Borzych v. Frank
| Citation | 340 F.Supp.2d 955 |
| Decision Date | 14 October 2004 |
| Docket Number | No. 04-C-632-C.,04-C-632-C. |
| Parties | Gary A. BORZYCH, Plaintiff, v. Matthew J. FRANK, Steve Casperson, Ana M. Boatwright, Gerald Berge, Gary Boughton, Peter Huibregtse, Richard Raemisch, John Ray, Sandra Hautumaki, Sgt. Judith Huibregtse, Cpt. Lebbeus Brown, Kelly Trumm, Ellen Ray, Todd Overbo and Vicki Sebastian, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Garry A. Borzych, Madison, WI, pro se.
Charles D. Hoornstra, Assistant Attorney General, Madison, WI, for Defendants.
This is a proposed civil action for monetary, declaratory and injunctive relief, brought under 42 U.S.C. § 1983. Plaintiff has paid the $150 filing fee but because he is a prisoner presently confined at the Wisconsin Secure Program Facility in Boscobel, Wisconsin, he is subject to the 1996 Prison Litigation Reform Act. He cannot proceed with this action unless the court grants him permission to proceed after screening his complaint pursuant to 28 U.S.C. § 1915A.
In addressing any pro se litigant's complaint, the court must read the allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, if the litigant is a prisoner, the 1996 Prison Litigation Reform Act requires the court to deny leave to proceed if the prisoner has had three or more lawsuits or appeals dismissed for lack of legal merit (except under specific circumstances that do not exist here), or if the prisoner's complaint is legally frivolous, malicious, fails to state a claim upon which relief may be granted or asks for money damages from a defendant who by law cannot be sued for money damages. This court will not dismiss plaintiff's case on its own motion for lack of administrative exhaustion, but if respondents believe that plaintiff has not exhausted the remedies available to him as required by § 1997e(a), they may allege his lack of exhaustion as an affirmative defense and argue it on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Massey v. Helman, 196 F.3d 727 (7th Cir.1999); Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir.1999).
In his complaint, plaintiff alleges the following facts.
Plaintiff Garry A. Borzych is currently confined at the Wisconsin Secure Program Facility in Boscobel, Wisconsin. Defendant Matthew J. Frank is Secretary of the Wisconsin Department of Corrections and defendant Richard Raemisch is the deputy secretary. Defendant Steve Casperson is Administrator of the Wisconsin Department of Adult Institutions. Defendant Ana M. Boatwright is the religious policy advisor for the Wisconsin Department of Corrections. Defendants John Ray and Sandra Hautumaki are corrections complaint examiners. Defendant Gerald Berge is the warden at the Secure Program Facility and defendant Peter Huibregtse is the deputy warden. Other defendants employed at the facility include defendant Gary Boughton, who is the security director, defendant Judith Huibregtse, the mail room sergeant, defendant Lebbeus Brown, the gang coordinator, defendant Vicki Sebastian, the program director, defendant Todd Overbo, the chaplain and defendants Kelly Trumm and Ellen Ray, both of whom are inmate complaint examiners.
Plaintiff's religion is Odinism, which is also known as Asatry or Wotanism. Odinists do not worship a god but instead attempt to achieve "godhead." Plaintiff does not advocate racism, promote hate crimes or violence and does not attack others on the basis of their religion or ethnicity. Although he knows how to brew hooch and mead, he has never made any while incarcerated. There are several major Odinist holidays, observation of which is essential for attaining godhead. It is also essential for true Odinists to perform nightly rites. Since March 16, 2003, plaintiff has not been able to perform these nightly rites or observe the holidays.
Not all texts proclaiming to be Odinist reflect the true beliefs of the religion. However, "Temple of Wotan," "Creed of Iron" and "The NPKA Book of Blotar" were written by true Odinists and plaintiff is unable to practice his religion without them. On May 29, 2003, plaintiff was told that he had to send his copies of "Temple of Wotan" and "Creed of Iron" out of the facility or they would be destroyed. On March 31, 2004, someone outside the prison sent plaintiff a copy of "The NPKA Book of Blotar" but defendants Judith Huibregtse, Overbo, Boughton and Brown prohibited plaintiff from having it because its author is allegedly a member of a disruptive group.
On April 4, 2004, plaintiff filed an inmate complaint, WSPF-2004-11312, alleging that he had been subject to libel when his book was rejected because of its potential disruptive content. Plaintiff complained that such a rejection implied that he advocates disruption. On April 12, 2004, defendant Ellen Ray rejected plaintiff's complaint on the ground that the issue plaintiff raised had been addressed previously in plaintiff's earlier complaint, WSPF-2004-11310. On April 14, 2004, plaintiff appealed the rejection on the ground that his complaint in WSPF-2004-11310 was based on slander, not libel. On April 19, 2004, defendant Peter Huibregtse. affirmed the rejection.
