Sherman v. Jess et al

Filing 79

DECISION AND ORDER signed by Judge Lynn Adelman on 9/8/15 granting 30 Defendants' Motion for Summary Judgment. Plaintiffs RLUIPA claims are dismissed as moot, and all other claims are dismissed on their merits; denying 71 Motion to Compel. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MITCHELL J. SHERMAN,
Plaintiff,
v.

Case No. 13-CV-1355

CATHY JESS, WARDEN PAUL KEMPER,
JASON ALDANA, LUCAS WEBER,
MICHAEL WITT, and KATHLEEN NABRZYSKI,
Defendants.

DECISION AND ORDER
The pro se plaintiff, Mitchell J. Sherman, is a former Wisconsin state prisoner. He
filed this lawsuit pursuant to 42 U.S.C. § 1983 and was granted leave to proceed in forma
pauperis on claims that the defendants violated his rights under the First, Eighth, and
Fourteenth Amendments to the United States Constitution, as well as the Religious Land
Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., while he was
incarcerated at the Racine Correctional Institution. The defendants have filed a motion for
summary judgment. For the reasons explained below, I will grant defendants’ motion and
dismiss this case.1

1

Sherman has filed two responses to the defendants’ summary judgment motion.
On April 30, 2015, I granted in part Sherman’s motion to compel discovery and gave
Sherman a deadline on June 22, 2015, to file one, comprehensive summary judgment
response. On June 23, 2015, Sherman filed a second motion to compel discovery
(addressed at the end of this order) in which he states that his most current response to
defendants’ motion for summary judgment may stand as it currently is. (Dkt. No. 71 at 2.)

I. 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 disputed, 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).
II. FACTS
A. Parties and Claims

2

The plaintiff, Mitchell Sherman (Sherman), is a former Wisconsin Department of
Corrections (DOC) inmate who was confined at the Racine Correctional Institution (RCI)
at all times relevant. The defendants are: DOC Division of Adult Institutions Administrator
Cathy Jess, RCI Segregation Captain Lucas Weber, RCI Warden Paul Kemper, Security
Director Jason Aldana, Correctional Sergeant Michael Witt, and Correctional Officer
Kathleen Nabrzyski.
Sherman alleges that the defendants violated his rights during two periods of
segregation temporary lock-up (TLU) at RCI. The first TLU placement was from December
3 through December 18, 2012. Sherman alleges that he was not given a shower for five
days, until December 8 and that, as a result, his eczema condition worsened, causing his
skin to dry out, crack, and bleed, making his movements painful and labored. Additionally,
Sherman alleges that he did not receive adequate ventilation and heating, which triggered
chronic asthma attacks. Sherman further alleges that he did not receive his religious text
or holy book while other inmates in TLU received theirs. Sherman’s second placement in
TLU was from February 15 until March 1, 2013. He allegedly did not receive his religious
text or holy book during that time, but other TLU inmates received theirs.
Based on these allegations, Sherman is proceeding on a claim under RLUIPA, a
First Amendment free exercise of religion claim, a Fourteenth Amendment equal protection
claim, and an Eighth Amendment conditions of confinement claim. (Dkt. No. 11 at 3-4.)
B. Exhaustion of Administrative Remedies
Sherman submitted an offender complaint on December 6, 2012, alleging that on
December 3, 2012, he was placed in segregation and was refused the opportunity to
shower until December 8, 2012; that he had not been provided adequate ventilation, his
3

holy book, a small comb, adequate clothing, writing materials or stamps; and that his
asthma worsened and his eczema was aggravated due to the conditions. (Kemper Aff. ¶
8; Rose Aff. Ex. 1001 at 8.) On December 12, 2012, Institution Complaint Examiner (ICE)
Nancy Padgett returned Sherman’s complaint to him because it contained “multiple issues
he is having and unit as well as medical issues,” in violation of Wis. Admin. Code § DOC
310.09(1)(3).2 (Kemper Aff. ¶ 10; Compl., Ex. C, Dkt. No. 1-1 at 6.) Padgett instructed
Sherman to follow the “chain of command” before resubmitting his offender complaint:
The ICE would direct complainant to contact Captain Weber or Lt. Serrano
regarding his unit concerns. The ICE would also direct complainant to
contact the Health Services Unit regarding any medical issues.
Inmates writing to staff must follow the chain of command noted in the
inmate handbook. All three levels must be exhausted before writing to the
Warden or filing an Inmate Complaint.
The ICE is also directing you to provide this office with written documentation
of your attempts to resolve the issue as directed. Written communication
means responses to interview requests and other written responses from the
staff contacted.
If you have attempted to resolve the issue through the persons(s) indicated
above and have not been able to do so, you may submit your complaint (with
all pertinent documentation) for processing by this office within 14 calendar
days of the date of this return letter.
(Id.)
On December 24, 2012, Sherman resubmitted his offender complaint. Along with
his complaint, Sherman included copies of Interview/Information Requests he allegedly

