Schlemm v. Wall

• Decision Date: 29 February 2016
• Docket Number: 11-cv-272-wmc
• Citation: 165 F.Supp.3d 751
• Parties: David Schlemm, Plaintiff, v. Edward Wall, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

165 F.Supp.3d 751

David Schlemm, Plaintiff,

v.Edward Wall, Defendant.

11-cv-272-wmc

United States District Court, W.D. Wisconsin.

Signed February 29, 2016

David A. Schlemm, Green Bay, WI, pro se.

David L. Anstaett, David J. Harth, Autumn Nero, Jesse Jonas Bair, Perkins Coie LLP, Madison, WI, for Plaintiff.

Brian P. Keenan, Jody J. Schmelzer, Wisconsin Department of Justice, Madison, WI, for Defendant.

OPINION and ORDER

William M. Conley

, District Judge

The two questions remaining in this case are whether the state is violating pro se plaintiff David Schlemm's claimed rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”): (1) to serve venison during the annual Native American Ghost Feast; and (2) to wear a multicolored headband or bandana while praying or meditating in his cell and during group religious ceremonies. See Schlemm v. Wall , 784 F.3d 362 (7th Cir.2015)

. Through his then recruited, pro bono counsel, plaintiff filed a motion for partial summary judgment with respect to two elements of his RLUIPA claims: (1) whether his requests for these religious accommodations are motivated by a “sincere religious belief”; and (2) whether the Department of Corrections' denial of those requests “substantially burdens” his religious exercise. (Dkt. # 125.)¹

Because there are disputed issues of material fact that preclude summary judgment on both of these elements of his claims, Schlemm's motion will be denied. Accordingly, the trial will therefore, proceed as scheduled on March 21, 2016, to resolve disputed material facts as to whether: (1) Schlemm's requests for religious accommodation are motivated by sincerely held religious beliefs; (2) the DOC's current policies allowing plaintiff to purchase a shelf-stable ceremonial food for the Ghost Feast substantially burden his religious exercise; (3) the DOC's current policies allowing plaintiff to possess a multicolored bandana, not containing red, substantially burden his religious exercise; and (4) whether the DOC's policies are the least restrictive means of furthering a compelling government interest.

BACKGROUND

Plaintiff filed this suit on April 18, 2011, claiming that various prison policies substantially burdened his right to practice his Native American religious beliefs in violation of the First Amendment's Free Exercise Clause and RLUIPA. Several of plaintiff's claims were dismissed at the screening stage for failure to state a claim upon which relief may be granted (dkt. # 3), and others were dismissed at summary judgment because plaintiff had failed to exhaust his administrative remedies (dkt. # 79). This court also granted summary judgment to defendants on the merits of plaintiff's two remaining Free Exercise and RLUIPA claims regarding his use of game meat and a multicolored headband, concluding that plaintiff had not shown that his religious exercise had been substantially burdened. Finally, this court found that defendants had shown that the prison's denial of these requests was motivated by compelling government interests, including food safety, accessibility and cost concerns relating to game meat, and security concerns relating to the multicolored headband. (Id. at 21–27.)

On appeal, the Seventh Circuit affirmed dismissal of the unexhausted claims, but reversed dismissal of plaintiff's RLUIPA claims for injunctive relief. Schlemm , 784 F.3d at 366–67

. The Seventh Circuit explained that the Supreme Court had recently interpreted the “substantial burden” prong of a RLUIPA claim as being “a standard much easier [for a plaintiff] to satisfy” than the standard previously articulated by the Seventh Circuit and applied by this court. Id. at 364. Additionally, the Seventh Circuit found that the defendants had not shown that the prison regulations were the least restrictive means to further a compelling government interest.

With respect to plaintiff's request for game meat in particular, the Seventh Circuit found that there was insufficient evidence in the record to support the prison's express concerns about the cost, safety and feasibility of providing game meat, particularly where plaintiff had “offer[ed] to secure a sealed platter of acceptable game meat from an outside vendor.” Id. at 363

. The Seventh Circuit was almost as skeptical that the prison's purported desire to reduce gang identification was a sufficiently “compelling” interest to support a ban on colored headgear, particularly where the plaintiff “propos[ed] to wear a headband with earth tones (such as blues and greens) that no one would understand as gang-related.” Id. at 366. The Seventh Circuit, therefore, directed that this court issue a preliminary injunction “entitling Schlemm to wear a headband in his cell and during religious ceremonies (provided that the headband does not contain any red), and have a supply of venison for the Ghost Feast.” Id.

