Lindell v. Casperson, 02-C-473-C.

• Decision Date: 16 March 2005
• Docket Number: No. 02-C-473-C.,02-C-473-C.
• Citation: 360 F.Supp.2d 932
• Parties: Nathaniel Allen LINDELL, Plaintiff, v. Steven CASPERSON, Matthew Frank, Jon E. Litscher, Laura Wood, Gerald Berge, Peter Huibregtse, Gary Boughton, Vicki Sebastian, Cpt. Timothy Haines, Linda Hoddy, Cindy O'Donnell, Lt. Gardiner, Julie Biggar, Sgt. Hanke, Todd Overbo, Sandra Grondin, JoAnne Goviere (Jane Doe), Mike Vanderloh, Ron Koplitz, Ellen Ray, Gary McCaughtry, Marc Clements, Debra Tetzlaff, Cpt. Steve Schueler, C.O. Watson, Chaplain Francis, Byron Bartow, Kathleen Bellaire, and Steve Spanbauer, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

Page 932

360 F.Supp.2d 932

Nathaniel Allen LINDELL, Plaintiff, v. Steven CASPERSON, Matthew Frank, Jon E. Litscher, Laura Wood, Gerald Berge, Peter Huibregtse, Gary Boughton, Vicki Sebastian, Cpt. Timothy Haines, Linda Hoddy, Cindy O'Donnell, Lt. Gardiner, Julie Biggar, Sgt. Hanke, Todd Overbo, Sandra Grondin, JoAnne Goviere (Jane Doe), Mike Vanderloh, Ron Koplitz, Ellen Ray, Gary McCaughtry, Marc Clements, Debra Tetzlaff, Cpt. Steve Schueler, C.O. Watson, Chaplain Francis, Byron Bartow, Kathleen Bellaire, and Steve Spanbauer, Defendants.

No. 02-C-473-C.

United States District Court, W.D. Wisconsin.

March 16, 2005.

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COPYRIGHT MATERIAL OMITTED

Nathaniel Lindell, pro se.

John J. Glinski, Assistant Attorney General, Madison, WI, for Defendants.

OPINION AND ORDER

CRABB, District Judge.

In this civil action for declaratory, injunctive and monetary relief, plaintiff Nathaniel Allen Lindell alleges that defendants Casperson, Frank, Litscher, Wood, Berge, Huibregtse, Boughton, Sebastian, Haines, Hoddy, O'Donnell, Gardiner, Biggar, Hanke, Overbo, Grondin, Goviere, Vanderloh, Koplitz, Ray, McCaughtry, Clements, Tetzlaff, Schueler, Gransell (f/k/a Watson), Francis, Bartow, Bellaire and Spandbauer violated his rights under the First and Fourteenth Amendments as well as under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5. Jurisdiction is present. 28 U.S.C. § 1331.

In an order dated May 26, 2004, I allowed plaintiff to proceed on the following claims:

1) Defendant Biggar sought permission to force plaintiff out of his cell in retaliation for trying to sue her in Case No. 02-C-21-C;

2) Defendant Gransell wrote a false conduct report in retaliation for plaintiff threatening to file a complaint about making him leave Wicca services early and because she disapproved of plaintiff's religion, in violation of plaintiff's equal protection rights;

3) Defendants Hanke and Gardiner demoted plaintiff to level two at the Wisconsin Secure Program Facility in retaliation for his appealing conduct report # 1337893;

4) Defendant Goviere falsely accused plaintiff of throwing trash at her in retaliation for his complaining to defendant Haines about defendant Goviere's sexual harassment of him, leading to his demotion from level two from level three;

5) Defendants Bartow and Casperson prohibited plaintiff from acquiring texts and publications related to his religion, such as "The Masks of Odin," "The Rights of Odin," "Temple of Wotan," and "Creed of Iron" in violation of plaintiff's rights under the free exercise clause and the Religious Land Use and Institutionalized Persons Act;

6) Defendants Bartow, Berge, Sebastian, Overbo, Wood, Litscher and Casperson denied plaintiff's requests to practice Wotanism as a group in violation of plaintiff's rights under the free exercise clause and the Religious Land Use and Institutionalized Persons Act;

7) Defendants Berge, Litscher, Matthew Frank, Bartow and Cindy O'Donnell prohibited plaintiff from sharing order forms from Wotansvolk or other letters with inmates about the group practice of Wotanism in violation of plaintiff's rights under the free exercise clause and the Religious Land Use and Institutionalized Persons Act;

8) Defendants Berge, Litscher, Frank, Peter Huibregtse and O'Donnell prevented plaintiff from possessing various ritual and ceremonial items for religious purposes in violation of plaintiff's rights under the free exercise clause and the Religious Land Use and Institutionalized Persons Act;

9) Defendant Overbo, Huibregtse, O'Donnell and Frank prevented plaintiff from ordering ceremonial items from the Orlog Press (such as holy day cards, ceremonial objects, spiral-bound publications and books) in violation of plaintiff's rights under the free exercise clause and the Religious Land Use and Institutionalized Persons Act;

10) Defendant McCaughtry prevented plaintiff from possessing any personal books and magazines except a Bible or Koran while in the Health and Segregation Complex at Waupun Correctional Institution in violation of plaintiff's rights under the free exercise clause and the Religious Land Use and Institutionalized Persons Act;