2

Pursuant to Wis. Admin. Code § DOC 310.09(1)(e), offender complaints shall
contain only one issue per complaint and shall clearly identify the issue. The ICE must
return the complaint to the inmate unprocessed if the submission does not meet that
requirement per Wis. Admin. Code § DOC 310.09(3). (Kemper Aff. ¶ 9.)
4

sent to the Warden’s office and to Captain Weber, dated December 16, 2012.3 (Kemper
Aff. ¶ 12; Rose Aff. Ex. 1001 at 9-10.) Sherman’s request to the Warden’s Office states:
On 12-3-12 I arrived in seg. I did not receive a shower until 12-8-12. My cell
has poor ventilation & irritates my asthma. It is also very cold & I’m only
supplied with pants, underwear, & a T-shirt. I have not received a comb (I
have a pick), my holy books. I received 2 sheets of paper and [illegible] on
the 9th & 16th. I have yet to receive my property from my unit despite
speaking with Capt. Weber, Sgt. Witt, Lt. Suttle, & writing my unit Sgt. on 2
occasions & other staff. Including some medical supplies.
(Id.) Sherman’s request to Captain Weber states:
On 12-6-12 I informed you that I’ve been in seg. since the third & I had yet
to receive a shower. You replied that I wouldn’t get one until the next shower
day (8th). I also informed you that I had yet to receive my medical supplies
as well as my property from my unit. I also complained of my vent being
caulked over & you said to speak to the sergeant. Please verify the above
statement.
(Id.) Sherman also claims that he sent an Information/Interview Request to Officer
Nabrzynski on December 16, 2012. (Compl., Ex. C, Dkt. No. 1-1 at 18.)

That

communication states:
On 12-5-12 you informed me I was ineligible for a shower, despite my
statement that I got here on the 3rd. I also complained of my vent being
caulked up & not having my property from my unit yet, also medications.
Please verify the above statement.
(Id.)
On December 27, 2012, ICE Padgett returned Sherman’s offender complaint to him.
She returned the materials because:

3

Warden Kemper does not have documentation that the Warden’s office received
any requests from Sherman to resolve his issues during his TLU placement. (Kemper Aff.
¶ 13.)
5

You are no longer on this unit thus these issued cited are moot. Any further
issues regarding the segregation unit the ICE would direct you to contact
Security Director Aldana as the next step in the chain of command.
The ICE would also direct complainant to HSU for any ongoing medical
issues he may have.
(Kemper Aff. ¶ 14; Compl., Ex. C, Dkt. No. 1-1 at 7.)
On January 8, 2013, Sherman resubmitted his offender complaint and this time the
ICE office filed it as Offender Complaint RCI-2013-838. Along with his complaint, Sherman
submitted an Interview/Information Request which he allegedly sent to Security Director
Alana on December 28, 2012, to which he received no response. (Kemper Aff. ¶ 15; Rose
Aff. Ex. 1001 at 11-12.) In that communication, Sherman stated:
On 12-3-12 I was placed in seg, on 12-5-12 I did not receive a shower. On
12-6-12 I spoke with Captain Weber about myself not receiving a shower &
ventilation & not having my holy books. I filed a complaint & it was returned
to me & directed me to contact in writing Captain Weber. I did so. I then
refiled my complaint, again it was returned stating that my complaint was
moot since I’m no longer on the unit. It also said to contact you, Mr. Aldana,
as the next step in chain of command. I received my shower on 12-8-12
outside 1 every 4 day requirement. I was in TLU for 15 days and did not
receive my holy books or other requirements despite making several
requests to Capt. Weber, Lt. Suttle, Sgt. Witt & my unit on 2 occasions.
(Id.)
On January 14, 2013, ICE Brenda LaBelle rejected Offender Complaint RCI-2013838 as untimely. (Kemper Aff. ¶ 16; Rose Aff. Ex. 1001 at 2.) The ICE Rejection form
provides the following “Brief Summary” of the offender complaint, “Not provided a shower
in segregation from 12/3/12-12/8/12.” Id. The form includes the following “Rejection
Comment”:
Pursuant to DOC 310.10.11(5)(d), the “inmate submitted the complaint
beyond 14 calendar days from the date of the occurrence giving rise to the
complaint and provides no good cause for the ICE to extend the time lines.”
6

