Easterling v. Pollard et al
Filing
48
ORDER signed by Chief Judge Charles N Clevert, Jr on 2/29/2012 Denying 29 Plaintiff's Motion for Summary Judgment; Granting 31 Defendants' Motion for Summary Judgment; Dismissing this action. (cc: all counsel, via US Mail to plaintiff) (nts)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KOFI EASTERLING,
Plaintiff,
v.
Case No. 10-CV-779
WILLIAM POLLARD, MICHAEL BAENEN,
MIKE DONOVAN, and CATHERINE FRANCOIS,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. 29),
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. 31), AND
DISMISSING THIS ACTION
Plaintiff filed this pro se action pursuant to 42 U.S.C. § 1983 and was granted leave
to proceed in forma pauperis on claims under the First Amendment’s Free Exercise Clause
and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc-1(a). The parties have filed cross motions for summary judgment. For the
reasons stated herein, plaintiff’s motion for summary judgment will be denied and
defendants’ motion will be granted.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A.,
Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable
substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.
A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: “(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers,
or other materials; or (B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
FACTUAL BACKGROUND1
Plaintiff, Kofi A. Easterling, has been incarcerated at Green Bay Correctional
Institution (GBCI) since May 26, 2009. Defendant William Pollard was the Warden of
GBCI at all times relevant; defendant Michael Baenen is the GBCI Deputy Warden;
defendant Michael Donovan is a GBCI Chaplain; and defendant Catherine Francois is an
Inmate Complaint Examiner at GBCI.
Plaintiff is a Sunni Muslim. He avers that on July 1, 2010, he informed Chaplain
Donovan that the Holy Month of Ramadan, in which traditional Sunni Muslims fast for thirty
days, would start on July 21, 2010. According to plaintiff, Chaplain Donovan ignored his
1
Facts are taken from Defendants’ Proposed Findings of Fact, which are undisputed. Facts are also
taken plaintiff’s Statem ent of Facts section from his m otion for sum m ary judgm ent.
2
advisement and mailed a memo to the Muslim Community falsely stating the Holy Month
of Ramadan would begin on August 11, 2010. Plaintiff filed several inmate complaints but
Inmate Complaint Examiner Francois rejected and dismissed them. Additionally, plaintiff
forwarded letters and complaints to Warden Pollard and Deputy Warden Baenen, but they
agreed with defendant Francois. Consequently, plaintiff claims that defendants failed to
consider traditional Sunni Muslim practices and Islamic law.
The Division of Adult Institutions (DAI) is part of the Wisconsin Department of
Corrections (DOC) that oversees nineteen correctional institutions and the Wisconsin
Correctional Center System, which encompasses sixteen correctional centers throughout
the state. The DAI Religious Practices Advisory Committee (RPAC) reviews inmate
religious issues that arise within DOC; consults with DOC staff and volunteers, members
of religious groups in the community, and the Wisconsin Department of Justice on religious
issues; applies, reviews, and/or revises various DOC internal religious policies and
procedures; and resolves religious issues in adult correctional institutions to promote
consistency and fairness within DAI and various religious faiths.
It is the policy of the DOC that incarcerated inmates have opportunities to pursue
lawful practices of the religion of their choice, consistent with security practices and
principles, inmate rehabilitative goals, health, safety, allocation of limited resources, as well
as the responsibilities and needs of the correctional institution and facilities. Over the
years, the DOC inmate population has increased steadfastly, along with the number of
state correctional institutions required to house the inmates. During this period, there has
been no corresponding increase in correctional institution staff, and, at various times the
state faces significant budget deficits that have necessitated staff reductions and/or hiring
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freezes. At the same time, the nature and type of inmates in the system have become
more problematic with more inmates facing lengthy or life without parole sentences, an
increase in gang problems, and other issues. All of these factors have resulted in
unprecedented pressures and stresses on state correctional institutions and staff from a
security, administrative, and financial standpoint and have affected corrections operations
in virtually all areas. Therefore, it has been the goal of RPAC to take steps to minimize and
alleviate some of these pressures and stresses, and to improve consistency between the
institutions.
It is the policy of DOC to ensure that inmates have opportunities to pursue lawful
religious practices of the religion of their choice, but all religious practices must be
consistent with security practices and principles, rehabilitative goals of inmates, health and
safety concerns, and the allocation of limited resources. Due to the equitable allocation
of limited resources, DOC and RPAC must make determinations related to religious
activities that meet the religious needs of the inmate population, but it is not feasible to
accommodate each inmate’s request, nor is it feasible to accommodate the religious
practices of every religious faction of incarcerated inmates.
