Modifying Preliminary Injunction on Limited Remand from Eleventh Circuit)(Maher, Susan) (Entered: 06/27/2014)
326 NOTICE by Secretary Department of Corrections re 325 Consent MOTION Time Sensitive Unopposed Motion to Modify Preliminary Injunction Order and to Extend July 1, 2014 Implementation Deadline on Limited Remand from Eleventh Circuit of Filing Excerpt 283−1 at 11−13 (Attachments: # 1 Exhibit Excerpt 283−1 at 11−13 Incorporated In DE 325)(Maher, Susan) (Entered: 06/27/2014)
327 ORDER granting 325 Motion to Modify Preliminary Injunction on Partial Remand from Eleventh Circuit. (See Order for full details.) Signed by Judge Patricia A. Seitz on 6/30/2014. (wc) (Entered: 06/30/2014)
328 ORDER STRIKING 323 Motion To Apply Ruling to Next Status Conference Motions terminated: 323 MOTION To Apply Rulings. Signed by Judge Patricia A. Seitz on 7/1/2014. (cqs) (Entered: 07/02/2014)
329 TRANSCRIPT of Hearing on Motion to Stay held on 6/6/2014 before Judge Patricia A. Seitz, 1−44 pages, Court Reporter: William Romanishin, 305−523−5558 / Bill_Romanishin@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/28/2014. Redacted Transcript Deadline set for 8/7/2014. Release of Transcript Restriction set for 10/3/2014. (br) (Entered: 07/02/2014)
330 TRANSCRIPT of Status Conference held on 6/24/2014 before Judge Patricia A. Seitz, 1−35 pages, Court Reporter: William Romanishin, 305−523−5558 / Bill_Romanishin@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/28/2014. Redacted Transcript Deadline set for 8/7/2014. Release of Transcript Restriction set for 10/3/2014. (br) (Entered: 07/02/2014)
331 Notice of Interlocutory Appeal by Michael D Cambridge re 288 Order on Motion for Miscellaneous Relief. Filing fee $(NOT PAID). Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (mc) (Entered: 07/08/2014)
Transmission of Notice of Appeal, Order and Docket Sheet to US Court of Appeals re 331 Notice of Interlocutory Appeal. Notice has been electronically mailed. (mc) (Entered: 07/08/2014)
332 Letter from David R. Dalton (lh) (Entered: 07/08/2014)

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07/08/2014 07/10/2014 07/10/2014 07/11/2014 07/11/2014 07/11/2014 07/11/2014 07/11/2014 07/14/2014 07/14/2014 07/15/2014 07/15/2014 07/15/2014
07/15/2014
07/16/2014
07/17/2014 07/24/2014 07/25/2014 07/28/2014 07/28/2014 07/29/2014 07/29/2014 07/29/2014

333 NOTICE of Inquiry by Silas Kendricks (lh) (Entered: 07/08/2014)
334 NOTICE of Filing Re: Religious Diet by Edward R. Vashey #E32251. (cqs) (Entered: 07/10/2014)
335 NOTICE by United States of America of Intent to Appear at Status Conference by Video (Fox, Deena) (Entered: 07/10/2014)
336 MOTION to Intervene and Joinder of Claims and Persons by Marzug Al−Hakim. (cqs) (Entered: 07/11/2014)
337 NOTICE of Filing Re: Religious Diet by Leonard Shuster #U36213 (cqs)Text Modified on 7/11/2014 (cqs). (Entered: 07/11/2014)
338 MOTION to Intervene/ Join by William G Thomas. (cqs) (Entered: 07/11/2014)
339 NOTICE by Secretary Department of Corrections re 321 Order, Set/Reset Hearings of Intent to Appear by Video Conferencing (Maher, Susan) (Entered: 07/11/2014)
340 NOTICE by Secretary Department of Corrections re 321 Order, Set/Reset Hearings of Filing Joint Proposed Agenda (Maher, Susan) (Entered: 07/11/2014)
341 ORDER denying 336 Motion to Intervene. Signed by Judge Patricia A. Seitz on 7/14/2014. (cqs) (Entered: 07/14/2014)
342 ORDER In Preparation of Status Conference Signed by Judge Patricia A. Seitz on 7/14/2014. (cqs) (Entered: 07/14/2014)
343 NOTICE Of Filing: Re Religious Diet by Perry Wells # 427582 (cqs) (Entered: 07/15/2014)
344 NOTICE of Filing Re: Religious Diet by Dennis Rock # K74705. (cqs) (Entered: 07/15/2014)
345 AMENDED ORDER Setting Status Conference: Status Conference set for 7/16/2014 10:00 AM before Judge Patricia A. Seitz. Signed by Judge Patricia A. Seitz on 6/15/2014. (cqs) (Entered: 07/15/2014)
346 Acknowledgment of Receipt of Notice of Interlocutory Appeal from USCA re 331 Notice of Interlocutory Appeal, filed by Michael D Cambridge. Date received by USCA: 7/8/2014. USCA Case Number: 14−13038−D. (mc) (Entered: 07/15/2014)
347 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 7/16/2014, ( Status Conference set for 8/20/2014 10:00 AM in Miami Division before Judge Patricia A. Seitz.). Court Reporter: Gilda Pastor−Hernandez, 305−523−5118 / Gilda_Pastor−Hernandez@flsd.uscourts.gov (dgj) (Entered: 07/16/2014)
348 TRANSCRIPT INFORMATION FORM by Michael D Cambridge re 331 Notice of Interlocutory Appeal. No Transcript Requested. (mc) (Entered: 07/17/2014)
349 NOTICE of Inquiry RE: Order in Case by Roshard Whitehed # B101414. (cqs) (Entered: 07/24/2014)
350 NOTICE Of Filing RE: Religious Diet and Request for all mailing as a member of the case. by Thomas Willimas # 095608 (cqs) (Entered: 07/25/2014)
351 MOTION to Intervene and to be made a party and or named class member.by Jacob Barrett (dj) (Entered: 07/28/2014)
352 MOTION to Reconsider Order and Interlocutory Appeal Order re 341 Order on Motion to Intervene by Marzug Al−Hakim. (dj) (Entered: 07/28/2014)
353 NOTICE of Filing Re: Religious Diet by Courty Wright #B051325 (cqs) (Entered: 07/29/2014)
354 NOTICE of Filing Re: Religious Diet by Claude Jone # T10159 (cqs) (Entered: 07/29/2014)
355 ORDER denying 352 Motion for Reconsideration and To Permit An Interlocutory Appeal. Signed by Judge Patricia A. Seitz on 7/29/2014. (cqs) (Entered: 07/29/2014)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 29 of 50

07/29/2014
07/30/2014 07/31/2014 08/01/2014 08/05/2014 08/05/2014 08/07/2014 08/11/2014
08/12/2014 08/12/2014 08/12/2014 08/13/2014 08/14/2014
08/14/2014
08/14/2014 08/15/2014 08/18/2014 08/20/2014 08/20/2014

356 ORDER denying 351 Motion to Intervene and Requiring Defendants To Address Nutritional Issues At August Status Conference. Signed by Judge Patricia A. Seitz on 7/29/2014. (cqs) (Entered: 07/29/2014)
357 NOTICE of Filing Re: Religious Diet by: Christopher Ward #979923 (cqs) (Entered: 07/30/2014)
358 NOTICE Of Filing Re: Religious Diet by Robert Sandonato #66913 (cqs) (Entered: 07/31/2014)
359 NOTICE Re: Religious Diet by Corey Byrd 117708 (cqs) (Entered: 08/01/2014)
360 NOTICE of Filing Re: Religious Diet by Glenn Sears #010505 (cqs) (Entered: 08/05/2014)
361 NOTICE of Filing RE: Religious diet by Germaine Loban #W17423−63220−L (cqs) (Entered: 08/05/2014)
362 NOTICE of Filing RE: Religious Diet by Todd Bowes #X37057 (cqs) (Entered: 08/07/2014)
363 TRANSCRIPT of Status Conference held on 07−16−14 before Judge Patricia A. Seitz, 1−38 pages, Court Reporter: Gilda Pastor−Hernandez, 305−523−5118 / Gilda_Pastor−Hernandez@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/5/2014. Redacted Transcript Deadline set for 9/15/2014. Release of Transcript Restriction set for 11/13/2014. (gpz) (Entered: 08/11/2014)
364 NOTICE Of Filing Re: Religious Diet by Rodney Johnson #085120 (cqs) (Entered: 08/12/2014)
365 NOTICE Of Filing Running Objections Re: Religious Diet by Marzuq Al−Hakim (cqs) (Entered: 08/12/2014)
366 NOTICE Of Filing MOTION for Telephonic Hearing re 365 Notice (Other)/ Re: Religious Diet by Marzuq Al−Hakim (cqs) (Entered: 08/12/2014)
367 NOTICE by United States of America of Intent to Appear by Video (Fox, Deena) (Entered: 08/13/2014)
368 NOTICE by Secretary Department of Corrections re 106 Order on Motion for Preliminary Injunction,, 321 Order, Set/Reset Hearings of Intent to Appear at Status Conference by Video (Maher, Susan) (Entered: 08/14/2014)
369 NOTICE by Secretary Department of Corrections re 321 Order, Set/Reset Hearings of Filing Joint Proposed Agenda for August 20, 2014 Status Conference (Maher, Susan) (Entered: 08/14/2014)
370 ORDER In Preparation Of Status Conference Signed by Judge Patricia A. Seitz on 8/14/2014. (cqs) (Entered: 08/14/2014)
371 MOTION for Leave to Proceed in forma pauperis on appeal with Inmate Account Statement attached by Michael D Cambridge. (mc) (Entered: 08/15/2014)
372 NOTICE RE: Religious Diet by William Thomas #311509 (cqs) (Entered: 08/18/2014)
373 ORDER denying 371 Motion for Leave to Proceed in Forma Pauperis on Appeal. Signed by Judge Patricia A. Seitz on 8/19/2014. (cqs) (Entered: 08/20/2014)
374 NOTICE by Secretary Department of Corrections re 370 Order, 356 Order on Motion to Intervene of Filing RDP/CFO Menu, Nutritional Analysis, and Florida Department of Corrections' Food Service Rules (Attachments: # 1 Exhibit A − Declaration of Registered Dietician Kathy Fuhrman with Attachments, # 2 Exhibit B − Rule 33−403.002 − Food Services Definitions, # 3 Exhibit C − Notice of Rule Development − Rule 33−403.003 − Food Services Standards of Operations − Pub. 03/10/2014, # 4 Exhibit D − Rule 33−403.003 Food Services Standards of Operations − Eff. 05/15/2014) (Maher, Susan) (Entered: 08/20/2014)

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08/20/2014 08/21/2014
08/26/2014 09/04/2014 09/16/2014 09/17/2014 09/18/2014 09/18/2014 09/22/2014 09/22/2014 09/23/2014 09/24/2014 09/24/2014
09/26/2014 09/30/2014 10/02/2014 10/02/2014 10/02/2014 10/02/2014

