Trainauskas v. Fralicker et al

Filing 132

ORDER granting in part and denying in part 125 Motion for Summary Judgment. The Motion is GRANTED as to Counts 1, 2, and 3 but is DENIED as to Count 4 against Lashbrook. Accordingly, the claims against Brookman, Fralicker, and McCarthy are DISMISS ED with prejudice. The Clerk shall terminate them as defendants and enter judgment in their favor at the conclusion of the entire action. The Clerk is directed to correct the docket in accordance with this Order. This action will proceed on Count 4 against Defendant Lashbrook. Signed by Judge Stephen P. McGlynn on 3/29/2021. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN TRAINAUSKAS,
#Y10061,
Plaintiff,

Case No. 18-cv-00193-SPM

v.
BARTON FRALICKER,
NATHAN MCCARTHY,
KENT BROOKMAN, 1 and
JACQUELINE LASHBROOK,
Defendants.

MEMORANDUM AND ORDER
MCGLYNN, District Judge:
Pending before the Court is a Motion for Summary Judgment (Doc. 125) filed by
Defendants Fralicker, Brookman, McCarthy, and Lashbrook. For the reasons set forth below, the
motion is granted in part and denied in part.
BACKGROUND
Trainauskas, an inmate of the Illinois Department of Corrections (“IDOC”) currently
housed at Pontiac Correctional Center, commenced this civil action by filing a pro se Complaint
pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Trainauskas claims
that in 2017, while housed at Menard Correctional Center (“Menard”), he received two
unsubstantiated disciplinary tickets for the mailing of letters that discussed matters pertaining to
the religious organization, the Guardians of Othala Kindred. Following a disciplinary hearing

The Clerk of Court is directed to correct the docket to reflect the proper names of the following Defendants as listed
in the Motion for Summary Judgment (Doc. 125): Barton Fralicker (“Barton J. Fralicker”), Nathan McCarthy (“C/O
McCarthy”), and Kent Brookman (“Kent E. Brookman”).

1

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before the Adjustment Committee, he received excessive sanctions and was held in
unconstitutional conditions. The charges were eventually expunged by the Administrative Review
Board. After filing an Amended Complaint, Trainauskas is proceeding with the following claims:
Count 1:

Fourteenth Amendment claim for deprivation of a liberty interest
without due process against Brookman for punishing Trainauskas
with segregation following his March 7, 2017 disciplinary hearing.

Count 2:

Claim for violating the Free Exercise Clause of the First
Amendment and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) (42 U.S.C. § 2000cc-1(a)) against
Fralicker, Brookman, McCarthy, and Lashbrook, based on the
disciplinary tickets Trainauskas received on February 28, 2017 and
March 2, 2017 and associated sanctions.

Count 3:

Fourteenth Amendment claim for deprivation of a liberty interest
without due process against Fralicker and McCarthy for writing
unsubstantiated disciplinary tickets.

Count 4:

Eighth Amendment conditions of confinement claim against
Lashbrook for the conditions Trainauskas endured while in
disciplinary segregation.

(Docs. 28, 29). On June 26, 2020, Defendants filed a Motion for Summary Judgment. Trainauskas
filed a Response in Opposition. (Doc. 130).
RELEVANT FACTS
Trainauskas practices the Asatru religion, also known as Odinism. (Doc. 29, p. 2; Doc. 126,
p. 3; Doc. 126-1, p. 4). 2 In 2013, he and two other individuals founded the Odinist kindred, the
Guardians of Othala Kindred (“the Guardians”), which is a religious community of Odinists
formed to promote the Asatru faith. (Doc. 126, p. 3; Doc. 126-1, pp. 4, 9; Doc. 130, pp. 11, 40).

In his deposition, Trainauskas describes Odinism and Asatru as separate religions. (Doc. 126-1, p. 4). He stated,
“Asatru is actually is own religion. Asatru believes in the worship of numerous Gods. Odinism believes in the same
pantheon which comes from the Norse and Celtic pantheon, but we believe Odin to be the highest God.” Id. Regarding
Odinism/Asatru, the IDOC Chaplaincy Handbook provides the following: “Today, most people use the names Asatru
and Odinism interchangeably; however, some adherent of Asatru would say that the term Odinism places undue
emphasis on only one of the Gods and is therefore too narrow a characterization of the religion.” (Doc. 130, p. 132).

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Trainauskas is also the author of the book Odin’s Chosen: A Handbook of Ásatrú, a book of Blótar3
containing “extensive, comprehensive, and essential aspects of [Asatru] religious practice.” (Doc.
126, p. 3; Doc. 126-1, p. 4; Doc. 130, pp. 11, 45-46). Odinism/Asatru is recognized as a religion
within IDOC. (Doc. 126, p. 3; Doc. 126-3, p. 2; Doc. 130, pp. 11, 132). However, IDOC considers
the Guardians a security threat group (“STG”), and, during the relevant times of this case, Odin’s
Chosen was on the IDOC banned publications list. (Doc. 126, p. 3-4; Doc. 126-4, p. 2). Trainauskas
asserts that he did not know that the Guardians were classified as an STG. (Doc. 130, pp. 12, 27,
53).
On February 28, 2017, Defendant McCarthy, a member of the Internal Affairs Unit at
Menard, intercepted an outgoing letter written by Trainauskas to a man named Dan Moreschi, in
Independence, Missouri. (Doc. 126, p. 4). In his declaration, McCarthy stated that the letter
pertained to charging members of the Guardians an “annual membership fee to cover postage cost
and the time to answer letters.” (Doc. 126, p. 4; Doc. 126-5, p. 1; Doc. 130, p. 12). In the letter,
Trainauskas asks Dan Moreschi, if they do charge a membership fee, whether they should charge
“$9, $12, ?/year[?]”. (Doc. 126-5, p. 2). According to Trainauskas, Dan Moreschi is another
member of the Guardians, and they were discussing ideas on how to recuperate postage fees
associated with the distribution of an Odinist newsletter. (Doc. 130, p. 12). Because of the letter,
McCarthy wrote a disciplinary ticket charging Trainauskas with the following offenses:
(1) Offense 205 – Security Threat Group of Unauthorized Organizational Activity;
(2) Offense 309 – Petitions, Postings and Business Ventures; and
(3) Offense 310 – Abuse of Privileges.
McCarthy served Trainauskas the ticket that same day, at 7:00 p.m., and Trainauskas refused to
sign the disciplinary ticket when it was served. (Doc. 126, p. 5; Doc. 130, p. 12). Whether

Trainauskas states that a book of Blótar “is a holy book which details the proper dates to conduct a Blót, as well as
the ‘calls’ to particular Gods or Goddess[es] in the old Norse language.” (Doc. 130, p. 46).

