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Nance v. Miser

United States District Court, D. Arizona

March 31, 2014

Keith P. Nance, Plaintiff,
Allen Miser, et al. Defendants.



Defendants, through undersigned counsel, have repeatedly exchanged drafts of a Joint Proposed Pretrial Order with Plaintiff Keith Nance, including e-mailed versions over the January 24-25, 2014 weekend. Although all of Nance's proposals have been incorporated into the following document, he has refused to execute this final version, as indicated in the attached e-mail exchanges between undersigned counsel and Arizona Department of Corrections Staff ("Exhibits A & B"). Accordingly, Defendants submit this Joint Proposed Pretrial Order unilaterally.

This Final Pretrial Order supersedes the pleadings and shall govern the trial and further proceedings in this case.


This Court has jurisdiction over this action pursuant to 42 U.S.C. § 1983.


This is a civil rights action pursuant to 42 U.S.C. § 1983. The Plaintiff seeks compensatory damages, punitive damages, and injunctive relief from this Court against named Defendants Miser, Vicklund, Linderman, and Patton due to violations of clearly established statutory and constitutional law. Defendants' denial of a Halal Religious Meat Diet and denial of a religious shaving waiver for seven months cause the Plaintiff a substantial burden upon in exercise of sincerely held religious beliefs.



In Count I of his First Amended Complaint, the Plaintiff alleges that Defendants denied him a Halal meat diet and religious shaving waiver for seven months in violation of his religious exercise. The Plaintiff alleges also the absence of a compelling or penological reason which justifies denial of a Halal meat diet and shaving waiver. The Plaintiff alleges that as a Muslim he's been discriminated against while adherents of other faiths are provided religious diets consistent with their sincerely held beliefs.

1. Claim of Violation of Free Exercise of Religion:

The Plaintiff retains the protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008) (Quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). To implicate the Free Exercise Clause, the Plaintiff must show that the belief at issue is both "sincerely held" and "rooted in religion" or religious belief. Malik v. Brown, 16 F.3de 33, 333 (9th Cir. 1994); see Shakur, 514 F.3d 884-85 (noting the Supreme Court's disapproval of the centrality test and finding that the sincerity test in Malik determines whether the Free Exercise Clause applies.)

If the Plaintiff makes his initial showing, he must establish that prison officials substantially burden the practice of his religion by preventing him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur 514 F.3d at 884-85.

A regulation that burdens the First Amendment right to free exercise may be upheld only if it is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987).

Under RLUIPA, a government may not impose a substantial burden on the religious exercise of a confined person unless the government establishes that the burden furthers "a compelling governmental interest" and does so by "the least restrictive means." 42 U.S.C. § 2000 cc-1(A)(1)(2). RLUIPA must be construed broadly in favor of protecting the Plaintiff's right to exercise his religious beliefs.

The Plaintiff bears the burden of establishing prima facie that RLUIPA has been violated and that his religious exercise has been substantially burdened. War Soldier, 418 F.3d at 994 (citing 42 U.S.C. § 2000 cc-2(b)). The government then bears the burden of proving that the substantial burden on the Plaintiff s religious practice both furthers a compelling governmental interest and is the least restrictive means of doing so. Id. at 995 (citing 42 U.S.C. §§ 2000 cc-1(A), 2000 cc-2(b).


Defendants assert that they do not violate Nance's First Amendment rights, nor do they prohibit him from freely exercising his religion as an incarcerated felon. Defendants and the Arizona Department of Corrections ("ADC") offer pork-free diets, and have approved Nance's shaving waiver.

The record shows Nance first requested a shaving waiver years after his incarceration and identification as a Muslim. First incarcerated in 2002, he identified himself as a Muslim at that time, but did not apply for a shaving waiver until 2005-at which time he requested and received a permanent medical shaving waiver. He then requested and was granted a religious shaving waiver on February 9, 2006. Nance was subsequently released from prison but was re-incarcerated on September 15, 2010. Although he initially failed to articulate a religious reason for his shaving waiver upon his return to ADC custody, he subsequently provided a religious reason and was granted a religious shaving waiver on June 16, 2011.

a. No First Amendment Violations

A state regulation or practice "does not violate the Establishment Clause if (1) the enactment has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with religion." Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762 (9th Cir.) (citing Lemon v. Kurtman, 403 U.S. 602 (1971)), cert. denied, 454 U.S. 863 (1981). Entanglement may also be treated as an aspect of the inquiry into a statute's effect. See Agostini v. Felton, 521 U.S. 203, 233-34 (1997) (federally funded program allowing remedial instruction on premises of sectarian schools does not have effect of advancing religion where it does not result in governmental indoctrination, define its recipients by reference to religion, or create an excessive entanglement). Under the Lemon test with the Agostini refinement, the inquiry under the second prong is (a) "whether the government acted with the purpose of advancing or inhibiting religion, '" and (b) "whether the [governmental] aid has the "effect" of advancing or inhibiting religion.'" Community Housing, Inc. v. City of Boise, 490 F.3d 1041, 1055 (9th Cir. 2007) (quoting Agostini, 521 U.S. at 222-23).

