West v. Radtke

• Decision Date: 16 September 2022
• Docket Number: 20-1570
• Citation: 48 F.4th 836
• Parties: Rufus WEST, Plaintiff-Appellant, v. Dylon RADTKE, Warden, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

48 F.4th 836

Rufus WEST, Plaintiff-Appellant,
v.
Dylon RADTKE, Warden,^* et al., Defendants-Appellees.

No. 20-1570

United States Court of Appeals, Seventh Circuit.

Argued September 22, 2021
Decided September 16, 2022

Nicholas A. Gowen, Attorney, Burke, Warren, MacKay & Serritella, P.C., Chicago, IL, for Plaintiff-Appellant.

Brian Patrick Keenan, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

John A. Knight, American Civil Liberties Union Foundation, Chicago, IL, for Amici Curiae American Civil Liberties Union Foundation and American Civil Liberties Union of Wisconsin.

Before Sykes, Chief Judge, and Flaum and Brennan, Circuit Judges.

Sykes, Chief Judge.

48 F.4th 840

Rufus West is confined at Wisconsin's Green Bay Correctional Institution where he must undergo strip searches by prison staff on regular occasions—namely, when he leaves and reenters the prison, during lockdowns, before and after visits from outsiders and certain other movements within the facility, and whenever directed by a prison supervisor. Under prison policy two guards participate in every strip search, one who directly performs it and another who observes to ensure that it is performed properly.

West is a Muslim. Strip searches by prison guards of the opposite sex violate the moral tenets of his faith, which prohibit him from exposing his body to a woman who is not his wife. In July 2016 he was required to submit to a strip search by a guard who is a transgender man—a woman who identifies as a man. West objected on religious grounds but was refused an accommodation, and the transgender guard participated in the strip search as the observing officer. After this incident, West requested an exemption from future cross-sex strip searches. The warden denied the request and told West that he would be disciplined if he objects again.

West responded with this lawsuit against the warden and various corrections officials. He chiefly seeks an injunction against cross-sex strip searches under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq. , which prohibits a prison from substantially burdening an inmate's religious exercise unless doing so is the least restrictive means to further a compelling governmental interest. Separately, he asserts a violation of his Fourth Amendment right to be free from unreasonable searches.

The district court dismissed the constitutional claim based on circuit precedent holding that a prisoner has no Fourth Amendment interest against visual inspections of his body. West asks us to reverse this ruling based on Henry v. Hulett , 969 F.3d 769 (7th Cir. 2020) (en banc), which overruled that precedent.

The RLUIPA claim failed on cross-motions for summary judgment. The judge concluded that West had not shown a substantial burden on his religious exercise because he was subjected to only one cross-sex strip search and it's not clear when others will occur. The judge also determined that cross-sex strip searches are permissible in any event as the prison's only means to avoid unlawfully discriminating against its transgender employees.

We reverse. Henry revives the Fourth Amendment claim. And West is entitled to judgment in his favor on the RLUIPA claim. There's no dispute that his objection to cross-sex strip searches is both religious in nature and sincere. The prison has substantially burdened his religious exercise by requiring him to either submit to cross-sex strip searches in violation of his faith or face discipline. The burden is unjustified under RLUIPA's strict-scrutiny standard: accommodating West's request for an exemption from cross-sex strip searches will not violate the antidiscrimination rights of transgender prison employees under Title VII of the Civil Rights Act of 1964 or the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we remand for entry of appropriate injunctive relief on the RLUIPA claim and further proceedings on the Fourth Amendment claim.

I. Background

West is serving a lengthy prison term imposed by a Wisconsin court and is confined in the state prison in Green Bay. the prison six months earlier, is a transgender man—a woman who identifies as a manAccording

48 F.4th 841

to his Islamic beliefs, he is forbidden to expose his naked body to anyone but his wife. This precept compels him to shield the area between his naval and knees from others, especially from those of the opposite sex. Knowingly violating the nudity prohibition will condemn him in the afterlife, with greater condemnation resulting from cross-sex violations of the taboo.