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Trainauskas requested for a witness to appear at the disciplinary hearing is disputed. (Doc. 126, p.
5; Doc. 130, p. 12). Trainauskas asserts that prior to the hearing he requested for a witness to be
present, Counselor Price, by filing out the witness request section at the bottom of the disciplinary
ticket and submitting the request. (Doc. 130, pp. 9, 33, 53).
On March 2, 2017, Defendant Fralicker, a correctional officer in the Intelligence Unit at
Robinson Correctional Center (“Robinson”), received an incoming letter that had been flagged by
Robinson mailroom staff for investigation. (Doc. 126, p. 5). The letter was addressed to an inmate
at Robinson from an individual named Faolchú Ifreann. The returned address listed was: Guardians
of Othala, PO BOX 216, Downers Grove, IL 60515. Fralicker searched an IDOC database and
discovered that “Faolchú Ifreann” is a documented alias of Trainauskas. (Id.). According to
Fralicker, upon further investigation, he discovered that Trainauskas had previously admitted to
running the Guardians through his common law wife using the Downers Grove address. (Doc.
126-4, p. 1-2). Trainauskas denies admitting to running the Guardians through his wife. (Doc. 130,
p. 53). He also denies writing the letter to the inmate at Robinson or using the Guardians to contact
or recruit other prisoners. (Id. at pp. 12-13, 51-52).
Fralicker wrote Trainauskas a disciplinary ticket charging Trainauskas with the same
disciplinary offenses as the previous ticket written by McCarthy. Trainauskas was served with the
ticket that night, March 2, 2017, at 6:28 p.m. (Doc. 126, p. 5). He again refused to sign the
disciplinary ticket. (Doc. 126, p. 5; Doc. 130, p. 12). Trainauskas did not request any witnesses to
appear at the disciplinary hearing by filing out the space at the bottom of the disciplinary ticket.
(Id.).
Both tickets were heard at the same time before the Adjustment Committee (“Committee”)
at Menard on March 7, 2017. (Doc. 126, p. 6; Doc. 126-1, p. 4; Doc. 130, p. 13). Defendant
Brookman was the Chairperson of the Committee and was present during the hearing. Trainauskas
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was given 24-hour notice of the ticket. (Doc. 126-1, p. 5). He provided a written statement to the
Committee and attended the hearing. (Id.). Trainauskas claims that at the hearing he again
requested for his witness, Counselor Price, to be interviewed, which was denied. (Doc. 130, p. 23).
Trainauskas also claims that Brookman stated that IDOC does not recognize Odinism as a religion4
and that he, Brookman, would need to consult with Chaplain Keim. (Doc. 126-1, p. 8; Doc. 130,
pp. 23, 53).
According to Brookman, Trainauskas did not ask for any witness testimony, as indicated
on the Final Summary Report. (Doc. 126-8, p. 1; Doc. 126-9, p. 3). He also claims that he discussed
the Guardians with Trainauskas at the hearing and told Trainauskas that he would speak to
Chaplain Keim. (Doc. 126-9, p. 2). Brookman recounts that Chaplain Keim informed him that,
“although Asatru is a recognized religion within IDOC, the Guardians of Othala is not.” (Id.).
Based upon the evidence contained in the disciplinary tickets, the Committee found
Trainauskas guilty of all offenses and recommended that he be disciplined with 1 year C grade
status, 1 year segregation, 1 year commissary restriction, and 6 months of no-contact visits. (Doc.
126, p. 6). Defendant Warden Lashbrook concurred with the findings of the Committee and
approved the recommended disciplinary sanctions. (Doc. 126, p. 6; Doc. 126-1, p. 6; Doc. 126-8).
Trainauskas was placed in disciplinary segregation on March 13, 2017. (Doc. 126, p. 7; Doc. 130,
p. 13).
Trainauskas was held in North 2, disciplinary segregation, from March 13, 2017, until July
11, 2017. (Doc. 126-1, p. 8; Doc. 126-2). 5 During a majority of this time, Trainauskas was housed

A couple of times in the Response, Trainauskas recounts that Brookman stated definitely that IDOC does not
recognize Odinism as a religion, but he also states that Brookman said more generally that he “did not recognize
Odinism and that he would have to contact Chaplain Keim on his stance.” (Doc. 130, pp. 9, 23, 53).
5
Defendants state in the Motion for Summary Judgment that Trainauskas was held in disciplinary segregation until
July 17, 2017. (Doc. 126, p. 7). Trainauskas testified, however, that he was released from disciplinary segregation on
July 11, 2017, and that he was placed in “East or West House” after segregation. (Doc. 126-1, p. 8). His testimony is
supported by the housing log, which indicates he was moved from North 2 Cell House to East Cell House on July 11,
4