Here, Nance fails to show a triable issue of fact that the ADC's religious diet program violated the Establishment Clause. As in Curry, ADC's religious diet program offers several diets for the permissible secular purpose of facilitating religious practice within prison and not for the purpose of a advancing a particular religion. The primary effect of the ADC's religious diet program neither advances nor inhibits religious practice, and it does not foster an excessive entanglement with religion.

The Supreme Court has held that government efforts to accommodate religion are permissible when they simply remove burdens on the free exercise of religion. Corp. of Presiding Bishops of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 348 (1987). Here, the ADC's religious diet program is an effort to accommodate religion which removes burdens on the free exercise of religion. The religious diet program offers pork-free kosher and vegetarian meal options that sustain Nance in good health and satisfy the dietary laws of his religion. McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987).

Additionally, Nance suffered no First Amendment violation by experiencing a delay in approval for his shaving waiver. Although he had declared his Muslim religious preference in 2002, he did not request a shaving waiver for several years. Once he requested a shaving waiver, he failed to articulate a religious reason for it. Accordingly, Defendants did not approve his requested waiver until such time as he could articulate a religious reason for requesting the shaving waiver. The administrative regulation requiring inmates to articulate a religious reason for requesting a shaving waiver represents the least restrictive means by which to enforce the compelling government interest in maintaining a secure and safe prison environment, while facilitating legitimate religious practice, materials and supplies.

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

1. Valid, rational connection between prison regulation and legitimate government interest

Defendants contend that the ADC religious diet policy, which does not provide for halal meat, is validly and rationally connected to the legitimate state interests of prison budget and administrative concerns. Further, the administrative requirement that an inmate articulate a religious reason for a shaving waiver is rationally connected to the legitimate state interests of maintaining a secure and safe environment.

2. Alternative means of practicing his religion available

Defendants further submit that Nance has alternative methods of practicing his religion available to him. "The relevant inquiry under this factor is not whether the inmate has an alternative means of engaging in the particular religious practice that he or she claims is being affected; rather, [the Court is] to determine whether the inmates have been denied all means of religious expression." Ward v. Walsh, 1 F.3d 873, citing O'Lone v. Shabazz, 482 U.S. 342, 351-52 (1987). It is relevant to note that, in evaluating the second Turner factor, the Court should distinguish "between a religious practice which is a positive expression of belief and a religious commandment which the believer may not violate at peril of his soul." Ward, 1 F.3d at 877 n. 1.

Nance is able to request and receive alternative pork-free diets available to him through ADC's religious diet program. Defendants and their witnesses will confirm that, as long as Nance is not forced to eat pork, any other non-meat diet can be construed as conforming to Halal standards. In fact, Nance requested and accepted these pork-free alternatives for years. Though Nance now desires to eat meat, and have that meat prepared consistent with halal practice, he cannot demonstrate that this preference is more than a positive expression of belief. There is no evidence that Nance's belief that he needs to eat meat is a religious commandment, or that eating a vegetarian or pork-free kosher diet imperils his soul.

Additionally, Nance is entitled to purchase and use a variety of religious materials and supplies, including a prayer rug, Dikhr (prayer) beads, a Kufi (brimless, short, rounded cap worn by men in many Western African and Asian cultures), a Miswak (a teeth cleaning twig made from the Salvadora persica tree-known as arak in Arabic), an offering bowl, and prayer oil, and the Qu'aran and other Islamic religious texts.

Nance has the opportunity to participate in restricted religious diets, daily prayers, weekly Jumah (group worship), monthly pastoral visits from the religious leader of his choice (provided that person is willing to come and is cleared by ADC), and have special arrangements made during the month-long observation of Ramadan, a period of fasting and prayer, to allow him to take his meals at the religiously prescribed times.