The complainant has had knowledge of this issue since 12-05-12. He
provides no information to demonstrate a concerted effort to resolve the
issue via proper chain-of-command in a timely manner, despite directive(s)
from this office to do so on 12-12-12 and 12-27-12.
Id.
Sherman appealed the rejection of RCI-2013-838. He submitted a Request for
Review of Rejected Complaint form dated January 18, 2013, which the Warden’s office
received on January 23, 2013. (Kemper Aff. ¶ 18; Rose Aff. Ex. 1001 at 13.) Sherman’s
request for review states:
Complaint was rejected on basis of allegedly not filing within the 14 day time
limit. This is in error. The history of complaint 2013-838 is as follows:
12-5-12: I was denied a shower & had yet to receive some property including
religious texts.
12-6-12: I filed my complaint. It was received & stamped Dec 11 2012.
12-12-12: Complaint returned & directed to contact Capt. Weber. I also sent
a request to Security Director Aldana regarding my allowed TLU property
having yet to be received: Response given.
12-16-12: I sent requests to: C/O Nabrinski, Warden’s Office, & Capt.
Weber, above & beyond the ICRS office’s requests to adhere to chain of
command. No responses were given.
12-26-12: Complaint re-received & stamped by ICRS Dec 26 2012.
12-27-12: Complaint returned & directed to contact Security Director Aldana.
12-28-12: Sent request form to Security Director Aldana: No response given.
1-8-13: Complaint received & dated Jan 8 2013: complaint acknowledged.
1-14-13: Complaint rejected based falsely on 14 day time limit.
As you can see complaint was dated & acknowledged 12-12-12, 12-26-12,
& 1-8-13. All within 14 day time limit. Copies of my request forms were
included in complaint to show following of chain of command.
7

(Rose Aff. Ex. 1001 at 13.) On February 1, 2013, Warden Kemper decided that RCI-2013838 was appropriately rejected as untimely pursuant to Wis. Admin. Code § DOC
310.11(5) because Sherman filed it “[b]eyond the 14 calendar day limit.” (Kemper Aff. ¶
19; Rose Aff. Ex. 1001 at 5.)
Sherman has not filed any offender complaints under the ICRS regarding his
allegations that he did not receive his religious text or holy book during his second stay in
TLU, from February 15 through March 1, 2013.
C. Religious Textbooks in Segregation
Sherman is a Pagan Wiccan. His religious text is a “Book of Shadows” in a threeand-one-half-inch wide expandable file folder measuring approximately fourteen and threefourth inches long and approximately nine inches tall. On the outside lip, printed largely
was, “Book of Shadows.” It contained approximately 800 loose sheets of paper not bound,
including a majority of hand-written pages copied from the “Inner Temple of Witch Craft”
by C. Penczak, published by Llewellyn Publications, A Division of Llewellyn Worldwide Ltd.
(Bachhuber Aff., Ex. 1006, ¶ 8.)
Inmates are allowed religious textbooks in TLU. Any approved religious textbook
can be delivered to an inmate. It is not often that inmates would receive their religious
textbook from the initial pack-up. Sometimes unit staff will send a religious textbook from
the inmate’s former unit when the inmate’s property is packed and inventoried on the unit;
other times the inmate may have to request his religious textbook from the unit. It is
possible for an inmate to receive his religious text without requesting it, for instance if the
staff gathering the TLU property knows that the inmate regularly reads his religious text.

