Larry v. Meisner et al

Filing 85

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 3/11/2019 GRANTING 70 defendants Goldsmith and Friend's motion for summary judgment. (cc: all counsel, via mail to Orlando Larry at Gilmer FCI)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ORLANDO LARRY,
Plaintiff,
Case No. 16-cv-1108-pp
v.
RUSSELL GOLDSMITH,
and MATTHEW FRIEND,
Defendants.
______________________________________________________________________________
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 70)
______________________________________________________________________________
The plaintiff, who is representing himself, filed this lawsuit under 42
U.S.C. §1983, alleging that the defendants violated his constitutional rights.
Dkt. No. 1. On November 23, 2016, the court allowed the plaintiff to proceed on
three claims: that defendant Donald Morgan violated his Fourteenth
Amendment due process rights; that Matthew Friend and Russell Goldsmith1
violated his First Amendment right to exercise his religion; and that a John Doe
defendant violated his Eighth Amendment rights. Dkt. No. 12.
On June 26, 2017, the court dismissed the remaining John Doe
defendant because the plaintiff had not identified him by the deadline the court
had set. Dkt. No. 42 at 3. On March 30, 2018, the court dismissed Morgan
because the plaintiff had failed to exhaust the available administrative
remedies before suing him. Dkt. No. 57 at 13-14. The court also dismissed one

Because the plaintiff did not know all the defendants’ names when he filed his
complaint, he used John Doe placeholders. The court later allowed him to
substitute Matthew Friend and Russell Goldsmith for two of the Doe
placeholders. Dkt. No. 42.
1

1

component of the plaintiff’s First Amendment claim against Friend on the same
basis. Id. at 15. The only remaining claim is that Friend and Goldsmith violated
the plaintiff’s First Amendment right to exercise his religion when they
prohibited him from praying on August 2, 2011. Id. at 19.
On August 17, 2018, Friend and Goldsmith filed a motion for summary
judgment on that remaining claim. Dkt. No. 70. The parties have briefed the
motion. Dkt. Nos. 71, 77, 83. The court will grant the defendants’ motion and
dismiss the case.
I.

FACTS2
The plaintiff was incarcerated at Columbia Correctional Institution from

July 28, 2011 until January 3, 2012. Dkt. No. 84 at ¶1. Goldsmith and Friend
both worked at Columbia during that time, Goldsmith as a correctional officer
and Friend as a correctional sergeant. Id. at ¶¶4-5.
When the plaintiff arrived at Columbia, he was housed in Housing Unit
10, which is also known as the Barracks. Id. at ¶6. According to the
defendants, the Barracks is a temporary housing unit for general population
inmates who are awaiting transfer to a medium- or minimum-security facility
or who are waiting to be placed in a program at a Division of Community
Corrections facility. Id. at ¶7. The plaintiff argues that Columbia is a maximum
security facility, and that the inmates housed in the Barracks were coming
from lower-security facilities and were on their way to other lower-security
facilities. Id. He disputes that the inmates in the Barracks were “part of the
[Columbia] general population.” Id. at ¶8.

The court takes most the facts from Defendants’ Reply to Plaintiff’s Response
to Defendants’ Proposed Findings of Fact. Dkt. No. 84. The facts are
undisputed unless the court notes otherwise.
2