3. Significant Impact Accommodation Will Have on Guards, Inmates and General Allocation of Prison Resources

Requiring Defendants and the ADC to provide Halal meat to inmates would have a significant impact on correctional officers, inmates and prison resources. Defendants and ADC, through competitive bidding processes, contract with private entities to provide meals. Currently, ADC's meals are provided through Trinity Services Group, Inc., ( which does not offer Halal meat or meals. Although it is possible that Trinity or some other provider might be able to procure and provide Halal meat to Nance or other inmates, the cost will be prohibitive. There would be a significant disruption of culinary services if Defendants and the ADC were required to provide a special meal for one prisoner. Defendants and witnesses from Trinity will testify about the burdensome amount of time, money, and resources that would be required to accommodate Halal meat diets to inmates-particularly given that many Muslims request and prefer other pork-free religious diets.

4. No Ready Alternatives to ADC's Current Policy

The fourth Turner factor weighing in favor of Defendants is the fact that there are not ready alternatives to ADC's current religious diet program. Inmates cannot be granted a la carte menus to demand Halal meat, as the cost of administrating such a system would explode. ADC and Defendants must purchase and prepare food in bulk quantities, to maintain a manageable cost and bidding structure. If the ADC was compelled to provide Halal meat, other religious groups will request shrimp, lobster, and other specialized diet delicacies, claiming omission of those items violates their First Amendment rights.

b. No RLUIPA Violations

Defendants and ADC policy do not impose substantial burdens on Nance's exercise of religion. Even if a substantial burden is found, their policy of not providing halal meat is the least restrictive means of pursuing compelling government interests of efficiency and cost-effectiveness.

Defendants contend that any burden to Nance's religious practice by denial of halal meat is de minimis, as consumption of meat is not required. Further, any such burden is the least restrictive means of furthering the compelling government interest of saving costs, as halal meat is unreasonably expensive to procure and provide to inmates.

2. Equal Protection.


The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Shakur, 514 F.3de 891. An equal protection claim may be established by showing that prison officials intentionally discriminated against the Plaintiff based on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose, Enquist v. Or. Dept. of Agric., 553 Y.S. 591, 601-02 (2008); Vill of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lnzy Y Ranch Ltd. V. Behrens, 546 F.3d 580, 592 (9th Cir. 2008).

In addition the Plaintiff "must set forth specific facts showing that there is a genuine issue as to whether he was afforded a reasonable opportunity to pursue his faith as compared to prisoners of other faiths and officials intentionally acted in a discriminatory manner. Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Abrogated on other ground by Shakur, 514 F.3d at 884-8.


Defendants contend that inmates need not be offered identical opportunities to exercise their religions. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, ' which is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). In the prison context, the Equal Protection Clause requires that an inmate who is an adherent of a minority religion be afforded a "reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, " Cruz v. Beto, 405 U.S. 319, 322 (1972) (Buddhist prisoners must be given opportunity to pursue faith comparable to that given Christian prisoners), as long as the inmate's religious needs are balanced against the reasonable penological goals of the prison, O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). Allen v. Toombs, 827 F.2d 563, 568-69 (9th Cir. 1987). A prisoner cannot prevail on his equal protection claim "if the difference between the defendants' treatment of him and their treatment of [other] inmates is reasonably related to legitimate penological interests.'" Shakur, 514 F.3d at 891 (9th Cir. 2008 (citations omitted).

Nance is provided a variety of reasonable opportunities to pursue his faith, comparable to opportunities afforded adherents of other faiths, as indicated infra. at 5-6. As in Curry, Nance fails to show a triable issue of fact in support of his equal protection claim. He points out that Jewish inmates were able to obtain diets consistent with their faith, but that alone is not enough to show an equal protection violation. Curry, slip op. at 7. Prisons need not provide identical facilities or services to different faiths, but must make good faith accommodation of the prisoners' rights in light of practical considerations. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled on other grounds as stated in Shakur, 514 F.3d at 884-85. Here, Nance received Defendants' good faith accommodation of his rights by access to the kosher and vegetarian options. He rejected these options. His rejection of the good faith accommodations is insufficient to rise to the level of an Equal Protection violation. Because Nance fails to raise an issue of material fact regarding the ADC's good faith accommodation, Defendants are entitled to summary judgment regarding Nance's Equal Protection claim.

3. Claim of Constitutional and Statutory Rights of the Plaintiff.


The Plaintiff must show that Defendants actions violated clearly established constitutional and statutory law. The Plaintiff must show Defendants had a policy, practice, or custom that violated the Plaintiff's rights and that the policy, practice, or custom was the moving force behind the violation. See Mabe, 237 F.3d at 11-11.


