Garner v. Muenchow et al

Filing 72

DECISION AND ORDER signed by Judge Lynn Adelman on 10/12/16 denying 36 Plaintiff's Motion for Partial Summary Judgment; granting 49 Defendants' Motion for Summary Judgment. The Clerk of Court shall enter final judgment. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
OSCAR GARNER,
Plaintiff,
v.

Case No. 15-C-777

JAMES MUENCHOW, et al.,
Defendant.

DECISION AND ORDER
Oscar Garner, a Wisconsin state prisoner who is currently confined at the
Wisconsin Secure Program Facility (“WSPF”), filed an action pursuant to 42 U.S.C.
§ 1983, alleging that, while he was confined at the Waupun Correctional Institution
(“WCI”), the defendants violated his rights.

Judge Rudolph T. Randa, who was

assigned to the case at that time, screened the plaintiff’s complaint and allowed him to
proceed on claims that the defendants violated his First and Fourteenth Amendment
rights. Before me now are the parties’ cross-motions for summary judgment.
I. BACKGROUND
The events giving rise to this suit occurred when the plaintiff was an inmate at
WCI. Defendants were Department of Corrections (“DOC”) employees who worked as
staff members at WCI. From November 19, 2012 to March 18, 2013, the plaintiff was
housed in the “restrictive housing unit,” which used to be called segregation. Because
the parties in their briefs refer to this unit as “segregation,” so will I.
The DOC has a written policy pertaining to the acquisition, possession, and use
of religious property by inmates. See Division of Adult Institutions Policy 309.61.02,
ECF No. 52-1. Under that policy, an inmate may acquire and possess various religious

items associated with his or her designated religion. The plaintiff is Muslim, and under
the policy he was allowed to possess religious books, prayer beads, prayer oil, a kufi
cap, and a prayer rug. While the plaintiff was in segregation, he sought to acquire some
of these items, specifically a copy of the Quran, 1 prayer beads, a kufi cap, and a prayer
rug. (The plaintiff also wanted to use prayer oil while in segregation, but he either
already had some when he was transferred to segregation or was able to acquire some
while he was in segregation. The plaintiff has conceded that his claims in this suit do
not concern access to prayer oil. See Def. PFOF ¶ 82 (undisputed).)
Under the DOC’s policy, an inmate can obtain religious property in a number of
ways. He may purchase the property from the institution’s canteen (if the canteen
carries the item the inmate wishes to acquire), order it from an outside vendor, or
receive it from a non-incarcerated individual who sends it to the inmate or orders it on
the inmate’s behalf. If the inmate wishes to purchase religious property from an outside
vendor, and that property is available from one of the DOC’s “approved” vendors, the
1

The defendants contend that the plaintiff has conceded that he was able to borrow a
copy of the Quran while he was in segregation. They cite paragraph 80 of their
proposed findings of fact, which the plaintiff did not specifically dispute. However, in his
responses to the defendants’ other proposed findings, the plaintiff disputes that he was
borrowing a Quran while he was in segregation. See Resp. to Def. PFOF ¶ 75. He also
submits a supplemental declaration in which he states that he had a borrowed Quran
until he was transferred to segregation, at which time staff at the segregation unit took it
from him. Supp. Aff. of Oscar Garner ¶ 17. The defendants contend that I must
disregard this affidavit because it contradicts Garner’s deposition testimony. However, I
conclude that the deposition testimony is consistent with the affidavit. The question
Garner was asked at his deposition was whether he had a Quran before going to
segregation, and Garner answered yes to that question. Garner Dep. at 62:7–62:18.
The deposition does not establish that the Quran was not taken from Garner when he
arrived at the segregation unit. Thus, for purposes of the defendants’ motion for
summary judgment, I must assume that Garner did not have a Quran while he was in
segregation.
2

