United States District Court, D. Arizona, Phoenix Division
MEMORANDUM OPINION AND ORDER JUDGE JACK ZOUHARY
JACK ZOUHARY, District Judge.
Plaintiff Gabriel Sheridan Sharp ("Sharp"), a Mojave Indian and an inmate at the Central Arizona Correctional Facility ("CACF"), brings suit against Charles Ryan, Director of the Arizona Department of Corrections ("ADOC"); CACF Warden John Gay ("Gay"); and Mike Linderman ("Linderman"), ADOC Senior Chaplain. Sharp alleges Ryan, Linderman, and Gay deprived him of his equal protection rights, and that Ryan and Linderman violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA").
In February 2014, after a January three-day bench trial, counsel for the parties stipulated to dismiss with prejudice most of Sharp's original claims (Doc. 130). Two claims remain. Invoking 42 U.S.C. § 1983, Sharp claims all Defendants deny him equal protection by refusing to allow Native American inmates an additional weekly "turnout, " the prison's term for a scheduled inmate religious activity. Sharp also claims that ADOC policy regarding inmate access to firewood, the fuel for Native American sweat ceremonies, violates RLUIPA. The parties filed Proposed Findings of Fact and Conclusions of Law with respect to these two claims (Docs. 140-42). This Court then allowed the parties time to explore resolution of the remaining claims; however, settlement talks did not succeed.
ADOC's Turnout Policy
CACF refers to scheduled inmate religious activities as "turnouts." Each week, facility chaplains prepare turnout schedules, informing CACF's roughly 1, 100 inmates when they may participate in religious observance of a particular type (Doc. 135 at 5; Doc. 141-1 at 1 (turnout schedule for the week of November 18, 2012); Exhs. 14_001, 14_002, 14_004). see also exh. 14_003 (weekend turnout schedule). The turnout schedules in use in March 2014 were substantially the same as schedules used in 2011 (Doc. 135 at 9).
Consistent with ADOC policy, CACF generally approves a turnout only if the turnout is supervised by chaplain staff or an outside volunteer ( Id. at 18). Prior to 2002, ADOC contracted with outside religious officiants to assist with inmate religious practice, but that arrangement was discontinued due to state budget constraints (Doc. 143 at 12). CACF Chaplain Sylvester Ajagbe ("Ajagbe"), who works weekdays from 7:00 a.m. to 3:00 p.m. and volunteers on occasional weekends (Doc. 135 at 6-7), supervises a majority of the services held during his normal work hours ( Id. at 6). But even when Ajagbe or outside religious volunteers are present, security staff also observes the inmates to maintain order ( Id. ).
Volunteer availability varies across the faith traditions observed by inmates. For example, roughly 80 percent of CACF inmates observe some form of Christian worship (e.g., a Protestant denomination and Catholicism (id. at 13). Religious volunteers are more readily available for ceremonies attended by Christian-affiliated inmates. By contrast, CACF has difficulty securing volunteers for religious traditions observed by only a minority of the inmate population (e.g., Islam, Judaism, and adherents of Native American religious practices If, for a given week, neither the chaplain nor an outside religious volunteer is available to supervise, for example, an Asatru turnout, inmates who follow that faith may instead attend a multi faith gathering overseen by Ajagbe (Doc. 135 at 18-19; Doc. 143 at 38). At that multi-faith gathering, each religious group may engage in its faith's religious activities - Native American inmates, for example, may hold talking circles or engage in group smudging (Doc. 143 at 38, 40-41). Inmates have the option of holding the talking circles indoors during the multi-faith gatherings, or may select an outdoor visitation area where they may generate smoke as part of group smudging ( Id. at 41).
Aside from identifying the type of religious activity and the time allotted for that activity, the weekly turnout calendars note the presence of volunteers for that activity in several ways: first, a calendar entry may contain a notation of "volunteers, " indicating outside religious volunteers will be available to supervise the turnout ( see, e.g. , Exh. 14_002 (reflecting a volunteer would be present for the August 18, 2013 "Prayer Service Prep")); second, a calendar entry may contain a notation of "w/o volunteers, " indicating no volunteer will be present ( see, e.g. , Exh. 14_002 (noting the August 21, 2013 "LDS Vocal Team" turnout would be held "w/o Volunteer")); and third, the majority of calendar entries reflect no notation as to the presence of volunteers ( see, e.g. , Exh. 14_004 (omitting any notation with respect to volunteer presence for the October 23, 2013 "LDS Vocal Team" event)). For ease of reference, this Court refers to this third category of turnouts as "unlabeled turnouts."
