Escobar v. Landwehr

• Decision Date: 09 November 1993
• Docket Number: No. 93-C-487-C.,93-C-487-C.
• Citation: 837 F. Supp. 284
• Parties: Fernando ESCOBAR, Plaintiff, v. Terri L. LANDWEHR and JCRAR, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

837 F. Supp. 284

Fernando ESCOBAR, Plaintiff, v. Terri L. LANDWEHR and JCRAR, Defendants.

No. 93-C-487-C.

United States District Court, W.D. Wisconsin.

November 9, 1993.

COPYRIGHT MATERIAL OMITTED

Fernando Escobar, pro se.

David E. Hoel, Asst. Atty. Gen., Madison, WI, for Terri L. Landwehr and Joint Committee for the Review of Admin. Rules.

OPINION AND ORDER

CRABB, Chief Judge.

In this civil action for declaratory relief, plaintiff claims that the Internal Management Procedures established by the Department of Corrections concerning the amount and types of property an inmate may possess violate the free exercise clause of the First Amendment and the due process clause of the Fourteenth Amendment of the United States Constitution as well as Article 1, section 18 of the Wisconsin Constitution. Now before this court are the cross-motions for summary judgment of plaintiff and defendant Landwehr. I will grant summary judgment to defendant Landwehr on plaintiff's First Amendment claim because plaintiff has failed to put forth evidence that defendants impaired his ability to exercise his religion freely and on plaintiff's Fourteenth Amendment claim because the new policy does not infringe on a "property right" within the meaning of the due process clause. I will dismiss plaintiff's state law claim on the grounds that it is no longer appropriate to exercise supplemental jurisdiction in this case.¹

To succeed on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1412 (7th Cir.1989). In attempting to demonstrate that there is a genuine issue of material fact, the party opposing the motion may not rest upon the pleadings but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir.1992). If a party fails to make a showing sufficient to establish the existence of an essential element on which that party will bear the burden of proof at trial, all other facts are immaterial and summary judgment for the opposing party is proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); A.V. Consultants, Inc. v. Barnes, 978 F.2d 996, 1002 (7th Cir.1992).

For the purpose of deciding the motions for summary judgment, I find that the following material facts are undisputed.

FACTS

Plaintiff has been confined in Wisconsin penal institutions since November 1987. At all times relevant to this action, defendant Terri L. Landwehr was the administrator of the Division of Adult Institutions of the Department of Corrections. Defendant JCRAR is the Joint Committee for Review of Administrative Rules, a committee of the Wisconsin state legislature.

In the spring of 1992, the Department of Corrections concluded that it was necessary to revise the Internal Management Procedures that govern the quantity, source, and categories of personal property inmates are permitted to possess in adult institutions. On May 1, 1992, defendant Landwehr, who had department-wide management responsibility over the adult institutions, issued a memorandum to all inmates and staff concerning the changes in procedures governing inmate property. The memorandum stated, "We believe these property changes are necessary to safeguard inmate property and for the health and safety of inmates confined to our institutions and are in the overall best interests of the system."

The new procedures had the effect of eliminating some property previously permitted, placing limitations on some of the property allowed, standardizing property containers, and limiting the total amount of property allowed. Under the new procedure, inmates may possess only as much personal and state-issued property as would fit in a box no larger than 32" × 16" × 16". Internal Management Procedure # 1 concerned the amount of personal property allowed; # 4 concerned the possession of printed material. The new procedures became effective on June 1, 1992, for all inmates entering penal institutions on or after that date. Inmates in the custody of the Department of Adult Institutions before June 1, 1992, were permitted to retain property forbidden under the procedures but already in their possession until June 1, 1993, or until transfer to another institution, whichever occurred first. This "grandfathering" policy was set out in Internal Management Procedure # 28. Property disallowed under the revised procedures could be sent out of the institution by mail or with visitors. In addition to the Internal Management Procedures, inmates are required to comply with the property rules of individual institutions.