The religious beliefs and practices inmates in DOC custody are formally allowed to
exercise are set forth in DAI Policy 309.61.01, which was implemented to ensure that
incarcerated offenders have uniform opportunities to pursue lawful religious practices of
the religion of their choice. To reasonably manage the coordination of religious services
and study groups, and to make an effort to accommodate inmates’ religious needs,
inmates are required to designate their religious preference. DAI Policy and Procedure
309.61.01 establishes the concept of “Umbrella Religion Groups,” which are inclusive
4
groups designed to appeal to a wide range of religious beliefs within a given faith group.
The umbrella religion groups are the Protestant, Islam, Native American, Catholic, Jewish,
Eastern Religions, and Pagan. For example, a Protestant umbrella group would meet the
needs of denominations such as Lutheran, Baptist, Methodist, Presbyterian, etc.
The DOC does not have the resources and staff to accommodate every religious
activity that a religious group or faction may deem necessary or important in the practice
of their religion. Pursuant to DAI Policy and Procedure 309.61.01, to participate in the
religious services or study groups associated with a given umbrella religion group, an
inmate must complete a DOC 1090, Religious Preference form, designating a religion
within that group as that inmate’s religious preference. The use of umbrella groups allows
the department to use its limited resources as efficiently as possible to accommodate the
religious practices of the greatest number of inmates. Without the use of umbrella groups,
inmates would likely have less opportunities to practice their religions because resources
such as staff time, institution funds, and space would have to be divided among an everincreasing number of different religions and religious factions.
Umbrella groups allow similar religions to share resources, which allows, among
other things, sufficient time for more meaningful religious services and religious feasts.
Without the use of umbrella groups, institutions would be required to use limited resources
to find and provide a recognized spiritual leader for every new religious group; provide
space to conduct the activity; provide staff to monitor religious services and religious study;
accommodate additional annual feasts; accommodate additional dietary restrictions and
potentially allocate business office staff time to create and manage a segregated account
for funds donated to the group. Institutions make every effort to facilitate an inmate’s
5
observance of days of special significance that are consistent with the inmate’s designated
religious preference.
The GBCI Chapel provides religious services for all of the umbrella religious groups
in addition to special religious programming. The Chaplains also provide crisis intervention
services as well as support programming for inmates as needed, and outside volunteers
provide a myriad of programming for various religious affiliations.
Plaintiff submitted three forms DOC-1090, which DOC utilizes to identify inmates’
religious preference. The most recent form DOC-1090 was dated May 6, 2004, wherein
plaintiff indicated Islam as his religious preference.
Islamic inmates at GBCI are permitted to attend congregate religious services and
study groups. They are also permitted to possess approved religious property, including
religious books and publications, prayer beads, a prayer rug, a kufi-cap, a religious
emblem, and prayer oil. Besides their personal religious property, Islamic inmates may
access library books, videotapes, and audiotapes concerning Islamic religious practices
and beliefs. Further, Islamic inmates at GBCI may engage in individual religious study,
personal meditation and prayer, individual religious observance in their living quarters,
correspondence and visits with fellow believers, pastoral visits, and abstain from work or
programs for religious observance, upon request.
DOC inmates who have chosen Islam/Muslim as their religious preference are
provided the opportunity to participate in the Ramadan fast and activities, which is held
once a year. Ramadan is the ninth month of the Islamic calendar, which signifies when the
Qur’an was revealed. Ramadan is the holiest of months in the Islamic calendar, and
fasting in this month is spent by Muslims during the daylight hours from dawn to sunset.
6
Following the Ramadan fast, inmates may participate in the Eid ul-Fitr, a religious feast that
marks the end of the Islamic holy month of fasting, as well as the Eid ul-Fitr Salat, the ritual
Islamic prayer typically conducted at the end of the fast and feast.
RPAC relies upon Islamic consultants, who are DOC Chaplains Zackaria Nurdeen
and Ron Beyah, to obtain information from a reliable Islamic source related to the start and
end dates of the Islamic Ramadan Fast, for which the Eid-Al-Fitr feast follows signifying the
end of Ramadan. Islamic inmates are permitted to participate in the Ramadan fast, which
is a religious activity conducted once a year at all DOC correctional institutions and centers,
and follows with Eid-Al-Fitr, and then the Eid-Al-Fitr Satar.
The DOC Islamic consultants rely upon the dates provided by the Figh Council of
North America. The dates provided by the council are provided to all DOC correctional
institutions and centers to maintain a uniform manner of allowing Islamic inmates to
participate in the Ramadan fasting, and the subsequent Eid ul-Fitr feast. The Fiqh Council
of North America is a diversified committee or board of high intellectuals or qualified
Imams, who have command of Islamic Law and Jurisprudence, and is an affiliate of the
Islamic Society of North America. The Fiqh Council is a reliable source to advise and
educates its members and officials on matters related to Islamic religious practices,
regardless of sect. The Fiqh Council is the only source for which DOC relies to receive
reliable information related to Islamic religious practices, including the start and end dates
of Ramadan. The use of the dates provided by the Fiqh Council Of North America for 2010
Ramadan did not in anyway restrict the inmate’s ability to practice Ramadan or his Islamic
faith.