375 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 8/20/2014. Court Reporter: Lisa Edwards, 305−523−5499 / Lisa_Edwards@flsd.uscourts.gov (ch1) (Entered: 08/20/2014)
376 ORDER of DISMISSAL from USCA. This appeal is DISMISSED, sua sponte,for lack of jurisdiction re 331 Notice of Interlocutory Appeal, filed by Michael D Cambridge. No motion for reconsideration may be filed unless it complies with the timing and other requirements of 11th Cir. R. 27−2 and all other applicable rules. USCA #14−13038−D (amb) (Entered: 08/21/2014)
377 NOTICE of Filing Re: Religious Diet by Joseph Jordan #180632 (cqs) (Entered: 08/26/2014)
378 NOTICE of Filing Re: Religious Diet by Paula Grieve # 03963 E12094 (cqs) (Entered: 09/04/2014)
379 NOTICE of Filing Re: Religious Diet by Bernard Gyden #M63007 (cqs) (Entered: 09/16/2014)
380 NOTICE by United States of America of Intent to Appear by Video (Fox, Deena) (Entered: 09/17/2014)
381 NOTICE by Secretary Department of Corrections re 321 Order, Set/Reset Hearings of Intent to Appear At Status Conference of September 24, 2014, by Video Conference (Maher, Susan) (Entered: 09/18/2014)
382 NOTICE by Secretary Department of Corrections re 122 Order, Set/Reset Deadlines of Filing Proposed Agenda for 09/24 Status Conference [Joint Notice] (Maher, Susan) (Entered: 09/18/2014)
383 MOTION to Intervene by David P. Kever. (cqs) (Main Document 383 replaced with complete image (pp. 15 added on 9/22/2014) (ail). (Entered: 09/22/2014)
384 Clerks Notice of Docket Correction re 383 MOTION to Intervene. Correction: Image replaced with complete copy (pp.15 added); SEE attached for Image (ail) (Entered: 09/22/2014)
385 ORDER denying 383 Motion to Intervene. Signed by Judge Patricia A. Seitz on 9/23/2014. (lh) (Entered: 09/23/2014)
386 NOTICE by Secretary Department of Corrections of Filing RDP Trend Charts for September 2014 (Attachments: # 1 Exhibit RDP Trend Charts) (Maher, Susan) (Entered: 09/24/2014)
387 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 9/24/2014, ( Status Conference set for 10/15/2014 10:00 AM in Miami Division before Judge Patricia A. Seitz.). Court Reporter: Robin Dispenzieri, 305−523−5659 / Robin_Dispenzieri@flsd.uscourts.gov (dgj) (Entered: 09/24/2014)
388 NOTICE Of Inquiry Re: Religious Diet by Silas Kendrick #122288 (cqs) (Entered: 09/26/2014)
389 MOTION To Be Added To Mail Service Listing by Douglas Marshall, Rashard−Tynard, Cedric Atnez and Danny Lee Re: Religious Diet (cqs) (Entered: 09/30/2014)
390 NOTICE of Filing Re: Religious Diet By Lancelot Armstrong #693504 (cqs) (Main Document 390 replaced with complete image on 10/7/2014 (pp.4 &6 added) (ail). (Entered: 10/02/2014)
391 NOTICE of Filing Re: Religious Diet By Corey A McDowell Bey #0−T60780 (cqs) (Entered: 10/02/2014)
392 ORDER Resetting Hearing time, ( Responses due by 10/6/2014, Hearing reset for 10/15/2014 09:00 AM before Judge Patricia A. Seitz.) Signed by Judge Patricia A. Seitz on 10/1/2014. (cqs) (Entered: 10/02/2014)
393 ORDER denying 389 Motion To Be Added To Mail Service List. Signed by Judge Patricia A. Seitz on 10/2/2014. (cqs) (Entered: 10/02/2014)

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10/07/2014 10/08/2014 10/10/2014
10/10/2014 10/10/2014 10/14/2014 10/14/2014 10/14/2014 10/15/2014 10/15/2014
10/16/2014
10/17/2014 10/20/2014 10/22/2014 10/23/2014 10/24/2014 10/28/2014

394 Clerks Notice of Docket Correction re 390 Notice of filing. Correction: Image replaced with complete copy; SEE attached. (ail) (Entered: 10/07/2014)
395 NOTICE by United States of America of Intent to Appear by Video (Fox, Deena) (Entered: 10/08/2014)
396 NOTICE by Secretary Department of Corrections of Filing Supplemental Documentation Re: September 24, 2014 Status Conference (Attachments: # 1 Exhibit 1 − Supplemental CFO Food Preparation Instructions effective 08−11−2014, # 2 Exhibit 2 − RDP−CFO Inmate Training Documentation Form, # 3 Exhibit 3 − Revised RDP/CFO Menu effective 09−25−2014, # 4 Exhibit 4 − Nutritional Analysis for Revised RDP/CFO Menu effective 09−25−2014) (Maher, Susan) (Entered: 10/10/2014)
397 NOTICE by Secretary Department of Corrections re 321 Order, Set/Reset Hearings of Intent to Appear at Status Conference by Video Conference (Maher, Susan) (Entered: 10/10/2014)
398 NOTICE by Secretary Department of Corrections [Joint Notice of Parties] of Filing Proposed Agenda for October 14, 2014 Status Conference (Maher, Susan) (Entered: 10/10/2014)
399 NOTICE by Secretary Department of Corrections of Filing RDP Trend Charts for October 2014 (Attachments: # 1 Exhibit RDP Trend Charts for October 2014) (Maher, Susan) (Entered: 10/14/2014)
400 NOTICE by United States of America of Proposed Supplemental Discovery Plan (Fox, Deena) (Entered: 10/14/2014)
401 NOTICE by Secretary Department of Corrections of Filing Proposed Schedule for Supplementing Summary Judgment Motions and for Limited Discovery Plan (Maher, Susan) (Entered: 10/14/2014)
402 NOTICE of Filing Re: Religious Diet By Khalid Ali Pasha #T58435. (cqs) (Entered: 10/15/2014)
403 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 10/15/2014. Court Reporter: Yvette Hernandez, 954−769−5686 / Yvette_Hernandez@flsd.uscourts.gov (rg1) Modified on 10/15/2014 to correct Judge(rg1). (Entered: 10/15/2014)
404 ORDER On Status Conference, Continuing Trial and Resetting Pretrial Deadlines re 299 MOTION for Summary Judgment filed by Secretary Department of Corrections, 268 MOTION for Summary Judgment filed by United States of America, as to 299 MOTION for Summary Judgment , 268 MOTION for Summary Judgment . ( Discovery due by 1/9/2015., Dispositive Motions due by 2/2/2015., In Limine Motions due by 4/27/2015., Pretrial Stipulation due by 4/27/2015., Calendar Call reset for 5/27/2015 01:15 PM before Judge Patricia A. Seitz., Jury Trial reset for 6/1/2015 before Judge Patricia A. Seitz., Status Conference set for 11/19/2014 10:00 PM before Judge Patricia A. Seitz.) Signed by Judge Patricia A. Seitz on 10/15/2014. (cqs) (Entered: 10/16/2014)
405 NOTICE Of Filing Re: Religious Diet By Aaron D. fulmore #C−685320 (cqs) (Entered: 10/17/2014)
406 MOTION For Judical Notice by Edward Surratt # 066573. (cqs) (Main Document 406 replaced on 10/20/2014 to correct image due to QC) (cqs). (Entered: 10/20/2014)
407 ORDER denying 406 Motion For Judicial Notice. Signed by Judge Patricia A. Seitz on 10/22/2014. (cqs) (Entered: 10/22/2014)
408 NOTICE of Filing Affidvait Re: Religious Diet By Louis James Ticknor #121590 (cqs) (Entered: 10/23/2014)
409 NOTICE of Change of Address by Michael Cambridge (System Updated) (cqs) (Entered: 10/24/2014)
410 NOTICE of Filing Letter to the Court re: Documents and Missing pages by David P. Kever (yha) (Entered: 10/28/2014)

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10/31/2014 11/03/2014
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12/01/2014 12/02/2014 12/03/2014

411 NOTICE of Filing Re: Religious Diet by Daniel Despres P−42398 H3110 (cqs) (Entered: 10/31/2014)
412 TRANSCRIPT of Status Conference held on 10/15/2014 before Judge Patricia A. Seitz, 1−33 pages, Court Reporter: Yvette Hernandez, 954−769−5686 / Yvette_Hernandez@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/28/2014. Redacted Transcript Deadline set for 12/8/2014. Release of Transcript Restriction set for 2/5/2015. (yhz) (Entered: 11/03/2014)
413 NOTICE of Filing Re: Religious Diet by Michael Jackson # 864434 (cqs) (Entered: 11/04/2014)
414 NOTICE by Secretary Department of Corrections of Filing Supplemental Documentation − RDP/CFO Data for Participating Institutions (Attachments: # 1 Supplement RDP Data − Participating Institutions − 10−13−2014) (Maher, Susan) (Entered: 11/05/2014)
415 NOTICE of Attorney Appearance by David W. Grimes on behalf of Secretary Department of Corrections. Attorney David W. Grimes added to party Secretary Department of Corrections(pty:dft). (Grimes, David) (Entered: 11/07/2014)
416 TRANSCRIPT of status conf. held on 9/24/2014 before Judge Patricia A. Seitz, 1−23 pages, Court Reporter: Robin Dispenzieri, 305−523−5659 / Robin_Dispenzieri@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting Robin Dispenzieri before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/4/2014. Redacted Transcript Deadline set for 12/12/2014. Release of Transcript Restriction set for 2/9/2015. (rd) (Entered: 11/08/2014)
417 NOTICE by Secretary Department of Corrections re 122 Order, Set/Reset Deadlines Joint Proposed Agenda for November 19, 2014 Status Conference (Maher, Susan) (Entered: 11/14/2014)
418 Paperless Order Resetting Time of Hearing Status Conference set for 11/19/2014 10:00 AM in Miami Division before Judge Patricia A. Seitz reset for 9:00 a.m. (cbn) Modified to add DE# on 11/14/2014 (wc). (Entered: 11/14/2014)
419 ORDER RESETTING HEARING, ( Status Conference set for 11/25/2014 02:00 PM in Miami Division before Judge Patricia A. Seitz.) Signed by Judge Patricia A. Seitz on 11/18/2014. (dgj) (Entered: 11/18/2014)
420 MOTION For Copy of Order By Non−Party Larry Leatherwood #42149. (cqs) (Entered: 11/20/2014)
421 NOTICE by Secretary Department of Corrections of Filing RDP Trend Charts and Participating Institutions Chart (Attachments: # 1 Exhibit I − Trend Charts, # 2 Exhibit II − Participating Institutions Chart) (Maher, Susan) (Entered: 11/25/2014)
422 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 11/25/2014. Status Conference set for 12/17/2014 10:00 AM in Miami Division before Judge Patricia A. Seitz. Court Reporter: Dawn Whitmarsh, 305−523−5598 / Dawn_Whitmarsh@flsd.uscourts.gov (wc) (Entered: 11/25/2014)
423 Letter from Albert T. Owens (tp) (Entered: 12/01/2014)
424 ORDER denying 420 Motion for Copy of Order. Signed by Judge Patricia A. Seitz on 12/2/2014. (cqs) (Entered: 12/02/2014)
425 TRANSCRIPT of status conference held on 11−25−2014 before Judge Patricia A. Seitz, 1−37 pages, Court Reporter: Dawn Whitmarsh, 305−523−5598 / Dawn_Whitmarsh@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/29/2014. Redacted Transcript Deadline set for 1/8/2015. Release of Transcript Restriction set for 3/6/2015. (dwh) (Entered: 12/03/2014)

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12/08/2014 12/08/2014 12/11/2014 12/15/2014 12/15/2014 12/17/2014
12/17/2014 01/06/2015 01/08/2015 01/09/2015
01/12/2015 01/15/2015 01/20/2015 01/20/2015 01/21/2015
01/28/2015
02/02/2015