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in a double occupancy cell that is smaller than the cells in general population. 6 (Doc. 29, p. 4). His
cell had a bunkbed, toilet, sink, and desk. He had a fabric mattress, which was stained with blood,
urine, feces, mace, and bodily fluids and was provided sheets and a blanket. (Doc. 130, p. 10; Doc.
126-1, p. 26). The amount of time he was afforded to leave his cell each week is disputed. (Id. at
p. 5; Doc. 126-1, p. 19). Trainauskas was served all three meals in his cell and denied access to the
law library, chapel, and contact visits. When the facility was not on lockdown, Trainauskas was
allowed to leave his cell up to twice a week to shower and twice a week for recreation periods.
(Doc. 126-1, p. 20). He also attended weekly mental health groups, one-on-one mental health
treatments, and medical visits. (Doc. 126, p. 9; Doc. 126-1, pp. 20, 23-24).
The temperature of the cells were Trainauskas was housed and the measures taken by staff
to mitigate the heat are also disputed. (Doc. 126, p. 8-9; Doc. 130, p. 13-14). Menard does not have
air conditioning and “can get extremely warm in the summer months.” (Doc. 126, p. 7).
Additionally, Trainauskas’s cell had a solid steel door, rather than open bars, making his cell even
warmer. (Doc. 126, p. 13; Doc. 126-1, p. 19; Doc. 130, p. 14). During warm months, Warden
Lashbrook stated that temperature logs were maintained throughout Menard, and the temperatures
were recorded multiple times each day. (Doc. 126, p. 8; Doc. 126-13, p. 3). According to
Lashbrook, when the heat index reached above 90 degrees, certain precautions were taken to
mitigate the heat such as passing out ice, allowing more frequent showers, and allowing offenders
to buy personal fans or request a personal fan on loan. (Id.). While Trainauskas was in North 2, he
and his cellmate both had individual fans in the cell. (Doc. 130, p. 13).
According to Defendants and not disputed by Trainauskas, due to a clerical error by the
acting secretary of the Committee, the Adjustment Committee Final Summary Report only listed

2017. (Doc. 126-2).
6
From March 13, 2017 until July 11, 2017, Trainauskas was housed in three different cells. (See Doc. 126-2).

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the ticket issued by Fralicker at the top of the page, rather than both tickets. (Doc. 126, p. 6-7; Doc.
130, p. 13). Under the “Basis of Decision” section of the Final Summary Report, the description
provided is from the ticket issued by McCarthy, and this section does not contain a description of
the ticket written by Fralicker. (Doc. 126, p. 6; Doc. 126-8, p. 1). On appeal, because of this clerical
error, the Administrative Review Board determined that the basis for the Committee’s decision
did not substantiate the ticket written by Fralicker. (Doc. 126, p. 7). The Administrative Review
Board recommended the disciplinary report be expunged. Trainauskas was released from
disciplinary segregation on July 11, 2017. (Doc. 126-1, p. 8; Doc. 126-2).
SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56 governs motions for summary judgment. “Summary
judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of law.’” Anderson v. Donahoe, 699
F.3d 989, 994 (7th Cir. 2012) (quoting FED. R. CIV. P. 56(a)). Accord Archdiocese of Milwaukee
v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014). A genuine issue of material fact remains “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord Bunn v. Khoury Enterpr., Inc., 753 F.3d
676, 681-82 (7th Cir. 2014).
In assessing a summary judgment motion, a district court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Donahoe, 699
F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). As the Seventh Circuit has
explained, as required by Rule 56(a), “we set forth the facts by examining the evidence in the light
reasonably most favorable to the non-moving party, giving [him] the benefit of reasonable,
favorable inferences and resolving conflicts in the evidence in [his] favor.” Spaine v. Cmty.
Contacts, Inc., 756 F.3d 542, 544 (7th Cir. 2014).
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ANALYSIS

I. Counts 1 and 3 Due Process
“The Due Process Clause of the Fourteenth Amendment applies only to deprivations of
life, liberty, and property.” Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017). When an inmate
raises a procedural due process claim based on disciplinary proceedings, the Court undertakes a
two-part analysis. Id. The Court first evaluates whether the prisoner was deprived of a protected
liberty interest, and then second, evaluates whether the process he was afforded was
constitutionally deficient. Id. (citing Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 673 (7th Cir.
2016)); accord Lisle v. Welborn, 933 F.3d 705, 720 (7th Cir. 2019) (citing Scruggs v. Jordan, 485
F.3d 934, 939 (7th Cir. 2007)).
Generally, prisoners “do not have a liberty interest in avoiding brief periods of segregation,
whether administrative or disciplinary.” Smith v. Akpore, 689 F. App’x 458, 460 (7th Cir. 2017).
See also Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013) (“an inmate’s liberty interest
in avoiding disciplinary segregation is limited”) (citing Marion v. Columbia Corr. Inst., 559 F.3d
693, 697 (7th Cir. 2009)). A protected liberty interest is triggered only when the segregation
“imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Lisle, 933 F.3d at 721 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). See also
Miller v. Dobier, 634 F.3d 412, 414–15 (7th Cir. 2011) (“Disciplinary measures that do not
substantially worsen the conditions of confinement of a lawfully confined person are not actionable
under the due process clause.”). In order to determine if a sentence of segregation amounts to an
atypical and significant hardship, the Court looks “to both the duration of the segregation and the
conditions endured.” Lisle, 933 F.3d at 721 (citing Marion, 559 F.3d at 697). The Court “‘must
take into consideration all of the circumstances of a prisoner’s confinement in order to ascertain
whether’ he has been deprived of liberty within the meaning of the due process clause.” Kervin v.
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Barnes, 787 F. 3d 833, 836 (7th Cir. 2015) (quoting Marion, 559 F. 3d at 699).
As to the duration, four months of segregation, “is not such an extreme term and, standing
alone, would not trigger due process rights.” Marion, 559 F. 3d at 698 (noting that six months in
segregation, without additional facts, did not trigger due process rights). See also Beamon v.
Pollard, 711 F. App’x 794, 765 (7th Cir. 2018) (holding that “135 days in segregation―absent
any atypical conditions related to confinement―does not violate the Fourteenth Amendment”).
Thus, the Court must address the facts alleged regarding conditions of confinement.
Defendants argue that the conditions complained of by Trainauskas, mainly the heat and
limited cell movement, are not unique to inmates held in segregation. (Doc. 126, p. 11-15).
Trainauskas contends that his living conditions in disciplinary segregation were unconstitutional
and extreme compared to general population and resulted in the deterioration of his physical and
mental health. (Doc. 130, p. 58-60). The key comparison when considering whether the conditions
are significantly harsher than those in the normal prison environment, however, “is between
disciplinary segregation and nondisciplinary segregation rather than between disciplinary
segregation and the general prison population.” Lekas v. Briley, 405 F. 3d 602, 609 (7th Cir. 2005)
(quoting Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997)). That is because “in every state’s
prison system, any member of the general prison population is subject, without remedy, to
assignment to administrative segregation or protective custody at the sole discretion of prison
officials. . . if for no other reason than to alleviate over-crowding concerns within the prison,” and
therefore, discretionary segregation is essentially an “ordinary incident of prison life.” Id.
Here, the deprivations Trainauskas alleges to have endured while in disciplinary
segregation are not so extreme as to implicate due process considerations. First, the loss of certain