Defendants are entitled to qualified immunity against the First and Fourteenth

Amendment claims with regard to Nance's religious diet because there is no precedent that correctional facilities must provide Halal meat to inmates under federal judicial decisions or statutes. The defense of qualified government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether an official is entitled to qualified immunity, the Court must decide whether the facts alleged show the official's conduct violated a constitutional right; and if so, whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194, 201-09 (2001). "[I]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201.

Although the Court has recognized that Nance has stated a claim for relief under the First and Fourteenth Amendments regarding his religious practice claims, there is no constitutional right to meat, much less Halal meat. This is the substance of Nance's complaint, and there is no evidence that any Defendant should know or be aware of any such constitutional right. Nance has the "right to be provided with food sufficient to sustain [him] in good health that satisfies the dietary laws of [his] religion, " Ward v. Walsh, 1 F3.d 873, 877 (9th Cir. 1993) ( quoting McElyea v. Babbitt, 883 F.2d 196, 198 (9th Cir. 1987)) but there is simply no judicial or statutory precedent that any Defendant should have been aware of indicating that ADC's religious diet program-which provides pork-free options to Jewish and Muslim inmates alike, is insufficient to satisfy Muslim dietary needs.

This Court should find that, as in Curry, "the failure to accommodate [Nance's] particular dietary needs did not violate clearly established law." No. C-09-3408, 2013 WL 75769, *17. There is simply no clearly established statutory or constitutional right to Halal meat. Historically Muslims had accepted, and even requested-as in the case of Shakur -vegetarian and kosher diets because they provided pork-free meals consistent with Halal practice. Additionally, Muslim diets have been, and continue to be, satisfied by vegetarian diets. None of the Defendants believed that offering Nance the vegetarian diet was legally deficient. Because he was not compelled to eat pork, which is forbidden, Nance was not forced to violate a commandment "at peril of his soul." Accordingly, they are entitled to qualified immunity to Nance's First and Fourteenth Amendment claims regarding the religious diet request.


In his First Amended Complaint's "Request for Relief" section, Nance seeks: 1) "a declaration that acts of omission and commission described violated Plaintiff[]s rights, 2) a permanent injunction ordering officials to provide a Halal diet and Islamic Representation, hiring of a Imam as chaplain, 3) compensatory damages of $75, 000.00 dollars per Defendant, jointly and severally, 4) punitive damages in the amount of $75, 000.00 against each Defendants, jointly and severally, 5) trial by jury on all issues triable by jury, 6) any and all costs associated with the filing and litigation of this complaint, 7) appointment of counsel for representation due to complexity of constitutional laws involved." (Doc. 9.)

Defendants contend that, under RLUIPA, the only remedy available to Nance is only is injunctive relief. Defendants further contend that they are entitled to qualified immunity, as discussed infra. at 10-11, for any liability arising out of Nance's constitutional claims.

4. Qualified Immunity.


The Plaintiff asserts he was initially denied a shaving waiver for the first seven months after his request for a Halal religious meat diet and shaving waiver. Defendants did not dispute Plaintiff's assertions that he was denied the diet and waiver based on his re-incarceration which was deemed evidence of lack of a sincere belief. May 25, 2011, the Director approved the diet and shaving waiver. The Plaintiff refused a kosher and vegetarian diet but signed for the shaving waiver on June 16, 2011. Defendants failed to make an argument of any kind as to qualified immunity for that period and again no argument on reconsideration. Defendants cite no cases specifically discussing qualified immunity in religious diet cases. For purposes of qualified immunity determination, "the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established. Wilson v. Layne, 526 U.S. 603, 615 (1999); see Dun v. Castro, 623 F.3d 1196, 1200 (9th Cir. 2010) (When deciding whether there has been a violation of a clearly established right for qualified immunity, a court must strike the proper balance in defining that right.)" A right is clearly established if its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Kennedy v. City of Ridgefield, 439 F.3d 1044, 1065 (9th Cir. 2006) (Quoting Hope v. Pelzer, 536 U.S. 730, 730 (2002). It is not necessary that there is a prior case with identical facts showing that a right is clearly established: It is enough that there is preexisting law that provides Defendants fair warning that his conduct was unlawful. Kennedy, 439 F.3d at 1065.

There is a clearly established right to a religious diet that meets the Plaintiff's religious dietary needs unless there is a legitimate penological reason to deny it. It is clearly established that sincerely held religious beliefs are entitled to protection whether or not prison officials deem them central or valid tenets of the Plaintiff's faith. Defendants failed to address the Plaintiff's sincerely held beliefs. Defendants did not address even cursorily, the Turner factors.


See Section C, subsection 3, infra.