426 NOTICE Of Inquiry by David P. Kever (response to question RE: number of pages in pleading sent) (cqs) (Entered: 12/08/2014)
427 Duplicate Notice of Inquiry re 426 Notice (Other) by David Kever G000380 (cqs) (Entered: 12/08/2014)
428 NOTICE by United States of America of Intent to Appear by Video (Fox, Deena) (Entered: 12/11/2014)
429 NOTICE by Secretary Department of Corrections of Intent to Appear At December 17 Status Conference by Video (Maher, Susan) (Entered: 12/15/2014)
430 NOTICE by Secretary Department of Corrections of Filing Joint Proposed Agenda for December 17, 2014 Status Conference (Maher, Susan) (Entered: 12/15/2014)
431 NOTICE by Secretary Department of Corrections of Filing RDP Trend Charts and Rates for December 2014 (Attachments: # 1 Exhibit A − RDP/CFO Trends and Participating Institutions Chart, # 2 Exhibit B − RDP/CFO Pickup Rates) (Maher, Susan) (Entered: 12/17/2014)
432 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 12/17/2014. Court Reporter: Dawn Whitmarsh, 305−523−5598 / Dawn_Whitmarsh@flsd.uscourts.gov (dgj) (Entered: 12/17/2014)
433 AFFIDAVIT signed by : David P Kever. RE: Religious Diet (cqs) (Entered: 01/06/2015)
434 NOTICE Of Filing Re: Religious Diet/ Motion For Court to Take Judicial Notice by Non−Party by Akeem Muhammad #706732 (cqs)Text Modified on 1/8/2015 (cqs). (Entered: 01/08/2015)
435 TRANSCRIPT of status hearing held on 12−17−2014 before Judge Patricia A. Seitz, 1−34 pages, Court Reporter: Dawn Whitmarsh, 305−523−5598 / Dawn_Whitmarsh@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/2/2015. Redacted Transcript Deadline set for 2/12/2015. Release of Transcript Restriction set for 4/13/2015. (dwh) (Entered: 01/09/2015)
436 CERTIFICATE OF SERVICE by David P. Kever re 433 Affidavit (cqs) (Entered: 01/12/2015)
437 NOTICE by United States of America of Intent to Appear by Video (Fox, Deena) (Entered: 01/15/2015)
438 NOTICE by Secretary Department of Corrections of Filing Joint Proposed Agenda for January 21, 2015 Status Conference (Maher, Susan) (Entered: 01/20/2015)
439 NOTICE by Secretary Department of Corrections re 106 Order on Motion for Preliminary Injunction,, 321 Order, Set/Reset Hearings of Intent to Appear at January 21, 2015 Status Conference by Video (Maher, Susan) (Entered: 01/20/2015)
440 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 1/21/2015, ( Status Conference set for 2/18/2015 10:00 AM before Judge Patricia A. Seitz.). Court Reporter: William Romanishin, 305−523−5558 / Bill_Romanishin@flsd.uscourts.gov (cqs) (Entered: 01/21/2015)
441 NOTICE by Secretary Department of Corrections of Filing RDP Trend Charts, Participating Institution Charts, and Weekly Pickup Rates for January 2015 (Attachments: # 1 Exhibit A − RDP Trend Charts − January 2015, # 2 Exhibit B − Chart Showing RDP Status by Code and Date From 04/25/2014 to 01/20/2015, # 3 Exhibit C − Chart Showing Institutions Serving the FDP/CFO, # 4 Exhibit D − RDP Pickup Rates in Participating Institutions for Week Ending January 18, 2015) (Maher, Susan) (Entered: 01/28/2015)
442 MOTION for Summary Judgment by Florida Department of Corrections. Responses due by 2/20/2015 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Vail, Jason) (Entered: 02/02/2015)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 34 of 50

02/02/2015
02/03/2015 02/10/2015 02/10/2015 02/11/2015 02/12/2015 02/17/2015 02/17/2015 02/17/2015 02/17/2015
02/17/2015 02/18/2015 02/18/2015
02/18/2015 02/19/2015

443 MOTION for Summary Judgment by United States of America. Responses due by 2/20/2015 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG)(Songer, Michael) (Entered: 02/02/2015)
444 NOTICE of Inquiry By David Kevler#G00380 (Non Party) (cqs) (Entered: 02/03/2015)
445 NOTICE Of Filing : Intervenor Class Action Complaint by Daniel J. Levitan− Intervenor (cqs) (Entered: 02/10/2015)
446 MOTION to Intervene by Daniel J. Levitan. (cqs) (Entered: 02/10/2015)
447 ORDER denying 446 Motion to Intervene. Signed by Judge Patricia A. Seitz on 2/11/2015. (cqs) (Entered: 02/11/2015)
448 NOTICE by United States of America of Intent to Appear by Video (Fox, Deena) (Entered: 02/12/2015)
449 RESPONSE in Opposition re 443 MOTION for Summary Judgment filed by Florida Department of Corrections. Replies due by 2/27/2015. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Vail, Jason) (Entered: 02/17/2015)
450 NOTICE by Secretary Department of Corrections of Intent to Appear at February 18 Status Conference by Video (Maher, Susan) (Entered: 02/17/2015)
451 NOTICE by Secretary Department of Corrections of Filing Joint Proposed Agenda (Maher, Susan) (Entered: 02/17/2015)
452 NOTICE by Secretary Department of Corrections of Filing RDPO Trend Charts, Participating Institution Charts, and Weekly Pickup Rates for February 2015 (Attachments: # 1 Exhibit A − RDP/CFO Trend Charts for February 2015, # 2 Exhibit B − Chart Showing RDP Cumulative Approved & Pending Violation by Numbers and Percentiles for February 2015, # 3 Exhibit C − Data for Institutions Serving RDP/CFO for February 2015, # 4 Exhibit D − Pickup Chart for Week Ending February 8, 2015) (Maher, Susan) (Entered: 02/17/2015)
453 RESPONSE in Opposition re 442 MOTION for Summary Judgment filed by United States of America. Replies due by 2/27/2015. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Songer, Michael) (Entered: 02/17/2015)
454 NOTICE Of Filing Letter Re: Religious Diet by Todd Bowes # x27057. (cqs) (Entered: 02/18/2015)
455 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference held on 2/18/2015. ( Pretrial Conference set for 5/27/2015 at 10:00 AM in Miami Division before Judge Patricia A. Seitz.), as to 442 MOTION for Summary Judgment and 443 MOTION for Summary Judgment ( Motion Hearing (Oral Argument if needed) set for 3/25/2015 before Judge Patricia A. Seitz.) Court Reporter: Glenda Powers, 305−523−5022 / Glenda_Powers@flsd.uscourts.gov (dgj) Modified text on 2/18/2015 (dgj). (Entered: 02/18/2015)
Pursuant to DE# 455 Reset Hearings: ( Pretrial Conference set for 5/27/2015 at 10:00 AM in Miami Division before Judge Patricia A. Seitz.), as to 442 MOTION for Summary Judgment and 443 MOTION for Summary Judgment ( Motion Hearing (Oral Argument if needed) set for 3/25/2015 before Judge Patricia A. Seitz.) (dgj) (Entered: 02/18/2015)
456 ORDER re 455 Status Conference,,, as to 455 Status Conference,,. ( Miscellaneous/ Updated Exhibit Deadline 3/18/2015., In Limine Motions due by 5/13/2015., Pretrial Stipulation due by 5/13/2015., Responses due by 5/13/2015,Violations/ Status Report due by 3/2/2015., Pretrial Conference set for 5/27/2015 10:00 AM before Judge Patricia A. Seitz.) Signed by Judge Patricia A. Seitz on 2/19/2015. (cqs) (Entered: 02/19/2015)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 35 of 50

02/23/2015 02/23/2015 02/24/2015 02/27/2015
03/04/2015 03/05/2015 03/10/2015
03/11/2015 03/13/2015 03/13/2015 03/13/2015 03/13/2015
03/16/2015
03/16/2015 03/17/2015 03/19/2015 03/20/2015 03/20/2015

457 REPLY to Response to Motion re 442 MOTION for Summary Judgment filed by Secretary Department of Corrections. (Vail, Jason) (Entered: 02/23/2015)
458 REPLY to Response to Motion re 443 MOTION for Summary Judgment filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Songer, Michael) (Entered: 02/23/2015)
459 NOTICE Of Filing/ Motion RE: Religious Diet By Octavious Johnson #W06705/B1311 (cqs) (Entered: 02/24/2015)
460 ORDER of DISMISSAL by USCA Florida's appeal from the now expired preliminary injuction is therefore DISMISSED as moot, but the district court's orders entering and clarifying that preliminary injuction are VACATED. Per instructions from the Court, Each Party to Bear Own Costs; re 120 Notice of Interlocutory Appeal, filed by Secretary Department of Corrections. USCA# 14−10086−DD (mc) (Entered: 02/27/2015)
461 NOTICE Of Filing: Third Party Complaint For Specific Preformance Of Preliminary Injunction Ordered Against Defendants by David Brennan ( #385902) (cqs) (Entered: 03/04/2015)
462 ORDER Dismissing 461 Third Party Complaint filed by David Brennan Signed by Judge Patricia A. Seitz on 3/5/2015. (cqs) (Entered: 03/05/2015)
463 TRANSCRIPT of Status Conference held on 1/21/2051 before Judge Patricia A. Seitz, 1−22 pages, Court Reporter: William Romanishin, 305−523−5558 / Bill_Romanishin@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/3/2015. Redacted Transcript Deadline set for 4/13/2015. Release of Transcript Restriction set for 6/11/2015. (br) (Entered: 03/10/2015)
464 NOTICE of Filing Affidavit Re: Religious Diet by David Kever # G00380 (cqs) (Entered: 03/11/2015)
465 MOTION to Join 1 Complaint by Arturo Ortiz. (cqs) (Entered: 03/13/2015)
466 NOTICE Of Filing: Formal Complaint Re: Religious Diet from Soloman Stevens #711465−G4101L (cqs) (Entered: 03/13/2015)
467 AFFIDAVIT signed by : Solomon Stevens. re 466 Notice of Filing(Other) Re: Religious Diet. (cqs) (Entered: 03/13/2015)
468 CORRECTED ORDER of DISMISSAL by USCA Florida's appeal from the now expired preliminary injuction is therefore DISMISSED as moot, but the district court's orders entering and clarifying that preliminary injuction are VACATED; re 120 Notice of Interlocutory Appeal, filed by Secretary Department of Corrections. USCA# 14−10086−DD (mc) (Entered: 03/13/2015)
469 ORDER Setting Oral Argument on Motion 442 MOTION for Summary Judgment , 443 MOTION for Summary Judgment : Motion Hearing set for 3/25/2015 10:00 AM in Miami Division before Judge Patricia A. Seitz. Signed by Judge Patricia A. Seitz on 3/16/2015. (ra) (Entered: 03/16/2015)
470 ORDER denying 465 Motion to Intervene. Signed by Judge Patricia A. Seitz on 3/16/2015. (tp) (Entered: 03/16/2015)
471 NOTICE of Filing Re: Religious Diet, request for ruling, by Jerry Simmons #G10751 (cqs) (Entered: 03/17/2015)
472 Unopposed MOTION to Allow Computers in the Courtroom/ Bring Electronic Equipment by Secretary Department of Corrections. (Tietig, Lisa)Text Modified on 3/20/2015 (cqs). (Entered: 03/19/2015)
473 ORDER denying without prejudice 472 Motion to Bring Electronic Equipment into the courtroom. Signed by Judge Patricia A. Seitz on 3/20/2015. (ch1) (Entered: 03/20/2015)
474 Amended MOTION to Bring Electronic Equipment to Courtroom Unopposed by Secretary Department of Corrections. (Tietig, Lisa)Relief and Text Modified on 3/23/2015 (cqs). (Entered: 03/20/2015)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 36 of 50

03/23/2015 03/23/2015 03/24/2015
03/25/2015
03/25/2015
03/27/2015 03/30/2015 03/31/2015
04/01/2015 04/01/2015 04/01/2015 04/08/2015 04/08/2015 04/09/2015 04/10/2015 04/10/2015 04/14/2015