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privileges, such as commissary, television, visitation, and library access 7 does not rise to the level
of a liberty interest that requires constitutional protections. See Thomas v. Ramos, 130 F. 3d 754,
762 n. 8 (7th Cir. 1997) (there is no protected liberty interest implicated in demotion to C-grade
status and loss of commissary privileges); Woody v. Zatecky, 594 F. App’x 311, 312 (7th Cir.
2015) (“courts have held that a loss of visitation privileges—including contact visits—is not an
atypical and significant hardship.”) (citations omitted); Lekas, 405 F. 3d at 610-11. Second,
Trainauskas has not presented any evidence supporting his contention that the conditions of
confinement he experienced are unique to disciplinary segregation. See Marion v. Radtke, 641 F.
3d 874, 876-77 (7th Cir. 2011) (“once the custodian contends that the difference between one cell
and another does not affect liberty, the prisoner must reply with evidence”).
On March 2, 2017, Trainauskas was moved to administrative segregation in North 2 Cell
House, gallery 4, and he was placed in disciplinary segregation on March 13, 2017. (Doc. 126, p.
6-7; Doc. 126-1, p. 7; Doc. 126-25; Doc. 130, p. 13). During his time in disciplinary segregation
he remained in North 2 Cell House and was held in cells located in both 4 gallery and 6 gallery.
(Doc. 126-1, p. 21; Doc. 126-2). Trainauskas alleges that while in disciplinary segregation he was
(1) double celled with another inmate in an exceptionally small cell with a steel door; (2) exposed
to excessive heat; and (3) usually kept in his cell for twenty-four hours at a time. (Doc. 126-1, p.
19; Doc. 130, p. 19).
Based on the record, however, the cells used to house Trainauskas in disciplinary
segregation do not significantly differ from the administrative segregation cells, where he was
housed prior to his disciplinary hearing. In fact, Trainauskas states that he was subjected to
The Court notes that Trainauskas has not alleged a denial of access to courts claim due to his lack of access to the
law library. (Doc. 29, p. 5). See Smith v. Shawnee Library Sys., 60 F. 3d 317, 323 (7th Cir. 1995) (stating that prisoners
are entitled to “meaningful” access to the courts, not “unfettered direct access to law libraries”). Furthermore, during
his deposition, he testified that when the facility is not on lockdown, the law library sends someone to the segregation
unit to pick up requests on a weekly basis. (Doc. 126-1, p. 22).

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disciplinary segregation conditions prior to his hearing, confirming that the conditions are the
same, and according to the record, the size of the cells in North 2 are all the same, 4’6” wide by
10’6” long by 8’2” high. (Doc. 130, pp. 19, 22, 72). Trainauskas testified that the segregation cells
at Menard “are tiny and they’re double celled,” and 4 and 6 galleries both have a mixture of cells
with solid steel doors and cells with open bars as doors. (Doc. 126-1, pp. 17, 21). While in general
population inmates had a plastic mattress and were given pillows, Trainauskas testified that all the
cells in segregation had fabric mattresses, many which were stained, and no pillows were provided.
(Id. at p. 26). His testimony did not distinguish between administrative and disciplinary
segregation cells.
As for the temperature of the cells, during the summer months of 2017, every inmate at
Menard experienced excessive heat, regardless of cell assignment. Menard does not have air
conditioning, and the facility, which is over one hundred year old, becomes extremely warm in the
summer months. (Doc. 126, p. 13; Doc. 126-1, p. 17). Trainauskas testified that “for some reason
in Menard it’s just unseasonably hot. It’s just really, really hot in Menard.” (Doc. 126-1, pp. 17,
19). Based on the temperature logs submitted by Defendants, North 2 was not always the hottest
cell house at Menard during the time period that Trainauskas was housed in segregation,
demonstrating that high temperatures were not unique to inmates kept in disciplinary segregation.
(Doc. 126-15). Additionally, he and his cellmate both had individual fans, and he testified that he
never had concerns regarding having enough water to drink. (Doc. 126-1, p. 26).
Regarding limited cell movement, Trainauskas left his cell twice a week for yard, once to
twice a week for showers, and once a week for mental health group, which lasted between one to
two hours. (Doc. 126-1, pp. 20, 24). He also left his cell on four to six occasions for appointments
with a mental health professional and would leave for appointments with a medical doctor. (Id. at
p. 24-25). When the facility was on a Level 1, 2, 3, or 4 lockdown, Trainauskas was confined to
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his cell for twenty-four hours at a time, except for weekly showers. (Id. at pp. 19, 22). During his
time in disciplinary segregation, Menard went on lockdown “approximately about a dozen times”
and “it was not uncommon for Menard to go on lockdown for two weeks to a month” at a time.
(Id. at p. 20).Trainauskas testified that when Menard was on Level 1 lockdown, all inmates were
prohibited from leaving their cells, but he did not provide any information regarding out-of-cell
movement for inmates housed in administrative segregation during Level 2, 3, or 4 lockdowns.
(Id. at p. 21).
Given that the conditions of disciplinary segregation appear to be “virtually
indistinguishable from conditions of discretionary segregation,” and the Seventh Circuit history
on atypical and unusually harsh conditions, 8 the Court finds that Trainauskas was not denied his
liberty when he was placed in disciplinary segregation. Lekas, 405 F. 3d at 613. See also Radtke,
641 F. 3d at 877 (“[w]hen a plaintiff fails to produce evidence, the defendant is entitled to
judgment”). And since due process was not required prior to moving Trainauskas from general
population to disciplinary segregation, he could not have suffered a constitutional deprivation
when he was issued unsubstantiated disciplinary tickets, prohibited from calling a witness at his
disciplinary hearing, and subsequently sanctioned. Therefore, summary judgment shall be granted
to Defendants as to Counts 1 and 3.