8

There are no requirements or policies that state an inmate must receive their religious
textbook within a certain amount of time upon placement in TLU.
On December 3, 2012, Sherman signed the TLU/ADJ Property Allowed form. The
form specifically indicates that one religious text is allowed and that it is the responsibility
of the inmate to supply it if he wishes to possess it. (Padgett Aff. Ex. 1005.) Sherman did
not identify by name or describe the appearance of his religious text in the
Interview/Information Requests he sent to any of the defendants during his placement in
TLU between December 3 and December 18, 2012. (Compl. Ex. B, Dkt. No. 1-1 at 15-18.)
Sherman avers that he “did speak with several staff members in TLU including defendants
Nabrzynski, Witt, and Weber, about receiving my Book of Shadows from my property and
described its appearance to them.” (Sherman Decl. ¶ 17, Dkt. 67.)
D. Shower Procedure in Segregation Unit
The RCI Waukesha Segregation Unit provides inmates the opportunity to take three
ten-minute showers per week, on Monday, Wednesday, and Saturday. At the beginning
of shower time, a sergeant or officer goes to each cell and asks each inmate if he would
like a shower. If the inmate does, a showering protocol is followed where all inmates who
are showering must stand at their cell front. They are then placed in handcuffs and
searched before being escorted from their cell to the shower cell.
Inmates may bring the following items to the showers: soap, shampoo, conditioner,
washcloth, towel, and pair of shower shoes. Inmates may exchange a clean washcloth
and towel every shower day. They may request a new bar of soap once they are in the
shower from the sergeant or officer conducting showers. Inmates may also request a bar
of soap on unit supply days, which are Tuesday, Thursday, and Sunday. Dirty clothing is
9

exchanged and clean clothing is issued on all shower days at the time the inmate showers.
If an inmate refuses to shower, he is still offered a change of clothing, a clean towel, a
washcloth, and a bar of soap.
Sherman was placed in TLU from December 3, 2012, until December 18, 2012. He
alleges that he did not receive a shower from when he was placed in TLU at 1500 hours
(3:00 p.m.) on December 3, 2012, until December 8, 2012. (Compl. 4; Witt Decl. ¶ 7.)
Showers were completed at 1620 hours (4:20 p.m.) on December 3, 2012. It is likely that
Sherman arrived in the unit after showers already started for that day. During Sherman’s
placement in TLU, showers were offered on 2nd shift on December 5, 8, 10, 12, 15, and
17, 2012. (Witt Decl. ¶ 10; Padgett Aff. Ex. 1004.)
Sergeant Witt does not have knowledge as to why Sherman would not have
received a shower until December 8, 2012, as he does not specifically recall the time
period or the alleged incident. Sergeant Witt does not have any personal involvement in
any decisions regarding the direct medical health care of inmates, including Sherman.
Sherman submitted a Health Service Request, dated December 6, 2012, wherein
he requested daily showers for his eczema and back pain. Nurse Travis Brady responded
on December 13, 2012, that Sherman did not meet the criteria for extra showers. (Compl.
Ex. A, Dkt. No. 1-1 at 3.) A medical progress note from January 1, 2013, states that
Sherman should decrease bathing to every other day and avoid prolonged showering as
part of his plan for skin care. (Compl., Ex. A, Dkt. No. 1-1 at 2.)
E. Temperature in Segregation Unit
Pursuant to the State Department of Administration Facilities Division – Building
Tenant Manual: Rules and Information for State Agency Building Occupants in State
10

Owned and Managed Buildings & Facilities (January 2013), “Every effort is made to
provide an even temperature and acceptable working environment throughout the
building.” It also states, “Occupied space temperatures are maintained at a maximum of
68º F. Exceptions are granted to resident . . . prison cells, research facilities, data
processing and computer rooms, print shops, and special areas where temperature and
h u m i d i t y

a r e

c r i t i c a l . ” ( K e m p e r

A f f .

¶

2 1 ;

http://doa.wi.gov/documents/DFM/Building%20Tenant
%20Manual%20Updated%20January%202013.pdf ). RCI is consistent in following the
temperature standard set forth in the State Department of Administration Facilities Division
– Building Tenant Manual: Rules and Information for State Agency Building Occupants in
State Owned and Managed Buildings & Facilities (January 2013). (Kemper Aff. ¶ 21;
http://doa.wi.gov/documents/DFM/Building%20Tenant%20Manual%20Updated%20Jan
uary%202013.pdf ).
Sherman did not complain about inadequate temperature or ventilation in any of the
health service requests he submitted during his stay in TLU between December 3, 2012,
and December 18, 2012. (Compl. Ex. A, Dkt. No. 1-1 at 3-4.) Sherman did not mention
any issues with his asthma in the health service requests he submitted during his
December 3 through December 18, 2012 stay in TLU. (Id.)
III. DISCUSSION
The defendants contend that Sherman has failed to exhaust his administrative
remedies as to all claims. They also contend that they are entitled to judgment on the
merits of Sherman’s claims.
A. Exhaustion of Administrative Remedies
11