475 ORDER granting 474 Motion to Bring Electronic Equipment into the courtroom. Signed by Judge Patricia A. Seitz on 3/23/2015. (cqs) (Entered: 03/23/2015)
476 NOTICE by United States of America re 469 Order Setting Hearing on Motion, RDP Cost Chart (Songer, Michael) (Entered: 03/23/2015)
477 NOTICE by Secretary Department of Corrections of Filing RDP Trend Charts and Supplemental Information (Attachments: # 1 Exhibit A − RDP Trend Charts − March 2015, # 2 Exhibit B − RDP Status by Code and Date From 04/25/2014 to 03/16/2015, # 3 Exhibit C − Pickup Rates as of 03/01/2015) (Maher, Susan) (Entered: 03/24/2015)
478 Minute Entry for proceedings held before Judge Patricia A. Seitz: Motion Hearing held on 3/25/2015 re 442 MOTION for Summary Judgment filed by Florida Department of Corrections, 443 MOTION for Summary Judgment filed by United States of America. U.S. to submit additional briefing by 4/1 and Defendants to respond by 4/8. Court Reporter: Glenda Powers, 305−523−5022 / Glenda_Powers@flsd.uscourts.gov (wc) (Entered: 03/25/2015)
479 TRANSCRIPT of Status Conference held on 02−18−15 before Judge Patricia A. Seitz, 1−52 pages, Court Reporter: Glenda Powers, 305−523−5022 / Glenda_Powers@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/20/2015. Redacted Transcript Deadline set for 4/30/2015. Release of Transcript Restriction set for 6/26/2015. (gps) (Entered: 03/25/2015)
480 ORDER RE: MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Patricia A. Seitz on 3/27/2015. (ra) (Entered: 03/27/2015)
481 NOTICE of Filing Re: Religious diet by MaryAnn Macias (for Jamie Macias #L59821) (cqs) (Entered: 03/30/2015)
482 TRANSCRIPT of Summary Judgment Oral Arguments held on 03−25−15 before Judge Patricia A. Seitz, 1−122 pages, Court Reporter: Glenda Powers, 305−523−5022 / Glenda_Powers@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/24/2015. Redacted Transcript Deadline set for 5/4/2015. Release of Transcript Restriction set for 7/2/2015. (gps) (Entered: 03/31/2015)
483 NOTICE /Request for Status Re: Religious Diet and Request for copy of Order by Octavious Johnson #W06705 (cqs) (Entered: 04/01/2015)
484 MOTION For Temporary Injunction by Russell Farley # #954848.. (cqs) (Entered: 04/01/2015)
485 NOTICE by United States of America re 478 Motion Hearing, Supplemental Briefing on PLRA Requirements (Attachments: # 1 Exhibit A) (Songer, Michael) (Entered: 04/01/2015)
486 RESPONSE in Support re 442 MOTION for Summary Judgment and response to DE 485 filed by Secretary Department of Corrections. (Vail, Jason)Link added and Text Modified on 4/8/2015 (cqs). (Entered: 04/08/2015)
487 Joint Statement of Undisputed Facts by United States of America re 480 Order (Songer, Michael)Text Modified on 4/8/2015 (cqs). (Entered: 04/08/2015)
488 NOTICE by United States of America re 485 Notice (Other), 486 Response in Support of Motion Reply to Supplemental Briefing on PLRA Requirements (Songer, Michael) (Entered: 04/09/2015)
489 NOTICE Of Filing RE: Religious Diet/ Request To Be Heard, by Robert Rimmer #649748 (cqs) (Entered: 04/10/2015)
490 NOTICE of Filing Re: Religious Diet/Request to be Heard by Robert Rimmer # 649748. (cqs) (Entered: 04/10/2015)
491 NOTICE of Change of Address by David Brennan (system updated) (cqs) (Entered: 04/14/2015)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 37 of 50

04/16/2015 04/20/2015 04/21/2015 04/21/2015 04/22/2015
04/28/2015 04/30/2015
05/01/2015 05/05/2015 05/06/2015 05/06/2015 05/06/2015
05/11/2015 05/14/2015 05/14/2015 05/18/2015 05/19/2015 05/20/2015 05/20/2015 05/27/2015

492 ORDER denying 484 Motion For Temporary Injuction. Signed by Judge Patricia A. Seitz on 4/16/2015. (cqs) (Entered: 04/16/2015)
493 NOTICE of Filing RE: Religious Diet/ Motion for Judicial Notice, by Arthur Surratt #066573 (cqs) (Entered: 04/20/2015)
494 NOTICE by United States of America Regarding the Availability of an Expert Witness at Trial (Songer, Michael) (Entered: 04/21/2015)
496 NOTICE of Request for Judicial Notice of Irrefutable Facts Violating this Court's June 30, 2014 Order by Shawn G. Chabak (ail) (Entered: 04/28/2015)
495 MANDATE of USCA Florida's appeal from the now expired preliminary injuction is therefore DISMISSED as moot, but the district court's order entering and clarifying that preliminary injunction are VACATED; re 120 Notice of Interlocutory Appeal, filed by Secretary Department of Corrections; Date Issued: 4/22/2015 ; USCA Case Number: 14−10086−DD (mc) (Entered: 04/22/2015)
497 NOTICE of filing re: Religious diet program by Robert Trease (vp) (Entered: 04/30/2015)
498 ORDER ON MOTIONS FOR SUMMARY JUDGMENT granting in part and denying in part 442 Motion for Summary Judgment; granting in part and denying in part 443 Motion for Summary Judgment. By May 6, 2015 at 10:00 a.m. the parties shall submit proposed final judgmentsand permanent injunctions in accordance with this Order. All pending motions are denied as moot. This case is closed. Signed by Judge Patricia A. Seitz on 4/30/2015. (wc) (Entered: 04/30/2015)
Set/Reset Deadlines/Hearings as per DE 498 : Miscellaneous (Proposed Order) Deadline 5/6/2015. (lk) (Entered: 05/01/2015)
499 NOTICE of Filing Re: Religious Diet by Octavious Johnson # W06705. (cqs) (Entered: 05/05/2015)
500 NOTICE of Compliance by Secretary Department of Corrections re 498 Order on Motion for Summary Judgment,,, (Attachments: # 1 Text of Proposed Order) (Vail, Jason) (Entered: 05/06/2015)
501 NOTICE by United States of America re 498 Order on Motion for Summary Judgment,,, Proposed Permanent Injunction and Final Order (Songer, Michael) (Entered: 05/06/2015)
502 ORDER Requiring Additional Submissions re 501 Notice (Other) filed by United States of America, ( Miscellaneous Deadline 5/22/2015., Responses due by 6/5/2015) See order for additional details. Signed by Judge Patricia A. Seitz on 5/6/2015. (cqs) (Entered: 05/06/2015)
503 SECOND AFFIDAVIT signed by : Louis J. Ticknor. (lk) (Entered: 05/12/2015)
504 NOTICE To The Court RE: Motion concerning religious diet re 434 Notice (Other)/ Motion (cqs) (Entered: 05/14/2015)
505 MOTION to Intervene RE: Religious diet by Akeen Muhammad #706732. (Union Correctional). (cqs) (Entered: 05/14/2015)
506 NOTICE of Filing Re: Religious Diet by Patrick Miller #081660 (cqs) (Entered: 05/18/2015)
507 NOTICE of Filing Re: Religious Diet by Gabriel Velez−Pizzini #U37395 (cqs) (Entered: 05/19/2015)
508 NOTICE of Filing Re: Religious Diet by Michael Jackson # 864434. (cqs) (Entered: 05/20/2015)
509 NOTICE/ Letter to Judge Re: Religious Diet by Michael Jackson #864435. (cqs) (Entered: 05/20/2015)
510 ORDER denying 505 Motion to Intervene as to Akeem Mohammad. Signed by Judge Patricia A. Seitz on 5/26/2015. (cqs) (Entered: 05/27/2015)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 38 of 50

05/27/2015 05/27/2015 05/28/2015 05/29/2015 06/01/2015 06/01/2015 06/03/2015
06/05/2015 06/09/2015 06/10/2015 06/23/2015 06/30/2015 07/07/2015 07/07/2015 07/09/2015 07/10/2015 07/10/2015
07/13/2015 07/13/2015

511 ORDER re 434 Notice To Take Judicial Notice (Other) Signed by Judge Patricia A. Seitz on 5/26/2015. (cqs) (Entered: 05/27/2015)
512 NOTICE of Filing RE: Religious Diet by Leonard Shuster #U36213 (cqs) (Entered: 05/27/2015)
513 RESPONSE TO ORDER TO SHOW CAUSE re 502 Order, Set/Reset Deadlines,, by Florida Department of Corrections. (Vail, Jason) (Entered: 05/28/2015)
514 MOTION For Voluntary Dismissal by Luis Vizcaino #227434. (cqs) (Entered: 05/29/2015)
515 NOTICE of filing Re: Religious doet by Charles Miller #P21290 (cqs) (Entered: 06/01/2015)
516 ORDER denying as moot 514 Motion for Voluntary Dismissal. Signed by Judge Patricia A. Seitz on 6/1/2015. (cqs) (Entered: 06/01/2015)
517 Clerk's Notice of Undeliverable Mail re 492 Order on Motion for Miscellaneous Relief. US Mail returned for: LUIS VIZCAINO. The Court has not located an updated address for this party. After two unsuccessful noticing attempts, notices from the Court will no longer be sent to this party in this case until a correct address is provided.First return/attempt. (lrz) (Entered: 06/03/2015)
518 NOTICE by United States of America re 502 Order, Set/Reset Deadlines,, Response to Proposed Final Injunction (Attachments: # 1 Exhibit A − Revised Proposed Injunction) (Songer, Michael) (Entered: 06/05/2015)
519 NOTICE Of Filing Re: Religious Diet and Ramandan by Robart Leonard #G02123 (cqs) (Entered: 06/09/2015)
520 ORDER Setting Evidentiary Hearing set for 7/15/2015 10:00 AM in Miami Division before Judge Patricia A. Seitz. Signed by Judge Patricia A. Seitz on 6/10/2015. (wc) (Entered: 06/10/2015)
521 ORDER RE: July 15, 20015 Hearing. Signed by Judge Patricia A. Seitz on 6/23/2015. (cqs) (Entered: 06/23/2015)
522 NOTICE of Complaint/Notice of Filing RE: Religious Diet By: Victor Parker #110847 (lrz) (Entered: 06/30/2015)
523 ORDER Setting Deadlines For Evidentiary Hearing, ( Evidentiary Hearing set for 7/13/2015 10:00 AM before Judge Patricia A. Seitz.) Signed by Judge Patricia A. Seitz on 7/6/2015. (cqs) (Entered: 07/07/2015)
524 NOTICE of Filing RE: Religious Diet by James Forney #125989. (lrz) (Entered: 07/08/2015)
525 NOTICE by United States of America re 520 Order, Set/Reset Hearings, 523 Order, Set/Reset Deadlines/Hearings, 521 Order Joint Notice Regarding July 15th Hearing (Songer, Michael) (Entered: 07/09/2015)
526 Complaint for Interpleader and Joinder of Claims by Jeffrey Levine (tp) (Entered: 07/10/2015)
527 ORDER CANCELING EVIDENTIARY HEARING. The evidentiary portion of the July 15, 2015 hearing is CANCELED. By July 13, 2015, the parties shall each submit their choices for a proposed monitor, including the person's qualifications and the party's reasons for selecting that person as a proposed monitor. Signed by Judge Patricia A. Seitz on 7/10/2015. (wc) (Entered: 07/10/2015)
528 NOTICE by United States of America re 527 Order, Set/Reset Deadlines,, Notice of Proposed Monitor (Attachments: # 1 Exhibit A) (Songer, Michael) (Entered: 07/13/2015)
529 MOTION for Extension of Time To Extend Time To Propose List of Monitors by Secretary Department of Corrections. Responses due by 7/30/2015 (Maher, Susan) (Entered: 07/13/2015)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 39 of 50

07/14/2015
07/15/2015 07/15/2015
07/15/2015 07/15/2015
07/17/2015 07/20/2015 07/24/2015
07/27/2015 07/30/2015 07/30/2015 07/30/2015 07/30/2015 07/31/2015
08/03/2015 08/10/2015 08/11/2015 08/12/2015 08/12/2015
08/18/2015 08/20/2015