As a prisoner West is occasionally subjected to strip searches of his naked body. He submits to these searches because he understands their role in prison administration and because Islam compels him to avoid unnecessary conflict. But he draws a line between strip searches conducted by male guards and those conducted by female guards. Exposing his naked body to a woman who is not his wife is the more serious violation of his faith, so he objects on religious grounds to being strip-searched by female prison employees.

The Green Bay Correctional Institution, like other state prisons, conducts inmate strip searches pursuant to policies promulgated by the Wisconsin Department of Corrections. The Department defines a strip search as "the examination of [an] inmate's clothing and body and a visual inspection of his or her body, so as to permit a visual inspection of the person's breasts, buttocks or genitalia." Wis. Div. of Adult Insts. Policy # 306.17.02 p.2 (Mar. 26, 2015). Strip searches are conducted in several circumstances, including when an inmate leaves or enters the prison, before certain movements within the prison, before and after visits with those outside the prison, during periodic lockdowns, or at any time as directed by a prison supervisor. Id. # 306.17.02(III)(D).

The policy explains how strip searches are conducted. Two staff members are required: one prison guard "directly observ[es]" the inmate being searched while a second guard "observes the first [guard]" to ensure that the search is properly conducted. Id. # 306.17.02(III)(E). Both guards "shall be in close proximity to the inmate." Id. # 306.17.02(III)(E)(b).

The policy specifically prohibits "cross gender" strip searches "except in exigent circumstances." Id. # 306.17.02(III)(A). This rule follows a regulation promulgated by the federal Department of Justice pursuant to the Prison Rape Elimination Act of 2003 ("PREA"), 34 U.S.C. §§ 30301 et seq. , under which "cross-gender" strip searches are prohibited "except in exigent circumstances or when performed by medical practitioners." 28 C.F.R. § 115.15(a). The term "gender" is not specifically defined; neither the prison policy nor the federal regulation specifies whether the term is synonymous with "sex"—that is, biologically male or female. See, e.g., Sex , BLACK ' S LAW DICTIONARY (11th ed. 2019) ("The sum of the peculiarities of structure and function that distinguish a male from a female organism; gender."); Gender , GARNER ' S MODERN ENGLISH USAGE (4th ed. 2016) (describing the interchangeability of and possible distinctions between "sex" and "gender").

Nor does the DOJ's guidance provide a definition. The guidance is vague and suggests only that a transgender guard's "gender" for purposes of PREA should be determined with reference to applicable legal authorities. Absent such authorities, the DOJ recommends that the guard's gender should be an "individualized determination" made "not solely on the basis of the [guard's] biological gender." Frequently asked questions , NATIONAL PREA RESOURCE CENTER (Apr. 23, 2014), https://www.prearesourcecenter.org/node/3261.

The incident sparking this lawsuit occurred in July 2016. West was visited by a friend from outside the prison, and after the visit he was approached by Corrections Officer Isaac Buhle for a routine postvisit strip search. Buhle, who began working at

48 F.4th 842

the prison six months earlier, is a transgender man—a woman who identifies as a man—and was assigned the duties of a male guard.

West objected on religious grounds to being strip-searched by Buhle. He asked if other nearby guards, all biological males, could instead perform the search. One agreed to do so, but Buhle still participated in the search in the role of the observing officer. West says that Buhle saw him naked from the observation position. Prison officials respond that the setup of the room where the search occurred should have prevented this. As they describe the room, an inmate to be strip-searched enters one of several three-sided stalls, each equipped with a "courtesy curtain" to provide privacy from those not participating in the search; the guard directly performing the search stands at the opening while the guard in the observation role stands at an angle to the opening. Still, West's claim that his body was exposed to Buhle during the search remains uncontradicted. He is the only person who recalls the search. Buhle has no recollection of the incident.

After the strip search, West filed a complaint with prison officials and requested an exemption from cross-sex strip searches. The warden denied the request in writing, stating: "[T]he officer in question is a male and is qualified to complete these duties. If in the future you are directed to submit to a strip search by this individual or any other male staff member[,] it is my expectation that you will comply." The security director responded separately, writing: "[T]his person is a male[,] and any further issues on this will result in discipline for you." West then filed a complaint with the Department of Corrections, but this request, and his subsequent appeal, were denied.

West then filed suit against the warden, the security director, Buhle, and several other prison officials; we refer to the defendants collectively as "the prison." His pro se...