inmate must order the property from an approved vendor. At the time the plaintiff was
housed in the segregation unit at WCI, there were two approved vendors: JL Marcus
and Union Supply. These vendors sold religious items, along with an assortment of
other products, including clothes, hobby materials, and jewelry.
As an alternative to purchasing religious items, an inmate may access them at
the prison’s chapel, if the chapel has them. The chapel has copies of various religious
texts, including the Quran, and inmates may check texts out of the chapel’s library. Def.
PFOF ¶ 17 (undisputed). If the inmate cannot get to the chapel in person, he may
submit a written request to the chapel to check out a religious text. The written request
must be made on form DOC-643. Inmates in segregation may borrow religious texts
from the chapel by submitting a request on this form. If an inmate in segregation makes
a request to borrow a religious text to the chaplain in person, the chaplain would advise
the inmate to submit a written request. Id. ¶ 18 (undisputed).
To order an item from an approved vendor, whether that item was religious or
not, an inmate generally had to obtain a copy of the catalog and then complete an order
form. (If the inmate knew the order number for an item he needed, he could order the
item without first obtaining the catalog.) During the time that the plaintiff was housed in
the segregation unit at WCI, the staff in charge of that unit, defendants Brian Greff,
Shane Waller, and Jessie Schneider, implemented an informal practice for distributing
vendor catalogs to inmates. (So far as it appears from the record, the prison had no
formal policy governing the distribution of catalogs to inmates.) The vendors sent their
catalogs to WCI directly, and they were staple bound. Because staples are not allowed
in the segregation unit, staff in that unit would remove the staples prior to distributing the
3

catalogs to inmates. Inmates were not allowed to keep copies of the catalogs. Rather,
an inmate had to borrow the catalog when he wanted to order something, and had to
return the catalog to prison staff when he was finished, so that it could be lent to other
inmates. If an inmate wrote in a catalog or removed pages from it, the catalog would be
removed from circulation.

Catalogs that were written in would be removed from

circulation because prison staff did not want the catalogs to become a medium for
secret communication among inmates about gang activity, escape plans, and the like.
Catalogs that were missing pages would be removed from circulation because, if they
remained in circulation, the inmates would complain that the pages containing the items
they wanted were missing.
According to the plaintiff, shortly after he arrived in segregation, he wrote to Brian
Greff, the manager of the segregation unit, and requested access to the approved
vendor catalogs to order religious items. Garner states in his affidavit that he wrote to
Greff six times before November 27, 2012 for this purpose, but Greff did not respond.
Aff. of Oscar Garner ¶ 3, ECF No. 38. However, the defendants have been unable to
locate any written requests to Greff from Garner that are dated earlier than November
27, 2012. In a written request dated November 27, 2012, the plaintiff asked Greff about
obtaining toilet paper, complained about not receiving a “snack bag,” and asked Greff
why he had not responded to Garner’s two earlier requests. On November 29, 2012,
Greff wrote back to Garner and informed him that he would speak to a correctional
officer about the toilet paper and the snack bag. Greff also informed Garner that he had
not received any other requests from him. Def. PFOF ¶ 95 (undisputed) & Decl. of
Brian Greff Ex. 1003-1, ECF No. 54-1.
4

On December 23, 2012, Garner wrote a request to Greff asking him why he was
not responding to his requests. In the December 23 request, Garner stated that he had
sent Greff “over 5” requests and had only received one response. Greff Decl. Ex. 10032. Greff responded to this request by asking Garner what his prior requests were about.
Id.
On January 13, 2013, Garner wrote a request to Greff asking him why he was
not allowed to receive the JL Marcus and Union Supply catalogs. Greff Decl. Ex. 10033. Garner wrote in the request that he wanted the catalogs so that he could order paper
and envelopes from whichever catalog had the lowest price. On January 14, Greff
wrote back to Garner and told him to write to the sergeant or lieutenant. Greff told him
this because the lieutenant and the sergeant are the staff members who are mostly on
the floor, interacting and communicating with the inmates daily, and who would have
been the staff members who distributed the catalogs to the inmates. Def. PFOF ¶ 99
(undisputed).
On January 14, 2013, Garner wrote written requests to Lieutenant Schneider and
Sergeant Waller, in which he asked for the vendor catalogs to order religious items.
Garner contends that neither Schneider nor Waller responded to these requests.
Garner also states that, on January 15, 2013, he saw Waller while he was making
rounds in the segregation unit and asked him about getting the vendor catalogs so he
could order religious items. Garner states that Waller told him that the catalogs were
only available to inmates on “C range.” Id. ¶ 30. This would have been a reference to
the different “ranges” of the segregation unit. Ranges A and B were more restrictive
than Range C. At the time Garner spoke to Waller, he was being housed in Range B.
5