530 ORDER denying 529 Motion for Extension of Time. Defendant shall comply with theCourt's July l0, 2015 Order by 9:00 a.m. on July 15, 2015. If Defendant fails to do so, Defendant may loose its opportunity to partake in the choice of a special master or monitor in this case, if the Court decides one is necessary.By 9:00 a.m. on July 15, 2015, Defendant shall file a copy of Department ofCorrections Procedure 503.006. Signed by Judge Patricia A. Seitz on 7/14/2015. (rby) (Entered: 07/14/2015)
531 NOTICE by Secretary Department of Corrections re 530 Order on Motion for Extension of Time, Re: Filing of Procedure 503.006 (Maher, Susan) (Entered: 07/15/2015)
532 NOTICE by Secretary Department of Corrections re 530 Order on Motion for Extension of Time, of Submission of Proposed Monitor (Attachments: # 1 Exhibit A − Resume of Thomas Bateman III) (Maher, Susan) (Entered: 07/15/2015)
533 NOTICE of Filing Re: Religious Diet by John A. Andrews (lrz) (Entered: 07/15/2015)
534 Minute Entry for proceedings held before Judge Patricia A. Seitz: Status Conference re language of injunction held on 7/15/2015. Parties to submit proposed injunction language by July 24, 2015. Court Reporter: William Romanishin, 305−523−5558 / Bill_Romanishin@flsd.uscourts.gov (wc) Modified text on 7/15/2015 (wc). (Entered: 07/15/2015)
535 NOTICE of Change of Address by John H Nelson (System Updated) (lrz) (Entered: 07/17/2015)
536 NOTICE of Filing Re: Religious Diet by Joseph Jordan. (lrz) (Entered: 07/20/2015)
537 NOTICE by United States of America re 534 Status Conference, Notice of Proposed Oversight Provisions (Attachments: # 1 Exhibit A) (Songer, Michael) (Entered: 07/24/2015)
538 ORDER Requiring Additional Information, ( Responses due by 7/31/2015) Signed by Judge Patricia A. Seitz on 7/27/2015. (tpl) (Entered: 07/28/2015)
539 NOTICE of Filing Re: Religious Diet by Doyall Tompkins (lrz) (Entered: 07/30/2015)
540 NOTICE of Filing Re: Religious Diet by James West (lrz) (Entered: 07/30/2015)
541 NOTICE of Change of Address by Arturo Ortiz (System Updated) (lrz) (Entered: 07/30/2015)
542 NOTICE of Filing Re: Religious Diet by George Graham Jr. (lrz) (Entered: 07/31/2015)
543 NOTICE by Secretary Department of Corrections re 538 Order, Set/Reset Deadlines [Joint Notice] of Filing Form DC5−325 and Summary (Attachments: # 1 Exhibit A − Form DC5−325) (Maher, Susan) (Entered: 07/31/2015)
544 NOTICE of Filing Re: Religious Diet by David Newham (lrz) (Entered: 08/03/2015)
545 NOTICE of filing Re: Religious Diet by Rufus Earl Hampton (vp) (Entered: 08/10/2015)
546 NOTICE of filing Re: Religious Diet by Rufus Earl Hampton (lrz) (Entered: 08/11/2015)
547 ORDER Re: Contents Of Injunction Signed by Judge Patricia A. Seitz on 8/12/2015. (cqs) (Entered: 08/12/2015)
548 FINAL JUDGMENT and Permanent Injunction in favor of United States of America against Florida Department of Corrections Signed by Judge Patricia A. Seitz on 8/12/2015. (cqs) (Entered: 08/12/2015)
549 NOTICE of Change of Address by Silas Kendricks (System Updated) (lrz) (Entered: 08/18/2015)
550 TRANSCRIPT of Status Conference held on 7/15/2015 before Judge Patricia A. Seitz, 1−46 pages, Court Reporter: William Romanishin, 305−523−5558 / Bill_Romanishin@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/14/2015. Redacted Transcript Deadline set for 9/24/2015. Release of Transcript Restriction set for 11/23/2015. (br) (Entered: 08/20/2015)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 40 of 50

08/25/2015 08/26/2015 08/28/2015 08/28/2015 08/28/2015 08/28/2015 09/01/2015 09/01/2015 09/01/2015 09/03/2015 09/03/2015 09/03/2015 09/04/2015 09/04/2015 09/09/2015 09/09/2015 09/11/2015
09/14/2015 09/14/2015 09/19/2015
09/21/2015
09/21/2015 09/24/2015

551 NOTICE of filing Re: Religious Diet by Jimmy Lamar (lrz) (Entered: 08/25/2015)
552 NOTICE of Inquiry by Michael D Cambridge (Document Sent) (lrz) (Entered: 08/26/2015)
553 Letter of Complaint from Kelvin Fair (lrz) Modified text on 8/28/2015 (lrz). (Entered: 08/28/2015)
554 Letter to the Court by Edward Dove re 548 Judgment (yar) (Entered: 08/28/2015)
555 NOTICE of Filing Re: Religious Diet/ Affidavit by Steven D'Amico (lrz) (Entered: 08/31/2015)
556 NOTICE of Filing Re: Religious Diet/ Order to Show Cause by Susan Hadassah Morrow (lrz) (Entered: 08/31/2015)
557 NOTICE of Filing Re: Religious Diet by Robert Reid (lrz) (Entered: 09/01/2015)
558 Emergency Motion Petion for Prelimunary Habeas Corpus Relief by Susan Hadassah Morrow (lrz) Modified on 9/1/2015 (lrz). (Entered: 09/01/2015)
559 NOTICE of Filing Re: Religious Diet by John Flowers (lrz) (Entered: 09/02/2015)
560 ORDER denying 558 Motion For Habeas Corpus Relief. Signed by Judge Patricia A. Seitz on 9/3/2015. (cqs) (Entered: 09/03/2015)
561 NOTICE of Filing Re: Religious Diet by Rufus Earl Hampton (lrz) (Entered: 09/03/2015)
562 NOTICE of Filing Re: Religious Diet/For Access to the above style court for any relief and specific relief by Susan Hadassah Morrow (lrz) (Entered: 09/03/2015)
563 NOTICE of Filing Re: Religious Diet/Motion for summary judgement/settlement for her claim by Susan Hadassah Morrow (lrz) (Entered: 09/04/2015)
564 NOTICE of Filing Re: Religious Diet by James West (lrz) (Entered: 09/04/2015)
565 NOTICE of Filing Re: Religious Diet by John Grissom (lrz) (Entered: 09/09/2015)
566 NOTICE of Inquiry by David Brennan (Document Sent) (lrz) (Entered: 09/09/2015)
567 Notice of Appeal as to 547 Order, 498 Order on Motion for Summary Judgment,,, 548 Judgment by Florida Department of Corrections, Secretary Department of Corrections. Filing fee $ 505.00 receipt number 113C−8075015. Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (Attachments: # 1 Exhibit Doc. 498 Order On Summary Judgment, # 2 Exhibit Doc. 547 − Order on Contents of Injunction, # 3 Exhibit Doc. 548 − Final Judgment and Permanent Injunction)(Maher, Susan) (Entered: 09/11/2015)
568 NOTICE of Filing Re: Religious Diet by John Grissom (lrz) (Entered: 09/14/2015)
Transmission of Notice of Appeal, Orders and Docket Sheet to US Court of Appeals re 567 Notice of Appeal. Notice has been electronically mailed. (mc) (Entered: 09/14/2015)
569 TRANSCRIPT INFORMATION FORM by Florida Department of Corrections, Secretary Department of Corrections re 567 Notice of Appeal,,. No Transcript Requested. (Maher, Susan) (Entered: 09/19/2015)
570 Acknowledgment of Receipt of NOA from USCA re 567 Notice of Appeal, filed by Florida Department of Corrections, Secretary Department of Corrections. Date received by USCA: 9/14/2015. USCA Case Number: 15−14117−E. (mc) (Entered: 09/22/2015)
571 NOTICE of Filing Re: Religious Diet by Calvin Reed (lrz) (Entered: 09/22/2015)
572 Clerk's Notice of Undeliverable Mail re 560 Order on Motion for Miscellaneous Relief. US Mail returned for: Alvin Hudson . The Court has not located an updated address for this party. After two unsuccessful noticing attempts, notices from the Court will no longer be sent to this party in this case until a correct address is provided. Inmate released from BOP custody on 01/13/1992 (drz) (Entered: 09/24/2015)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 41 of 50

09/28/2015 09/29/2015 09/29/2015 09/29/2015
09/30/2015 09/30/2015 10/01/2015 10/01/2015
10/02/2015 10/05/2015 10/13/2015 10/23/2015 10/23/2015 11/03/2015
11/10/2015 12/01/2015
12/07/2015 12/14/2015 12/21/2015 12/29/2015 01/04/2016

586 NOTICE of Filing Letter to the Court Re; Dietary Issues by Clifford Green (Letter received torn) (ail) (Entered: 11/04/2015)
573 NOTICE of Filing Re: Religious Diet by Larry King #094537. (cqs) (Entered: 09/29/2015)
574 NOTICE Of Filing Re: Religious Diet by Nathan J. Mack #055440. (cqs) (Entered: 09/29/2015)
575 Clerk's First Notice of Undeliverable Mail re 553 Letter. US Mail returned for: Alvin Hudson . The Court has not located an updated address for this party. After two unsuccessful noticing attempts, notices from the Court will no longer be sent to this party in this case until a correct address is provided. First Attempt/Return (drz) (Entered: 09/29/2015)
576 NOTICE of Filing Re: Religious Diet by Ian Blowstein #L77681−F41110 (cqs) (Entered: 09/30/2015)
577 EMERGENCY MOTION for Hearing RE: Religious Diet. by Douglas Marshall. (cqs) (Entered: 09/30/2015)
578 ORDER denying 577 Emergency Motion for Hearing. Signed by Judge Patricia A. Seitz on 10/1/2015. (cqs) (Entered: 10/01/2015)
579 NOTICE by Secretary Department of Corrections re 548 Judgment of Filing Monthly Report (Attachments: # 1 Exhibit Exhibit A Monthly Report of Inmate Participation) (Tietig, Lisa) (Entered: 10/01/2015)
580 NOTICE for Filing RE: Religious Diet by Joshua P. Smith #D99759. (cqs) (Entered: 10/02/2015)
581 Letter to Your Honor concerning the religious diet program from Gary Clayton (ls) (Entered: 10/05/2015)
582 NOTICE of Filing Re: Religious Diet by Nathan J Mack #055440. (cqs) (Entered: 10/13/2015)
583 NOTICE Of Filing Re: Religious Diet by Willis Rambo #605283 (cqs) (Entered: 10/23/2015)
584 NOTICE of Religious Diet Program Changes submitted by Michael Jackson (ots) (Entered: 10/26/2015)
585 NOTICE by Secretary Department of Corrections re 547 Order, 548 Judgment of Filing Monthly Report for 10/15/15 (Attachments: # 1 Exhibit Exhibit A Monthly Report of RDP Participation) (Tietig, Lisa) (Entered: 11/03/2015)
587 NOTICE of Letter from Keith Soanes re Religious Diet Program Violation (ots) (Entered: 11/10/2015)
588 NOTICE by Secretary Department of Corrections re 548 Judgment of Filing Monthly Report for November 2015 (Attachments: # 1 Exhibit Exhibit A −− Monthly Report for 11.16.2015) (Tietig, Lisa) (Entered: 12/01/2015)
589 NOTICE of Grievances and FL−DOC Responses (ots) (Entered: 12/09/2015)
590 MOTION for Supplemental Relief by G. Robert Ruddick (ots) (Entered: 12/14/2015)
591 ORDER denying 590 Motion For Supplemental Relief. Signed by Judge Patricia A. Seitz on 12/21/2015. (cqs) (Entered: 12/21/2015)
592 REQUEST for Case Status by Joseph F.. (ots) Modified text on 1/4/2016 (dgj). (Entered: 12/29/2015)
593 NOTICE by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment of Filing Monthly Report. Attorney Lisa Kuhlman Tietig added to party Florida Department of Corrections(pty:dft). (Attachments: # 1 Exhibit Monthly Report for December 2015) (Tietig, Lisa) (Entered: 01/04/2016)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 42 of 50

01/11/2016 01/12/2016 01/14/2016 01/14/2016 01/14/2016 01/15/2016
01/22/2016 01/26/2016 02/01/2016 02/01/2016
02/05/2016
02/09/2016 02/19/2016 02/22/2016 02/22/2016 02/26/2016
02/29/2016 03/01/2016 03/02/2016 03/04/2016
03/07/2016 03/08/2016 03/14/2016 03/15/2016 03/15/2016