1. Plaintiff Keith P. Nance, (hereinafter "Nance"), is an inmate in the custody of the Arizona Department of Corrections ("ADC"), serving a sentence for dangerous kidnapping and domestic violence with a maximum end date of November 26, 2035;

2. Defendant Michael Linderman ("Linderman") is appointed by Defendant ADC Director Charles Ryan ("Ryan") and employed by the ADC as Administrator of Pastoral Activities;

3. Linderman has been employed with the ADC for 23 years, 18 of which has been in his current position;

4. Linderman is aware of the religious issues contained in Nance's written communications between Nance and the ADC regarding religious issues;

5. Nance alleges that he is a practicing Muslim since 1986;

6. Between 2002 and 2008, he served seven (7) years with the Arizona Department of Corrections (ADC) for Attempted Sexual Conduct with a Minor;

7. During this term of incarceration he was provided a pork-free kosher or pork-free vegetarian religious diet and a medical shaving waiver, though he did not receive a Halal diet;

8. In September, 2010 Nance was re-committed to the custody of ADC, this time to serve a twenty (20) year sentence for Kidnapping and Domestic Violence;

9. Shortly after his return to ADC, Nance requested a religious diet and shaving waiver on religious grounds. In the course of re-applying for his shaving waiver and pork-free religious diet request, Defendants disputed whether he could identify a sincere religious reason for requesting a specialized diet, but ultimately approved his shaving waiver and offered him vegetarian or kosher diet on June 16, 2011;

10. Nance accepted the shaving waiver but rejected the kosher or vegetarian diet, stating he wanted a Halal diet;

11. On August 5, 2011, Nance was informed by Deputy Director Patton, after consultation with Linderman, that if he did not wish to be on the pork-free kosher diet he could request movement to a vegetarian diet, which ADC considers proper under Halal standards;

12. Nance rejected the pork-free vegetarian diet and is currently not on any religious or special diet;

13. ADC religious services program offers a variety of methods for inmates to practice their chosen religion, including registration as a member of a religion, participation in religious gatherings, purchase and possession of otherwise restricted religious personal property, receipt of religious diet, and other religious privileges;

14. The ADC's religious diet program offers several diets for the secular purpose of facilitating religious practice within prison without advancing a particular religion;

15. ADC does not offer a Halal diet but rather provides a pork-free kosher or pork-free vegetarian diet for qualifying Muslim inmates;

16. For more than 20 years, the ADC has accommodated Muslim dietary requests by providing the option of a pork free diet;

17. At no time has Nance or any other member of the Muslim or legal communities indicated Muslims are required to eat meat;

18. If a Muslim does choose to eat meat, it is considered haram (or forbidden) to consume pork;

19. Nearly 10 years ago, the ADC added a pork-free vegetarian option for Muslims because the vegetarian diet meets Islamic standards by avoiding meat that has not been properly blessed and slaughtered;

20. ADC is currently instituting a new vegetarian diet program that has been certified by both Jewish (kosher) and Islamic (Halal) representatives;

21. The ADC's new religious diet program offers a vegetarian diet that is not tethered to any particular religion and is available to accommodate a variety of religious beliefs; and

22. The primary effect of the ADC's religious diet program neither advances nor inhibits religious practice.



1. Whether [on] October 31, 2010, the Plaintiff was interviewed by Allen Miser to establish his sincerely held religious beliefs of Islam.

2. Whether [on] October 31, 2010, Allen Miser questioned the Plaintiff: "How as a Muslim can you be convicted of child molestation?"

3. Whether [on] October 31, 2010, the Plaintiff denied conviction of child molestation responding to Allen Miser "What did a conviction have in relationship to sincerely held religious beliefs?".

4. Whether [on] December 2, 2010, the Plaintiff received a response from Allen Miser stating: "Based upon an interview this office cannot currently identify a sincere religious reason for your request that is consistent with your religious preference. If you can provide further information to establish a sincere religious reason for your request it will be reviewed again."

5. December 10, 2010, whether Plaintiff submitted a formal grievance.

6. Whether [on] February 24, 2011, Assistant Deputy Warden Faye response reads: "Chaplain Miser advised he interviewed you and based upon that interview your request was denied. This due to them' not being able to identify a sincere religious reason for your request consistent with your religious preference." Chaplain Miser advised: "He did not know exactly what the sincerity problem was but that he believed that because you were released and came back on a new charge, " he states: "This shows that you were not consistent in practicing your faith."

7. Whether Jewish inmates currently have kosher meat diets, vegans receive their vegan diet and other adherents ...

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