Atwood v. Shinn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Frank Jarvis Atwood, No. CV-22-00625-PHX-JAT (JZB)

10 Plaintiff, PRELIMINARY INJUNCTION

11 v.

12 David Shinn, et al.,

13 Defendants. 14 15 Plaintiff Frank Atwood is scheduled to be executed on June 8, 2022. Plaintiff 16 initially filed this action to compel officials of the Arizona Department of Corrections, 17 Rehabilitation, and Reentry (ADCRR) to allow his Greek Orthodox priest, Father Paisios, 18 to be present at Plaintiff’s side during his execution to pray and administer last rites, 19 including placing his hands on Plaintiff and speaking to him directly, to accommodate 20 Plaintiff’s religious exercise. The Court ordered expedited service and Defendants moved 21 to dismiss Plaintiff’s Complaint as moot, contending that ADCRR’s execution protocol, 22 DO 710, was amended to expressly allow the religious accommodation sought by Plaintiff. 23 Plaintiff filed a First Amended Complaint, contending that the amended protocol does not 24 provide Plaintiff with the opportunity to undergo a tonsure ceremony or to have his last 25 rites performed. 26 Defendants moved to dismiss Plaintiff’s First Amended Complaint and Plaintiff 27 filed a Motion for Preliminary Injunction. 28 1 I. Background 2 Plaintiff alleges the following in his First Amended Complaint. On May 3, 2022, 3 the Arizona Supreme Court issued a warrant for Plaintiff’s execution, scheduled for June 4 8, 2022. (Doc. 14 ¶ 6). 5 For over two decades, Plaintiff has been a devout practitioner of the Greek Orthodox 6 faith, observing a strict schedule of prayer and study at the direction of his priest, Father 7 Paisios, Abbot of the St. Anthony’s Greek Orthodox Monastery in Florence, Arizona. (Id. 8 ¶ 1). Father Paisios baptized Plaintiff into the faith in July 2000 and has ministered to 9 Plaintiff regularly for many years. (Id.) 10 Plaintiff’s faith requires that when the State carries out his execution, Father Paisios 11 be permitted to stay by his side and to pray and administer last rites, including placing his 12 hands on Plaintiff and speaking to him directly. (Id. ¶ 2). In January 2022, Plaintiff began 13 the grievance process by submitting an informal complaint asking ADCRR to 14 accommodate this exercise of his religion during his execution, but ADCRR denied the 15 request for Father Paisios to be present during his execution by lethal injection, without 16 explaining why it cannot accommodate this exercise of Plaintiff’s religious beliefs. (Id. ¶¶ 17 2, 4, 41). Plaintiff’s faith also requires that Father Paisios be with Plaintiff for one hour on 18 the day of, but prior to, the execution, to tonsure Plaintiff as an Orthodox monk prior to his 19 death. (Id. ¶ 3). 20 In the event Plaintiff elects to be executed by lethal gas, Plaintiff has advised 21 ADCRR that once he is secured within the gas chamber, his spiritual advisor needs access 22 to Plaintiff long enough to administer last rites through prayer and to place his liturgical 23 vestment upon Plaintiff immediately prior to the securing of the chamber and release of 24 lethal gas.1 (Id. ¶ 5). Once he exits the chamber, the spiritual advisor needs to remain in 25 the execution room to communicate with Plaintiff through a viewing portal of the chamber 26 while the gas is administered and until Plaintiff’s death. (Id.) ADCRR has not responded 27 to this request. (Id.)