594 NOTICE/Request for last Order re 538 Order, Set/Reset Deadlines (ots) (Entered: 01/12/2016)
595 NOTICE of Change of Address (System Updated) by Arturo Ortiz (ots) (Entered: 01/12/2016)
596 NOTICE/Question by Lorri Worley (ots) (Entered: 01/14/2016)
597 NOTICE/Motion for Clarification by Richard A Tasver (ots) (Entered: 01/14/2016)
598 NOTICE of Non−compliance by Laurence Spindler (ots) (Entered: 01/14/2016)
599 NOTICE by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment of Filing Quarterly Report (Attachments: # 1 Exhibit Exhibit A Quarterly Report, # 2 Exhibit Exhibit B Quarterly Report Summary) (Tietig, Lisa) (Entered: 01/15/2016)
600 NOTICE OF Inquiry by James Earl Staton (Docket Sheet and DE 548 Order sent). (srd) (Entered: 01/25/2016)
601 NOTICE Of Inquiry (Docket Sheet Sent) By Richard Todd (srd) (Entered: 01/27/2016)
602 NOTICE Of Filing Re: Religious Diet filed by Wadswoth Whitehead (lrz) (Entered: 02/01/2016)
603 NOTICE by Secretary Department of Corrections re 548 Judgment of Filing Monthly Report (Attachments: # 1 Exhibit Exhibit A Monthly Report of Participating Inmates) (Tietig, Lisa) (Entered: 02/01/2016)
604 NOTICE by Secretary Department of Corrections re 548 Judgment of Filing Quarterly Data for Fourth Quarter 2015 (Attachments: # 1 Exhibit Part 1 Quarterly Data, # 2 Exhibit Part 2 Quarterly Data, # 3 Exhibit Part 3 Quarterly Data, # 4 Exhibit Part 4 Quarterly Data) (Tietig, Lisa) (Entered: 02/05/2016)
605 Letter To Contest from Bryan Rogue (srd) (Entered: 02/09/2016)
606 NOTICE To The Court by William Miller (srd) (Entered: 02/19/2016)
607 NOTICE Of Filing Additional Discovery by Charles Ferris Percival (srd) (Entered: 02/23/2016)
608 Letter from Randy B. Peoples (srd) (Entered: 02/23/2016)
609 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Florida certifies that the record is complete for purposes of this appeal re: 567 Notice of Appeal,, Appeal No. 15−14117−EE. The entire record on appeal is available electronically. (hh) (Entered: 02/26/2016)
610 NOTICE To The Court By Joseph Jordan (srd) (Entered: 03/01/2016)
611 NOTICE by Florida Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Monthly Report as of 2−15−16) (Tietig, Lisa) (Entered: 03/01/2016)
612 MOTION to Produce by Rebrant Bryant. (srd) (Entered: 03/03/2016)
613 Clerk's First Notice of Undeliverable Mail re 608 Letter. US Mail returned for: William Miller . The Court has not located an updated address for this party. After two unsuccessful noticing attempts, notices from the Court will no longer be sent to this party in this case until a correct address is provided. (drz) (Entered: 03/04/2016)
614 Letter To The Court from Michael E. Rowan (srd) (Entered: 03/08/2016)
615 ORDER denying 612 Request For Documents. Signed by Judge Patricia A. Seitz on 3/8/2016. (srd) (Entered: 03/09/2016)
616 Letter To the Court from Albert Estrada (srd) (Entered: 03/14/2016)
617 NOTICE Of Grievance Procedures by Ronald Thibedau (srd) (Entered: 03/16/2016)
618 Letter Regarding Prison Conditions from DANIEL J. DESPRES (srd) (Entered: 03/16/2016)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 43 of 50

03/23/2016
04/01/2016
04/05/2016 04/08/2016 04/12/2016 04/15/2016
04/19/2016
04/29/2016 05/09/2016 05/10/2016 05/10/2016 05/10/2016 05/17/2016
06/01/2016
06/02/2016 06/14/2016 06/21/2016 06/21/2016 07/08/2016
07/19/2016 07/20/2016

619 Clerk's First Notice of Undeliverable Mail re 614 Letter. US Mail returned for: Rebrant Bryant . The Court has not located an updated address for this party. Envelope states Return to Sender Refused Unable to Forward. After two unsuccessful noticing attempts, notices from the Court will no longer be sent to this party in this case until a correct address is provided. (drz) Modified on 3/23/2016 (drz). (drz). (Entered: 03/23/2016)
620 NOTICE of Compliance by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Monthly Report) (Tietig, Lisa) (Entered: 04/01/2016)
621 MOTION to Produce by Troy Aadland. (srd) (Entered: 04/06/2016)
622 NOTICE/Letter from Bailey James (ots) (Entered: 04/11/2016)
623 ORDER denying 621 Motion to Produce. Signed by Judge Patricia A. Seitz on 4/12/2016. (ots) (Entered: 04/13/2016)
624 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Florida certifies that the record is complete for purposes of this appeal re: 567 Notice of Appeal,, Appeal No. 15−14117−E. The entire record on appeal is available electronically. (hh) (Entered: 04/15/2016)
625 NOTICE of Compliance by Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Quarterly Report First Quarter 2016) (Tietig, Lisa) (Entered: 04/19/2016)
626 MOTION for Permanent Injunction and Report of Misconduct by Matthew Thompson. (ots) (Entered: 05/02/2016)
627 ORDER denying 626 Motion for Permanent Injunction. Signed by Judge Patricia A. Seitz on 5/9/2016. (ots) (Entered: 05/09/2016)
628 MOTION to Enforce Injunction by Non Party, James Forney (ots) (Entered: 05/11/2016)
629 MOTION for Fee Exemption by Non Party, James Forney (ots) (Entered: 05/11/2016)
630 MOTION for Advocacy Voice by Non Party, James Forney. (ots) (Entered: 05/11/2016)
631 ORDER denying 628 Motion to Enforce Upon Finding of Contempt by a Party; denying as moot 629 Motion for Fee Exemption ; denying as moot 630 Motion for Advocacy Voice. Signed by Judge Patricia A. Seitz on 5/17/2016. (ls) (Entered: 05/18/2016)
632 NOTICE of Compliance by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Exhibit A Monthly Report as of May 15, 2016) (Tietig, Lisa) (Entered: 06/01/2016)
633 NOTICE of filing Letter to the Court on Husbands behalf by Mary Ann Macias (ail) (Entered: 06/10/2016)
634 MOTION for clarification re: Correction Religious Diet Program (RD) by Everath M. Nealey, Jr. Responses due by 7/1/2016 (ots) (Entered: 06/14/2016)
635 ORDER denying 634 Motion for Clarification. Signed by Judge Patricia A. Seitz on 6/21/2016. (ots) (Entered: 06/21/2016)
636 NOTICE of Inquiry by, non−party, Thompson Matthew (ots) (Entered: 06/21/2016)
637 Clerk's Second Notice of Undeliverable Mail re 635 Order on Motion for Clarification. US Mail returned for: Rebrant Bryant. The Court has not located an updated address for this party. Court notices will no longer be sent to this party in this case until a correct address is provided. (drz) (Entered: 07/08/2016)
638 NOTICE re: Status of Case by Non−Party (ots) (Entered: 07/19/2016)
639 NOTICE of Compliance with Injunction by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Quarterly Report) (Tietig, Lisa) (Entered: 07/20/2016)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 44 of 50

07/20/2016 07/29/2016 08/05/2016 08/08/2016 08/08/2016 08/08/2016 08/10/2016 08/24/2016
08/25/2016 08/29/2016 08/30/2016 09/01/2016 09/06/2016
10/04/2016 10/20/2016 10/24/2016 11/02/2016 11/17/2016 11/17/2016

640 NOTICE of Compliance with Injunction by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Monthly Report for 6−15−16) (Tietig, Lisa) (Entered: 07/20/2016)
641 ORDER Requiring Resubmission of Monthly and Quarterly Report, ( Miscellaneous Deadline 8/5/2016.) Signed by Judge Patricia A. Seitz on 7/28/2016. (cqs) (Entered: 07/29/2016)
642 Letter from Rufus Hampton (lbc) (Entered: 08/05/2016)
643 ORDER TO SHOW CAUSE. Show Cause Response due by 8/17/2016. Signed by Judge Patricia A. Seitz on 8/8/2016. (lbc) (Entered: 08/08/2016)
644 NOTICE of Compliance by Secretary Department of Corrections re 641 Order, Set/Reset Deadlines (Attachments: # 1 Exhibit Exhibit A Corrected Monthly Report, # 2 Exhibit Exhibit B Corrected Quarterly Report) (Tietig, Lisa) (Entered: 08/08/2016)
645 RESPONSE TO ORDER TO SHOW CAUSE re 643 Order to Show Cause by Secretary Department of Corrections. (Tietig, Lisa) (Entered: 08/08/2016)
646 NOTICE by Secretary Department of Corrections re 548 Judgment of Filing Monthly Report of Participation as of 6/15/16 (Attachments: # 1 Exhibit Exhibit A) (Tietig, Lisa) (Entered: 08/10/2016)
647 Clerk's First Notice of Undeliverable Mail re 643 Order to Show Cause. US Mail returned for: Arturo Ortiz. The Court has located and updated the address for this party. Document mailed to Inmate's new location. After two unsuccessful noticing attempts, notices from the Court will no longer be sent to this party in this case until a correct address is provided. (drz) (Entered: 08/24/2016)
648 NOTICE of Filing Regarding Kosher Diet/Motion to Clarify Permanent Injuction by Akeem Muhammad, Pro Se # 706732. (cqs) (Main Document 648 replaced on 8/25/2016) (jc). (Entered: 08/25/2016)
649 NOTICE of Change of Address by Arturo Ortiz (system updated) (cqs) (Entered: 08/29/2016)
650 NOTICE Regarding Religious Diet by James Ivey (County Jail) (cqs) (Entered: 08/30/2016)
651 NOTICE of Compliance Filing Monthly Report by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Exhibit A Monthly Report as of 8/15/16) (Tietig, Lisa) (Entered: 09/01/2016)
652 MANDATE of USCA (certified copy) AFFIRM Judgment/ Order of the district court with courts opinion re 567 Notice of Appeal,, filed by Florida Department of Corrections, Secretary Department of Corrections ; Date Issued: 9/6/2016 ; USCA Case Number: 15−14117−EE (amb) (Entered: 09/07/2016)
653 NOTICE by Florida Department of Corrections, Secretary Department of Corrections re 498 Order on Motion for Summary Judgment,,, of Filing Monthly Report (Attachments: # 1 Exhibit Exhibit A Monthly Report) (Tietig, Lisa) (Entered: 10/04/2016)
654 NOTICE by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment of Filing Fourth Quarterly Report (Attachments: # 1 Exhibit Exhibit A Quarterly Report) (Tietig, Lisa) (Entered: 10/20/2016)
655 MOTION to Take Judicial Notice re 648 Notice (Other) by Akeem Muhammad. (ls) (Entered: 10/24/2016)
656 ORDER denying 655 Motion Clarify Permanent Injunctionand Motion To Take Judicial Notice Signed by Judge Patricia A. Seitz on 11/2/2016. (cqs) (Entered: 11/02/2016)
657 NOTICE by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment of Filing Monthly Report for October 2016 (Attachments: # 1 Exhibit Exhibit A Monthly Report for October 2016) (Tietig, Lisa) (Entered: 11/17/2016)
658 NOTICE by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment of Filing Monthly Report for November 2016 (Attachments: # 1 Exhibit

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 45 of 50

11/22/2016 11/29/2016 11/30/2016 12/14/2016 12/30/2016
01/03/2017
01/04/2017 01/06/2017 01/20/2017 01/27/2017
02/01/2017
02/28/2017 03/10/2017 03/10/2017 03/14/2017 03/14/2017 03/17/2017 03/21/2017 03/23/2017
03/31/2017 04/03/2017