2

The Barracks is separated into two sides, A and B, and each side is
separated into four quads. Id. at ¶8. The quads have barracks-style double
bunks, separated by three-by-eight-foot rows. Id. An officer control station is
located at the front of the Barracks that overlooks both sides of the unit; there
is an officer’s desk on each side of the unit between the front and back quads.
Id. at ¶9. The defendants explain that there is a dayroom and dining area in
the center of the Barracks; the plaintiff clarifies that each quad has its own
dayroom and dining area. Id. at ¶10.
The Barracks dayroom was generally open from 7:30 a.m.—11:00 a.m.,
12:30 p.m.—4:00 p.m., and 5:30 p.m.—9:00 p.m. Id. at ¶11; Dkt. No. 75-1 at
18. When the dayroom is open, inmates may freely move around the Barracks
to do things like playing games, watching television, making phone calls,
exercising, showering or praying. Id. at ¶12. When the dayroom is closed,
inmates must be at their bunks. Id. at ¶13. (The plaintiff asserts that there is
“no rule in the Red Book requiring inmates to be in their bunks after the 9:10
p.m. count.” Id.)
According to the defendants, rules for the Barracks were listed in the Red
Book, which was located on the unit and available for review upon request. Id.
at ¶14. The plaintiff says that when an inmate went through orientation at the
Barracks, correctional staff was supposed to provide him with a copy of the
Red Book; he says that instead of doing that, Columbia staff posted certain
pages of the Red Book in the common areas. Id.
The Red Book says that inmates cannot exercise or pray on the floor by
their bunks when the dayroom is closed. Id. at ¶15. It states, “Inmates may
perform floor exercises and prayers in the area on the side of their bunks, one
at a time, in agreement with their bunkmate, during dayroom hours only.” Id.;
Dkt. No. 75 at 20. The defendants indicate that this rule allowed inmates to
3

pray on the floor by their bunks when the dayroom was open, and that it did
not prohibit them from praying silently in their bunks when the dayroom was
closed. Dkt. No. 84 at ¶16. Night-time quiet hours started after the 9:10 p.m.
count. Id. at ¶18. The defendants indicate that during this time, inmates’
movement is limited to using the restrooms (up to three inmates at a time); the
plaintiff says inmates also were allowed to access their lockers. All other
movement is restricted. Id. at ¶18.
The defendants say that inmates must remain in their bunks during
quiet time because it is more efficient for security staff. Id. at ¶19. Officers can
observe the inmates in their bunks from the officer’s desk or the control center;
if the inmates are moving around, officers are required to walk around the unit
to monitor the inmates. Id. The plaintiff argues that because of the location of
the control room, there are blind spots that prevent officers from seeing
inmates; he says the officers still would have to talk around on a regular basis
to account for all the inmates. Id.
The plaintiff is Muslim, and, as part of his religion, he performs prayers
at least five times each day. Id. at ¶2. The parties agree that one round, or
“Rak’ha,” of prayer requires the plaintiff to stand, then to prostrate himself,
then to stay in a seated position for a short while, then return to a standing
position. Id. The plaintiff indicates that it usually takes about five minutes to
complete four Rak’has (and a worshipper performs two to four Rak’has,
depending on which time of day he is praying). Id. at ¶3. Worshippers must
perform the prayers at specific times. Id. at ¶24; Dkt. No. 69 at 12, Tr. pp. 4344.
According to the plaintiff, officers did not begin to enforce the Red Book
rule prohibiting inmates from praying when the dayroom was closed until the
beginning of the month of Ramadan. Dkt. No. 84 at ¶16. Specifically, on
4

August 2, 2011, just after 10:00 p.m., Goldsmith observed inmate Denyal
Kahali praying in his bunk row. Id. at ¶21. Goldsmith approached Kahali and
told him that he could not pray. Id. The plaintiff, who says he hadn’t yet begun
to pray, approached Goldsmith and informed him that he and Kahali had to
pray at that time. Id. at ¶¶ 21, 23. Chaplain Teslik had given the plaintiff a
timetable, which specified that the final prayer that day must occur between
9:55 p.m. and 4:16 a.m. Id. at ¶35; Dkt No. 74-1 at 3, 13. According to the
plaintiff, Goldsmith told him that they could not pray when the dayroom was
closed and that he would be giving the plaintiff and inmate Theodore Deibert
conduct reports. Id. at ¶22.
The plaintiff returned to his bunk row and started his prayer. Id. at ¶23.
After finishing, he saw Kahali and inmate Anthony Garcia talking to Goldsmith.
Id. at ¶24. The plaintiff joined them, and the three inmates tried to explain to
Goldsmith that their religion required that they pray at certain times. Id.; Dkt.
No. 69 at 43:20 – 44:14.
After this interaction, Goldsmith issued the plaintiff a conduct report for
disobeying orders, group resistance and petitions, disruptive conduct and
violation of institutional policies and procedures. Dkt. No. 84 at ¶25. (The
plaintiff says that even before Goldsmith issued the conduct report, he had the
plaintiff placed in the temporary lockup unit, and he disagrees with the
conduct report’s version of what happened. Id.) The adjustment committee
found the plaintiff guilty of disobeying orders, disruptive conduct and violation
of institutional policies and procedures, and gave him sixty days of disciplinary
separation. Id. at ¶30. The defendants say that the plaintiff was able to perform
his prayers that evening, and that no other officer ever again told the plaintiff
that he could not pray at a certain time. Id. at ¶32.