DEVELOPMENTS AFTER REMAND

I. Compliance with the Preliminary Injunction

After remand, this court issued a preliminary injunction as directed by the Seventh Circuit. The court also recruited counsel for plaintiff. Counsel for both sides then acted to ensure compliance with the preliminary injunction. With respect to the headband, Schlemm was allowed to choose a headband from “Colleen's Gardens,” which was the vendor Schlemm identified as providing an acceptable headband. Schlemm selected a bandana containing the colors turquoise, black and white. He received the bandana in July 2015 and has been permitted to wear it in his cell, during weekly Pipe and Drum study groups, and during monthly sweat lodge ceremonies.

Although DOC has not changed the policy prohibiting colored religious headgear, it did offer to let Schlemm keep the bandana to meet his future religious needs. Schlemm rejected that offer on the grounds that because the bandana does not contain the color red, it does not meet his religious needs.

With respect to Schlemm's request for venison, DOC notified plaintiff sometime in August that the annual Ghost Feast would be held on September 23, 2015. Based on communications between counsel, it appears that neither plaintiff nor defendant could locate a commercial vendor in the Green Bay area that served venison Indian tacos. (Dkt. # 143, Exh. 1018, 1019.) Still, defendant's counsel suggested several online commercial vendors that sold other preparations of venison, as well as local restaurants that had menu items containing venison, and asked Schlemm to identify which venison option would fulfill his religious needs for the Ghost Feast. (Id. at 1018–001.)

A further obstacle emerged, however, when defendant told Schlemm that he would be responsible for paying for any special food items chosen. Taking the position that because the prison would be providing the same meal tray to Schlemm as other inmates at the Ghost Feast, defendant maintained that any special items would not be a “meal replacement,” and, therefore, neither the injunction nor RLUIPA required the state to pay for plaintiff's religious foods. (Id. at 1018–006.)

Ultimately, plaintiff requested that he be permitted to order: (1) a jerky combo including venison, elk and buffalo jerky from Cabela's online website, for $65.94; (2) a beef Indian Taco from a local restaurant, Frybread Heaven, for $6.75; and (3) a venison Sloppy Joe from another local restaurant, the 1919 Kitchen and Tap, for $19.00. The jerky arrived at GBCI before the Ghost Feast, and the venison sloppy joe and Indian Taco were scheduled to be delivered on the date of the feast. The total cost for the food would have been $91.69, plus tax and additional delivery charges for the restaurant food.² Just four days before the Ghost Feast on September 19, 2015, however, plaintiff removed himself from the attendance list and informed GBCI staff that he was not going to be present at the feast. Plaintiff apparently took the position that the scheduled feast would not be a proper Ghost Feast unless it: (1) was held in October or November, not September; (2) included a Sweat Lodge, tobacco burning and spiritual songs; and (3) included foods more traditional than those being offered. (Dkt. # 161–5.)

II. DAI Revises the Policy Relating to Annual Religious Celebratory Meals

Under the DAI's “Religious Diets” policy in effect when this case was filed, each umbrella religious group was permitted to hold an annual congregate celebratory meal. The food for the annual feast was taken from the regular institution menu, though inmates could request that a particular meal from the regular weekly menu be served on the day of the event. Even though the DOC was prohibited from purchasing, preparing or subsiding ceremonial foods, an institution's food service staff and its chaplain frequently collaborated to swap the weekly menu so that the regular meal served on the day of the event would include foods that somewhat resemble traditional goods consumed during that particular celebratory feast. Under this policy, the institution usually offered beef stew or brisket during the annual Ghost Feast celebration, but did not offer venison because game meat is not part of the regular institution menu.

After the preliminary injunction was entered in this case in May of 2015, DOC received numerous inquiries from inmates about the case and about whether all inmates were entitled to receive special foods at the annual religious celebratory meals. (Dkt. # 127–1 at 6) (requests from Jewish inmates for Seder ritual items provided at DOC expense; requests from Native American inmates at multiple prisons for venison, fry bread and/or wild rice for each attendee of the annual Ghost Feast; requests from Islamic inmates for lamb or fried chicken prepared in the prison kitchen for Eid-Al-Fitr observance; request from Pagan inmates for pork, venison or goat meat at Samhain observance).

In response, the DAI implemented a new version of DAI Policy 309.61.03, “Religious Diets.” Effective January 1, 2016, DOC continues to provide inmates attending an annual,...