28 1 Plaintiff states he has not yet elected the method of his execution. (Doc. 14 at 3 n.1.) The State maintains Plaintiff will be executed by lethal injection. 1 According to Plaintiff, ADCRR has a history of struggling to conduct humane 2 executions, which heightens the gravity of Plaintiff’s right to religious exercise because 3 last rites for the Greek Orthodox are more important in a death that is difficult than one 4 that passes peacefully. (Id. ¶¶ 28, 32). The presence of a spiritual advisor is greatest in the 5 event of an inhumane and/or extremely painful execution because “there would be no 6 repairing the spiritual damage done to [Plaintiff] in the final moments of his life.” (Id. ¶ 7 32). 8 After this lawsuit was filed, on April 20, 2022, ADCRR’s Execution Protocol, found 9 in Department Order (DO) 710, was revised to allow for a spiritual advisor to be in the 10 execution chamber during a lethal injection execution, to touch the condemned prisoner, 11 and to pray aloud during the process of killing the prisoner. (Id. ¶ 33). However, the 12 amended Execution Protocol also states, “the Department reserves the right to enforce as 13 necessary any or all reasonable restrictions on the audible prayer and religious touch as set 14 forth in the U.S. Supreme Court’s Opinion” in Ramirez v. Collier (March 24, 2022). (Id. 15 ¶ 34). Plaintiff claims that this proviso permits ADCRR “unfettered discretion . . . to 16 unconstitutionally discriminate based upon anything, everything, or nothing at all” and 17 makes it impossible for Father Paisios to plan and perform last rites “in a manner that 18 ensures he can complete them without being cut off or interrupted.” (Id. ¶ 35). Nor does 19 the amended Execution Protocol indicate that ADCRR will accommodate the tonsure rites 20 that will take approximately one hour prior to Plaintiff’s execution, and the amended 21 protocol does not address whether or how Father Paisios will be permitted to participate if 22 Plaintiff chooses lethal gas. (Id. ¶¶ 36, 37). 23 Executing Plaintiff without a protocol that spells out the procedures and actions of 24 each participant “would create an objectively intolerable risk of harm due to a lack of 25 procedures contemplating who, as a spiritual advisor, is permitted to be where and when, 26 and what such an advisor is permitted to do, risking miscommunication, error, and 27 disruption of the execution process.” (Id. ¶ 39 (citing Ramirez, Slip Op. at 21)). 28 In sum, ADCRR’s Execution Protocol does not ensure Plaintiff’s religious exercise 1 will be accommodated and permit his tonsure, complete last rites without interruption, or 2 last rites in a lethal gas execution. (Id. ¶ 40). 3 Count One asserts a violation of the First Amendment’s establishment clause 4 because ADCRR’s Execution Protocol “is not neutral toward religion and evinces a 5 hostility toward religion generally.” (Id. at 14). 6 Count Two asserts a violation of the First Amendment’s free exercise clause 7 because the Execution Protocol “unjustifiably interferes with [Plaintiff’s] ability to practice 8 his religion.” (Id. at 15). 9 Count Three asserts a violation of the Religious Land Use and Institutionalized 10 Persons Act (RLUIPA) because “the restrictions and lack of accommodations in ADCRR’s 11 current Execution Protocol places a substantial burden on [Plaintiff’s] exercise of a 12 sincerely held religious belief and is not the least restrictive means of furthering a 13 compelling government interest.” (Id. at 17). 14 Plaintiff seeks declaratory relief and an injunction requiring ADCRR to amend its 15 Execution Protocol prior to executing Plaintiff in a manner that accommodates Plaintiff’s 16 exercise of religion by specifying the means by which ADCRR will accommodate the hour- 17 long tonsure process on the morning of the execution and the complete administration of 18 last rites by Plaintiff’s spiritual advisor for both lethal injection and lethal gas options; and 19 to stay Plaintiff’s execution until the Execution Protocol is amended in accordance with 20 the Constitution, RLUIPA, and federal law and the Court confirms this compliance in a 21 declaratory judgment. 22 Defendants moved to dismiss and for failure to state a claim, arguing Plaintiff’s 23 claims were not yet ripe because “ADCRR has not denied his request to receive tonsure or 24 last rites” and Defendants believed the protocol would permit sufficient time to 25 accommodate Plaintiff’s requested religious exercise. (Doc. 19 at 5). Alternatively, 26 Defendants contend Plaintiff lacks standing because his claim that ADCRR’s protocol 27 “fails to ensure” does not reflect that Plaintiff will experience a substantial burden on his 28 religious exercise. (Doc. 19 at 7). Finally, Defendants contend Plaintiff failed to exhaust 1 his administrative remedies. 