5

II.

DISCUSSION
A.

Summary Judgment Standard

“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.” 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).
B.

Analysis
1.

Matthew Friend

For an individual to be liable under §1983, he must be “personally
responsible for the deprivation of the constitutional right.” Matthews v. City of
6

E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001)). For a supervisor to be liable for a
supervisee’s violation of someone’s constitutional rights, the supervisor “must
have know[n] about the conduct and facilitate[d] it, approve[d] it, condone[d] it,
or turn[ed] a blind eye for fear of what they might see.” Id. (quoting Jones v.
City of Chi., 856 F.2d 985, 992-93 (7th Cir 1988)) (internal quotation marks
omitted).
At his deposition, the plaintiff testified that he did not remember Friend
being present during his interaction with Goldsmith on August 2, 2011. Dkt.
No. 69 at 13, Tr. p. 45. The plaintiff didn’t even know whether Friend was
working at that time—he believed that Friend’s shift already may have ended
by the time he spoke to Goldsmith. Id. Despite this, the plaintiff argued in his
brief in opposition to summary judgment that the court should deny Friend’s
motion because Friend “was the one who initially told the Plaintiff that he
would not be allowed to pray without explanation.” Dkt. No. 77 at 5. See also
Dkt. No. 78 at ¶22 (“On August 1, 2011, I was informed by defendant Friend
that I would not be allowed to pray.”) The plaintiff argued that “after being
informed by the Plaintiff that they were not suppose to interfere with the
Plaintiff’s prayers,” Friend “was observed by the plaintiff and another Muslim
inmate, Anthony Garcia, inside of the officer control station with Defendant
Goldsmith staring at them” Dkt. No. 77 at 6. The plaintiff says that the incident
with Goldsmith happened the next day. Id. Finally, the plaintiff asserts that
Friend’s was Goldsmith’s “superior,” and that he held a higher rank than
Goldsmith. Id.
The plaintiff has presented no evidence that Friend was Goldsmith’s
supervisor, or that Friend had any supervisory authority over Goldsmith. He
has alleged only that Friend held a superior rank to Goldsmith. This is true, as
7

far as it goes—Goldsmith was a corrections officer and Friend was a sergeant at
the time of the events in the complaint. But the simple fact that Friend
outranked Goldsmith does not make him liable for Goldsmith’s actions. In fact,
as the court has noted, even if Friend had been Goldsmith’s supervisor, the law
says that a supervisor is not liable for his supervisee’s conduct just because he
is that person’s supervisor. Horshaw v. Casper, 910 F.3d 1027, 1029 (7th Cir.
2018) (“supervisors are responsible for their own acts but not for those of
subordinates”).
The only question, then, is whether the plaintiff has provided evidence
raising a genuine dispute of material fact about whether Friend played some
part in Goldsmith’s alleged denial of the plaintiff’s First Amendment right to
pray. He has not. The plaintiff has argued that on August 1, 2011—the day
before the incident with Goldsmith—Friend told him that he would not be
allowed to pray, and didn’t give the plaintiff a reason. Even if that is true, the
plaintiff has provided no evidence to show that Friend communicated this to
Goldsmith. The plaintiff also has argued that on the same day—August 1,
2011—he and another inmate saw Friend and Goldsmith together in the
control booth, giving them “unpleasant looks.” Dkt. No. 78 at ¶23. Even if that
is true, it does not raise a genuine dispute of material fact that Friend played
some part in what happened on August 2, 2011. A jury could not reasonably
conclude from Friend’s alleged statement to the plaintiff on August 1, and the
alleged fact that he and Goldsmith stared unpleasantly at the plaintiff on that
day, that Friend was involved in the incident with Goldsmith on August 2, even
though he was not present. The plaintiff has presented nothing more than
speculation, based on slim facts.