II. Count 2 Free Exercise/RLUIPA
Regarding Trainauskas’s religious claims, the Court first must address new allegations
See Singh v. Gegare, 651 F. App’x 551, 555 (7th Cir. 2016) (no liberty interest where inmate was in segregation for
105 days with access to the showers three times a week, recreation for three hours a week, and permitted to leave cell
for medical appointments, visits, and legal matters); Hardaway, 734 F. 3d at 744 (no liberty interest where inmate was
in segregation for six months and one day with a confrontational cellmate, faced psychological problems, and had
only weekly access to the shower and prison yard); Thomas v. Ramos, 130 F.3d at 754 (7th Cir. 1997) (finding no
liberty interest where inmate spent 70 days confined 24–hours per day in small cell with another inmate, no access to
prison work or educational programs, no access to the prison yard, day room, or gym, and no ability to leave cell
except for doctor visits and to see the segregation superintendent). See also Pearson v. Ramos, 237 F.3d 881, 884 (7th
Cir. 2001) (a denial of a prisoner’s yard privileges for not more than 90 days at a stretch is generally not cruel and
unusual punishment).
8

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regarding the denial of access to religious items and services while in segregation. In the Response
in Opposition to Defendant’s Motion for Summary Judgment, Trainauskas claims that while in
segregation he was prohibited from practicing his faith in any meaningful way. (Doc. 130, p. 13).
He was denied access to religious services and possession of religious items, such as Thor’s
Hammer Pendant, a rune set, books on runes, Odin’s Chosen or any other book of Blótar, and the
magazine Vor Trú. (Doc. 130, pp. 24, 26, 28, 31, 47, 58). Other than his allegations regarding the
confiscation of the Vor Trú magazine, which has been dismissed, 9 and denial of access to chapel,
which was asserted in support of his conditions of confinement claim, 10 these factual assertions
were not included in the Amended Complaint. Trainauskas’s First Amendment and RLUIPA claim
(Count 2) is proceeding against Fralicker, Brookman, McCarthy, and Lashbrook for “punishing
him for practicing Odinism” by writing him disciplinary tickets and implementing severe
sanctions. (Doc. 29, p. 13; see also Doc. 126-1, pp. 3, 4, 18; Doc. 130, p. 33). Although the Court
is to construe the complaints of pro se plaintiffs liberally, there is no indication in the Amended
Complaint that Trainauskas intended to assert his First Amendment/RLUIPA claim against
Defendants for actions conducted while he was held in disciplinary segregation. It is too late to
add new claims, and Trainauskas cannot amend his theory of Count 2 by way of his summary
judgment brief. See Anderson v. Donahoe, 699 F.3d at 997 (“a plaintiff may not amend his

In original Complaint, Trainauskas asserted that on March 30, 2017, mailroom staff confiscated the magazine Vor
Trú, an Asatru publication, in violation of the First Amendment. (Doc. 1). The Court dismissed the claim, designated
as Count 6, without prejudice because it was not associated with any named defendants. (Doc. 5, p. 16). Trainauskas
then filed a Motion to Leave to File Amended Complaint reasserting that the magazine was unlawfully confiscated by
mailroom staff and that it was his belief that McCarthy classified the magazine as STG material. (Doc. 29, p. 8). After
review of the proposed amended complaint, Magistrate Judge Wilkerson recommended that the Motion to Leave to
File Amended Complaint be denied because none of the new claims in the proposed amended complaint survived
threshold review. (Doc. 22). Trainauskas filed an objection to Jude Wilkerson’s report and recommendations. (Doc.
25). Based on his objections, Chief Judge Rosenstengel adopted in part the report and reinstated Counts 3 and 4. (Doc.
28). Trainauskas did not object to Judge Wilkerson’s report concerning his claims regarding the denial of the
magazine, and Count 6 was not reinstated. Therefore, Count 6 remains dismissed without prejudice and is not before
the Court.
10
See Doc. 29, p. 5 and Doc. 130, p. 20.
9

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complaint through arguments in his brief in opposition to a motion for summary judgment”). Thus,
the Court will consider the factual allegations regarding denial of religious items and services
while in segregation to “the extent that they are consistent with, or add to, the deprivations
concomitant with the claims described above” and will not consider them to the extent they raise
new First Amendment or RLUIPA claims. Smith v. Dart, 803 F. 3d 304, 311 (7th Cir. 2015).
However, for the sake of completeness, assuming Trainauskas’s assertions that he was
denied religious items and access to religious services are properly before the Court, they do not
survive summary judgment. Section 1983 requires a plaintiff to establish that each defendant “‘was
personally responsible for the deprivation of a constitutional right.’ To be personally responsible,
an official ‘must know about the conduct and facilitate it, approve it, condone it, or turn a blind
eye.’” Knight v. Wiseman, 590 F.3d 458, 462–63 (7th Cir. 2009) (citation omitted) (quoting
Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006)). He claims that “Defendants created a
substantial burden on Plaintiff’s religious right when they denied him every item essential to
practice his religion.” (Doc. 130, p. 24). He also asserts it is was IDOC’s “intelligence unit, of
which Defendants McCarthy and Fralicker are part of, who banned ‘Odin’s Chosen: A Handbook
of Ásatrú,’ the religious magazine ‘Vor Trú,’ our kindred hammer pendant, and virtually every
book of Blótar and Countless other Odinist Books.” (Id. at p. 47). Other than conclusory
statements, Trainauskas has not provided any evidence from which a jury to conclude that
Defendants Brookman, Lashbrook, McCarthy, and Fralicker were personally responsible for or
had any involvement in the denial of religions items and access to religious services while he was
in disciplinary segregation. Therefore, these claims do not survive summary judgment.