2 Because it appeared as though Defendants were prepared to accommodate 3 Plaintiff’s religious exercise prior to and during his execution, the Court directed the parties 4 to submit to the Court a proposed form of injunction delineating the specific parameters of 5 any religious visits prior to Plaintiff’s execution and conduct during Plaintiff’s execution. 6 If the parties had any remaining disagreements, they were directed to file a Notice setting 7 forth those remaining disputes. 8 The parties filed the requisite Notice on June 1, 2022. Defendants stated that they 9 agree to the following accommodations to Plaintiff’s religious exercise requests and would 10 consent to an injunction containing these terms: 11 1. ADCRR shall permit Plaintiff’s spiritual advisor to have limited contact visitation with Plaintiff between the hours of 7:00 a.m. and 12 9:00 a.m. on the morning of June 7, 2022 for purposes of religious 13 exercise, including performing tonsure and last rites, all of which must be completed by 9:00 a.m. ADCRR will require Plaintiff to 14 be restrained in a restraint chair, outside the cell, during this time. 15 2. ADCRR shall provide Plaintiff’s spiritual advisor with electric clippers to use in performing the tonsure. ADCRR shall allow the 16 spiritual advisor to recite prayers, place ceremonial garments on 17 Plaintiff, trim a lock of Plaintiff’s hair, and bring an assistant (an additional priest from St. Anthony’s monastery, whose name will 18 be submitted at least one week prior to the execution), with his 19 traditional vestments, to serve as a chanter during the tonsure. ADCRR shall also allow Plaintiff’s spiritual advisor to bring in a 20 ceremonial vestment to be worn by Plaintiff for the tonsure, and Plaintiff will be permitted to wear this vestment during the 21 ceremony. Permissible elements of this vestment shall be limited 22 to an outer garment/robe (“zostiko”), short vest (“kondo”), covering made of thin cords woven into crosses (“polystavros”), 23 hat (“Skoufos”), veil (“Koukouli”), scapular (“Great Schema”), 24 belt, and shoes. ADCRR shall also permit Plaintiff’s spiritual advisor to lay hands on Plaintiff’s head, place a garment across 25 Plaintiff’s head, shoulders, and/or torso, and anoint Plaintiff with 26 oil during the tonsure ceremony. 3. ADCRR shall permit Plaintiff’s spiritual advisor to lay hands on 27 Plaintiff’s head and place a last rites garment across Plaintiff’s 28 shoulders. In performing last rites, ADCRR shall allow the spiritual advisor to wear his usual vestments, including his stole, 1 and to bring in three small spiral bound service books containing prayers, a vial of sacramental oil, a vial of holy water, a handheld 2 cross, a small prayer rope, and a candle. ADCRR shall provide 3 matches or a lighter to light the candle. 4. ADCRR shall permit Plaintiff’s spiritual advisor to accompany 4 Plaintiff when Plaintiff is escorted into the lethal injection 5 chamber. 5. While in the lethal injection chamber, ADCRR shall permit 6 Plaintiff’s spiritual advisor to touch Plaintiff on the ankle or foot. 7 ADCRR may require Plaintiff’s spiritual advisor to comply with all lawful directives of ADCRR personnel to: (a) touch Plaintiff 8 only on the ankle or foot; (b) stand in a location that gives the 9 medical team an unobstructed view of the IV lines; (c) terminate touching Plaintiff on the ankle or foot during critical points in the 10 execution process, such as during insertion of the IV line; and (d) 11 immediately leave the lethal injection chamber upon ADCRR personnel determining that he has failed to comply with any of 12 these requirements. 13 6. While in the lethal injection chamber, ADCRR shall permit Plaintiff’s spiritual advisor to engage in audible prayer. ADCRR 14 may require Plaintiff’s spiritual advisor to comply with all lawful directives of ADCRR personnel to (a) limit the volume of any 15 prayer so that medical officials can monitor Plaintiff’s condition; 16 (b) remain silent during critical points in the execution process, including when an execution warrant is read or when ADCRR 17 personnel and/or medical personnel must communicate with one 18 another; (c) speak only to Plaintiff; and (d) immediately leave the lethal injection chamber upon ADCRR personnel determining that 19 he has failed to comply with any of these requirements. 20 7. All persons and items entering and ADCRR facility shall be subject to standard security inspection protocols. 21 22 Pursuant to the parties’ agreement, the Court will enter an injunction requiring the 23 Defendants to comply with all items to which they have agreed, subject to the modifications 24 articulated in the conclusion of this Injunction. 25 The parties further identified three remaining requests that Defendants claimed they 26 could not accommodate: 27 1. Requiring the use of a restraint chair (vs. wheelchair and leg shackles) during the tonsure ceremony. 28 2. Limiting touch to the feet and ankles, with no qualification for how 1 Plaintiff is ultimately positioned. 3. Disallowing the use of the priestly stole inside the execution 2 chamber. 