8

Because no reasonable jury could conclude that Friend was personally
involved in Goldsmith’s decision to order the plaintiff to stop praying, the court
will grant summary judgment in favor of Friend.
2.

Russell Goldsmith
a.

New arguments

The court allowed the plaintiff to proceed with a First Amendment free
exercise claim against Goldsmith based on his allegations that Goldsmith
ordered him not to pray and then gave him a conduct report after the plaintiff
disobeyed his orders and prayed. In his response to the defendants’ motion for
summary judgment, the plaintiff raises new claims that he did not assert in his
complaint. He argues that Goldsmith’s actions violated the Religious Land Use
and Institutionalized Persons Act (RLUIPA). Dkt. No. 77 at 11. He alleges for
the first time that Goldsmith retaliated against him for exercising his First
Amendment rights. Id. at 8-9. He argues that the policy of not allowing inmates
to pray on the floor between their bunks when the dayroom is closed is
unconstitutional, implying that it violates the Equal Protection Clause because
it impacts Muslim inmates differently than inmates of other faiths. Id. at 13-14.
“It is well settled that a plaintiff may not advance a new argument in response
to a summary judgment motion.” Abuelyaman v. Ill. State Univ., 667 F.3d 800,
814 (7th Cir. 2011). Because the court did not allow the plaintiff to proceed on
any claims other than a First Amendment free exercise claim, and because the
plaintiff did not raise these other claims and arguments prior to his response to
the defendants’ motion, the court will not consider them.
b.

Free exercise Standard

The threshold question under the Free Exercise Clause is whether the
plaintiff has raised a genuine dispute regarding whether Goldsmith
substantially burdened his religious exercise. See Jackson v. Raemisch, 726
9

F.Supp.2d 991, 998 (W.D. Wis. 2010) (citing Hernandez v. C.I.R., 490 U.S. 299,
306-07 (1986)). A “substantial burden” is “one that necessarily bears a direct,
primary, and fundamental responsibility for rendering religious exercise . . .
effectively impracticable.” Id. (quoting Civil Liberties for Urban Believers v. City
of Chi., 342 F.3d 752, 761 (7th Cir. 2003).
c.

Good faith argument

The defendants first argue that the court should grant summary
judgment for Goldsmith because in telling the plaintiff that he could not pray
on the floor between bunks at a time when the dayroom was closed, Goldsmith
was enforcing an institution policy. Dkt. No. 71 at 7. They cite Steckenbach v.
VanDensen for the proposition that “[i]f an officer is following the policy in
place and is not responsible for promulgating the policy, his [sic] should not be
found personally liable under § 1983.” Id. The defendants read Steckenbach
too broadly. That decision involved a prison policy requiring that “property left
on deposit had to be collected within 30 days,” and that “if that did not occur,
the prison’s staff was to ship the property to someone the inmate had
designated.” Steckenbach, 868 F.3d 594, 596 (7th Cir. 2017). The policy
further provided that “if the inmate’s account did not have enough money to
cover shipping costs, the property was to be destroyed.” Id. The policy “warned
inmates that they were responsible for ensuring that their accounts had
enough money on the 30th day.” Id.
When Steckenbach did not pick up some boxes his father had left him
within the thirty-day period, defendant VanDensen (who was in charge of the
mail room) calculated the shipping cost; it was more than the plaintiff had in
his trust account. Id. So VanDensen, following the policy, had the property
destroyed. Id.