a. Free Exercise Clause
The First Amendment’s Free Exercise Clause “prohibits the state from imposing a
substantial burden on a central religious belief or practice.” Kaufman v. Pugh, 733 F.3d 692, 696
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(7th Cir. 2013). “The Supreme Court has explained that a substantial burden is one that ‘put[s]
substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Neely-Bey
Tarik-El v. Conley, 912 F. 3d 989, 1003 (7th Cir. 2019) (quoting Thomas v. Review Bd., 450 U.S.
707, 718) (1981)).
Trainauskas argues that Defendants have “engaged in a campaign of religious persecution
against Odinists.” (Doc. 126-1, p. 8; Doc. 130, p. 24). He was issued disciplinary tickets and
sanctioned for practicing his religion, depriving him of spiritual connection to his kindred. (Doc.
29, p. 13; Doc. 130, pp. 8, 26-27, 33). He states that Odinists strive for spiritual development and
do so by teaching others about the ways, customs, and religious practice of their ancestors. (Doc.
130, p. 26). Citing to the IDOC Chaplaincy Handbook, Trainauskas asserts that a kindred is a tenet
of his faith, which provides for spiritual expression and spiritual development. (Id. at pp. 26, 43,
130, 132). He points out that Defendants have not provided any basis for classifying his kindred,
the Guardians, as an STG, and Brookman at his hearing stated Odinism was not an IDOC
recognized religion. He argues that none of the members the Guardians have engaged in any of
the illegal activities listed by Defendants. (Id. at p. 27).
Although Defendants have not provided any explanation for why the Guardians have been
identified as an STG, the Court agrees that Defendants did not impose a substantial burden on
Trainauskas’s ability to exercise his religion by disciplining him for writing letters regarding the
Guardians. At his deposition, Trainauskas testified that the Guardians is not a religion but a
religious organization, founded by him and two other detainees in 2013. (Doc. 126-1, p. 9; Doc.
130, pp. 40, 49, 53). He states that because of his incarceration, Moreschi, the recipient of the first
letter, took a leadership role in the organization and “is in charge of virtually all kindred matters.”
(Doc. 130, p. 49; Doc. 126-1, p. 16). Part of Moreschi’s leadership duties were to correspond with
other Odinists or those requesting information pertaining to the practice of Odinism. (Doc. 126-1,
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p. 16). Moreschi wrote to Trainauskas at Menard regarding financial concerns with answering the
volume of letters he had been receiving regarding Odinism and the Guardians. (Doc. 130, p. 50).
Trainauskas responded to Moreschi’s letter “to assist him in covering postage fees.” (Doc. 126-1,
pp. 16, 18; Doc. 130, p. 50). While a tenet of Trainauskas’s faith may be communion with other
individuals who practice Odinism and participation in a kindred, he has not provided evidence to
support the conclusion that the purpose of the letter was spiritual development or religious
fellowship or that he was punished for practicing Odinism. (See Doc. 126-1, p. 16). Rather, the
purpose of the letter was administrative in nature.
Furthermore, Trainauskas repeatedly denies sending the second letter retrieved by Fralicker
at Robinson. (Doc. 126-1, pp. 7, 16-17; Doc. 130, pp. 27, 51-52; Doc. 29, pp. 3, 11). He states that
he has never used the Guardians “as a vehicle to contact prisoners in IDOC.” (Doc. 130, p. 52). If,
as he claims, he did not engage in this alleged conduct in the first place, then the prohibition of
such conduct could not have interfered with Trainauskas’s ability to continue participating in
central practices of his faith.
Although there seemed to be some confusion by Brookhart at the hearing about the
differences between Odinism and the Guardians, Trainauskas was ultimately prohibited from and
disciplined for conducting organizational tasks associated with the Guardians. He has not
presented evidence for a jury to conclude that the disciplinary tickets written by McCarthy and
Fralicker and resulting sanctions determined by Brookman and Lashbrook imposed a burden on
his religious exercise or denied him a meaningful way to practice Odinism. Thus, summary
judgment will be granted as to the First Amendment claim of Count 2.
b. RLUIPA
RLUIPA prohibits prison officials from “impos[ing] a substantial burden on the religious
exercise” of an inmate “unless the government demonstrates that imposition of the burden on that
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person ... is the least restrictive means of furthering [a] compelling governmental interest.” 42
U.S.C. § 2000cc-1(a). See also Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012).
Only prospective injunctive relief is available under RLUIPA. A plaintiff may obtain an
injunction or a declaration but not money damages. Grayson, 666 F.3d at 451. To obtain
prospective relief, there must be a risk that the defendant will violate the plaintiff’s rights again.
Lopez-Aguilar v. Marion Cnty. Sheriff’s Dep’t, 924 F.3d 375, 395 (7th Cir. 2019). When a
prisoner’s claim relates to events at a particular prison, the general rule is that any request for
prospective relief becomes moot if a prisoner is transferred because it is unlikely that the prisoner
will be subjected to the same conditions again. Thompson v. Bukowski, No. 18-3009, 812 Fed.
App’x. 360, 2020 WL 2097278, at *2 (7th Cir. May 1, 2020); Maddox v. Love, 655 F.3d 709, 716–
17 (7th Cir. 2011); Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009). Injunctive claims will not
be found moot, however, if the plaintiff can demonstrate a likelihood of being retransferred back
to the former institution. Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996). Mere speculation
of a retransfer, however, is not sufficient to prevent a claim for injunctive relief from becoming
moot. Id. An inmate must make a showing that it is a “realistic possibility” that he will be
retransferred to the prior institution. See Maddox, 655 F.3d at 716.
Here, Defendants contend that Trainauskas’s RLUIPA claim is moot, as he was transferred
from Menard on November 1, 2017, and has been housed at Pontiac Correctional Center
(“Pontiac”) since June 21, 2018. (Doc. 126-, p. 22). Trainauskas argues that the claim is not moot
because he was scheduled to be transferred back to Menard in August 2019 but the transfer was
cancelled due to a court date in Will County. (Doc. 130, p. 29).
On June 27, 2018, Trainauskas notified the Court that he had been transferred to Pontiac.
(Doc. 24). Other than this single notification of address change, there is nothing in the record to
indicate that he was ever transferred back to Menard, and he has not provided evidence suggesting
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that he will be returning there. As Trainauskas has not demonstrated a “realistic possibility” or
“reasonable expectation” that he will again be housed in Menard, his claim for injunctive relief
pursuant to RLUIPA is moot.
III. Count 4 Conditions of Confinement
Prison officials violate the Eighth Amendment when “they are deliberately indifferent to
adverse conditions that deny ‘the minimal civilized measure of life’s necessities,’ such as adequate
food, clothing, shelter, recreation, and medical care.” Budd v. Motley, 711 F.3d 840, 842 (7th Cir.
2013) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). To succeed on a claim of deliberate
indifference to a condition of confinement, a prisoner must show: (1) a deprivation that is, from
an objective standpoint, sufficiently serious that it results in the denial of the minimal civilized
measure of life’s necessities or the denial of basic human needs; and (2) prison officials were
deliberately indifferent to this state of affairs. Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016)
(quotation marks and citation omitted); Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996). To be
found liable “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511
U.S. at 837.
Defendant Warden Lashbrook argues that Trainauskas’s conditions of confinement did not
violate the Constitution. (Doc. 126, p. 26). She does not address the size of the cell or the lack of
ventilation; rather, she states that Trainauskas has failed to provide evidence that the heat at
Menard was sufficiently extreme, or that the heat lasted for an extended period of time. While
Trainauskas may have been uncomfortable, Lashbrook states that the Eighth Amendment does not
require comfortable prisons. (Id.) (citing Farmer, 511 U.S. at 832). The temperature logs of North
2 Cell House reveal that the temperature did not reach above 100 degrees, as alleged, and remedial
measures were taken by staff. (See Doc. 126-14). Both Trainauskas and his cellmate had fans,
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there were fans in the galleries, and offenders were passed ice twice a day and allowed to shower
more frequently.
Lashbrook further asserts that even if the conditions of Trainauskas’s confinement violated
the Constitution, she was not deliberately indifferent. (Doc. 126, p. 27). Trainauskas has not
provided any evidence that Lashbrook was aware of any specific risk to him. He did not submit
any grievances regarding the conditions of his cell in North 2, nor did he send any communication
to Lashbrook. Furthermore, she enacted specific protocols in order to alleviate the threat of harm.
(Doc. 126-13, p. 2-3). Because Trainauskas has failed to put forth evidence demonstrating that
Lashbrook purposefully ignored the conditions of his cell, she states that summary judgment is
warranted.
Although the conditions Trainauskas experienced in disciplinary segregation “have no
bearing” on whether Defendants were required to provide him with procedural protections before
placing him there, Trainauskas may still seek redress under the Eighth Amendment. Townsend v.
Fuchs, 522 F. 3d 765, 772 (7th Cir. 2008) (affirming the district court’s finding of no liberty
interest in avoiding placement in discretionary segregation and stating that the issue of cell
conditions “is best analyzed as a claim brought under the Eighth Amendment”). See also Obriecht
v. Raemisch, 565 F. App’x 535, 540 (7th Cir. 2014) (finding that 78 days in “deplorable
conditions” did not implicate a liberty interest, but that plaintiff might have challenged the
conditions of confinement while in segregation). And viewing the record in a light most favorable
to Trainauskas, the Court finds that he has established a triable issue of fact regarding his
conditions of confinement while in segregation.
“It is well established that individuals can be harmed by placement in cells that are
unconstitutionally small, even if they have occasional opportunities to leave their cells and have
not sought medical treatment from problems related to cell size.” Randle v. Baldwin, No. 16-CVPage 19 of 23