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Islam as a religion considers circumstances and situations in all its decisionmaking,
and does not hold a person guilty for lawful duties he could not perform because of certain
serious circumstances. A Muslim inmate under certain security restriction may not be
allowed to leave his/her cell to search for the new moon (crescent), and under these
circumstances, would be exempted from physical sighting and should depend only on
information about the starting and ending of Fasting through Islamic authority, such as the
Fiqh Council.
At no time has Chaplain Donovan had any personal involvement in the
determination of when the Ramadan fast is to begin and end. The DOC Ramadan fast
dates provided by Chaplains Beyah and Nurdeen are announced to all DOC correctional
institutions to maintain uniformity of the Ramadan fast throughout correctional institutions
in Wisconsin.
Chaplain Donovan received an email from Chaplains Nurdeen and Beyah
announcing the dates of the 2010 Ramadan Fast. On July 9, 2010, Chaplain Donovan
wrote a Memorandum related to the 2010 Islamic Ramadan Fast, and attached an
announcement to the memorandum. The July 9, 2010, Memorandum was directed to
various staff, including the Food Service Office, and all housing unit staff.
The
announcement stated, in part: The Ramadan Fast is scheduled to begin at dawn on
Wednesday, August 11, 2010, and will end after sunset on Thursday, September 9, 2010.
(Affidavit of Michael Donovan ¶ 21, Ex. 1003.) Staff were instructed to display the
announcement where inmates could see it or distribute it to inmates on housing units.
Muslim Inmates were instructed to sign up to participate in the Ramadan fast by July 30,
2010. After the inmate names were compiled, Chaplain Donovan created a Ramadan
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participant list, which was distributed to the Food Service Office and housing units so staff
were aware of the inmates who requested to participate in the Ramadan fast. While
plaintiff could not designate his own dates for the Ramadan fast, he could have
participated in the 2010 Ramadan fast observed at GBCI that began on August 11, 2010,
and ended on September 9, 2010.
Any gathering of inmates implicates basic security issues and concerns. With
religious feasts and fasts, there is also additional workload for Food Service staff, as
typically the food for the feast has to be kept separate, maintained at appropriate
temperatures, and served separately for either delivery to what is typically not a dining
room area, or be served separate from the regular meal service. For fasts, unit staff need
to be trained and informed of the policies for food delivery and the times for fasting and
meals. Moreover, they must track and monitor the participants. Arrangements for the
feast and fasts must be made and coordinated by staff, inmates approved to attend must
be notified, approved outside religious visitors must be notified, outside religious visitors
must be screened and processed into the institution, and additional security staff must be
available to supervise the feasts.
If each Islamic religious faction, such as the Sunnis, were to be accommodated with
different dates for the Ramadan fasting, the Eid-Al-Fitr and Eid-Al-Fitr Salat, it would create
a huge drain on prison resources. All of the coordination, staff preparation, training, space
and resources would have to be expanded for each individual’s or religious sect’s
interpretation of the fasts and feasts. DOC and its institutions do not have the resources
to accommodate these individual requests.
9
Historically, DOC has had problems with gangs attempting to take over religious
groups and religious group becoming a cover for gang activity and problems with inmates
who are not members of certain religious groups reacting negatively and viewing religious
feasts as favoritism towards some inmates. These problems have raised the DOC's
concern regarding animosity among inmate groups, possible violence and/or a major
disturbance, religion shopping to enable inmates to attend various religious feast meals,
and unwarranted demands for special foods with questionable religious significance.
The designation of one feast and fast for Ramadan furthers DOC’s interests in
better monitoring for these types of security threats and preventing security risks from
occurring. Though inmates of the same religion may only eat together once a year to
celebrate a “religious feast,” they are not prevented from celebrating their religious beliefs
in the following ways: (1) a special congregate service; (2) religious diet request; (3)
individual study; (4) personal meditation; (5) utilization of religious books and/or property;
(6) individual religious observance in their living quarters; (7) correspondence with fellow
believers; (8) pastoral visits; (9) additional foods meeting religious dietary principles either
through purchase in the institution canteen or through approved donations; and (10)
requesting to abstain from work or program.