10

The plaintiff alleged that VenDensen violated his due process rights by
destroying his property without notice. Id. The Seventh Circuit disagreed. It
accepted the plaintiff’s assertion that he did not know about the property
destruction policy, and that the officer who received the boxes from his father
failed to calculate the shipping charges and warn him that he had to have that
amount in his inmate account on the 30th day. Id. But the court held that
those failures could not “be blamed on VanDensen,” because he wasn’t
responsible for giving notice of the policy and he wasn’t the officer responsible
for notifying the plaintiff of the need to have the amount of the shipping costs
in his inmate account on the 30th day. Id. at 596-97. The Seventh Circuit said,
“[a]ll VanDensen did was carry out the policy after no one collected the boxes
within 30 days.” Id. at 597.
The defendants reach too far when they interpret this statement as a
holding that a prison official who follows a prison policy he did not create
cannot be held liable under §1983. Steckenbach held only that it was the
officers who failed to notify the plaintiff of the policy, and who failed to notify
him that he had to keep the amount of the shipping charges in his account,
who arguably were the sources of the constitutional violations, not VanDensen.
The defendants also cite Shidler v. Moore, 409 F. Supp. 2d 1060 (N.D.
Ind. 2006) in support of their claim that an officer who was just following policy
cannot be held liable under §1983. Again, they reach too far. The court in
Shidler screened the plaintiff’s complaint and found that he had not stated a
claim against four officials who reviewed his grievances that other officials had
violated his free exercise rights by restricting his ability to participate in
communal worship. Id. at 1068. The court stated that these “grievance officials,
though they had actual knowledge of the restriction, were low level personnel
who neither created the policy nor could they have changed it.” Id. This a
11

district court decision from Indiana; it is not binding on this court. The judge
did not cite any case law in support of this conclusion, and did not actually say
that he was dismissing these defendants on the ground that they were just
following a policy.
The court has not found a decision holding that if a prison official was
following a policy he did not create, he cannot be held liable under §1983. If
such precedent exists, the defendants did not cite it. The argument that
Goldsmith was merely enforcing prison policy sounds more like an argument
that he was acting in good faith. Rule 8(c)(1) of the Federal Rules of Civil
Procedure requires a party filing a responsive pleading to affirmatively state
affirmative defenses in that pleading. The defendants asserted a good-faith
defense in their answer. Dkt. No. 15 at 7. In reality, though, the “good faith”
defense for state-law defendants in §1983 suits is the defense of qualified
immunity. In Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982), the Supreme
Court referred to “[q]ualified or ‘good faith’ immunity.” Almost thirty years ago,
the Seventh Circuit held that “[p]ublic officials who enjoy qualified immunity
may assert their good faith as a complete defense to damages liability under 42
U.S.C. s1983.” Jaworski v. Schmidt, 684 F.2d 498, 499 (7th Cir. 1982). See
also, Williams v. Lane, 851 F.2d 867, 882 (7th Cir. 1988) (citing Procunier v.
Navarette, 434 U.S. 555, 562 (1978)) (“Prison officials who act in good faith
receive qualified immunity for their actions.”).
The defendants also have pled the affirmative defense of qualified
immunity, and they argue it at the end of their brief. The court will not analyze
whether Goldsmith is entitled to that defense, however, because it finds for the
reasons below that Goldsmith is not liable for violating the plaintiff’s First
Amendment rights.

12

d.

Argument that Goldsmith did not violate the plaintiff’s
free exercise rights

Next, the defendants argue that Goldsmith’s one-time enforcement of the
policy prohibiting inmates from praying between their bunks when the
dayroom is closed did not substantially burden the plaintiff’s exercise of his
religion. Dkt. No. 71 at 9. They point out that even though Goldsmith told the
plaintiff that he could not pray after the dayroom closed, he prayed anyway. Id.
They assert that the August 2, 2011 incident was a one-off; Goldsmith ordered
the plaintiff not to pray on a single occasion, and no other officer ever ordered
him not to pray. Id. Finally, they argue that the plaintiff has admitted that in
2011 he did not consistently pray five times per day. Id. The defendants
suggest that the plaintiff’s admission that he missed a prayer here and there
shows that there is no genuine dispute as to whether Goldsmith actions
substantially burdened the plaintiff’s free exercise of his religion.
The undisputed facts support the defendants’ argument that the plaintiff
did complete his final prayer of the day on August 2, 2011. Goldsmith told the
plaintiff that he could not pray, and that he would be giving the plaintiff and
another inmate conduct reports, but the plaintiff returned to his bunk and
prayed anyway. But the defendants’ argument ignores the fact that Goldsmith’s
action forced the plaintiff to choose between exercising his religion and risking
receipt of a conduct report or not exercising his religion to (possibly) avoid a
conduct report. The plaintiff chose to exercise his religion, but he got put in
TLU and he received a conduct report. A jury might reasonably find that to tell
an inmate that if he prays, he will receive a conduct report, and then giving
him one when he does, renders his ability to pray effectively impracticable.
The facts also support the defendants’ claim that Goldsmith prohibited
the plaintiff from praying on only one occasion. But the plaintiff’s faith required
13

