Lagar v. Tegels

• Decision Date: 20 March 2015
• Docket Number: No. 13–cv–251–wmc.,13–cv–251–wmc.
• Citation: 94 F.Supp.3d 998
• Court: U.S. District Court — Western District of Wisconsin
• Parties: Humberto LAGAR, Plaintiff, v. Lizzie A. TEGELS, Myron Olson and S. Barton, Defendants.

94 F.Supp.3d 998

Humberto LAGAR, Plaintiff

v.Lizzie A. TEGELS, Myron Olson and S. Barton, Defendants.

No. 13–cv–251–wmc.

United States District Court, W.D. Wisconsin.

Signed March 20, 2015.

Humberto Lagar, Black River Falls, WI, pro se.

Jody J. Schmelzer, Madison, WI, for Defendants.

OPINION & ORDER

WILLIAM M. CONLEY, District Judge.

Plaintiff Humberto Lagar alleges that the defendants—the warden, program manager and chaplain of Jackson Correctional Institution (“JCI”)—have all impinged on his religious freedom by denying him the right to wear a Rosicrucian emblem in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc. Lagar also seeks a preliminary injunction directing defendants to allow him to wear the emblem. (Dkt. # 17.) In turn, defendants have moved for summary judgment on Lagar's claims. (Dkt. # 23.) For the reasons discussed below, the court will now grant that motion in its entirety.

UNDISPUTED FACTS

I. The Parties

Since September 7, 1995, plaintiff Humberto Lagar has been incarcerated in various institutions by the Wisconsin Department of Corrections (“DOC”). Relevant to his RLUIPA claims here, Lagar has been at JCI, a medium-security institution that houses approximately 1,000 inmates, since May 12, 2009.

Lagar is a confirmed Rosicrucian Student. The parties dispute whether Lagar is also a gang member. Lagar avers he is not, and points out that he has never received a conduct report for gang activity, nor does he have any marks or tattoos displaying any gang symbols. Defendants point out that Lagar's DOC–120 “face card” indicates affiliation with a “Security Threat Group” via the “Red G” symbol in the “Security Restrictions” box, and that Lagar has been identified in the Wisconsin Integrated Corrections System database since April 17, 1992 as being affiliated with the Latin Kings. Lagar asserts that these DOC classifications are erroneous.

Defendant Lizzie Tegels is currently the Warden at JCI, a position she has held since December 2, 2012. Defendant Myron Olson has been a Chaplain at JCI since October 7, 2001. Defendant Scott Barton has been the Corrections Program Supervisor at JCI since February 28, 2011, but he has never been a member of the DOC's Religious Practices Advisory Committee, which is discussed further below.

II. DOC Policy and Practice Surrounding Religion and Religious Emblems

A. General Policies and Umbrella Religion Groups

DOC policy states that incarcerated inmates will have opportunities to pursue lawful practices of the religion of their choice, provided those practices are consistent with security practices and principles, rehabilitative goals, health and safety, allocation of limited resources, and the responsibilities and needs of the correctional institution and facilities. For instance, inmates may generally exercise their religious beliefs and practices through: (1) congregate services; (2) religious diet requests; (3) individual study; (4) personal meditation; (5) use of religious books and property; (6) celebration of religious feasts; (7) individual religious observance in their living quarters; (8) correspondence with fellow believers; (9) pastoral visits; and (10) requests to abstain from work or program on days that call for religious observance.

The DOC has also implemented specific policies to ensure that incarcerated offenders have uniform opportunities to pursue lawful practices of the religion of their choice, including Division of Adult Institutions (“DAI”) Policy 309.06.01. That policy establishes the concept of “umbrella religion groups”—inclusive groups designed to appeal to a wide range of religious beliefs within a given faith community. As defined by DAI Policy 309.61.02, umbrella religion groups include Catholic, Eastern Religions, Islam, Jewish, Native American, Pagan and Protestant. The parties dispute whether inmates can also designate their religious preferences under the umbrella religious group “Humanist/Atheist/Agnostic.”

To participate in the religious services or study groups associated with any of the designated umbrella religion groups under DAI Policy 309.06.01, an inmate must complete a DOC–1090 “Religious Preference” form, designating a religion within an umbrella group as his preference. Inmates may also check the box marked “Other” or “No preference” if they choose. An inmate may change his recorded religious preference once every six months via the DOC–1090.

