Free Motion to Dismiss Case/Lack of Jurisdiction - District Court of Arizona - Arizona

EXHIBIT A
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STATE OF ARIZONA COUNTS OF MARICOPA

1
) AFFIDAVIT OF MIKE LINDERM.AN )

Mike Lindennm, being fmt duly sworn, upon l i s oath deposes and says as

follows:
1.

I am employed by the Arizona Department of Corrections ( m C ) and
serve as the Administrator of Pastoral Activities, stationed at the ADC

C n r l Office in Phoenix. . My duties entail overseeing the prison eta
religious programs for ADC i,mates and advising on religious-policydevelopment issues. Before assuming my cuncnt position, I served in the field as the Senior Chaplain at the Arizona State Prison ComplesRerryville.
2.

I make this affidavit based upon my personal knowledge and professional
experience, as we1.l as review of relevant ADC records, including records

pertaining to ADC inmate Kevin Roy, ADC # 131699.

3.

h a t e Roy entered ADC on Octoba 31, 1997, to seme a 23-ycar

sentence for Scxual Conduct with a Minor. His sentence expires on
January 26,2020. In 2003, Roy lived at thc Meadows Ui of the h o n a nt

State Prison Complex-Eynlan in F1,orence(ASPC-Eyman).
4.

For accountability purposes,. inmates who want to obtain religious privileges (such as possessing seli.gious property, attending religious
gatherings and getting a special diet) must declare their rcligious pscfmcnce by submitting a form to prison officials.

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5.

Since entering ADC in 1997, Roy b.as declared three different religious preferences-C.histian
in November 1997; Seventh Day Adventist in

,Augusl: 2000; and Esoteric Christian (also referred to as Occultist) in

Septem,ber2002.
6.

ADC Department Order 904 governs Inmate Religious Activities and DO

909 regulates Inmate Property, including religious items. The purpose of
the policiw is to allow inmates with a religious preference to practice their

faith. without jeopardizing the safe, secure and orderly operation of the
prisons.
7.

Under DO 909, effective September 12, 2005, ADC inmates tvho have declared a rcligious preference are pemitted to possess as many preapproved religious itcms to practice their declared religion as will fit in a designated box. This includes certain religious publ.icatioo.s.

8.

Effcctivc January 1, 2006, the religious-ite,ms-box size was increased; its measurements are now the same as the standard legal-document box allowed undm policy, i.e., 15" X 12" X 10".

9.

Normally we do not approve items until an h a t e is ready to purcl~asc
them; tbe.n he is gi,vea a 1.ist of the approved items to put on his rcligious-

property box.
10.

For opetationd and security reasons, when chaplains approve religious
items, they give the inmate a listing of all. of his approved religious items. The inmate tapes the list onto his seligious-items box for accountability purposes, such as when officers conduct routine searches of inmatcs'

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property and ce1,ls. (For security rcasons, security personnel periodica1.l.y search all inmate property, including legal boxes and rcligious property. History has shown that inmates hide contraband in their legal and religious-property boxes. Also, for security and operational reasons,

policy prohibits. h a t e s from stealing, bartering and othenvisc exchanging property.
.

Una~thorized property, including unaccoullted

property, is considered contraband and subject to confi.scation.) Under DO 909, m.y office rn.aintains a list of items for religious practice

I I.

that have been approved. The list is revised periodical1.y as more items are
approved. Tbe item-approval process in.cl,udesa security review to avoid no allowing i t the prison items that threaten the safe and orderly operation of the prison.
12.

ADC policy describing religious property bas been amended; instcad of
designating that
must

"normally used"

practice

ADC

Department Order 904.4, 1.1.3 now states: "bates shalI be authorized to

possess religious property consistent with the pxactjces of the inmate's cb.osen religion, as outlined in Department Order #909, Inmate Mail./Property and Stores, Attachment A."
1.3.

ADC D p r m n Order 909, Attachment A, identifies rcligious property as: eatet

RELIGIOUS items used in the practice of the b.mate7s chossn religion, not posing a threat to the safe, secure and ordcrly operation of the institu.tion, with dJ, items capable of being stored
within the inmate's religious property box,. These arc approved vendor purchasc only items, with the exception of any item not appropriate for vendor purchase (e.g., eagle featbct, receipt or possession of which i.s limited to enrolled members of tribes recognized by the Bureau of Indian Affairs and may rcquire a

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p e n i t from the U.S. Fish and Wj.l.dlifeService.) A list of approved

items shall be maintained in the Pastoral Actiuj.ties Admj.nistrator's office, with an updated list distributed to all instih~tionsas updates OCCU.
1.4.