him to pray five times a day, and to do so at specific times. A jury could
reasonably find that making it impracticable for a Muslim to pray at one of the
five required times of day constituted a violation of his free exercise rights.
The plaintiff testified at his deposition that occasionally he did not
complete all five prayers for various reasons, including because he felt lazy or
had something else going on. Dkt Nos. 71 at 9; Dkt. No. 83 at 3; Dkt. No. 69 at
6, Tr. pp. 17-18; Dkt. No. 69 at 7, Tr. pp. 22-23. The defendants assert that the
fact that Goldsmith ordered the plaintiff not to perform one of the five prayers
on one day could not have impeded his free exercise of religion when the
plaintiff himself missed a prayer now and then. This argument ignores the fact
that the one-time incident occurred during Ramadan, the holiest month of the
year for Muslims. See https://ing.org/ramadan-information-sheet/ (last visited
March 7, 2019). The plaintiff testified at his deposition that “[d]uring the time
of the month of Ramadan was the time [he] was trying [his] best to be obedient
and do[] what [he] was supposed to been doing that month.” Dkt. No. 69 at 6,
Tr. pp. 17-18. And regardless of whether it was Ramadan, the question in a
free exercise case is not whether the plaintiff was a “perfect” practitioner of his
faith, but whether the defendant burdened his ability to practice. A jury could
reasonably conclude that Goldsmith’s interference with the plaintiff’s increased
efforts to complete all his prayers during Ramadan substantially burdened his
exercise of his religion, even though it occurred only once and even though he
might have been less successful in his efforts in other months.
e.

Argument that even if Goldsmith violated the plaintiff’s
free exercise rights, he had a legitimate penal interest
in doing so

The defendants next assert that, even if Goldsmith’s action in forbidding
the plaintiff from praying at his bunk on August 2, 2011 substantially

14

burdened the plaintiff’s exercise of his religion, he had a legitimate penological
interest in doing so. Dkt. No. 71 at 9. Prison inmates, unlike people who are
not incarcerated, have limitations on their First Amendment rights; “a prison
inmate retains those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological objectives of the
corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). “Prison
administrators must permit inmates the reasonable opportunity to exercise
religious freedom.” Williams v. Lane, 851 F.2d 867, 877 (7th Cir. 1988). But
they must balance that requirement “against the legitimate goals of the penal
institution.” Hadi v. Horn, 830 F.2d 779, 783 (7th Cir. 1987) (citation omitted).
“[W]hen a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.”
Turner v. Safley, 482 U.S. 78, 89 (1987). This means that even if a jury could
reasonably find that Goldsmith’s enforcement of the no-praying-after-thedayroom-closed policy impermissibly burdened the plaintiff’s ability to exercise
his religion, he cannot be held liable if that policy was reasonably related to
legitimate penological interest.
In determining whether a policy is reasonably related to a legitimate
penological interest, a court must consider four factors: (1) whether the
restriction is rationally related to a legitimate and neutral governmental
objective; (2) whether there are alternative means of exercising the right that
remain open to the inmate; (3) what impact an accommodation of the asserted
right will have on guards and other inmates; and (4) whether there are obvious
alternatives to the restriction that show that it is an exaggerated response to
penological concerns. Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009)
(citing Turner, 482 U.S. at 89 ). “The burden . . . is not on the State to prove