Exhibit A Monthly Report for November 2016) (Tietig, Lisa) (Entered: 11/17/2016)
659 NOTICE of Filing RE: Kosher Diet, assistance requested by George Waner #056887. (cqs) (Entered: 11/22/2016)
660 NOTICE Requesting Attorney Information RE: Religious Diet. By Antonio Johnson #446897. (cqs) (Entered: 11/29/2016)
661 NOTICE of Filing Re: Religious Diet by Robert Temple #C05797. (cqs) (Entered: 11/30/2016)
662 NOTICE of Filing Re: Religious Diet by Richard A. Tasker #056609 (lan) (Entered: 12/14/2016)
663 MOTION for clarification 498 Order RE: Religious Diet by Silas Kendricks #122288. Responses due by 1/13/2017 (cqs) (Main Document 663 replaced on 1/3/2017) (ail). MOTION for clarification 498 Order RE: Religious Diet by Silas Kendricks #122288. Responses due by 1/13/2017 (cqs) (Main Document 663 replaced on 1/3/2017 exhibits added) (ail). (Entered: 12/30/2016)
664 NOTICE of Compliance by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Exhibit A Monthly Report of Participation in RDP Program) (Tietig, Lisa) (Entered: 01/03/2017)
665 ORDER denying 663 Motion for Clarification. Signed by Judge Patricia A. Seitz on 1/4/2017. (cqs) (Entered: 01/04/2017)
666 NOTICE Of Filing Response re 498 Order on Motion for Summary Judgment,by David Riley Siplin # 020899. (cqs) (Entered: 01/06/2017)
667 NOTICE of Filing RE: Religious Diet By David Charles Sussman #J06481. (cqs) (Entered: 01/20/2017)
668 NOTICE of Compliance Filing Monthly Report as of January 16, 2017 by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Exhibit A Monthly Report as of 1−16−17) (Tietig, Lisa) (Entered: 01/27/2017)
669 NOTICE of Compliance by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Exhibit A Quarterly Report for fourth quarter 2017) (Tietig, Lisa) (Entered: 02/01/2017)
670 NOTICE Of Filing Regarding: Religious Diet by Robert Warren #028334 (cqs) (Entered: 02/28/2017)
671 MOTION to Enforce upon finding of Contempt by Arthur N. Wright. (lan) (Entered: 03/13/2017)
672 AFFIDAVIT in Support signed by : Arthur N. Wright. re 671 MOTION to Enforce upon finding of Contempt by Arthur N. Wright (lan) (Entered: 03/13/2017)
673 ORDER DENYING MOTION TO ENFORCE denying 671 Motion. Signed by Senior Judge Patricia A. Seitz on 3/14/2017. (lan) (Entered: 03/14/2017)
674 SWORN AFFIDAVIT signed by : Moses Carter. (tpl) (Entered: 03/15/2017)
675 NOTICE of Inquiry by Arthur N. Wright (Docket Sheet Sent) (lan) (Entered: 03/17/2017)
676 MOTION to Produce by Inmate Karen Chagnon #542140.. (cqs) (Entered: 03/21/2017)
677 NOTICE of Compliance by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Exhibit A −− Monthly Report as of February 15, 2017, # 2 Exhibit Exhibit B Monthly Report as of March 15, 2017) (Tietig, Lisa) (Entered: 03/23/2017)
678 NOTICE by United States of America re 665 Order on Motion for Clarification Notice of Monitoring Activities (Fox, Deena) (Entered: 03/31/2017)
679 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO PRODUCE granting in part and denying in part 676 Motion to Produce. Signed by Senior Judge

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 46 of 50

04/04/2017 04/19/2017
04/19/2017
05/09/2017 05/18/2017
05/18/2017
05/19/2017 06/20/2017 07/19/2017 07/19/2017 08/01/2017 08/16/2017 09/01/2017 09/06/2017 09/19/2017 10/03/2017 10/16/2017 10/20/2017
10/20/2017 10/20/2017 11/16/2017 11/21/2017

Patricia A. Seitz on 4/3/2017. (lan) (Entered: 04/04/2017)
680 NOTICE of Compliance re 679 Order on Motion to Produce (lan) (Entered: 04/04/2017)
681 NOTICE of Compliance by Florida Department of Corrections, Secretary Department of Corrections (Attachments: # 1 Exhibit Exhibit A Monthly Report) (Tietig, Lisa) (Entered: 04/19/2017)
682 NOTICE of Compliance by Florida Department of Corrections, Secretary Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit Exhibit A Quarterly Report) (Tietig, Lisa) (Entered: 04/19/2017)
683 NOTICE of Filing RE: Religious Diet by Joseph McIntosh #121314. (lan) (Entered: 05/09/2017)
684 NOTICE of Attorney Appearance by Erik D Kverne on behalf of Florida Department of Corrections, Secretary Department of Corrections. Attorney Erik D Kverne added to party Florida Department of Corrections(pty:dft), Attorney Erik D Kverne added to party Secretary Department of Corrections(pty:dft). (Kverne, Erik) (Entered: 05/18/2017)
685 NOTICE by Secretary Department of Corrections re 548 Judgment Notice of Filing Monthly Report (Attachments: # 1 Exhibit Exhibit A) (Kverne, Erik) (Entered: 05/18/2017)
686 NOTICE to the Court Regarding Prison Conditions by David Riley Siplin (vmz) (Entered: 05/19/2017)
687 NOTICE by Florida Department of Corrections re 548 Judgment Notice of Filing Monthly Report (Attachments: # 1 Exhibit Exhibit A) (Kverne, Erik) (Entered: 06/20/2017)
688 NOTICE by Florida Department of Corrections re 548 Judgment Notice of Filing Quarterly Report (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 07/19/2017)
689 NOTICE by Florida Department of Corrections re 548 Judgment Notice of Filing Monthly Report (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 07/19/2017)
690 Statement of: Facts by Terry Kenneth Williams, Jr. (ls) (Entered: 08/02/2017)
691 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 08/16/2017)
692 NOTICE of Filing RE: Religious Diet by Robert Trease #124346 (lan) (Entered: 09/01/2017)
693 NOTICE of Filing RE: Religious Diet by Terry Kenneth Williams, Jr (lan) (Entered: 09/18/2017)
694 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 09/19/2017)
695 NOTICE of Filing RE: Religious Diet by Dwayne R. Smith (lan) (Entered: 10/03/2017)
696 SWORN AFFIDAVIT signed by : John Manfredonia. (gp) (Entered: 10/17/2017)
697 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING QUARTERLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 10/20/2017)
698 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 10/20/2017)
699 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 10/20/2017)
700 Letter from Anthony W. Broom (vmz) (Entered: 11/16/2017)
701 SWORN AFFIDAVIT signed by : Barry Murry. by Barry Murray (vmz) Modified Text to match document title on 11/22/2017 (vmz). (Entered: 11/22/2017)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 47 of 50

11/27/2017 12/20/2017 12/28/2017 01/23/2018 01/23/2018
02/14/2018
02/14/2018 02/20/2018 02/20/2018 02/21/2018 02/26/2018 03/27/2018 04/04/2018 04/26/2018 05/03/2018 05/03/2018
05/07/2018
05/07/2018 05/07/2018
05/16/2018
05/31/2018 06/18/2018

702 NOTICE by Florida Department of Corrections re 548 Judgment (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 11/27/2017)
703 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 12/20/2017)
704 Letter from Omar T. Alston (vmz) (Entered: 12/28/2017)
705 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 01/23/2018)
706 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING QUARTERLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 01/23/2018)
707 REQUEST for leave to file a petition for declaration/ Class member attempted initiation of administrative process. by Hugh Kinselman (vmz) Modified on 2/15/2018 (mr1). Modified text on 2/15/2018 (mr1). (Entered: 02/15/2018)
708 NOTICE Of Inquiry of a list of any related action by Hugh Kinselman of (vmz) Modified text on 2/15/2018 (mr1(Copy ). (Entered: 02/15/2018)
709 ORDER denying 707 Motion for Leave to File. Signed by Senior Judge Patricia A. Seitz on 2/20/2018. (lh) (Entered: 02/20/2018)
710 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 02/20/2018)
711 NOTICE of Filing Letter Re: Religious Diet by Cash Pawley (vmz) (Entered: 02/22/2018)
712 MOTION to Intervene To Present Evidence Of Defendants Fraud On This Court by Akeem Muhammad. (vmz) (Entered: 02/26/2018)
713 MOTION to Produce the Status of DE 712 MOTION to Intervene by Akeem Muhammad. (vmz) (Entered: 03/27/2018)
714 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 04/04/2018)
715 Letter from Manuel Perez (vmz) (Entered: 04/27/2018)
716 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 05/03/2018)
717 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING QUARTERLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 05/03/2018)
718 ORDER Requiring Quarterly Report; Defendants shall file an Amended Notice of Filing Quarterly Report by May 18, 2018. Signed by Senior Judge Patricia A. Seitz on 5/7/2018. (vmz) Modified text on 5/7/2018 (vmz). (Entered: 05/07/2018)
719 ORDER denying 712 Motion to Intervene ; denying as moot 713 Motion to Produce. Signed by Senior Judge Patricia A. Seitz on 5/7/2018. (vmz) (Entered: 05/07/2018)
720 NOTICE by Florida Department of Corrections re 548 Judgment AMENDED NOTICE OF FILING QUARTERLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 05/07/2018)
721 FIRST Clerk's Notice of Undeliverable Mail re 715 Letter. US Mail returned for: Manuel Perez. The Court has not located an updated address for this party. After two undeliverable notices from the Court, notices will no longer be sent to this party in this case until a correct address is provided. (pgz) (Entered: 05/16/2018)
722 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 05/31/2018)
723 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit Exhibit A) (Kverne, Erik) (Entered:

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 48 of 50

07/17/2018 07/17/2018 07/24/2018 07/27/2018 08/21/2018 08/25/2018 08/25/2018 09/04/2018 09/04/2018 09/17/2018
09/17/2018 09/18/2018 09/18/2018 09/18/2018 09/20/2018 10/03/2018
10/09/2018
10/09/2018
10/11/2018

06/18/2018)
724 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 07/17/2018)
725 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING QUARTERLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 07/17/2018)
726 Letter/MOTION to Provide Name and Address of Agency that Oversees Kosher Meals For The Prison System by Jeremiah Edwards. (vmz) (Entered: 07/24/2018)
727 REPORT REGARDING Nutritional Adequacy by United States of America (Fox, Deena) (Entered: 07/27/2018)
728 REPLY to 727 Report Regarding Nutritional Adequacy of CFO by Akeem Muhammad. (asl) (Entered: 08/22/2018)
729 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 08/25/2018)
730 NOTICE OF UNAVAILABILITY by Florida Department of Corrections for dates of August 27, 2018 through August 29, 2018 (Kverne, Erik) (Entered: 08/25/2018)
731 ORDER granting 726 Letter/MOTION to Provide Name and Address of Agency that Oversees Kosher Meals For The Prison System. Signed by Senior Judge Patricia A. Seitz on 9/4/2018. See attached document for full details. (vmz) (Entered: 09/04/2018)
732 ORDER SETTING HEARING, ( Status Conference set for 10/16/2018 10:30 AM before Senior Judge Patricia A. Seitz.) Signed by Senior Judge Patricia A. Seitz on 9/4/2018. See attached document for full details. (vmz) (Entered: 09/04/2018)
733 Unopposed MOTION to Continue Status Conference re 732 Order, Set/Reset Deadlines/Hearings by United States of America. Responses due by 10/1/2018 (Attachments: # 1 Affidavit in support of Motion to Reset, # 2 Text of Proposed Order Proposed Order Resetting Hearing)(Fox, Deena) (Entered: 09/17/2018)
734 LETTER/MOTION to Produce by Akeem Muhammad. (Copy of Docket Sheet sent and address updated) (vmz) (Entered: 09/17/2018)
735 Letter from Dwayne R. Smith (vmz) (Entered: 09/18/2018)
736 Notice of Inquiry by Alin Prophete. (vmz) (Entered: 09/18/2018)
737 ORDER granting 733 Motion to Continue. Status Conference set for 10/23/2018 01:30 PM before Senior Judge Patricia A. Seitz. Signed by Senior Judge Patricia A. Seitz on 9/18/2018. See attached document for full details. (vmz) (Entered: 09/18/2018)
738 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 A) (Kverne, Erik) (Entered: 09/20/2018)
739 SECOND Clerk's Notice of Undeliverable Mail re 731 Order on Motion to Produce, 732 Order, Set/Reset Deadlines/Hearings. US Mail returned for: Manuel Perez. The Court has not located an updated address for this party. After two undeliverable notices from the Court, notices will no longer be sent to this party in this case until a correct address is provided. (pgz) (Entered: 10/03/2018)
740 FIRST Clerk's Notice of Undeliverable Mail re 737 Order on Motion to Continue. US Mail returned for: Alin Prophete. The Court has not located an updated address for this party. After two undeliverable notices from the Court, notices will no longer be sent to this party in this case until a correct address is provided. (pgz) (Entered: 10/09/2018)
741 ORDER Re: 737 October 23, 2018 Hearing. Each patty shall contact chambers Re: the video conference by 10/11/2018. Joint Statement due by October 19, 2018. Signed by Senior Judge Patricia A. Seitz on 10/9/2018. See attached document for full details. (ar2) (Entered: 10/09/2018)
742 Unopposed MOTION to Continue Deadline re 741 Scheduling Order, by United States of America. Responses due by 10/25/2018 (Fox, Deena) (Entered: 10/11/2018)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 49 of 50