Waller and Schneider have both submitted declarations in which they state that, as far
as they know, there was no policy against an inmate on Ranges A or B receiving the
vendor catalogs.

Although Waller does not remember talking to Garner about the

catalogs, he suggests that if he mentioned something about Range C, it was to inform
the plaintiff that all of Range B’s catalogs had been removed from circulation, but that
catalogs were still available in Range C. According to Waller, the inmates on Ranges A
and B defaced the catalogs more often than did the inmates on Range C.
On February 2, 2013, Garner wrote another request to Greff concerning the
catalogs.

In this request, Garner wrote that he had contacted the sergeant and

lieutenant about the catalogs but was not provided with them.

This time, Garner

informed Greff that he wanted to order a prayer rug, envelopes, paper, prayer oil, and
prayer beads. On February 3, 2013, Garner wrote a similar request and directed it to
WCI’s business office. On February 4, 2013, the business office told Garner to contact
the institution’s chapel. On February 5, 2013, Greff told Garner that he was in the
process of creating a makeshift catalog for inmates to use and would get it into
circulation soon. Def. PFOF ¶ 104 (undisputed); Greff Dec. Ex. 1003-4. I describe this
makeshift catalog in more detail below.
On February 12, 2013, Garner filed a complaint through the DOC’s inmate
complaint review system. See Decl. of James Muenchow Ex. 1005, ECF No. 55-1.
Garner complained about not receiving the vendor catalogs to order religious items.
James Muenchow was the inmate-complaint examiner assigned to review the
complaint. Muenchow recommended dismissing the complaint on the ground that the
prison had no obligation to allow inmates housed in segregation to place orders from
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vendor catalogs. He noted that inmates in segregation could receive religious property
through other channels, and that allowing inmates in segregation to place orders from
the catalogs would impose an excessive burden on prison staff. Id. Muenchow states
in his declaration that, in making this determination, he reviewed the prison policies and
rules he thought were applicable and determined that the prison staff Garner had
complained about did not violate any such policies or rules.

Id. ¶¶ 6–10.

Garner

appealed the dismissal of his complaint to WCI’s deputy warden, Donald Strahota. On
February 22, 2013, Strahota affirmed the dismissal of the complaint. In his declaration,
Strahota states that he reviewed the relevant prison policies and determined that
Muenchow’s interpretation of them was correct. See ECF No. 58.
Garner also contends that he asked WCI’s chaplain, defendant Francis
Paliekara, to assist him in obtaining the religious items he needed. Garner states that,
on February 4, 2013, he sent Paliekara a written request for a Quran and also for
access to the vendor catalogs, but that Paliekara did not respond to this request. Aff. of
Oscar Garner ¶ 26. Garner also states that, on February 9, 2013, while Paliekara was
making rounds in the segregation unit, Garner asked him about getting access to the
vendor catalogs. Id. ¶ 27. According to Garner, Paliekara told him to speak to the “unit
manager” (who was Greff) about the catalogs.

Id.