The defendants contend that Sherman failed to exhaust administrative remedies
because he failed to timely file his offender complaint for his first stay in TLU, and because
he failed to file any offender complaint related to his second TLU stay. Sherman, on the
other hand, contends that his offender complaint was erroneously rejected as untimely and
that the defendants effectively prevented him from exhausting. He also contends that he
did not need to file another offender complaint with respect to the denial of his religious text
during his second stay in TLU because it was a “continuing violation.”
“No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). Exhaustion of administrative remedies is a condition precedent to suit.
Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002) (citing Perez v. Wis. Dep’t of Corr., 182
F.3d 532, 535 (7th Cir. 1999)). Section 1997e applies to “all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
The Prison Litigation Reform Act requires “proper exhaustion,” meaning that a
prisoner must complete the administrative review process in accordance with the
applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81, 88, 93
(2006). “[W]hen administrative procedures are clearly laid out . . . an inmate must comply
with them in order to exhaust his remedies.” Pavey v. Conley, 663 F.3d 899, 905 (7th Cir.
2011). On the other hand, when jail personnel mislead an inmate about how to invoke the
procedure the inmate cannot be blamed for failing to invoke it. Swisher v. Porter Cnty.
Sheriff’s Dep’t, 769 F.3d 553, 555 (7th Cir. 2014) (citations omitted) (jail officials invited
12

inmate’s noncompliance with grievance procedures, and thus he sufficiently exhausted
administrative remedies, in § 1983 action alleging denial of medical care, by asking senior
jail officers, up to and including the warden, about how to file a grievance; inmate was told
not to file a grievance because the officers understood his problem and would resolve it
without need for invocation of a formal grievance procedure, but those informal resolution
procedures were not successful and officials did not tell inmate how to invoke a formal
grievance process).
Inmates are not required to exhaust all administrative remedies – only those that are
available. Woodford, 548 U.S. at 102. Prisons “may not take unfair advantage of the
exhaustion requirement” and “a remedy becomes ‘unavailable’ if prison employees do not
respond to a properly filed grievance or otherwise use affirmative misconduct to prevent
a prisoner from exhausting.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Thus,
when prison officials thwart inmates from exhausting, “the process that exists on paper
becomes unavailable in reality.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
Here, contrary to the defendants’ assertions, the undisputed facts show that
complaint RCI-2013-838 was timely filed. Sherman first submitted his offender complaint
on December 6, 2012. On December 12, 2012, the ICE returned the complaint because
it contained more than one issue. The ICE also directed Sherman to follow the “chain of
command” by writing to staff about his issues and, if necessary, to resubmit the complaint
within fourteen days.

Sherman resubmitted his complaint within fourteen days, on

December 24, 2012, and, as directed, included documentation that he wrote to staff. On
December 27, 2012, the ICE again return the complaint and this time stated that
Sherman’s issues were moot because he was no longer in TLU. The ICE also stated that
13

Sherman should contact Security Director Aldana as the next step in the chain of
command.

Sherman resubmitted his complaint on January 8, 2013, and included

documentation that he had attempted to contact Aldana, but received no response. The
ICE filed the offender complaint as RCI-2013-838 and rejected it as untimely. The ICE’s
rejection comment inexplicably states that Sherman did not, “demonstrate a concerted
effort to resolve the issue via proper chain-of-command in a timely manner[.]” However, as
set forth above, Sherman did just that, that is, he followed the ICE’s directions regarding
the chain of command and he did so in a timely manner. It is unclear what more Sherman
could have done. Thus, it appears to the court that Sherman has exhausted administrative
remedies as to the issues raised in RCI-2013-838. See Swisher, 769 F.3d at 555.
Defendants contend that Sherman also did not follow the ICE’s directions because
he did not resubmit the offender complaint with only one issue. Sherman disagrees with
the characterization of his offender complaint as containing more than one issue.
According to Sherman, he did complain of only one issue: his conditions of confinement
in TLU. I do not need to determine whether the offender complaint contained more than
one issue or not because, although the ICE returned Sherman’s initial December 6, 2012,
submission of his offender complaint based, in part, on the complaint containing more than
one issue, the ICE did not return or reject the complaint on that basis the two other times
he submitted the same complaint.