There is no Islamic authority to support plaintiff’s allegations that Ramadan is never
in the same season and always starts when the new moon is physically sighted. Also,
while plaintiff alleges that GBCI forced traditional Sunni Muslims under a Gregorian
calendar to violate the Holy Month of Ramadan and invalidated his religious fast, it is
undisputed that there is no place in Islamic history that Muslims used Julian, Gregorian,
or Jewish calendars, and DOC has not used the Gregorian calendar to calculate the end
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and start of Ramadan. Additionally, Muslims have always used lunar calculations, and
astronomical calculations are permissible in time of emergencies or situations where the
physical sighting of a crescent or new moon is impossible for many reasons which would
include weather conditions or situations where a Muslim is incarcerated and is not able to
come out of his cell, or an inability to have access to the out of doors to make a physical
sighting of the crescent moon. The start and end of the Ramadan fast have continuously
been calculated based on astronomical calculations by the Fiqh Council and this does not
in any way violate the sacredness of the Ramadan fast.
ANALYSIS
Section 3 of RLUIPA provides that:
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). As an initial matter, to the extent plaintiff seeks monetary
damages against the defendants in their official capacities, such claim is barred by the
state’s sovereign immunity. Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012) (citing
Sossamon v. Texas, — U.S. —, 131 S. Ct. 1651, 1658-61 (2011)). Also, plaintiff’s
damages claim against defendants in their individual capacities cannot be based on
RLUIPA because the Act does not create a cause of action against state employees in
their personal capacities. Grayson, 666 F.3d at 451 (citing Nelson v. Miller, 570 F.3d 868,
886-89 (7th Cir. 2009)). Although money damages are not available for plaintiff under
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RLUIPA, the Act does authorize injunctive relief. Thus, the court turns to the merits of this
claim.
As indicated, RLUIPA forbids institutions that receive federal funds from
substantially burdening patients’ exercise of religion-even by rules of general applicabilityunless the burden is the least restrictive means of furthering a compelling government
interest. See 42 U.S.C. § 2000cc-1(a); Cutter v. Wilkinson, 544 U.S. 709, 715 (2005); Ortiz
v. Downey, 561 F.3d 664, 670 (7th Cir. 2009). A substantial burden exists only where a
government action “bears direct, primary, and fundamental responsibility for rendering
religious exercise . . . effectively impracticable.” Nelson, 570 F.3d at 878 (quoting Civil
Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)). Only
upon plaintiff’s showing of a substantial burden on his religious exercise will the evidentiary
burden shift to the institution, which must then show that the challenged rule is the least
restrictive means of pursuing a compelling government interest. See Koger v. Bryan, 523
F.3d 789, 796 (7th Cir. 2008).
Here, plaintiff’s RLUIPA claim fails because he produced no evidence of a
substantial burden on his religious exercise. He claims that defendants’ commencement
of the Ramadan Fast on August 11, 2010, invalidated his religious fast because traditional
Sunni Muslims began the Ramadan Fast on July 21, 2010. However, it is undisputed that
the DOC Islamic consultants, Chaplains Nurdeen and Beyah, provided the Ramadan Fast
dates to Chaplain Donovan, who announced the information at GBCI. It is also undisputed
that Chaplains Nurdeen and Beyah relied upon dates provided by the Fiqh Council of North
America, an affiliate of the Islamic Society of North America. Lastly, plaintiff was provided
the opportunity to participate in the 2010 Ramadan Fast.
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Although plaintiff insists that the 2010, Ramadan start date for Sunni Muslims was
July 21, however, he has not provided any evidence to support the assertion. Speculation
of this sort does not provide a material factual dispute as to whether plaintiff's religious
exercise has been substantially burdened thereby warranting a trial. See Borzych v. Frank,
439 F.3d 388, 390 (7th Cir. 2006) (noting the insufficiency of a plaintiff’s “unreasoned sayso” to create a triable issue).
Finally, because plaintiff failed to meet his burden under RLUIPA, he similarly failed
to establish that defendants burdened a “central religious belief or practice” in violation of
the Free Exercise Clause and therefore defendants are entitled to summary judgment on
the First Amendment claim. See Hernandez v. Comm’n of Internal Revenue, 490 U.S. 680,
699 (1989); see also, DeSimone v. Bartow, 355 Fed. Appx. 44, 46 (7th Cir. 2009)
(unpublished); Gelford v. Frank, 310 Fed. Appx. 887, 889 (7th Cir. 2008) (unpublished).
Therefore,
IT IS ORDERED that plaintiff’s motion for summary judgment (Doc. 29) is DENIED.
IT IS FURTHER ORDERED that defendants’ motion for summary judgment (Doc.
31) is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED.
Dated at Milwaukee, Wisconsin, this 29th day of February, 2012.
BY THE COURT
/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
Chief U.S. District Judge
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