11) Defendants Hoddy and Overbo are requiring plaintiff to take a "Bible Anger Management" program at the Wisconsin Secure Program Facility in violation of plaintiff's rights under the free exercise clause and the Religious Land Use and Institutionalized Persons Act;

12) Defendants Berge, Sebastian, Huibregtse, Overbo and Wood are preventing plaintiff from eating foods in accordance with his religious beliefs in violation of plaintiff's rights under the free exercise clause and the Religious Land Use and Institutionalized Persons Act;

13) Defendants Casperson, Berge, Frank and O'Donnell are preventing plaintiff from possessing compact disc and audio tape players and recorders that would allow plaintiff to learn to speak languages essential to his religion in violation of plaintiff's rights under the Religious Land Use and Institutionalized Persons Act;

14) Defendants Grondin, Ray and O'Donnell violated plaintiff's free speech rights when they refused to deliver plaintiff's order form from Wotansvolk to another inmate at the Wisconsin Secure Program Facility;

15) Defendants Vonderloh and Spanbauer violated plaintiff's free speech rights when they refused to deliver his letters to inmates Sconce and Kittinger regarding a group complaint and not allowing the group practice of Wotanism at the Wisconsin Resource Center;

16) Defendants Overbo, Gary Boughton and Berge allow prisoners observing other religions to have rugs, caps, sweet grass and other property for their religions and to sell holiday cards for Christian and Jewish holidays but fail to provide plaintiff the same access to items for his religion, in violation of the equal protection clause of the Fourteenth Amendment;

17) Defendants McCaughtry, Clements, Litscher, Frank, Schueler, Tetzlaff, Francis, John Doe # 8 and Bellaire violated plaintiff's equal protection rights by providing inmates a Bible or Koran and refusing to provide plaintiff with his own religious texts;

18) Defendants Berge, Sebastian, Overbo, Wood and Huibregtse violated plaintiff's equal protection rights by not accommodating his religious dietary needs;

19) Defendants McCaughtry, Litscher and Frank prohibited plaintiff from possessing his religious texts while housed in the Health and Segregation Complex at Waupun Correctional Institution, while making a Bible, Koran and other Christian books available to other inmates, in violation of the establishment clause;

20) Defendants McCaughtry, Berge, Boughton, Frank and Litscher violated the establishment clause when they prohibited plaintiff from corresponding with others about his religion while permitting Christian, Jewish or Muslim inmates to communicate with others about their religions; and

21) defendants Overbo and Hoddy encourage the practice of Judeo-Christian religion while discouraging the practice of plaintiff's religion by offering a Bible Anger Management program at the Wisconsin Secure Program Facility, in violation of the establishment clause.

Presently before the court are defendants' motion for summary judgment, plaintiff's motion for partial summary judgment and plaintiff's motions to strike the affidavits of Thomas DuBois, Thomas Laliberte, Christine Althaus and Catherine Farrey. I will deny each of plaintiff's motions to strike. I did not consider any of the facts supported by DuBois's affidavit. Plaintiff did not dispute any of the proposed facts supported by the Laliberte and Althaus affidavits except one: that Temple of Wotan contains a narrative describing mead and the recipe for brewing it. Dfts.' PFOF, dkt. # 97, ¶ 621. However, plaintiff's response to the proposed fact does not put the fact into dispute; rather, plaintiff states that "[m]ost inmates know already how to brew wine, mead etc." Dfts.' Reply to Plt.'s Resp. to Dfts.' PFOF, dkt. # 165, ¶ 621, at 89. Similarly, plaintiff agreed with most of the facts that I considered from the Farrey affidavit. The ones that he does dispute, such as proposed facts # 437, 478, 483, 514-516, 573, 575 and 584, are facts of which Farrey has personal knowledge. Plaintiff's response fails to demonstrate how he has the personal knowledge to disagree with her statements. Each of the facts proposed in reliance on the Farrey affidavit relates to prison security and religious policies and experience in the prison setting. Farrey is competent to testify about these matters because of her experiences as a warden in various Department of Corrections institutions and as Deputy Director for the Division of Adult Institutions, her service on the Division of Adult Institutions Religious Practices Steering Committee and her continuing service as a consultant on religious issues for the Department of Corrections.

In deciding the parties' motions for summary judgment, I found a number of facts to be undisputed even though the opposing party attempted to put the proposed fact into dispute. For example, defendants proposed that all religious texts are obtained through donations from outside organizations. Dfts.' PFOF, dkt. # 97, ¶ 103. In response, plaintiff states that "WCI has in its free library a large assortment of Christian religious books." Dfts.' Reply to Plt.'s Resp. To Dfts.' PFOF, dkt. # 165, ¶ 103, at 15. This response does not put defendants' proposed fact into dispute. Similarly, plaintiff's responses to defendants' proposed facts # 217, 224, 297, 374, 379, 496, 514-517, 558, 559, 573, and 621 are insufficient to put them into dispute. In response to still other facts proposed by defendants, plaintiff cites his own affidavit to support his denial of the fact. However, plaintiff does not establish in his affidavit how he has personal knowledge of the matters to which he is attesting. For example, in proposed...