Paliekara does not recall this

conversation, and the chapel has been unable to locate Garner’s written request for a
Quran and the catalogs. Decl. of Francis Paliekara ¶ 23. Paliekara also states that the
chapel does not have copies of the vendor catalogs to lend to inmates. Id. ¶ 25.
On March 12, 2013, Garner wrote to the institution’s psychological services unit.
He stated that he was having a hard time, feeling down, and having trouble sleeping.
7

He stated that this was because he was unable to receive the religious items that he
needed for prayer and that his faith was slipping. The plaintiff identified the items he
needed as prayer beads, a kufi cap, a Quran, and a prayer rug. Garner Aff. Ex. 7, ECF
No. 38-1. On the same day, someone from the psychological services unit responded
to Garner’s request and told him to direct his concerns over his religious property to
security staff. This person also advised Garner to use the materials he had received
concerning depression and told him that he would be seen by psychological staff in the
coming days.
On March 18, 2013, the plaintiff was transferred out of the segregation unit at
WCI. The plaintiff states that, on March 26, 2013, he obtained a kufi cap and prayer
beads, and that sometime in March 2013 he was able to borrow another Quran. Supp.
Garner Aff. ¶ 17.
The defendants do not deny that Garner was not provided with copies of the
vendor catalogs while he was in the segregation unit at WCI. However, according to
their evidence, this was because copies of the catalogs were not readily available
during the several months that Garner was in that unit.

Copies were not readily

available because the inmates who had previously borrowed them either did not return
them or had ruined or defaced them in some way, such as by removing pages or writing
in the catalogs.
By the end of 2012, Greff was aware of the catalog shortage, and he decided to
personally create a makeshift catalog for distribution to all inmates in the segregation
unit. Greff cut out and pasted individual items from the JL Marcus and Union Supply
catalogs onto two sheets of paper. The makeshift catalog included items such as paper
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products, books, footwear, and religious items, which were all allowable items in the
segregation unit. Greff distributed copies of the makeshift catalog to all inmates on the
segregation unit on March 22, 2013, and each inmate was given a personal copy to
keep. By this time, however, the plaintiff had been transferred out of the segregation
unit.
Greff does not explain why it took him several months to address the catalog
shortage. Presumably, additional copies of the catalogs could have been requested
from the vendors themselves, and the vendors would have promptly supplied the prison
with additional copies. Or Greff could have created his makeshift catalog sooner.
In his complaint, the plaintiff alleges that, in denying him access to the vendor
catalogs for four months, the defendants denied him his right under the First
Amendment to freely exercise his religion. He also alleges that the defendants treated
Muslim inmates differently than inmates of other religions, in that they allowed inmates
of other religions to borrow the catalogs but would refuse to lend them to Muslim
inmates. The plaintiff also alleges that the chaplain, Paliekara, substantially burdened
his religion and intentionally discriminated against him by failing to respond to his
request for a Quran. The parties have filed cross-motions for summary judgment on
these claims.
II. DISCUSSION
Summary judgment is required where “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). When considering a motion for summary judgment, I take evidence in the light
most favorable to the non-moving party and must grant the motion if no reasonable juror
9

could find for that party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255

(1986).
Garner first claims that the defendants, by failing to provide him with a means for
acquiring religious property while he was in segregation, deprived him of his rights
under the First Amendment’s free-exercise clause. 2 Under the free-exercise clause, a
prison staff member is liable to an inmate if the defendant “personally and unjustifiably
placed a substantial burden on [the inmate’s] religious practices.” Thompson v. Holm,
809 F.3d 376, 379 (7th Cir. 2016). A burden is unjustified if it is not reasonably related
to a legitimate penological interest. Id. at 380 (citing Turner v. Safley, 482 U.S. 78, 89–
91 (1987)).
In many free-exercise cases involving prisoners, the prisoner challenges a prison
policy or refusal to provide a religious accommodation. See, e.g., O’Lone v. Estate of
Shabazz, 482 U.S. 342 (1987); Vinning-El, 657 F.3d at 592.