On May 5, 2004, plaintiff filed inmate complaint WSPF-2004-14393. His complaint was based on the rejection of "The NPKA Book of Blotar." On May 7, 2004, defendant Ellen Ray rejected plaintiff's complaint on the ground that the issue he raised had already been addressed in his previous inmate complaints, WSPF-2004-1310 and WSPF-2004-11312. Three days later, plaintiff appealed the rejection, arguing that the issue had not been raised in those previous complaints; in WSPF-2004-11310, he complained of slander and his complaint in WSPF-2004-11312 was based on libel. Defendant Peter Huibregtse affirmed the rejection on June 8, 2004.
On June 13, 2004, plaintiff filed an inmate grievance, WSPF-2004-18883, in which he complained about the ban on the book "Temple of Wotan." Plaintiff noted that he needed this text in order to exercise his religion. On June 16, 2004, defendant Trumm rejected plaintiff's complaint on the ground that his grievance had already been addressed through plaintiff's previous complaint, GBCI-2003-11536. Plaintiff appealed the rejection two days later, arguing that his complaint GBCI-2003-11536 was not based on a blanket ban on the book the "Temple of Wotan." On July 1, 2004, defendant Peter Huibregtse affirmed the rejection.
On June 14, 2004, plaintiff filed an inmate grievance based on the ban of the book "Creed of Iron." In WSPF-2004-19140 plaintiff stated that he needed this text in order to practice his religion. Two days later, defendant Trumm recommended dismissal of plaintiff's complaint because "Creed of Iron" is not a religious text but is connected to a disruptive group. On June 25, 2004, defendant Peter Huibregtse dismissed plaintiff's complaint. Plaintiff appealed the dismissal four days later. On July 16, 2004, defendant Hautumaki recommended affirmation of the dismissal because "Creed of Iron" is associated with a disruptive group. Defendant Raemisch adopted defendant Hautamaki's recommendation later that day.
On April 1, 2004, plaintiff wrote to defendants Boughton and Overbo, requesting clarification of the reason for the rejection of "The NPKA Book of Blotar." The following day, defendant Boughton responded that defendant Overbo would respond to plaintiff's question. On April 11, 2004, plaintiff wrote to defendant Overbo, informing him of the Department of Corrections' blanket ban on Odinist literature. Defendant Overbo never responded to either of these letters. On April 18, 2004, plaintiff filed inmate complaint WSPF-2004-125531, in which he complained of defendant Overbo's refusal to respond to his correspondence. Three days later, defendant Ellen Ray recommended the dismissal of plaintiff's complaint. On May 3, 2004, defendant Peter Huibregtse adopted defendant Ellen Ray's recommendation and dismissed the complaint. On May 5, 2004, plaintiff appealed the dismissal to defendant John Ray, who recommended dismissal on the ground that plaintiff's grievance had already been addressed in WSPF-2004-11310. In plaintiff's view, WSPF-2004-11310 was based on slander, not defendant Overbo's refusal to respond to plaintiff's correspondence. On May 14, 2004, defendant Raemisch adopted the recommendation of defendant John Ray and affirmed the dismissal of plaintiff's complaint.
On April 21, 2004, plaintiff wrote to defendant Boughton, informing him that defendant Overbo had never responded to plaintiff's letter dated April 1, 2004. Plaintiff reminded defendant Boughton that he had previously indicated that he had directed defendant Overbo to do so. Defendant Boughton never responded to this letter.
On July 7, 2004, plaintiff wrote a letter to defendant Boatwright, asking her to intervene to insure plaintiff's right to practice Odinism. Defendant Boatwright never responded.
On April 27, 2004, plaintiff received a religious catalogue, "Azure Green," in the mail. Defendants Judith Huibregtse, Brown, Boughton and Overbo prohibited plaintiff from having the catalogue because it featured weapons. Plaintiff filed inmate complaint WSPF-2004-13666, alleging that rejection of the catalogue "Azure Green" was ludicrous and that it had been allowed at the facility previously. On May 4, 2004, defendant Ellen Ray recommended the dismissal of plaintiff's complaint. In her recommendation, defendant Ellen Ray noted that plaintiff could use the catalogue to educate himself about implements used in violent ritualistic acts, that plaintiff's possession of the catalogue would be counterproductive and that although the catalogue provides many items directed at Wiccans, it also includes products to assist...
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