At the time the ICE actually accepted and filed the

complant as RCI-2013-338, the ICE characterized the entire complaint (which complained
of no shower; inadequate ventilation; no holy book, no small comb, no adequate clothing,
no writing materials or stamps; conditions causing asthma and eczema to worsen) as, “Not
provided a shower in segregation from 12/3/12-12/8/12," and rejected it as untimely. The
14

fact that the ICE did not reject RCI-2013-838 as containing more than one issue and,
instead, erroneously rejected it as untimely prohibits the defendants from rightly claiming
that Sherman failed to exhaust by submitting a complaint containing multiple issues. See
Conyers v. Abitz, 416 F.3d 580, 584-85 (7th Cir. 2005); Maddox v. Love, 655 F.3d 709, 722
(7th Cir. 2011).
The defendants also point to the fact that Sherman did not raise all of his issues in
his appeal to the CCE after the ICE rejected RCI-2013-838. However, pursuant to Wis.
Admin. Code § DOC 310.11(6), the reviewing authority only reviews the basis for the
rejection of a rejected inmate complaint. The ICRS rules do not allow inmates to appeal
the merits of a rejected inmate complaint.
Lastly, it is undisputed that Sherman did not file an offender complaint with regard
to his claim that he did not receive his religious text during his second stay in TLU.
Sherman contends that he was not required to file another offender complaint on this issue
because it was just a continuation of the violation of his rights while in TLU. Prisoners
“need not file multiple, successive grievances raising the same issue (such as prison
conditions or policies) if the objectionable condition is continuing.” Turley v. Rednour, 729
F.3d 645, 650 (7th Cir. 2013) (citations omitted). “Separate complaints about particular
incidents are only required if the underlying facts or the complaints are different.” Id.
Sherman’s first stay in TLU (December 3 - December 18, 2012) and his second stay in
TLU (February 15 - March 1, 2013) involved similar durations in the TLU unit and both
involved Sherman’s alleged failure to obtain his holy text. However, each stay in TLU was
a distinct event, and for this reason the facts underlying each complaint were different. No
violation could be deemed to have been “continuing” between December 3, 2012 and
15

March 1, 2013. Thus, Sherman’s initial grievance did not exhaust his claim related to his
religious text for his second stay in TLU. All claims arising out of the second stay will be
dismissed for lack of exhaustion.
B. Religious Claims
1. RLUIPA
Sherman has been released from prison. RLUIPA does not allow for suits against
prison officials in their individual capacity, Nelson v. Miller, 570 F.3d 868, 889 (7th Cir.
2009); Sossamon v. Texas, 563 U.S. 277, 131 S.Ct. 1651, 1662 (2011), and the
defendants are immune from suit under § 1983 for monetary damages in their official
capacities, see Brown v. Budz, 398 F.3d 904, 917-18 (7th Cir. 2005). Thus, Sherman may
only seek injunctive relief against the defendants for his RLUIPA claim. However, because
Sherman is no longer incarcerated, his claims for injunctive relief are moot. See Ortiz v.
Downey, 561 F.3d 664, 668 (7th Cir. 2009). Sherman has not shown a realistic possibility
that he will again be incarcerated in the same state facility and therefore be subject to the
actions of which he complains here. As such, “[a]ny relief that [ ] judgment might permit
would be purely speculative in nature.” See id. Because Sherman has no claim to
injunctive relief in light of his release, he cannot seek relief under RLUIPA. See Maddox
v. Love, 655 F.3d 709, 716-17 (7th Cir. 2011).4
2. First Amendment Free Exercise Claim

4

Sherman contends that his claims are not moot because RCI’s practices effect
other inmates at RCI. However, this case involves only Sherman’s claims, not those of
other inmates.
16