Policy allows inmates to receive books that h.ave been scnt from a publisher or retailer. h a t e s are now allowed to have an, unlimited number of religious books that fall into t h e e categories, as long as the books and all other religious property fit into the inmate's religiousproperty box. The three categories are: holy books; books used to study holy books; and books that teach ceremonial aspects of the inmate's religion.

15.

To obtain approval of ite,ms that are not already on the Approved Religious Items List, inmates may submit documen,tation dmonstrating that the item is used to practice their declared religion. P ~ s o n officials

wi'll review the documentation and conduct a security review to determi,ne
whethcr the item will be allowed. If it i s approved, the jnmate is notified

that he may obtain the item and i t i s added to the ljst of approved religious

i terns.
16.

During the course of Roy's lawsuit in fcderal court secking the Court's intervention for approval of religious items, Roy filed documentation substantiating that in practicing their religion, Esoteric Christians use Tarot cards, an altar cloth, cedar and sage incense, and. a shel.1.. Bccause this information satisfied the ADC requirements for app,mval to possess Tarot cards, an a1.ta.r cloth, cedar and sage incense and a shell, prison

officials cond~~cted a security review and approved the items.
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17.

Thc ADC Approved Religious Items List for Esoteric Clxistians now

includes: altar cloth (24" X 24" rna.ximum size) habs (1 ounce eac,h of up to five herbs consistent with approved herbs fiorn. cunent list) prayer beads (40" maximum length, strung on light, breakaway sttriog; due to
length allowance, should not be worn on the open yard)

ritual stones (1" maximum size, up to :four in a single pouch.) sm~dging shell (4" X 8" maximum size)

tarot cards (number of cards dc,pendentupon tamt deck purchased).
18.

When. an j.tem i s on the approved-item list for a particular religion, inmates
who have declared that religion may possess the item. To obtain. tl3.e jtem for their use, they must maely submit a pro fonna request to their unit chaplain; they w not required to present documentation to suppoft e
obtaining these items. As a declared Esoteric Ckstian, Roy must me-rely

submit a form requesting approval to obtain an altar cloth, herbs, prayer
beads, ritual stones, a smudging shell and Tarot cards.
19. '

Roy also may obtain a medallion because all inmates who have declared a religion may possess a medallion (which, for security reasons, they must

wear under their shirt).

20.

I Roy's original request for a dream catcher, he failed to submit n
appropriate information demonstrating the use of a dream catcher jn the

practice o f Esoteric ChristiadOccul~ism. Q-hs subsequent request, dated
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April 18, 2006, did not include a dream-catcher and herefore his

submitted documentation was not examined for infomation on dream catchas.)
21.
.

On April 18,2006, Roy submitted an b a t e Letter requesting approval of

ninety-five previously unapproved herbs and fifty other items, wj.tb citation to authority (for most of the fiRy items) for their use in his religion.
22,
(He did not

includc a dream-catcher.)

(See Attacllment

1.)

Per policy, I researched Roy's request an.d conferred tvitl~ADC security personnel.

23.

In my May 19, 2006, response to Roy

(see

Attaclunent 2), I adviscd him

that of the fifty items that he listed, all were approved but parchm.ent paper

(which was not required pcr the literature that he provided.: "ordixlary paper is just as effective"); plastic bottles (as separate religious items, but herbs, oils and liquid incense may come in plastic bottles); six different herbal teas (inmates may possess five different herbs incl.udingtca, and tea is so1.d at the inmate store); thirty-one geomancy stones (pcr Roy's documentation, the practitioner may use these stones OR other items that Roy had already requested and were approved); resins (for security reasons, resins are not permitted); robe (security,risk); CD player and discs (cassette tape players and clear-cased cassette tapes are permitted presently); any item that will not fit collectively with other item in the religious box. (Attachment 2.)

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24.

I also explain.ed to Roy th.at if l ~ wanted approval to keep his hobbycraft e
creations, which is normally not allowed, policy pr0vid.e~ he mu.st get that

approval from the warden. All of the hobbycraft items that Roy requested
are items that already are included

in the approved hobbycrafl-itans list

with the possible exception of poster board (although card stock and construction paper are listed on thc approved hobbycraft-item list). (Td.)
25.