3 Based on the remaining areas of disagreement Plaintiff filed a Motion for 4 Emergency Preliminary Injunction seeking an order compelling Defendants to allow 5 Plaintiff to participate in his tonsure ceremony from his wheelchair instead of chained to a 6 restraint chair and permitting his spiritual advisor to administer the priestly stole over his 7 head while in the execution chamber. 8 II. Motion to Dismiss 9 Defendants’ Motion to Dismiss must be denied. While Defendants maintain that 10 Plaintiff’s claims in his First Amended Complaint are speculative, they have opposed 11 crucial aspects of Plaintiff’s requests for religious accommodation through this accelerated 12 litigation. Any assertion of lack of ripeness or lack of standing, therefore, are not well- 13 taken. 14 As for exhaustion, Defendants assert that it is clear from the face of Plaintiff’s 15 Amended Complaint that he failed to exhaust his available administrative remedies. In his 16 Amended Complaint, Plaintiff alleged that he had fully exhausted his available 17 administrative remedies. Specifically, Plaintiff alleged that: 18 (1) On January 2, 2022, Plaintiff submitted an informal complaint through the 19 prison’s complaint system stating that his lawyers had been told Fr. Paisios would be 20 allowed in the witness room only, and his “religious beliefs require Father Paisios to stay 21 by [his] side during [his] execution and to pray and administer last rites, including placing 22 his hands on [him] and speaking to [him].” 23 (2) On January 18, 2022, he received a response that “710—Execution 24 Procedures 2.1.3.1.1 inform the inmate that two clergy and five other persons may be 25 invited to be present at the execution. Policy allows for clergy to be present as a witness 26 during execution but does not give permission to allow clergy to be at your side during 27 execution. Your request to have clergy at your side during execution cannot be resolved at 28 my level.” 1 (3) On January 19, 2022, he filed a formal grievance, stating, “As stated in the 2 Informal Complaint Resolution, my religious needs require that during my execution, and 3 at the time of my death, that I am able to speak directly with my priest and am able to have 4 him lay hands on me. ADCRR Dept. Order 710 fails to provide these essential religious 5 necessities and therefore violates my constitutional (1st Amendment) and congressional 6 (RLUIPA) rights to freely exercise my religion.” 7 (4) On February 2, 2022, Plaintiff received a response to his grievance, stating 8 that it was “unprocessed.” The response explained, “This is in the ARS codes. Your Inmate 9 Grievance for this case was unprocessed due to judicial proceedings or decision of the 10 courts. You cannot submit a grievance appeal.” 11 (5) On February 6, 2022, Plaintiff nonetheless submitted an appeal, but received 12 no response. (Doc. 14 ¶¶ 41-47). 13 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 14 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 15 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 16 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 17 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 18 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 19 (2002), regardless of the type of relief offered through the administrative process, Booth v. 20 Churner, 532 U.S. 731, 741 (2001). 21 The defendant bears the initial burden to show that there was an available 22 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 23 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 24 demonstrate that applicable relief remained available in the grievance process). Once that 25 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 26 fact, exhausted administrative remedies or “come forward with evidence showing that there 27 is something in his particular case that made the existing and generally available 28 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 1 ultimate burden, however, rests with the defendant. Id. 2 Defendants assert that it is clear from the face of Plaintiff’s Amended Complaint 3 that he did not properly exhaust available administrative remedies because “Plaintiff fails 4 to demonstrate how an unrelated grievance, filed before ADCRR revised its execution 5 protocol, has any bearing on the claims in his amended complaint.” (Doc. 19 at 8.) 6 Defendants then argue several policy reasons why they believe Plaintiff should be required 7 to exhaust prior to bringing this claim. Notably, Defendants include no details about the 8 available administrative remedy at issue and appear to attempt to shift the burden to 9 Plaintiff at the outset. This is improper. Defendants bear the initial burden of 10 demonstrating that there was an available administrative remedy and that Plaintiff did not 11 follow it. Defendants did not attach the relevant administrative remedy or discuss the 12 provisions of the administrative remedy or how it would apply to Plaintiff. 13 Moreover, the protocol that Plaintiff now challenges was revised by the ADCRR on 14 April 20, 2022. (Doc. 10 at 3.) Defendants do not explain what administrative remedy is 15 in place that would allow Plaintiff to grieve the newly revised protocol prior to his 16 execution on June 8, 2022.2 17 For the foregoing reasons, Defendants have not met their burden of showing that an 18 administrative remedy was available to Plaintiff.3 19 / / / 20 / / / 21