B. Religious Property Policies

All DOC inmates may obtain and possess personal property, although what constitutes “permissible property” varies from institution to institution depending on its specific safety considerations and treatment programs. An inmate's personal property may include religious personal property, such as religious emblems, headwear, prayer beads, rugs or mats, musical instruments, traditional dress, oils, books, publications and symbolic food or drink. The DOC permits inmates to possess any approved religious property associated with his or her designated religious preference, unless the item presents a threat to the order and safety of the institution. In service of the latter consideration, all DOC correctional institutions are required to monitor and control authorized property in an inmate's possession, including religious property. The DOC also (1) limits the total amount of inmate property allowed; (2) limits the sources and vendors for the acquisition of property; and (3) makes property items more uniform, again to promote its goal of safe, secure prison environments.

Given the hundreds of different religions practiced by Wisconsin inmates, the number of potential religious property items is large, and so DAI Policy 309.61.02 “Religious Property” serves as a guideline for correctional institutions, to ensure inmates have access to religious items as personal property and/or during approved umbrella religious group use. In particular, DAI Policy 309.61.02 is a department-wide procedure applicable to all DOC adult correctional institutions, although each institution has authority to apply it consistent with its own specific security risks and concerns. The policy includes an attachment entitled “Religious Property Chart,” which specifies the property permitted for a particular Umbrella Religion Group and a description of the item. All religious property items must comply with the restrictions set forth in that chart.

Unsurprisingly, a specific consideration underlying the restrictions in the Religious Property Chart is institutional security—and even more specifically, preserving security by preventing gang activity. Gangs threaten institution security both because of the potential for gang violence and because gangs undermine prison authority. Indeed, gangs pose a significant, specific threat to correctional officers and other security staff members, and their presence is detrimental generally to inmates, whose sense of security, safety and ability to concentrate on rehabilitation programs may all be affected. Even gang members themselves are physically endangered by the presence of rival gangs, or rivalries within a gang, and their chances of rehabilitation are compromised because gangs tend toward antisocial behavior and criminal activity. Because an institution's ability to manage gang activity will generally reduce the number of violent incidents in prison, it is considered imperative to maintaining a safe and secure environment for staff, inmates, visitors and the community alike.

In service of this goal, the institution prohibits inmates from wearing or displaying symbols that may indicate association, or at least affiliation, with a gang. Perhaps trying to take advantage of protections under the First Amendment, gangs have a history of co-opting religious symbols in order to organize themselves and incite violence in prison. Gangs may similarly seek legitimacy (or apparent legitimacy) by affiliating themselves with particular religious groups. Certainly, in the DOC's view, allowing inmates to select unique emblems invites gangs to request and adopt the same emblem(s) under the guise of religious exercise, which is why requests for religious emblems must be confirmed as “religious” in nature and must use symbols that the designated religion generally recognizes as having significance.

Given this background, the parties agree that the DOC has a compelling interest in limiting the variety of symbols inmates may possess and in precluding inmates from displaying religious or secular property that identifies them with a gang or gangs. The parties also agree that the DOC has insufficient staffing resources to review individual symbol requests from individual inmates to assess their security risks on a rolling basis.

Even so, not all symbols with gang connotations are prohibited. In fact, the DOC specifically permits certain emblems that have, in the past, been employed by gangs as identifiers, including (1) a six-pointed star for those of the Jewish umbrella religion group; (2) a five-pointed star (“pentagram”) for those of the Pagan umbrella religion group; and (3) a crucifix or cross for those of the Catholic and Protestant umbrella religion groups. However, the DOC prescribes the characteristics of permitted symbols in light of their history. For instance, the approved Pagan pentagram consists of an upright five-pointed star with a circle around it, because gang members typically use unenclosed pentagrams. Likewise, equal-armed crosses are one of the most popular symbols for neo-Nazi and white supremacist groups, so DOC prohibits crosses and crucifixes with arms of equal length.

C. Religious Practices Advisory Committee

The DOC created the Religious Practices Advisory Committee (“RPAC”) to review inmate religious issues that arise within the DOC; consult with DOC staff and volunteers, members of community religious groups and the Wisconsin Department of Justice on religious issues; apply, review and...