Roy also asked for approval of ninety-f ve herbs, resins and oils, but noted that hc only will purchase five, the maximum allowed undm policy. h response, S asked Roy to identify the five herbs that he actually wants to

get so that officials could determine if those five arc acceptable.

26.

The process for screening herbs is labor intensive and time consuming,
and it would be wasteful to undcrgo the review process for ninety-five
items when policy only permits Roy to possess five at a time.

FURTHER AFFIANT SAYETH N.AUGHT.

SUBSCRIBED AND SWORN before me this J 5 day of by Mike Lindcnnan.

6 QU/KU .200b,

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ATTACHMENT I
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Inmete Signature
i

Date

"1 -19-06

Have YOU Discussed This With lnsti6tion Staff?

1 If yes, glve the staff member's narno:

0Yes n No
Document 133-2 Filed 06/15/2006 Page 10 of 21

Case 2:03-cv-02150-SRB-MEA Dislribuliun: Whlle - M x l c r Rocord Flle canary - Inmala

I I 979-1
4115/06

1

r \ Requests are llmilod to gne waul and ms u _ . Q l $ u qU W F N T S P F R W B . Please print all Informal~on.
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Inmate Namo (/.as[,
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First M.L)

ADC Number

InstitutionlUnit

Date
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To:

Locatlon

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L;ldwnw

Slate briefly but completely the problem on which you desire assistance. Provide as many details as possible.

1

If yes, give (he staff member's name:

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To:.

Location

mi&

1 State briefly but complelely the problem on whlch you desire assistance. Provide as many details as possible.

L;ld~~w

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1 Inmate Signature
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A

I Date
Yes

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Have You Discussed This WHh lnytitution Staff?

No

If yes, give the staff member's nama:
L
Distribution: Whl~e t4rlastor Record Fllc

Case 2:03-cv-02150-SRB-MEA . Canery - Inrnsle

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I-lave You Discussed Thls With Institution Staff?

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If yes, give the staff member's name:

Dislrlbulion; Whltc Master Record File

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916-1

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4115/04

ATTACHMENT 2
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AEUZONA DEPARTMENT OF CORRECTIONS
INMATE LETTER RESPONSE INMATE NAIME:
Roy, Kevin M.

ADC Number: 151699

INSTITUTION / UNIT:

A S P C - E /~Meadows Unit ~~~ LOCATION:
Programs Division

]FROM: M,ke Lindeman, Chaplab Services

Pursuant to agreement in Settlement Conference on April 13, 2006, 1 have rcceivcd and reviewed your request for property and can p m v i b the fillowing response:

Items approved for your current custody lev~l,subject to restrictions indicated. (These items are not yet listed in the approved items list for Esoteric Christian. Any of the items listed, below tl~atyou request to actually purchase though the established procedure identified in policy would be added to tb,e list at that time. P r policy, all itcms in YOU e possession must couectively fit into your religious propmy box, no exemptiom arc granted.)

Altar Cloth (24" x 24"; not blue, ,orange,brown 'qr tan)
Crystal (1" maximum diameter in a single bag) Ritu,al stona (1" maximum size, u p to four in a single pouch) I-Ching coins (3 coins up to 1" diameter mado of a soft metal) Sea Shell (4" x 8") Tarot Cards (2 decks) Meddio.darn~zlet x 1" maximum size, with rnax 24" chain; type, shape'and symbols verifiod as (1" consistent .with designated preference) Herbs (1 ounce each of up to five herbs consistent with approved herbs from current list) Salt dish (4" diameter maximum size made of stone, clay, wood, paper or plastic) Bowl (4" diameter maximum size made of stone, clay, wood, paper or plastic) Chalice (up to 9 ounce, with stem no longer than 2" made of wood, paper or plastic) Candles (battery operated or AC electric (2)) Med.itation mat (27" X 35" X 3" maximum size, capable of being rolled for storage, must be sewn shut without any openings, not bluc, orange, brown or thn ) Meditation cu,shion (14" maximum diameter must be sewn shut without openings; not blue, orange, brown or tan) Holy water (1 oilnce in plastic container) Salt (1 ounce maximum) Anointing oil (112 ounce non-alcohol, must be prayer or anointing oil, not cologne, after shave or perfumes) Liquid incense (112 ounce non-alcohol, must be incense, not cologne, after shave or perfumes) Wand (paper) Temple diagram (8 %" x 11" paper) Hcrmetic Rosary (40' maximum length, strung on light, breakaway string and d u e to length allowance, should not be worn on the open yard. If you wish to make this yourself, the Issue of hobby craft and retaining hobby craft items i addressed later in this response.) s Temple floor cloth (36"X 60" maxlmum size; not blue, orange, brown or tan) Analog clock (small table-sized clock) Temple ring (not. to excced $300 in value) Silk clotx (3 @ 22" x 22"; not blue, orange, brown or tan) Case 2:03-cv-02150-SRB-MEA Document 133-2 Filed 06/15/2006 Page 15 of 21