22 2 Even if Defendants meant to argue that Department Order 802 provides an 23 available administrative remedy, Department Order 802 allows 120 days for completion of the grievance process and there is no explanation how that is an available remedy for 24 Plaintiff, who seeks to have such an issue decided prior to his execution. See, e.g., Kleinfelt v. Shinn, No. CV 20-793-PHX-JAT(JFM), 2021 WL 1376095, at *2 (D. Ariz. Apr. 12, 25 2021) (Department Order 802, Inmate Grievance Procedure, (effective Oct. 16, 2016), 26 provides that the maximum length of time for completion of the grievance process is 120 days from initiation of the Formal Grievance Process.). 27 3 Because Defendants have not met their burden, the Court does not address 28 Plaintiff’s argument that the administrative remedy was rendered effectively unavailable based on information he received in a previous grievance response. 1 III. Legal Standard 2 A. Preliminary Injunction 3 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 4 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 5 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 6 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 7 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 8 never awarded as of right”). A plaintiff seeking a preliminary injunction must show that 9 (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without 10 an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the 11 public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are 12 ‘serious questions going to the merits’—a lesser showing than likelihood of success on the 13 merits—then a preliminary injunction may still issue if the ‘balance of hardships tips 14 sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell 15 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance 16 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious 17 questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger 18 showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 19 1072. 20 Regardless of which standard applies, the movant “has the burden of proof on each 21 element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 22 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a 23 mandatory preliminary injunction, which should not be granted “unless the facts and law 24 clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th 25 Cir. 1986) (citation omitted). 26 The Prison Litigation Reform Act imposes additional requirements on prisoner 27 litigants who seek preliminary injunctive relief against prison officials and requires that 28 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 1 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 2 999 (9th Cir. 2000). 3 B. RLUIPA 4 Under RLUIPA, a government may not impose a substantial burden on the religious 5 exercise of a confined person unless the government establishes that the burden furthers a 6 “compelling governmental interest” and does so by “the least restrictive means.” 42 U.S.C. 7 § 2000cc-1(a)(1)-(2). This “compelling government interest” and “least restrictive means” 8 test replaced Turner’s “legitimate penological interest” test. Warsoldier v. Woodford, 418 9 F.3d 989, 994 (9th Cir. 2005) (citing 42 U.S.C. § 2000cc-1(a)). The Ninth Circuit has 10 explained that, under RLUIPA, prison officials cannot “justify restrictions on religious 11 exercise by simply citing to the need to maintain order and security in a prison. RLUIPA 12 requires more.” Greene v. Solano Cnty. Jail, 513 F.3d 982, 989-90 (9th Cir. 2008). Prison 13 officials must show that they “actually considered and rejected the efficacy of less 14 restrictive measures before adopting the challenged practice.” Id. at 990 (quoting 15 Warsoldier, 418 F.3d at 999). Under its own terms, RLUIPA must be “construed broadly 16 in favor of protecting an inmate’s right to exercise his religious beliefs.” Warsoldier at 995 17 (citing 42 U.S.C. § 2000cc-3(g)). 18 RLUIPA was enacted to provide “very broad protection for religious liberty”; it 19 “protects ‘any exercise of religion, whether or not compelled by, or central to, a system of 20 religious belief[.]’” Holt v. Hobbs, 574 U.S. 352, 356, 358 (2015) (quoting 42 U.S.C. 21 § 2000cc–5(7)(A)); Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (RLUIPA 22 must be “construed broadly in favor of protecting an inmate’s right to exercise his religious 23 beliefs”). Under RLUIPA, a prisoner must show that the relevant exercise of religion is 24 grounded in a sincerely held religious belief and not some other motivation. Holt, 574 U.S. 25 at 360-61. Next, the inmate bears the burden of establishing that a prison policy constitutes 26 a substantial burden on that exercise of religion. Id.; Warsoldier, 418 F.3d at 994 (citing 27 42 U.S.C. § 2000cc-2(b)). If the inmate makes those two showings, the burden shifts to 28 the government to prove that the substantial burden on the inmate’s religious practice both 1 furthers a compelling governmental interest and is the least restrictive means of doing so. 2 Warsoldier, 418 F.3d at 995. 