Bausch v. Sumiec

Decision Date10 April 2001
Docket NumberNo. 99-C-684.,99-C-684.
Citation139 F.Supp.2d 1029
PartiesJohn BAUSCH, Plaintiff, v. Debra SUMIEC, Michael Sullivan and Jon Litscher, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin

Walter H. Stern, Stern Law Office, Union Grove, WI, for plaintiff.

James E. Doyle, Jr., John J. Glinski, Wisconsin Department of Justice, Office of the Attorney General, Madison, WI, for defendants.


ADELMAN, District Judge.

Plaintiff John Bausch, a former Wisconsin prisoner and parolee, brings this action under 42 U.S.C. § 1983. He claims that defendants, his former parole officer and the former and present Secretaries of the Wisconsin Department of Corrections, violated the Establishment Clause of the First Amendment, as made applicable to states by the Fourteenth Amendment, by compelling his participation in a religiously-oriented substance abuse treatment program. Before me now is defendants' motion for summary judgment.


In 1993, plaintiff was convicted of delivery of a controlled substance as a repeater and sentenced to prison. In December 1995, he was paroled. While on parole, he abused drugs and alcohol, committing a total of eight violations of his conditions of parole. In April 1997, defendant Debra Sumiec,1 plaintiff's parole officer, advised him that as an alternative to parole revocation he could enter the Exodus House residential substance abuse treatment program. The Exodus House program is based on the principles of Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) and has a substantial religious component.2 Sumiec apparently did not advise plaintiff that as an alternative to revocation he could participate in a secular treatment program. Plaintiff agreed to participate in the Exodus House program.

Plaintiff states in an affidavit that he is an atheist and that he had objections to the religious nature of the Exodus House program, but that he participated in it because he believed that it was the only way he could avoid having his parole revoked. He further states that while he was in the program he informed his counselor, Rick Stordick, of his objections to the program. Defendants, however, present evidence that plaintiff did not advise parole officials, including Stordick, of his objections to the Exodus House program.3

In addition to his claim against Sumiec, plaintiff alleges that defendant Michael Sullivan, who was Secretary of the Wisconsin Department of Corrections from 1993 until January 1999, and defendant Jon Litscher, who succeeded Sullivan, are liable because they failed to implement a court decision prohibiting the constitutional violation that he alleges occurred here.


Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis deleted). For a dispute to be genuine, the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be material, it must relate to a disputed matter that "might affect the outcome of the suit." Id.

Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating that he is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Where the moving party seeks summary judgment on the ground that there is an absence of evidence to support the nonmoving party's case, the moving party may satisfy its initial burden simply by pointing out the absence of evidence. Id. at 325, 106 S.Ct. 2548. Once the moving party's initial burden is met, the nonmoving party must "go beyond the pleadings" and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, 106 S.Ct. 2505, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989). In considering a motion for summary judgment, I may consider any materials that would be admissible or usable at trial, including properly authenticated and admissible documents. Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.2000).

In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is "not required to draw every conceivable inference from the record — only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

A. Establishment Clause

Title 42 U.S.C. § 1983 states that:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.

In order to prove a violation of § 1983, plaintiff must show that defendants deprived him of a federal constitutional right while acting under color of state law. Abraham v. Piechowski, 13 F.Supp.2d 870, 879 (E.D.Wis.1998).

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. As summarized by the Fifth Circuit, the Supreme Court has established three complementary (and occasionally overlapping) tests:

The first test, and the one of longest lineage, is the disjunctive three-part Lemon test, under which a state practice is unconstitutional if (1) it lacks a secular purpose; (2) its primary effect either advances or inhibits religion; or (3) it excessively entangles government with religion. See Lemon [v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) ]. The second test, commonly referred to as the endorsement test, seeks to determine whether the government endorses religion by means of the challenged action. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 594, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) .... Finally, the third test, aptly named the coercion test, analyzes school-sponsored religious activity in terms of the coercive effect that the activity has on students. See, e.g., Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992).

Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 343 (5th Cir.1999) (parallel citations and explanatory parentheticals omitted), cert. denied, 530 U.S. 1251, 120 S.Ct. 2706, 147 L.Ed.2d 974 (2000).

The Seventh Circuit adopted Lee's coercion test to assess whether a prison could constitutionally require a prisoner to attend NA meetings, on pain of being transferred to a higher-security prison and denied the hope of parole. Kerr v. Farrey, 95 F.3d 472, 474 (7th Cir.1996). The court identified three crucial points to the coercion test: (1) whether there was state action; (2) whether the action amounted to coercion; and (3) whether the object of the coercion was religious or secular. Id. at 479. The Seventh Circuit quickly found that the NA requirement was state action and that the prisoner was coerced; after more extensive discussion, it concluded that the NA program could not be considered secular and that the NA requirement was therefore unconstitutional. Id. at 479-80. Kerr permits the state to condition parole on participation in a religiously-oriented treatment alternative to revocation only if the religiously-oriented alternative is not "the only choice available." Id. at 480.4

The present defendants concede that this case is governed by the coercion test. They further acknowledge that they were state officials acting under color of law, and that the Exodus House program is religious in nature. They contend, however, that they did not coerce plaintiff into participating in the program. As stated above, the only alternative to parole revocation of which they informed plaintiff was the religiously-oriented Exodus House program. However, defendants assert that plaintiff could have objected to that program, in which case he would have been offered a secular alternative, but that he failed to do so.

The issue in this case is whether the circumstances that plaintiff faced were coercive. In Lee, Justice Kennedy, writing for a five-justice majority, found that even "subtle psychological pressure," at least in the context of elementary and secondary public schools, could be coercive. Lee, 505 U.S. at 592, 112 S.Ct. 2649.5 The four-justice dissent, authored by Justice Scalia, criticized the majority's adoption of a "psychological coercion" test, and proposed instead that the appropriate standard was "legal coercion." Id. at 636, 641, 112 S.Ct. 2649 (Scalia, J., dissenting). The dissent defined legal coercion as "coercion of...

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  • Freedom from Religion Foundation, Inc. v. McCallum
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    • January 7, 2002
    ...of a single God or Supreme Being ... [or, in other words,] on a religious concept of a Higher Power."). See also Bausch v. Sumiec, 139 F.Supp.2d 1029, 1033 (E.D.Wis.2001) (defendant program based on principles of AA and NA and having substantial religious component concedes it is religious ......
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