In the present case,

however, the DOC did not have a policy prohibiting inmates in segregation, such as
Garner, from acquiring religious property. To the contrary, the DOC’s written policy
permitted inmates to acquire religious property through various channels, including
through the approved vendor catalogs and the prison chapel. Although the written
policy did not expressly state that inmates in segregation were entitled to access the
2

Although Garner in his brief references the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), that statute is inapplicable to this case. The conduct Garner
challenges is not ongoing, and therefore he may not obtain injunctive relief and is
limited to recovering damages. The Seventh Circuit has held that RLUIPA does not
create a cause of action for damages against state officials in their individual capacities.
See Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011). Therefore, to obtain
damages, Garner may not use RLUIPA and must instead rely on the free-exercise
clause and 42 U.S.C. § 1983.
10

vendor catalogs or chapel property, the staff in the segregation unit generally lent
catalogs to inmates and allowed them to order property from the catalogs, and the
chapel allowed inmates in segregation to borrow religious texts by making written
requests.
The reason we are here is that, even though the prison allowed inmates in
segregation to purchase religious property and to borrow texts from the chapel library,
the plaintiff contends that he was unable to access the catalogs or the chapel library for
a four-month period. The lack of such access, in turn, deprived Garner of the religious
items he felt that he needed to properly exercise his religion. I will assume for purposes
of this motion that Garner’s inability, for four months, to either order religious items from
the catalogs or borrow them from the chapel substantially burdened his religious
practices.
The defendants were, in different respects, personally involved in substantially
burdening the plaintiff’s religion in this fashion. Greff, Waller, and Schneider were the
staff members who distributed the catalogs to inmates in the segregation unit and failed
to provide Garner with access to them. Paliekara, the chaplain, failed to respond to the
plaintiff’s request to borrow a Quran. 3 Muenchow and Strahota rejected the plaintiff’s
inmate complaint about the lack of access to the vendor catalogs. However, even when
the record is viewed in the light most favorable to Garner, there is no evidence that the
defendants intended to substantially burden the plaintiff’s religious practices. That is,
there is no evidence that any defendant, knowing that the plaintiff needed to acquire
3

Although the plaintiff alleges that he also asked Paliekara for the vendor catalogs, it is
undisputed that Paliekara and the chapel did not have copies of the vendor catalogs to
lend to inmates.
11

religious items to properly practice his religion, refused to provide him with a catalog (or,
in the case of Paliekara, a Quran) that was readily available. At most, defendants Greff,
Waller, and Schneider were negligent in failing to insure that inmates in the segregation
unit had adequate access to the vendor catalogs, defendant Paliekara was negligent in
failing to insure that the chapel responded to the plaintiff’s request for a Quran, and
defendants Muenchow and Strahota were negligent in concluding that inmates in the
segregation unit were not allowed to order items from the vendor catalogs when, in fact,
staff members in the segregation unit had an informal practice of lending catalogs to
inmates.
Garner has not cited, and I have been unable to find, any cases holding a prison
staff member personally liable for negligently or unintentionally causing a substantial
burden on an inmate’s religious practices. Rather, the only binding case that I have
found involved prison staff members who intentionally imposed a substantial burden on
an inmate’s religious practices.

See Thompson, 809 F.3d at 380 (holding staff

members liable for damages under § 1983 because they were “personally involved in
intentionally denying” an inmate meal bags that he needed to properly practice
Ramadan). I also have been unable to find cases holding that an inmate has a First
Amendment right to acquire religious property while being housed in a segregation unit.
Assuming for the sake of argument that an inmate has such a right, no case holds that
prison staff members must exercise reasonable care to insure that channels for
acquiring religious property remain open to inmates.
“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
12

constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Here, as noted, there is no clearly established law providing that a prison staff
member is personally liable for negligently, rather than intentionally, depriving an inmate
of his free-exercise rights under the First Amendment. Moreover, there is no clearly
established law providing that the free-exercise clause of the First Amendment requires
prison staff members to exercise reasonable care to insure that an inmate in
segregation has adequate access to channels for acquiring religious property. Thus,
reasonable persons in the positions of the defendants would not have known that their
actions—or, more accurately, their failure to take certain actions—would result in a
violation of the plaintiff’s rights. Accordingly, the defendants are entitled to qualified
immunity in connection with the plaintiff’s substantial-burden claim.
In addition to claiming that the defendants substantially burdened his religious
practices, Garner contends that they intentionally made it more difficult for Muslim
inmates to acquire religious property than inmates who practiced other religions. If this
allegation of intentional religious discrimination were true, the defendants would not be
entitled to qualified immunity, as it is clearly established that state officials generally
may not favor one religion over another. See, e.g., Kaufman v. Pugh, 733 F.3d 692,
696 (7th Cir. 2013). However, as explained below, Garner has not pointed to evidence
from which a jury could reasonably infer that any defendant intentionally discriminated
against Muslims.
Garner does not have evidence that the correctional officers assigned to the
segregation unit (i.e., defendants Greff, Schneider, and Waller) or the chaplain
13

(Paliekara) made any statements suggesting that they harbored discriminatory feelings
towards Muslims. 4 Instead, he submits affidavits from four other inmates in which the
inmates describe their experiences in attempting to obtain the vendor catalogs and
certain religious texts while they were housed at WCI. 5 The plaintiff’s goal in submitting
these affidavits is to show that Muslim inmates were denied access to the catalogs and
to copies of the Quran, while Christian inmates were granted access to the catalogs and
were able to borrow Bibles from the chapel library. Two inmates, Zachary Hayes and
Gregory White, state in their affidavits that they are Christian, that they were able to
borrow Bibles from Paliekara, and that they were able to order Bibles out of the
approved vendor catalogs while they were housed on Range B of WCI’s segregation
unit. A third inmate, Darryl Salters, states that while he was housed in the segregation
unit at WCI (which was in January 2010, about three years before the events giving rise
to this suit), he was able to borrow a Bible from Paliekara. Salters does not state that
he was able to obtain the vendor catalogs. The fourth inmate, Jeremy Clark, states that
“at times” when he was confined on Range B of the segregation unit at WCI in 2012, he

4

It is not clear whether the plaintiff claims that defendants Muenchow and Strahota,
who reviewed the plaintiff’s inmate complaint concerning access to religious property,
discriminated against Muslims. However, there is no evidence in the record suggesting
that these defendants acted with discriminatory intent, and therefore they would be
entitled to summary judgment on any discrimination claims.
5

The plaintiff also submits an inmate complaint filed by Terrance Prude, another inmate
who was housed in the segregation unit at the same time as the plaintiff, in which Prude
alleges that he is Muslim and was unable to obtain copies of the vendor catalogs to
order Muslim religious items. However, the inmate complaint contains out-of-court
statements by Prude, and Garner is offering these statements for the truth of the
matters asserted, i.e., that Prude is Muslim and was unable to obtain the vendor
catalogs. Therefore, the complaint is inadmissible as hearsay, and I will not consider it.
See Fed. R. Evid. 801, 802.
14

was unable to obtain the vendor catalogs to order Muslim religious items.

Aff. of

Jeremy Clark ¶ 3.
With respect to the vendor catalogs, the affidavits of Garner, Hayes, White, and
Clark do not give rise to a reasonable inference that the defendants intentionally denied
Muslims access to the catalogs but granted access to Christians. To begin with, Hayes,
White, and Clark do not identify the staff members who either provided them with
access to the catalogs or denied them such access, and thus a jury could not
reasonably infer that the defendants in this case were personally involved in those
decisions. Moreover, Hayes, White, and Clark do not include any facts in their affidavits
suggesting that the staff members they dealt with either knew their religious affiliations
or knew that they were requesting the catalogs to order religious items rather than
nonreligious items.