15

the validity of prison regulations but on the prisoner to disprove it.” Overton v.
Bazzetta, 539 U.S. 126, 132 (2003) (citations omitted).
As to whether the regulation is rationally related to a legitimate and
neutral government objective: the defendants explain that after the dayroom
closes at 9:00 p.m., officers conduct a formal standing count at 9:10 p.m.,
which requires inmates to remain at their bunks. Dkt. No. 71 at 10. After that
count, quiet hours begin and movement in the unit is extremely limited until
the morning; even for prisoners who need to use the restroom during the night,
only three may do so at a time. Id. According to the defendants, fewer officers
work during the night shift; so requiring inmates to stay in their bunks enables
officers to observe the inmates from the officer’s desk or control center rather
than having to walk around the unit. Id. This is a more efficient way for officers
to ensure all inmates are accounted for through the night. Id. at 10-11. “Prison
officials unquestionably have a legitimate interest in maintaining institutional
security.” Kaufman v. McCaughtry, 419 F.3d 678, 683 (7th Cir. 2005)(citation
omitted).
The plaintiff responds that the policy is not necessary to ensure
institution security. He counters that there are blind spots from the officer’s
desk, so officers must walk around the unit anyway. Dkt. No. 84 at ¶¶19-20;
Dkt. No. 77 at 13-14. He also asserts that it takes only three officers to
effectively secure and run the unit, disputing that policy is the result of low
staffing. Dkt. No. 84 at ¶¶19-20.
The plaintiff offers no evidence to support these assertions. He does not
state that he has been in the control unit, so the source of his information
about blind spots is unclear. He provides no basis for how he would have
personal knowledge of the security needs of the unit, and he provides no
evidence to support his opinion of what those needs are. The plaintiff has not
16

raised a genuine dispute about whether the policy is rationally related to the
legitimate governmental objective of night-time security, so this factor weighs
in favor of the defendants.
As to whether there were alternative means of exercising the right that
remained open to the inmate: The defendants indicate that the policy allowed
the plaintiff pray whenever the dayroom was open, and that he could pray
silently in his bunk even when it wasn’t. Dkt. No. 71 at 12. The plaintiff did not
respond to this argument. The evidence indicates that the dayroom was open
from 7:30 a.m.—11:00 a.m., 12:30 p.m.—4:00 p.m., and 5:30 p.m.—9:00 p.m.
Dkt. No. 84 at ¶11. The chart the chaplain provided the plaintiff showed that
on August 2, the dawn (fajr) prayer period began at 4:14 a.m., the mid-day
(dhuhr) prayer period began at 1:05 p.m., the late afternoon (‘asr) prayer period
began at 5:03 p.m., the sundown (maghrib) prayer period began at 8:20 p.m.,
and the bed time (‘isha) prayer period began at 9:55 p.m. Dkt. No. 74-1 at 13.
Given this schedule, the plaintiff could not have performed the ‘isha prayer—
the last prayer of the day—on the floor by his bunk, because the dayroom was
not open at the time the ‘isha prayer period started, and would not have
opened again until after the next days’ fajr prayer period started at 4:16 a.m.
The chart also shows that the prayer periods change over the course of a year
(they are tied to the rising and setting of the sun); it appears that the dayroom
hours do not change.
The defendants’ argument that the plaintiff could have conducted any of
the prayers that took place outside dayroom hours by praying silently in his
bunk assumes that it is proper, in the Muslim faith, to pray by simply thinking
one’s prayers, or verbalizing them silently. Yet the defendants themselves
stated in their proposed findings of fact that “[p]erforming prayers as a Muslim
involves a routine of bowing on the floor and standing,” and they recounted the
17

plaintiff’s description of the steps of Rak’ha in their proposed findings. Dkt. No.
72 at ¶2. This factor weighs against a finding that the policy was reasonably
related to a legitimate penal interest.
As to the third factor—what impact an accommodation would have on
officers and other inmates—the defendants assert that allowing the plaintiff to
pray on the floor by his bunk at times when the dayroom is not open “would
require more staff to watch the inmates or staff would not be able to monitor
the inmates as carefully if more movement were allowed overnight.” Dkt. No. 71
at 12. The defendant responds with his unsupported argument that the guards
in the control booth cannot see every inmate and so must walk around anyway.
As the court has found, the plaintiff provided no evidence in support of this
argument. This factor weighs in favor of the policy’s reasonable relation to a
legitimate penal interest.
Finally, the fourth factor asks whether there were obvious alternatives to
the restriction, such that the restriction appears to be an exaggerated response
to the safety and staffing concerns the defendants have identified. This is,
according to the Supreme Court, a “high standard.” Overton, 539 U.S. at 136.
The plaintiff argues that the defendants could have “designated a place on the
unit for the Muslims to pray ‘one at a time’ in their view, in lieu of requiring
them to pray sitting on their bunk.” Dkt. No. 77 at 14-15. The defendants
respond that “assuming [the plaintiff’s] idea were feasible, it would not have
been without cost to the efficiency of keeping the housing unit secure.” Dkt.
No. 83 at 5.
The court noted earlier that it would not consider the plaintiff’s
arguments that the defendants violated RLUIPA, because he had not raised
that claim in his complaint and the court has not allowed him to proceed on it.
RLUIPA requires a state prison receiving federal funds to show that the
18