The parties dispute whether volunteers are present during unlabeled turnouts. Sharp claims he spoke with other inmates who participated in unlabeled turnouts, learning that "half the time they do have a volunteer [for unlabeled turnouts] and half the time they don't" (Doc. 134 at 78). Sharp's second-hand, non-specific explanation of the unlabeled events is not persuasive, and portions of his testimony on this point are inadmissible hearsay in any event. Ajabge, who weekly compiles the turnout schedule, explained that the turnout schedule, as a general rule, includes only events for which there is an approved supervisor ( e.g. , the chaplain or a volunteer). "W/O volunteers" appears in a calendar entry not because some particular group is allowed preferential treatment, but rather because of unforeseen changes in volunteer availability ( see Doc. 135 at 19) (Ajagbe explaining that past turnouts were held without volunteers because of an unexpected unavailability or death of a religious volunteer). It is not [Ajagbe's] plan [hold services without volunteers]because[he]ha[s]to follow the policy of DOC" ( Id. at 18). See also Doc. 137 at 21.
Thus, each week, the following opportunities are available for Native Americans to practice their faith in a group setting: (1) when firewood is available, six hours each Saturday to hold a sweat lodge ceremony, during which time inmates are effectively "unsupervised"; to avoid desecrating the lodge, no security staff enters the sweat lodge (Doc. 135 at 20; Doc. 137 at 8); (2) in addition to a sweat ceremony, another turnout if supervised by an outside volunteer or chaplain (Doc. 139-1 at 6); (3) if firewood and a supervisor are unavailable, fifty-five minutes during the multi-faith gathering to engage in group religious practice ( e.g. , talking circles and group smudging) ( Id. ; Doc. 143 at 39). Native Americans also hold more religious festivals than other faiths (Doc. 135 at 20). Native Americans are allowed a "religious box, " which holds their personal religious supplies, and may pray or smudge on their own (Doc. 134 at 86, 124). Finally, all inmates may attend miscellaneous religious-related events throughout the year, like Ajagbe's "Food for Thought" discussion sessions or periodic choir sessions (Doc. 135 at 14).
Sharp seeks injunctive relief, directing all Defendants to grant Native American inmates an additional weekly turnout. He seeks "additional time to teach the Native Americans the music they need to know and more time to teach the reasons for our religion" (Doc. 134 at 83). He objects to being relegated, in the absence of firewood and an outside volunteer, to group religious observance held during the multi-faith gathering. Sharp explains that with so many different faith traditions engaging in group worship at the same time and place, there are "different energies" preventing Native American inmates from purifying their worship space ( Id. ).
ADOC's Firewood Policy
Except for those housed in the ADOC's maximum security units, ADOC's Native American inmates have access to outdoor sweat lodges (Doc. 137 at 35). A sweat lodge is a dome structure, created with bent willow poles (Doc. 134 at 8), and covered with blankets and a tarp when in use ( Id. at 11, 13). Native American inmates consider th sweet lodge and surrounding grounds to be sacred areas ( Id. at 9).
When wood is available, Native American inmates may hold sweat ceremonies each Saturday, which are calendared from 6:00 a.m. to noon ( see, e.g. , Exh. 14_001). On the morning of a sweat, firestarters - select Native American inmates (including Sharp) - enter the sweat lodge grounds to prepare for the sweat ceremony (Doc. 134 at 10-11). Firestarters use wood to start a fire in a firepit adjacent to the sweat lodge ( Id. at 12). Firestarters place "grandfathers, " large sacred stones, in the firepit, and heat the stones to high temperatures ( Id. ).
Inmates file into the sweat lodge for the ceremony ( Id. at 14) and, using metal shovels, transfer the heated grandfathers from the firepit to the door of the sweat lodge. At the door of the sweat lodge, an inmate uses wooden sticks to carry the grandfathers from the shovel to an altar at the center of the sweat lodge ( Id. at 18-19). The grandfathers heat the sweat lodge, and from time to time are used to generate steam by inmates who pour water over top of the grandfathers. Sweat ceremonies are an important component of Native American inmate's religious practice, and are not possible without some source of firewood.
CACF inmates previously obtained sweat ceremony wood from pallets accumulated at CACF in the normal course of its operations. Sometime in 2010, CACF barred further use of pallet firewood ( Id. at 64). Prison officials note pallets are held together with nails, which prison officials worry could be retrieved from firepit ashes and used to fashion weapons. Some pallets are constructed of lumber treated with chemicals which may produce harmful fumes when burned. Finally, unlike in the past, there is now a resale market for CACF pallets (Doc. 143 at ...