Under the new procedure, fans may not have metal blades or safety guards. Plaintiff's fan had metal blades or safety guards. It was disposed of on February 13, 1993.

On April 13, 1993, plaintiff was transferred from the Green Bay Correctional Institution to the Oshkosh Correctional Institution. Some of plaintiff's property did not conform to the property rules of the institution or to the Internal Management Procedures. Plaintiff's tennis shoes and towels were in excess of the number allowed under Oshkosh's property rules and the belt plaintiff had with him was not permitted under the institution's property rules because it was not issued by the institution. Plaintiff had in his possession more than the twenty-five publications permitted under the procedures. Plaintiff's crucifix was not permitted. In addition, plaintiff was not permitted to keep three-ring binders, an extension cord, and two television antennas. Plaintiff chose to ship his non-conforming personal property out of the institution by mail.

All inmates at Oshkosh Correctional Institution are provided with an opportunity to participate in regularly scheduled religious services. Inmates may also attend religion classes and may obtain individual religious counseling upon request. There is a crucifix on the wall of the Oshkosh's chaplain's office and one in the Oshkosh chapel. Inmates are permitted to possess a rosary provided by the chapel. The rosary has a small crucifix attached to it.

OPINION

A. First Amendment Religious Rights

Incarcerated inmates retain protections afforded by the First Amendment, including the directive that no law shall prohibit the free exercise of religion. However, these rights are limited by the fact of incarceration and by valid penological objectives, such as rehabilitation, deterrence and security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987).

Plaintiff contends that the Internal Management Procedure prohibiting inmates from possessing crucifixes violates his First Amendment right to the free exercise of religion. The identity of plaintiff's religion has not been proposed as a fact by either plaintiff or defendant Landwehr. However, it is apparent from the briefs that defendant believes plaintiff to be a Catholic and that plaintiff considers himself a non-Catholic Christian. In any event, although plaintiff states in his brief that he derives great spiritual value from crucifixes, he has failed to put forward any facts demonstrating that the personal possession of a crucifix not attached to a rosary is essential to the exercise of his religion. Accordingly, I will grant summary judgment to defendant Landwehr on plaintiff's claim that his First Amendment rights were violated because he was not permitted to retain his crucifix under the Internal Management Procedure.

B. Due Process

Plaintiff claims that he was deprived of his property without due process of law when he was forced to ship items out of Oshkosh Correctional Institution and when his fan was destroyed at Green Bay Correctional Institution pursuant to the new Internal Management Procedures. Although plaintiff contends that his fan was disposed of on February 15, 1993, pursuant to the new policy, the facts show that inmates in the system before June 1, 1992, could retain that property then in their possession but not permitted under the new policy until June 1, 1993, or until they were transferred. Plaintiff was not transferred until April 1993. Furthermore, the policy does not mandate that disallowed property be destroyed; it may be sent out of the institution. Plaintiff has not shown that the fan was destroyed because of the operation of the Internal Management Procedures. Therefore, his action for a declaratory judgment that the procedures are unconstitutional under the due process clause rests solely on the forced shipment of items out of Oshkosh Correctional Institution after his transfer.

To succeed on his claim that the Internal Management Procedures' limitations on the personal property plaintiff is allowed to possess violate his right to procedural due process, plaintiff must show first that he has a "legitimate claim of entitlement" to the property. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) ("to have a property interest ... a person clearly must have more than an abstract need or desire"); Scott v. Village of Kewaskum, 786 F.2d 338, 339 (7th Cir.1986). The Court of Appeals for the Seventh Circuit defines a property right as that which is "securely and durably yours under ... law, as distinct from what you hold subject to so many conditions as to make your interest meager, transitory or uncertain." Long Grove Country Club Estates, Inc. v. Village of Long Grove, 693 F.Supp. 640, 653 (N.D.Ill. 1988) (quoting Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th...