challenged restriction is the “least restrictive means” of promoting the
compelling penological interest. Charles v. Frank, 101 Fed. App’x 634, 635 (7th
Cir. 2004). The Religious Freedom Restoration Act of 1993 (RFRA) also has a
“least restrictive means” requirement. Holt v. Hobbs, ___ U.S. ___, 135 S. Ct.
853, 860 (2015). In contrast, in a First Amendment free exercise challenge,
there is no burden on prison officials “to disprove the availability of
alternatives,” or to show “that no reasonable method exists by which
[prisoners’] religious rights can be accommodated without creating bona fide
security problems.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 350
(1987)(quoting the lower court’s decision, Shabazz v. O’Lone, 782 F.2d 416 (3d
Cir. 1986)). The Supreme Court specifically rejected the argument that prison
policies were subject to “a strict ‘least restrictive means’ test.” Thornburgh v.
Abbott, 490 U.S. 401, 411 (1989). “The question is not whether prisons could
find ways to accommodate one or another change. It is whether the rule that
the prison chooses to implement is ‘reasonably related to legitimate security
interests.’” Hammer v. Ashcroft, 570 F.3d 798, 801 (7th Cir. 2009) (quoting
Turner, 482 U.S. at 91).
The plaintiff implies that his suggestion would be less restrictive, but as
the above case law indicates, that is not the question. The question is whether
the alternative he suggests was so obviously workable and less restrictive that
it shows that the policy the institution adopted was an exaggerated response to
its concerns. The plaintiff must identify “some obvious regulatory alternative
that fully accommodates the asserted right while not imposing more than a de
minimis cost to the valid penological goal.” Overton, 539 U.S. at 136. He has
not.
Depending on the number of practicing Muslims in the Barracks on a
given night, the plaintiff’s suggestion could pose more of a security risk, and
19

could be less efficient, than the challenged policy. On any night where there
were more than two practicing Muslim inmates in the unit, prison staff would
be required to create a schedule for each inmate to take his turn coming to the
designated location to pray in view of one of the staff members. If, as the
defendants indicate, there are fewer staff members at night, tasking one of
those staff members with observing the praying inmates would reduce by one
the number of staff available to observe the non-praying inmates. The praying
inmates would have to be accommodated at approximately the same time,
given the timing requirements for the five prayers. The movement of the
praying inmates to and from the designated location would have to be
coordinated with the movement of inmates who needed to use the restroom
(limited, by unit rules, to three inmates at any given time). This fourth factor
weighs in favor of a finding that the policy was reasonably related to a
legitimate penological interest.
The court concludes that even if Goldsmith’s enforcement of the nopraying-on-the-floor-by-the-bunk policy impermissibly burdened the plaintiff’s
First Amendment right to freely exercise his religion, his actions nonetheless
survive constitutional challenge because the policy was reasonably related to
the legitimate penological interests of security and efficiency.
f.

Qualified immunity

Because the court has concluded that Goldsmith is not liable for
violating the plaintiff’s First Amendment rights because the policy he enforced
was reasonably related to legitimate penological interests, it is not required to
consider whether Goldsmith is entitled to qualified immunity.
III.

CONCLUSION
The court GRANTS the defendants’ motion for summary judgment. Dkt.

No. 70.
20

The court DISMISSES this case and will enter judgment.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s 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. This court may extend this
deadline if a party timely requests an extension and 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 this court to alter or
amend its 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. The court 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. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 11th day of March, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

21