The defendants contend that they are entitled to summary judgment on Sherman’s
free exercise claim because there is no evidence to support that they imposed a
substantial burden on his religious practice. According to defendants, Sherman knew that
it was his responsibility to supply his holy book to the officers packing his belongings for
his placement in TLU. (DPFOF ¶¶ 70-71.) The defendants charge that Sherman failed
to properly identify the text and request it from his unit. The defendants also contend that
the restrictions on property in TLU are pursuant to a rule of general applicability and that
at RCI, all inmates placed in TLU are responsible to supply their religious texts if they wish
to possess it.
Sherman claims that the denial of his religious text, Book of Shadows, during his two
stays in TLU violated his rights under the First Amendment. He contends that the
defendants knew or should have know that depriving him of his holy book substantially
burdened his religion. He asserts that defendants’ practice of requiring inmates placed in
TLU to supply their personal religious texts is enforced arbitrarily. Sherman contends that
his claims are factually supported and that he requested his religious text from his property,
and that the defendants did not respond to his requests.

Sherman contends that

defendants violated the law when they violated their own policies and procedures and they
should be held liable for doing so.
Prisons must permit inmates the reasonable opportunity to exercise religious
freedom. Cruz, 405 U.S. at 322 & n. 2, 92 S.Ct. 1079. However, prison
restrictions that infringe on an inmate’s exercise of his religion are
permissible if they are reasonably related to a legitimate penological
objective, such as security and economic concerns. See Turner v. Safley,
482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (listing factors
relevant in determining whether the “reasonableness” test has been met);
see also Al–Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir.1991). The court
must balance Maddox’s right to be afforded a reasonable opportunity to
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exercise the religious freedom guaranteed by the First and Fourteenth
Amendments against the legitimate penological goals of the prison. See
Young, 922 F.2d at 374. Within these confines, a prison is required to make
“only reasonable efforts” to provide “some opportunity” for religious practice.
Alston v. DeBruyn, 13 F.3d 1036, 1040–41 (7th Cir. 1994). This test is less
restrictive than that ordinarily applied to infringements on constitutional rights
in consideration of the need to give appropriate deference to prison officials,
avoiding unnecessary judicial intrusion into security problems and other
prison concerns. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348-49, 107
S.Ct. 2400, 96 L.Ed.2d 282 (1987).
“In providing this opportunity, the efforts of prison administrators,
when assessed in their totality, must be evenhanded.” Al–Alamin, 926 F.2d
at 686. Prisons cannot discriminate against a particular religion “except to
the extent required by the exigencies of prison administration.”
Johnson–Bey, 863 F.2d at 1312. “The rights of inmates belonging to
minority or non-traditional religions must be respected to the same degree
as the rights of those belonging to larger and more traditional denominations.
Of course, economic and, at times, security constraints may require that the
needs of inmates adhering to one faith be accommodated differently from
those adhering to another.” Al–Alamin, 926 F.2d at 686. “[T]he treatment of
all inmates must be qualitatively comparable.” Id.; see, e.g., Williams v.
Lane, 851 F.2d 867, 885 (7th Cir. 1988) (affirming trial court’s determination
after bench trial that defendants violated protective custody inmates’ First
Amendment rights by denying them, but not general population inmates,
opportunities for regular communal worship, religious instruction, and private
religious counseling without legitimate penological interests).
Maddox v. Love, 655 F.3d 709, 719-20 (7th Cir. 2011).
It is undisputed that inmates in TLU are allowed religious textbooks and that any
approved religious textbook can be delivered to an inmate. On December 3, 2012, the day
that Sherman was first placed in TLU, he signed the TLU/ADJ Property Allowed form which
states that one religious text is allowed and it is “the responsibility of the Offender to supply
if he wishes to possess it.” (Padgett Aff. Ex. 1005.) Sherman’s religious text was not
packed with him when he was transferred to TLU so he was already in TLU when he
requested it.

It appears that TLU inmates may “supply” their property by properly

identifying it and requesting it from the unit.
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It is undisputed that Sherman requested his religious text in his Interview/Information
Requests to the Warden’s Office. That request does not state the name of the text; it only
states that Sherman has not received his “holy books.”