Thus, the affidavits do not suggest that prison staff took the

inmate’s religion into account when deciding whether to allow him to borrow a catalog.
Rather, the affidavits merely establish that some inmates were able to obtain the
catalogs at certain times, while other inmates were unable to obtain the catalogs at
other times. Indeed, Clark, who is Muslim, states that he was unable to obtain the
catalogs “at times,” which implies that he was able to obtain the catalogs at other times.
Garner does not dispute that there was a shortage of catalogs in the segregation unit in
late 2012 and early 2013. See Def. PFOF ¶¶ 58, 62–63. Thus, the only reasonable
inference to be drawn from the evidence in the record is that the scarcity of catalogs
resulted in the inmates having spotty access to them. Given this spotty access, the
evidence that two Christian inmates (Hayes and White) were able to obtain the catalogs
to order Bibles, that one Muslim inmate (Clark) was able to obtain the catalogs at times
15

and unable to obtain them at other times, and that another Muslim inmate (Garner) was
unable to obtain the catalogs at all, does not give rise to a reasonable inference that
staff in the segregation unit at WCI intentionally used religion as a factor when
determining who would receive the catalogs.
A separate question is whether the evidence shows that Paliekara refused to
lend Qurans to Muslims but would lend Bibles to Christians. Recall that, according to
Garner, he made a written request to borrow a Quran from the chapel library, and that
Paliekara did not respond to this request. Garner contends that he did not receive a
response because he is Muslim, and he seeks to prove that Paliekara is biased against
Muslims by pointing out that Paliekara lent Bibles to Salters, Hayes, and White. White
also states in his affidavit that, on more than one occasion, he observed Paliekara
refuse to provide a Quran to a Muslim inmate.
However, this evidence does not give rise to a reasonable inference that
Paliekara is biased against Muslims. Garner does not dispute that the appropriate way
to request a religious text from the chapel is to make a written request on form DOC643, rather than to make an oral request to Paliekara while he is making rounds. See
Def. PFOF ¶ 18 (undisputed).

The Christian inmates who obtained Bibles do not

explain how they made their requests, and thus it may be that they made appropriate
written requests, rather than improper oral requests. Although White states that he
observed Paliekara refuse to provide Qurans to Muslims, he does not explain the facts
surrounding the incidents he observed, and therefore these may have been incidents in
which an inmate asked Paliekara for a Quran during rounds and Paliekara told the
inmate that he would need to submit a written request. Thus, the testimony of Salters,
16

Hayes, and White does not give rise to a reasonable inference that Paliekara
intentionally discriminated against Muslims when lending religious texts. Rather, their
testimony is consistent with Paliekara’s testimony, which is that he would not act on oral
requests for religious texts that inmates made during his rounds but rather would require
inmates to make written requests on form DOC-643.
It is true that, construing the evidence in the light most favorable to Garner, it
appears that Garner did make a written request but did not receive a response from
Paliekara. However, the fact that Paliekara failed to respond to a single written request
for a Quran does not, by itself, give rise to a reasonable inference that Paliekara was
biased against Muslims. This is especially true in light of the fact that Paliekara does
not personally process the written requests for religious texts. Rather, “inmate clerks” in
the chapel process those requests. See Def. PFOF ¶ 19 (undisputed).
For these reasons, the defendants are entitled to summary judgment on the
plaintiff’s claim that they treated Muslims differently than inmates of other religions with
respect to access to vendor catalogs and religious texts.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that the plaintiff’s partial motion for
summary judgment (ECF No. 36) is DENIED and the defendants’ motion for summary
judgment (ECF No. 49) is GRANTED. The Clerk of Court shall enter final judgment.
This order and the judgment to follow are final. A dissatisfied party may appeal
this decision to the Court of Appeals for the Seventh Circuit by filing in this court a
notice of appeal within 30 days of the entry of judgment. See Federal Rule of Appellate
Procedure 3, 4. I may extend this deadline if a party timely requests an extension and
17

shows good cause or excusable neglect for not being able to meet the 30-day deadline.
See Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask me to alter or amend my judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under
Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. I cannot extend
this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. I cannot extend this deadline. See
Federal Rule of Civil Procedure 6(b)(2).
I expect parties to closely review all applicable rules and determine, what, if any,
further action is appropriate in a case.
Dated at Milwaukee, Wisconsin, this 12th day of October, 2016.
s/ Lynn Adelman
_______________________________
LYNN ADELMAN
District Judge

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