10/12/2018 10/16/2018
10/16/2018 10/16/2018 10/17/2018 10/19/2018 10/23/2018 10/23/2018
10/23/2018
11/28/2018 12/05/2018
12/26/2018 01/07/2019 01/09/2019
01/14/2019 01/29/2019 02/06/2019
04/09/2019 05/20/2019 05/21/2019 05/22/2019

743 ORDER granting 742 Motion to Continue. Signed by Senior Judge Patricia A. Seitz on 10/12/2018. See attached document for full details. (vmz) (Entered: 10/12/2018)
744 SECOND Clerk's Notice of Undeliverable Mail re 741 Scheduling Order,. US Mail returned for: Alin Prophete. The Court has not located an updated address for this party. After two undeliverable notices from the Court, notices will no longer be sent to this party in this case until a correct address is provided. (pgz) (Entered: 10/16/2018)
745 MOTION to Produce by Hugh Kinselman. (vmz) (Entered: 10/16/2018)
746 NOTICE of Change of Address by Hugh Kinselman (System Updated; See imade DE 745 ) (vmz) (Entered: 10/16/2018)
747 ORDER denying 745 Motion to Produce. Signed by Senior Judge Patricia A. Seitz on 10/17/2018. See attached document for full details. (vmz) (Entered: 10/17/2018)
748 Joint Statement Upcoming Hearing by United States of America (Fox, Deena) Modified TEXT on 10/22/2018 (vmz). (Entered: 10/19/2018)
749 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 10/23/2018)
750 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING QUARTERLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 10/23/2018)
751 PAPERLESS Minute Entry for proceedings held before Senior Judge Patricia A. Seitz: Status Conference held on 10/23/2018. Court Reporter: Glenda Powers, 305−523−5022 / Glenda_Powers@flsd.uscourts.gov. (ra) (Entered: 10/23/2018)
752 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 11/28/2018)
753 Joint MOTION to Vacate Order and Terminate Injunction re 548 Judgment JOINT MOTION TO VACATE THIS COURTS ORDER AND TERMINATE OUTSTANDING INJUNCTION by Florida Department of Corrections. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kverne, Erik) (Entered: 12/05/2018)
754 Letter from Dwayne K. Smith (vmz) (Entered: 12/26/2018)
755 NOTICE by Florida Department of Corrections re 548 Judgment NOTICE OF FILING MONTHLY REPORT (Attachments: # 1 Exhibit A) (Kverne, Erik) (Entered: 01/07/2019)
756 ORDER granting in part 753 Motion to Vacate And Terminate Injunction. Signed by Senior Judge Patricia A. Seitz on 1/9/2019. See attached document for full details. (vmz) (Entered: 01/10/2019)
757 NOTICE of Filing Grievance by Louis J. Ticknor (vmz) (Entered: 01/15/2019)
758 NOTICE of Inquiry (Copy of Docket Sheet Mailed) by Akeem Muhammad (vmz) (Entered: 01/29/2019)
759 FIRST Clerk's Notice of Undeliverable Mail re 756 Order on Motion for Miscellaneous Relief. US Mail returned for: Moses Carter. The Court has not located an updated address for this party. After two undeliverable notices from the Court, notices will no longer be sent to this party in this case until a correct address is provided. (mp) (Entered: 02/06/2019)
760 NOTICE of Inquiry by Jahi Hasanati (copy of DE 1 Sent) (vmz) Modified on 4/9/2019 (vmz). (Entered: 04/09/2019)
761 NOTICE of Inquiry by Jahi Hasanati (Copy of Docket Sheet Sent) (vmz) (Entered: 05/20/2019)
762 MOTION Request to Enforce Relief; Requesting the entry of an order to provide a nutritionally adequate diet. by Jahi Hasanati. (vmz) (Entered: 05/21/2019)
763 ORDER denying 762 Motion to Enforce. Signed by Senior Judge Patricia A. Seitz on 5/22/2019. See attached document for full details. (vmz) (Entered: 05/22/2019)

Case: 1:12-cv-22958 As of: 11/07/2019 11:23 AM EST 50 of 50

05/29/2019 06/04/2019 06/18/2019 11/05/2019

764 NOTICE of Addendum by Jahi Hasanati re 762 MOTION Request to Enforce Relief (ail) (Entered: 05/29/2019)
765 NOTICE of Inquiry by Jahi Hasanati (Copy of DE 756 , 762 , and Copy of Docket Sheet Mailed) (vmz) (Entered: 06/06/2019)
766 NOTICE of Inquiry by Jahi Hasanati (copy of DE 753 and 755 Mailed 6/19/2019) (ail) (Entered: 06/19/2019)
767 MOTION FOR COMPLIANCE FOR FINAL JUDGMENT AND PERMANENT INJUNCTION re 548 Judgment by Kenneth Wayne Kolb. (pcs) (Entered: 11/05/2019)


[CONTENT] August 14, 2012 | the U.S. Department of Justice | the U.S. District Court | the Southern District | Florida | Jewish | under 42 | 28 | U.S.C. | § | 2202 | the Florida Department of Corrections ||| DOJ | the Religious Land Use and Institutionalized Persons Act of 2000 ||| the Florida Department of Corrections | RLIUPA ||| May 15, 2013 | Muslim | Muslim ||| Patricia A. Seitz | September 6, 2013 ||| 2013 | 4786829 ||| December 6, 2013 ||| July 2014 ||| three | 1 | Orthodox | 2 | the Religious Diet Program | ten percent | a month | 3 | zero ||| the Eleventh Circuit ||| three | July 2014 ||| The Eleventh Circuit | May 2014 ||| June 2014 ||| June 27, 2014 | Circuit | July ||| February 27, 2015 | the Eleventh Circuit ||| the Prison Litigation Reform Act | 90 days ||| 90-day ||| 18 | U.S.C. | 3626(a)(2 ||| March 2014 ||| Seitz | April 30, 2015 ||| 2015 WL 1977795 ||| three ||| 1 | 2 | 3 | zero ||| two | 1 | 2 ||| August 12, 2015 ||| 2015 | 4768247 ||| 1 | 2 | ten percent | 3 | zero ||| monthly | quarterly | the Federal Dept ||| thirty day ||| September 11, 2015 ||| July 14, 2016 | the Eleventh Circuit | William Pryor | Jill Pryor | Richard Story |||  ||| the following months ||| October 23, 2018 | quarterly | monthly ||| December 5, 2018 ||| January 9, 2019 | two years ||| the Department of Corrections ||| April | May ||| May 22, 2019 ||| January 9, 2019 ||| October 31, 2019 | the Department of Corrections [SUMMARY] On August 14, 2012, the U.S. Department of Justice (DOJ) filed this lawsuit in the U.S. District Court for the Southern District of Florida on behalf of Jewish prisoners under 42 U.S.C. § 2000cc-2(f) and 28 U.S.C. §§ 2201 and 2202 against the Florida Department of Corrections. The DOJ asked the court for declaratory and injunctive relief, claiming that defendant violated religious freedoms granted by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Specifically, plaintiffs claimed that the Florida Department of Corrections violated RLIUPA and substantially burdened the prisoners' religious exercise by not offering kosher meals to inmates.

On May 15, 2013, Muslim prisoners filed a motion to intervene, seeking halal, or in the alternative, kosher meals for Muslim prisoners who observed halal dietary laws. Judge Patricia A. Seitz denied the motion on September 6, 2013. 2013 WL 4786829.

The court issued a preliminary injunction on December 6, 2013. It required the defendants to provide a kosher diet program to all prisoners with a sincere religious belief by July 2014. It also enjoined three of the state’s methods for issuing a religious diet program: 1) the Orthodox sincerity test, 2) the “ten-percent rule,” which removed a prisoner from the Religious Diet Program for missing ten percent of meals within a month, and 3) a zero tolerance rule that suspended the kosher diet for prisoners who were caught eating non-kosher once, without opportunity to contest suspension.

The defendants filed motions for a stay of the preliminary injunction both to the Eleventh Circuit and the district court. The motions contested the enjoining of the three “tests” for granting a kosher diet as well as the July 2014 deadline for compliance. The Eleventh Circuit denied the motion for a stay in May 2014. The district then denied the motion for stay in June 2014. On June 27, 2014, the Circuit remanded to the district court to alter the July deadline.

On February 27, 2015, the Eleventh Circuit dismissed the defendant's remaining appeals of the preliminary injunction because of mootness. It ruled that under the Prison Litigation Reform Act (PLRA), which governs all RLUIPA challenges, a preliminary injunction would expire automatically after 90 days unless the court “makes the findings required under subsection (a)(1) for the entry of prospective relief. . .” and “makes the order final before the expiration of the 90-day period.” 18 U.S.C. § 3626(a)(2). The district court made neither finding, so the preliminary injunction expired in March 2014.

Judge Seitz ruled on the summary judgment motions for declaratory relief and permanent injunctions on April 30, 2015. 2015 WL 1977795. Declaratory relief was granted to the plaintiffs for three claims. The court held that the defendant violated RLUIPA through 1) denial of a kosher diet to sincere prisoners, 2) its “ten-percent rule”, and 3) its zero tolerance rule. 

Summary judgment was also granted to the defendants on two claims, declaring that 1) the doctrinal sincerity test for a special diet did not violate RLUIPA as long as it was not unduly weighted in determining sincerity, and 2) an anti-bartering policy did not violate RLUIPA.

The court then issued its final ruling on a permanent injunction on August 12, 2015. 2015 WL 4768247. The injunction ordered the defendants to 1) offer a kosher diet to all prisoners with a sincere religious basis for keeping kosher, 2) end the ten percent rule, and 3) stop enforcement of the zero tolerance rule without an opportunity for prisoners to contest their removal or suspension. The court then furthered ordered that the defendants create auditing and training procedures, produce both monthly and quarterly reports, and open access of their facilities to the Federal Dept. of Corrections. It provided a thirty day period to cure the failures in the kosher diet program.

On September 11, 2015, the defendants appealed the order. On July 14, 2016, the Eleventh Circuit (Judges William Pryor, Jill Pryor, Richard Story) denied the appeal, holding that the defendants had not proved a compelling governmental interest for not providing kosher meals to the inmates. Moreover, the court stated that even if the defendants had a compelling governmental interest, there was no proof that denying kosher meals was the least restrictive means of furthering that interest.

Over the following months, the court continued to receive reports on compliance with the order and also fielded grievances from prisoners denied entry into the kosher diet program (though none received an additional hearing). A hearing was held on October 23, 2018, when the parties discussed the quarterly and monthly reports, the auditing process and filing a joint motion to terminate the injunction. The the joint motion to terminate the injunction and declaratory judgement was filed on December 5, 2018.  

On January 9, 2019, the court ordered the motion to terminate the injunction to be granted following two years without evidence of violation. However, the court denied the motion to terminate the declaratory judgement to ensure the Department of Corrections continues to have a legal responsibility to meet religious dietary preferences. 

During April and May, prisoners mailed motions requesting enforced relief and inquiring into updates in the proceedings. On May 22, 2019, the court denied the motion to enforce relief from the previously entered permanent injunction. However, the permanent injunction was dissolved on January 9, 2019, and there was no injunction to enforce. 

As of October 31, 2019, the declaratory judgement remains in effect ensuring the Department of Corrections to meet the religious dietary preferences of prisoners.