Sherman’s other

Interview/Information Requests state only that he has not received his “property” from his
unit; they do not reference religious texts. Sherman’s request to the Warden’s Office was
made on December 16, 2012, which was two days before he was released from TLU.
Although Sherman avers that he “did speak with several staff members in TLU including
defendants Nabrzynksi, Witt, and Weber about receiving my Book of Shadows from my
property,” he does not specify when he spoke with those officials. At most, these facts
suggest the prison officials neglected to follow up with Sherman regarding the transfer of
some of his property, including his religious text, to TLU. The facts do not, however,
support a finding that any defendant violated Sherman’s constitutional rights.
3. Equal Protection Claim
Sherman’s equal protection claim involves the same set of facts implicated in his
free exercise allegations, and it would be redundant even if he could establish a claim.
See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (dismissing equal protection and
Eighth Amendment claims based on same circumstances as free exercise claim because
free exercise claim “gains nothing by attracting additional constitutional labels”); see also
Graham v. Connor, 490 U.S. 386, 395 (1989). Accordingly, I will grant defendants’ motion
for summary judgment as to Sherman’s equal protection claim.5
5

In his declaration, Sherman includes clarifications of declarations as to two inmates
who aver the Pagan Wiccan inmates’ opportunities to exercise their religion are not equal
to those of other religions. For example, the inmates allege that Pagan Wiccan inmates
do not have the funding for things they need, do not have as many books as Christians,
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C. Conditions of Confinement
The defendants contend that Sherman’s conditions of confinement claim fails
because he was not subjected to conditions that violate contemporary standards of
decency and because none of the defendants were deliberately indifferent. Sherman
contends that he was denied the minimal civilized measure of life’s necessities when RCI
staff failed to provide him with a shower for five days while in TLU, and failed to provide
him with a clean environment in his cell. According to Sherman, biweekly showers, or once
every four days, is the accepted minimal measure of life’s necessities.
Limiting inmates to weekly showers does not violate the Constitution. Jaros v. Ill.
Dep’t of Corr., 684 F.3d 667, 671 (7th Cir. 2012) (citing Rodriguez v. Briley, 403 F.3d 952,
952 (7th Cir. 2005); see also Henderson v. Lane, 979 F.2d. 466, 468-69 (7th Cir. 1992);
Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988). Sherman contends that
his situation is distinguishable from the above-cited cases because his eczema skin
condition made the lack of shower harmful to his health. However, Sherman has not
submitted evidence supporting this assertion. In fact, the scant evidence in the record
regarding Sherman’s skin condition reflects that medical staff recommended him to limit
his exposure to water based on his eczema. (Compl., Ex. A, Dkt. No. 1-1 at 2, 3.)
Turning to Sherman’s claim regarding the lack of proper ventilation or heat in his cell
resulting in aggravation to his asthma, he has not provided admissible evidence to support
this claim. Rather, the facts show that RCI follows regular standards regarding prison

and do not have as many feasts as Christians (once per week versus once per month).
(Dkt. No. 67.) These allegations do not change the analysis with respect to Sherman’s
claims regarding his religious text during his two stays in TLU.
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temperatures. Sherman did not complain about inadequate temperatures, ventilation, or
issues with his asthma in any of the health service requests he submitted between
December 3 and December 18, 2012. In short, the facts do not support a claim that any
defendant violated Sherman’s constitutional rights regarding this claim.
IV. ADDITIONAL MATTER
Sherman has filed a second motion to compel discovery. (Dkt. No. 71.) He seeks
segregation camera footage as requested in his production of document request 7. He
also seeks, “for inspection and photography, cells in which the incidents occurred, as well
as heating and cooling, and ventilation units and duct” as requested in his production of
document request 8. (Dkt. No. 71-1 at 7.) The defendants oppose the motion because
Sherman did not comply with the requirement to confer in good faith prior to filing a motion
to compel, see Civil L.R. 37 (E.D. Wis.).
Even if Sherman had conferred with defendants, I have reviewed defendants’
responses to the discovery requests and they are reasonable. First, defendants did not
provide camera footage sought in request 7 because there is no such segregation camera
footage. Second, I agree with defendants’ objections to request 8 that the discovery
request is vague and ambiguous, overly broad, and not reasonably calculated to lead to
the discovery of admissible evidence.
V. CONCLUSION
For the reasons stated, IT IS ORDERED that defendants’ motion for summary
judgment (Docket 30) is GRANTED. Plaintiffs’ RLUIPA claims are dismissed as moot, and
all other claims are dismissed on their merits.

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IT IS FURTHER ORDERED that plaintiff’s motion to compel (Docket 71) is DENIED.
Dated at Milwaukee, Wisconsin, this 8th day of September, 2015.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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