1191-NJR, 2020 WL 1550638, at *15 (S.D. Ill. Apr. 1, 2020) (citing Rhodes v. Chapman, 452 U.S.
337 (1981); Smith v. Fairman, 690 F.2d 122 (7th Cir. 1982)). Additionally, “exposing inmates to
extreme temperatures coupled with the inability to mitigate the condition, can violate the Eight
Amendment.” Jose-Nicolas v. Butler, No. 15-cv-01317-NJR-DGW, 2018 WL 7020205 at *3 (S.D.
Ill. Dec. 19, 2018) (citations omitted). When addressing similar claims regarding conditions of
confinement and double celling of inmates in the cells of North 1 and North 2 Cell Houses at
Menard, the courts in this district have repeatedly held that “there is a clear argument that
conditions were not constitutional.” See Randle, 2020 WL 1550638; Maya v. Wexford Health
Sources, Inc., No. 17-cv-00546-NJR, 2020 WL 5517465 at *15-16 (S.D. Ill. Sept. 14, 2020);
Turley v. Lashbrook, No. 08-07-SCW, 2018 WL 785236 at * 5 (S.D. Ill. Sept. 26, 2018). See also
Lightfoot v. Walker, 486 F. Supp. 504, 510 (S.D. Ill. 1980) (finding that double celling of inmates
in the East and South Cell Houses at Menard, where inmates only had 65 and 56 square feet,
inadequate).
Here, Trainauskas was double celled in a cell that was approximately 48 square feet. (Doc.
130, p. 72). The space was even more limited when factoring in the bunkbed, sink and toilet, and
desk. (Doc. 126-1, p. 19; Doc. 130, p. 19). These “conditions were exacerbated by high
temperatures” and poor ventilation. Maya, 2020 WL 5517465 at *16. Although Lashbrook
contends that mitigating measures were taken when the heat index was 90 degrees or over,
Trainauskas argues that, other than having a personal fan, these measures were not implemented.
(Doc. 130, p. 13). Specifically, the chuckhole was only opened once during his time in segregation.
(Doc. 126-1, p. 17; Doc. 130, p. 21). Trainauskas also states that the temperature logs only record
the temperature in the galleries and are not adequate representations of the temperature inside his
cell, which was hotter due to the solid steel door and no ventilation. (Doc. 130, p. 14). He testified
that the temperature in his cell could reach up to 130 degrees, (Doc. 126-1, p. 17; Doc. 130, p. 21),
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which “is sufficient to create a genuine dispute of fact.” Jose-Nicolas v. Buter, No. 15-cv-01317NJR-DGW, 2018 WL 7020205, at *4 (S.D. Ill. Dec. 19, 2018) (citing Jordan v. Milwaukee Cty.,
680 F. App’x 479, 483 (7th Cir. 2017)). Thus, a jury could reasonably find that the combination
of being double celled in a small cell along with excessive heat and lack of ventilation denied
Trainauskas the basic necessities of civilized life. See Isby, 856 F. 3d at 522.
As to whether Lashbrook acted with deliberate indifference, Trainauskas does not assert
that he directly communicated with Lashbrook regarding his cell conditions. He states that her
knowledge of the risks imposed by double celling inmates in North 2 can be inferred from the heat
protocols that were implemented, the many grievances that were sent by other inmates in
segregation during March, June, and July of 2017, the obvious nature of the conditions, and
previous court decisions regarding double celling at Menard. (Doc. 130, pp. 35-37, 56). The Court
agrees.
While Lashbrook may not have been directly on notice of Trainauskas’s placement in
disciplinary segregation in North 2 Cell House, Lashbrook, as the warden of the prison, “can
realistically be expected to know about or participate in creating systemic [prison] conditions”
such as the policies surrounding celling inmates and the heating and cooling of the cells. Sanders
v. Sheahan, 198 F. 3d 626, 629 (7th Cir. 1999). 11 See also Antonelli v. Sheahan, 81 F. 3d 1422,
1428-1429 (7th Cir. 1996). Because of the “long history of double-celling at Menard, the numerous
lawsuits that have resulted from the practice and the periodic rebukes given to IDOC by this Court”
there is little room for doubt that Warden Lashbrook “was aware of the individualized
consequences of [her] broader logistical and budgetary decisionmaking and ultimately had direct