'

Inrnatc Letter Rcsponse Roy, Kevin (13 1.699)
Page Two

Items not authorized:
Parchment paper (inforvatlon supplied indicales items can be drawn on ordinary paper and "will be
just as effective")

Plastic bottles (Not approved as separate religious item. Herbs, oils and liquid incense may come in plastic bottles.) 6 different A.75 ounce herbal ten (1 ounce each of up to 5 herbs I approved, which may include s tea, and tea I also sold in the inmate store) s 31 gcomancy stones (book indicates the ritual'referenced is accomplished by these stones OR other items already approved and requested elsewhere on your list such as 4 stones in a single pouch or I-Ching coins) Resins Robe CD player and discs Any item that will not fit lin the reli,giousproperty box collectively with all otl1e-t items Hobby Craft Items:
As you indicate, thc current policy allows for the possibilj.ty of hobby craft items bcing placed on personal property inventory and retained ifapproved by the Warden.

However, this request is not the appropriate venue to guarantee bcceptance of any hobby craft items you make.
Below is a list of items takm fiom Dqartment Order 909, Attac.hcnt A, listing those hobby craft items approved &d,available for purchase through the inmate store. All of the hobby craft items you have listed are includsd in this list with t h e possible exception of poster board (card stock and construction papa are listed).
PAlNTlNGIART

Water color tablet (1 Z9x16', maximum of 40 sheets, no metal blnding) Acrylic paint, 2 of., plastlc bottle (primary colors; red, yellaw, blue, black 8 white) GREETING CARDS Card Stock (maximum 5Wx7W)
Pencils, colored (various colors) Markers, felt tip, water based only (variouscolors) Eraser, non-pliable Glue,white, maximum 4 oz. bottle Construction paper, sheet (various colors) Scissors, all plastic Ruler, 1%inch, rnaxlmum, flexiblo plastic

Water color set (maximum of 36 colors and 3 brushes)

DRAWING

Pencils, colored (various colors) Markers, fell tip, water based only (various color$) Chalk. colored, Arlist's type (various colors) Drawing tablet, (12"x16", maxlmurn of 40 sheets, no metal bindlng)

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Jnmatc L,ctlerResponse Roy, Kevin (13 16'99) Page Three

Scissors, all plastlc . Ruler, 1%" maximum, Rexlble plastic Eraser, non-pliable Charcoal pencils OR1 GAMllPAPER CRAFT Construction paper. maximum 16"xI6" sheet Cellophane paper 16"x16" sheet (including; hologram, glltter, glow in the dark or prism paper) Scissors, all plastic Ruler, 12"1naxirnurn, flexible plastic ST1CK CRAFT Craft Sticks (12"x12"~12",rnaxlmurn project size) . Glue, White, maximum 40z bottle PLASTIC MODELS . Model, maximum 15"x15" (glue assornbly rwquirsd) Model. maximum 15"x15" (assembles by snap togethar pieces only) Paint Kit: 12 color cups, 2 brushes, mixing tray (non-toxic acrylic) Model glue, non-toxlc BEADING Prepackaged kit (small project type, i.e., 1 brac~lctll necklace), plastlc needle only

You have listcd 95 different herbs, or resins. Resins are not approved due to compelling

sccurity interests regarding their propmties. The process for saeen.jng herbs is quite timc consuming and you arc actually requesting only 1' ounce each of up to 5 hcrbs. You have achowlcdged that 22 of the herbs on your list are already approved. Should you request 5 herbs different from thosc currently approved, identify which 5 of the 95 you are requesting and a dete,mination will be made.