3 The prisoner bears the burden of establishing prima facie that RLUIPA has been 4 violated and that his religious exercise has been substantially burdened. Id. at 994 (citing 5 42 U.S.C. § 2000cc-2(b)). The government then bears the burden of proving that the 6 substantial burden on the inmate’s religious practice both furthers a compelling 7 governmental interest and is the least restrictive means of doing so. Id. at 995 (citing 42 8 U.S.C. §§ 2000cc-1(a), 2000cc-2(b)). “If prison officials meet that standard, the prison 9 regulation passes muster under RLUIPA, regardless of the burden it imposes on religious 10 exercise.” Greene, 513 F.3d at 990. 11 IV. Discussion 12 A. Plaintiff’s Placement During Tonsure Ceremony 13 Plaintiff contends that while Defendants will allow Plaintiff to “don the ceremonial 14 garb, however it will be impossible for him to do so if he is ankle chained, belly chained, 15 chest strapped, and wrist chained into a restraint chair.” Plaintiff further contends “the 16 ceremony has specific, prescribed elements—including the wearing of vestments and the 17 cutting of a lock of hair—that are mandatory; it cannot be conducted in a manner the 18 religion would consider effective without the required elements.” As a result, Plaintiff 19 requests that he be permitted to undergo the tonsure ceremony from his wheelchair. 20 Defendants respond that Plaintiff does not adequately explain how he will 21 specifically be prevented from fully participating in the tonsure ceremony from a restraint 22 chair, Defendants argue Plaintiff has not established a substantial burden. 23 The Court disagrees with Defendants. Plaintiff has indicated that he is unable wear 24 the “various elements of the habit or vestment worn by Orthodox monks” if he is chained 25 to a restraint chair. The Court finds that Plaintiff has alleged a substantial burden. 26 Because Defendants limited their argument to Plaintiff’s substantial burden, they do 27 not argue a compelling government interest beyond “security” that justifies requiring a 28 restraint chair as opposed to Plaintiff’s wheelchair. But Plaintiff’s counsel’s description of 1 Plaintiff’s infirmities seems to not be in dispute, is consistent with evidence in other cases 2 before the undersigned, and belies Defendants’ “security” concerns. Thus, the Court finds 3 that Plaintiff is entitled to an injunction authorizing him to participate in his tonsure 4 ceremony from his wheelchair. 5 B. Administration of Last Rites and Placing of Priestly Stole 6 As part of the administration of last rites, Plaintiff’s spiritual advisor must place the 7 stole (a cloth scarf) over Plaintiff’s head while Plaintiff confesses, and the spiritual advisor 8 orally prays. If last rites are administered prior to Plaintiff entering the execution chamber, 9 Plaintiff contends it would be impossible for him to wear the stole “during the actual time 10 his immortal soul is passing from his body.” (Doc. 39 at 2). As a result, Plaintiff requests 11 that his spiritual advisor be permitted to place the stole over Plaintiff in the execution 12 chamber. Defendants will accommodate the spiritual advisor in the execution chamber, 13 but maintain that the priest must remain at Plaintiff’s feet. Plaintiff asserts the priest could 14 remain stationary at Plaintiff’s head to avoid any interference with the administration of 15 the lethal injection drugs and staff members ability to visualize the IV lines. 16 Defendants contend that while placing the priest at Plaintiff’s head would resolve 17 the potential problems associated with him moving about the chamber during the 18 execution, it nevertheless implicates the “compelling government interest” in “preventing 19 accidental interference with the prison’s IV lines,” which was recognized by the Supreme 20 Court. Ramirez, 142 S. Ct. at 1281. 21 There does not appear to be any dispute that the priest will remain stationary during 22 Plaintiff’s execution. The only question left to be resolved is whether he stands at 23 Plaintiff’s head or Plaintiff’s feet. Nothing Defendants have briefed compel the conclusion 24 that there is a meaningful difference where the priest stands as long as he remains 25 stationary. In other words, Defendants have not demonstrated that they have a compelling 26 government interest to force the priest to stand at Plaintiff’s feet during the entire execution. 27 A lesser restrictive alternative, remaining at Plaintiff’s head, will accommodate 28 Defendants’ interest in ensuring no one interferes with the placement of IV lines during the 1 execution. 