The Seventh Circuit in Sanders held that claims regarding nutritionally deficient food and inadequate hygiene “are
conceivably systemic conditions that can support a valid claim against [the sheriff and the director] in their personal
capacity,” while complaints regarding issues confined to a particular dormitory do not support such a claim. Sanders,
198 F. at 628.

11

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personal involvement in double-celling inmates such as [Trainauskas].” Randle, 2020 WL
1550638, at *5. Furthermore, it is not disputed that she was aware that heat was a concern for both
staff and inmates at Menard. (See Doc. 126-13, p. 3). She argues that she took affirmative steps to
mitigate the effects of the heat, but a “jury should determine whether the steps taken by individuals
in [Lashbrook’s] position[] were, in fact, reasonable. Silva v. Pfister, 2021 WL 1103483 at *7
(N.D. Ill. Mar. 23, 2021) (citations omitted). Because Lashbrook “may be found to have been put
on notice by other proceedings that have alleged similar constitutional violations, she is not entitled
to summary judgment.” Maya, 2020 WL 5517465 at *16 (citations omitted).
IV. Qualified Immunity
Defendants claim that they are entitled to qualified immunity on all counts. To determine
whether an official is entitled to qualified immunity, the Court must assess (1) whether a
constitutional right would have been violated on the facts alleged, and (2) whether the right alleged
to have been violated was clearly established. Saucier v. Katz, 533 U.S. 194, 200 (2001).
Here, the Court has granted summary judgment on all counts except Count 4 against
Lashbrook for unconstitutional cell size, excessive heat, and poor ventilation. If, as Trainauskas
alleges, he was double-celled in a cell that was so small as to violate the minimum standards of
decency, it would amount to a constitutional violation. This violation would be clearly established,
for the Supreme Court and courts within this circuit have repeatedly addressed how excessively
small cells and overcrowding can violate the Eighth Amendment, even discussing this in relation
to Menard specifically. Whether Lashbrook was actually aware of the alleged conditions of the
cell is a factual dispute to be resolved by the jury. Thus, Lashbrook is not entitled to qualified
immunity.
DISPOSITION
For the reasons provided, the Court GRANTS in part and DENIES in part the motion
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for Summary Judgment (Doc. 125) filed by Defendants Fralicker, Brookman, McCarthy, and
Lashbrook. The Motion is granted as to Counts 1, 2, and 3 but is denied as to Count 4 against
Lashbrook. Accordingly, the claims against Brookman, Fralicker, and McCarthy are DISMISSED
with prejudice. The Clerk shall terminate them as defendants and enter judgment in their favor at
the conclusion of the entire action. The Clerk is directed to correct the docket in accordance with
footnote one. This action will proceed on Count 4 against Defendant Lashbrook.
A status conference will be set at a later date to set firm dates for a final pretrial conference
and jury trial. In the meantime, the parties are encouraged to discuss whether a settlement
conference would be beneficial and, if so, request a referral to a magistrate judge for that purpose.
IT IS SO ORDERED.
DATED: March 29, 2021
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge

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