/3

YO^

Date

DISTRIBUTION: Copy

- Central Office Master File
Inmate Senior Chaplab Wendy Hofman, Assistant Attorney General Robert Myers, General Counsel

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EXHIBIT B

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CHAPTER: 900

i

ORDER: 916

. j IMP 304.4, i; i 01/05/88 !i MO 9, ;i 09/21/94 ;i ...................................
.................. .................

EFFECTIVE :j DATE: ii SEPTEMBER 1 1996 . ii

TABLE OF CONTENTS
PURPOSE RESPONSIBILITY PROCEDURES 916.01 COMMUNICATION M I T H O D S 9 1 6 . 0 2 TAPE RECORDED CONVERSATIONS/TELEPHONE CALLS 9 1 6 . 0 3 INMATE LElTER

PURPOSE
The Department provides a system to facilitate communication between staff and inmates, thereby reducing potential misunderstandings and allowing for the exchange of information.

RESPONSIBILITY
Wardens and Deputy Wardens shall ensure that every inmate is made aware of the content of this Department Order.

PROCEDURES
916.01 COMMUNICATION METHODS - Communication methods between staff and inmates shall include, but not be limited to:

1.1 Interlintra-institutional inmate letter system, as described in section 916.02 of this Order.

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1.2 Inmate Grievance System. (See Department Order #802, Inmate Grievance System.) 1.3 Ad Hoc inmate information committee. 1.4 Inmate newsletters and publications. 1.5 Authorized inmate clubs, or other authorized groups. 1.6 Informal stawinmate contacts. 1.7 Individual and/or group counseling sessions. 1.8 Other methods of communication approved by the Director, Deputy Directors, Assistant Directors, Regional Operations Directors Warden, Deputy Warden or Administrator.
916.02 TAPE RECORDED CONVERSATIONSITELEPHONE CALLS - No inmate shall tape record personal or official conversations or any telephone calls without the knowledge and consent of the other person(s).

1.1 An inmate found in violation of this restriction shall be subject to disciplinary action. 1.2 The tape recorder and recording tape shall be confiscated and permanently removed from the inmate's possession.
916.03 INMATE LETTER

1.1 Inmates who have questions or problems that require written responses from Department staff shall use the Inmate Letter, Form 70501 168-A. 1.1.1 The Inmate Letter shall be used for all stafflinmate correspondence other than grievances and disciplinary appeals. (See Department Order #802, Inmate Grievance Svstem, and Department Order #803, Inmate Discipline Svstem.) 1.1.2 No other written forms shall be accepted in place of the Inmate Letter. 1.1.3 The Inmate Letter may be obtained from the inmate's counselor or other staff member designated by the Warden, Deputy Warden or Administrator. 1.2 Each Inmate Letter shall be limited to one issue, and written contents shall be limited to the space provided on the form. No attachments shall be accepted. 1.2.1 Non-compliance may result in the Inmate Letter being returned to the inmate. Inmates may provide additional information pertaining to the issue when requested by staff

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1.3 Inmate Letters shall be mailed, via the Department's internal mail system, either sealed or unsealed. They shall be addressed to the appropriate staff member. 1.4 The receiving staff member shall review the Inmate Letter and shall respond to the inmate using an Inmate Letter Response, Form 70501 168-B. The Inmate Letter response shall be completed and forwarded to the inmate within 20 working days from receipt of the Inmate Letter, except as described in 1.4.1 below. 1.4.1If staff determines that the issue addressed in the Inmate Letter is an emergency the response shall be made within 24 hours from receipt of the Inmate Letter.(An emergency exists when normal processing time frames could result in serious physical or psychological harm to the inmate or pose a threat to the safe and secure operation of the institution) 1.4.2 When the receiving staff member determines that an alternative communication method (such as grievance or disciplinary appeal) is more appropriate, the staff member shall provide an explanation with the Inmate Letter and return both to the inmate. 1.5 No staff member shall intercept, stop, destroy, delay or otherwise attempt to interfere with stafffinmate correspondence. 1.6 The Inmate Letter shall not be used for any action for which there is an alternative method, such as grievances and disciplinary appeals. 1.7 Staff may consult with the Department's Attorney General Liaison concerning legal issues raised in an Inmate Letter.

FORMS LIST
70501 1 6 8 - 4 Inmate Letter 70501 168-B, Inmate Letter Response

Return to 900 Series Return to Policy Index

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