Schlemm v. Wall

• Decision Date: 21 April 2015
• Docket Number: No. 14–2604.,14–2604.
• Citation: 784 F.3d 362
• Parties: David A. SCHLEMM, Plaintiff–Appellant, v. Edward F. WALL, Secretary, Wisconsin Department of Corrections, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

784 F.3d 362

David A. SCHLEMM, Plaintiff–Appellant

v.Edward F. WALL, Secretary, Wisconsin Department of Corrections, et al., Defendants–Appellees.

No. 14–2604.

United States Court of Appeals, Seventh Circuit.

Submitted April 7, 2015.

Decided April 21, 2015.

David A. Schlemm, Green Bay, WI, pro se.

Maura Whelan, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendant–Appellee.

Before EASTERBROOK, WILLIAMS, and HAMILTON, Circuit Judges.

Opinion

EASTERBROOK, Circuit Judge.

David Schlemm, a member of the Navajo Tribe, has been imprisoned in Wisconsin since 1999. In this suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA or the Act), 42 U.S.C. §§ 2000cc to 2000cc–5, Schlemm seeks an order requiring the prison system to accommodate some of his religious practices. The district court dismissed some of his claims for failure to exhaust intra-prison remedies, see 2014 WL 2591879 at *7–10, 2014 U.S. Dist. LEXIS 78601 at *19–26 (W.D. Wis. June 10, 2014), and we affirm that aspect of the decision without any need to add to the district judge's analysis. Schlemm's arguments under the Constitution's First and Fifth Amendments (applied to the states by the Fourteenth) we bypass, because the Act provides greater protection. But Schlemm has solid arguments on the two statutory claims on which he exhausted all administrative remedies.

Each autumn members of the Navajo Tribe celebrate a Ghost Feast, part of a harvest celebration that honors the dead through dancing, praying, and eating traditional foods. Wisconsin concedes that this celebration is religious in nature, and the state does not contest Schlemm's contention that he sincerely believes that the “traditional foods” should include game meat (venison). The prison system nonetheless has rejected Schlemm's request for game meat or even ground beef to be included in Indian tacos (meat, shredded lettuce, tomatoes, and onions in frybread shells). Defendants rejected Schlemm's offer to secure a sealed platter of acceptable game meat from an outside vendor. The prison has told Schlemm to use stew from the regular cafeteria line—and this even though the prison system permits Jewish inmates to have outside vendors furnish sealed Seder platters for Passover and permits participants in monthly sweat lodge ceremonies to import packets of appropriate foods.

Defendants maintain that serving venison would be too expensive, would exceed the capacity of institutional kitchens (which unlike restaurants are not set up to serve individually selected meals), and would violate a statewide rule limiting prison foods to those inspected and certified by the United States Department of Agriculture. The prison system offers Kosher and Halal foods but does not allow any inmate to pick a particular menu (with the apparent exception of the Seder platters and sweat lodge packets).

The Act provides:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc–1(a). The district court granted summary judgment to the prison system, ruling that the absence of venison for the Ghost Feast does not impose a “substantial burden” on Schlemm's religious exercise. The court added that if this is wrong Schlemm still loses, because the state has a “compelling governmental interest” in holding down costs and using USDA-inspected meats, and that requiring Schlemm to eat whatever the kitchen is serving is the “least restrictive means” of furthering those interests. 2014 WL 2591879 at *11–13, 2014 U.S. Dist. LEXIS 78601 at *30–36.

Summary judgment requires the court to take all disputed material facts in the light most favorable to the party opposing the motion. Schlemm testified by deposition that game meat during the Ghost Feast is important to him as a religious matter; declarations from other practitioners of Navajo rites and traditions support that view. The district court thought this inadequate to establish that lack of venison imposes a substantial burden, as we defined that phrase in Eagle Cove Camp & Conference Center, Inc. v. Woodboro, 734 F.3d 673, 680 (7th Cir.2013) : to be substantial, a burden must be “one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable.” If that were the standard, then Schlemm would lose, for he still could dance and pray during the Ghost Feast. But two later decisions of the Supreme Court—Holt v. Hobbs, ––– U.S. ––––, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015), and Burwell v. Hobby Lobby Stores, Inc., ––– U.S. ––––, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) —articulate a standard much easier to satisfy.

Holt, a Muslim confined in a state prison, believes that he must wear a beard. Although he believes that his faith forbids any shaving or trimming of the beard, he acknowledged the prison's concern about hiding contraband in a long beard and proposed a compromise: a beard one-half-inch long. The prison rejected even that accommodation, but the Supreme Court held that the Act entitles Holt to have a short beard. It concluded among other things that Holt “easily satisfied” (135 S.Ct. at 862 ) the “substantial burden” requirement because shaving “seriously violates his religious beliefs” (ibid., quoting from Hobby Lobby ). The Court did not ask whether a requirement to be clean-shaven would make adherence to Islam “effectively impracticable”, the language of Eagle Cove. As the Court noted in Holt, the Act covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc–5(7)(A). Eagle Cove effectively limits the Act to those beliefs or practices that are “central” to religious beliefs; its approach did not survive Hobby Lobby and Holt.

The Supreme Court's formulation leaves a lot of uncertainty. How is a court to tell whether a given restriction “seriously” violates or contradicts religious beliefs?

What, indeed, does “seriously” mean?—more than “modestly” and less than “overwhelmingly,” but there's a lot of space in that range. Schlemm says that inability to eat game meat at the Ghost Feast has a serious effect, and the record is not so lopsided as to permit that contention's rejection on summary judgment. That Schlemm proposed a compromise (ground beef) does not scuttle his claim, any more than Holt's proposed compromise (a short beard) did.

The parties have not joined issue on how to distinguish “serious” from other effects. For now it is enough to say that the district court erred by rejecting Schlemm's position on this paper record. Only two other courts of appeals have addressed the question whether denying access to “traditional foods” for a religious celebration imposes a substantial burden on religion. Both reached the same conclusion we do: the prison system is not entitled to summary judgment. Haight v. Thompson, 763 F.3d 554, 564–67 (6th Cir.2014) ; Abdulhaseeb v. Calbone, 600 F.3d 1301, 1319–20 (10th Cir.2010).

The district court's fallback holding that the state has a “compelling” interest in the “least restrictive” way to resolve a request for...