2 The Court will therefore grant Plaintiff’s Motion for Preliminary Injunction. 3 IT IS THEREFORE ORDERED: 4 1. Defendants’ Motion to Dismiss (Doc. 19) is denied. 5 2. Plaintiff’s Motion for Preliminary Injunction (Doc. 28) is granted as follows. 6 3. The Court hereby enters a preliminary injunction compelling Defendants as follows: a. ADCRR shall permit Plaintiff’s spiritual advisor to have limited 7 contact visitation with Plaintiff between the hours of 7:00 a.m. and 8 9:00 a.m. on the morning of June 7, 2022 for purposes of religious exercise, including performing tonsure and (some of) last rites, all of 9 which must be completed by 9:00 a.m. Plaintiff is permitted to remain 10 in his wheelchair during this time. b. ADCRR shall provide Plaintiff’s spiritual advisor with electric 11 clippers to use in performing the tonsure. ADCRR shall allow the 12 spiritual advisor to recite prayers, place ceremonial garments on Plaintiff, trim a lock of Plaintiff’s hair, and bring an additional priest 13 from St. Anthony’s monastery, with his traditional vestments, to serve 14 as a chanter during the tonsure. ADCRR shall also allow Plaintiff’s spiritual advisor to bring in a ceremonial vestment to be worn by 15 Plaintiff for the tonsure, and Plaintiff will be permitted to wear this 16 vestment during the ceremony. Permissible elements of this vestment shall be limited to an outer garment/robe (“zostiko”), short vest 17 (“kondo”), covering made of thin cords woven into crosses (“polystavros”), hat (“Skoufos”), veil (“Koukouli”), scapular (“Great 18 Schema”), belt, and shoes. ADCRR shall also permit Plaintiff’s 19 spiritual advisor to lay hands on Plaintiff’s head, place a garment across Plaintiff’s head, shoulders, and/or torso, and anoint Plaintiff 20 with oil during the tonsure ceremony. 21 c. ADCRR shall permit Plaintiff’s spiritual advisor to lay hands on Plaintiff’s head and place a last rites garment across Plaintiff’s head. 22 In performing the tonsure and (some of) last rites ceremony on June 23 7, 2022, ADCRR shall allow the spiritual advisor to wear his usual vestments, including his stole, and to bring in three small spiral bound 24 service books containing prayers, a vial of sacramental oil, a vial of 25 holy water, a handheld cross, a small prayer rope, and a candle. ADCRR shall provide matches or a lighter to light the candle. 26 d. ADCRR shall permit Plaintiff’s spiritual advisor to accompany 27 Plaintiff when Plaintiff is escorted into the lethal injection chamber. e. While in the lethal injection chamber, ADCRR shall permit Plaintiff’s 28 spiritual advisor to touch Plaintiff on the head. ADCRR may require 1 Plaintiff's spiritual advisor to comply with all lawful directives of 2 ADCRR personnel to: (a) touch Plaintiff only on the head; (b) stand in a location that gives the medical team an unobstructed view of the 3 IV lines; (c) terminate touching Plaintiff during critical points in the 4 execution process, such as during insertion of the IV line; and (d) immediately leave the lethal injection chamber upon ADCRR 5 personnel determining that he has failed to comply with any of these 6 requirements. f. While in the lethal injection chamber, ADCRR shall permit Plaintiff's 7 spiritual advisor to engage in audible prayer. ADCRR may require Plaintiff's spiritual advisor to comply with all lawful directives of 8 ADCRR personnel to (a) limit the volume of any prayer so that 9 medical officials can monitor Plaintiff's condition; (b) remain silent during critical points in the execution process, including when an 10 execution warrant 1s read or when ADCRR personnel and/or medical 11 personnel must communicate with one another; (c) speak only to Plaintiff; and (d) immediately leave the lethal injection chamber upon 12 ADCRR personnel determining that he has failed to comply with any 13 of these requirements. g. All persons and items entering an ADCRR facility shall be subject to 14 standard security inspection protocols. 15 h. Defendants must permit Plaintiff to participate in his tonsure ceremony from his wheelchair. 16 i. Defendants (as stated in Doc. 40 at 2) will permit Plaintiff and his 17 priest with time to perform (some of) last rites, including communion and confession, before entering the execution chamber on the morning 18 of the execution. 19 j. Plaintiffs spiritual advisor accompanying him into the execution chamber must remain stationary at Plaintiff's head during the entirety 20 of the execution and may place the stole on Plaintiffs head. 21 4. This relief is narrowly drawn, extends no further than necessary to correct the harm, 22|| and is the least intrusive means necessary to correct the harm. See 18 U.S.C. § 3626(a)(2). 23 5. Plaintiff is not required to post bond. 24 Dated this 6th day of June, 2022. 25 26 7 Le 27 28 James A. Teilborg Senior United States District Judge

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