Ali v. Eckstein et al

Filing 10

ORDER signed by Judge J.P. Stadtmueller on 1/17/2017. Plaintiff's claim for violation of due process rights under 14th Amendment DISMISSED with prejudice. Defendants Kelli West, Kelly Salinas, Alan DeGroot and Cindy O'Donnell DISMISSED f rom action. Defendants Michael Donovan, Michelle Haese, and Scott Eckstein to file responsive pleading within 60 days of receiving electronic notice of this Order. See Order. (cc: all counsel, via mail to Ouati K. Ali and Warden at Green Bay Correctional Institutuion)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
OUATI K. ALI,
Plaintiff,
v.

Case No. 16-CV-1518-JPS

KELLI WEST, MICHELLE HAESE,
KELLY SALINAS, ALAN
DEGROOT, CINDY O’DONNELL,
SCOTT ECKSTEIN, and MICHAEL
DONOVAN,

ORDER

Defendants.

On December 19, 2016, the Court screened Plaintiff’s original
complaint. (Docket #8). The Court found that Plaintiff failed to state any
viable claims for relief, but it permitted him to amend his complaint. Id. at
6–7. Plaintiff submitted an amended complaint on December 29, 2016.
(Docket #9).
As noted in the first screening order, the Court is required to screen
complaints brought by prisoners seeking relief against a governmental entity
or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint, or portion thereof, if the prisoner has raised
claims that are “frivolous or malicious,” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a defendant who is
immune from such relief. Id. § 1915A(b). All of the standards cited in the first
screening order remain applicable here. (Docket #8 at 1–3).

To show why Plaintiff’s amended allegations largely fail to correct his
prior errors, the Court will relate them in detail. Initially, Plaintiff describes
the jobs and authority of each of the named defendants. Defendant Kelli
West (“West”) is the Religious Coordinator for the Wisconsin Department of
Corrections and, in that capacity, she is allegedly “responsible for the overall
operations of the department and each institution under its jurisdiction,
including Green Bay Correctional Institution,” the prison where Plaintiff is
incarcerated. (Docket #9 at 2). Defendant Michelle Haese (“Haese”) is the
Institution Social Service Director. Id. She is “responsible for the over all
operations of the institution” and she “executes its policy.” Id. Defendant
Kelly Salinas (“Salinas”) is a Corrections Complaint Examiner and is
“responsible for overseeing the overall operations of the department’s
complaint division and each institution under its jurisdiction.” Id. Defendant
Alan DeGroot (“DeGroot”) is the Institution Complaint Examiner at
Plaintiff’s prison. Id. He is “responsible for its day-to-day operations and
executes its policies as it pertains to inmate grievances.” Id. Defendant Cindy
O’Donnell (“O’Donnell”) is the Secretary of the Office of the Wisconsin
Department of Corrections, and she is “responsible for its day-to-day
operations and executes its policies as it pertains to inmate grievances for the
state of Wisconsin.” Id. Defendant Scott Eckstein (“Eckstein”) is the warden
of the prison where Plaintiff is housed and is “responsible for the day-to-day
operations and executes its policies.” Id. Finally, Defendant Michael Donovan
is the chaplain at Plaintiff’s prison and is “responsible for the day-to-day
operations and executes its policies.” Id. at 3.

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In his amended complaint, Plaintiff alleges that on or around March
29, 2016, a fellow inmate instructed him to submit a request to the prison’s
Chapel Services department for provision of the “Eid Meal,” which the Court
interprets as the special meal eaten during the Eid-al-Fitr feast at the close of
the Muslim holy month of Ramadan. (Docket #9 at 4).1 That same date, he
“forwarded to be placed on the list for the Ramadan Participation that was
to began [sic] June 6, 2016.” Id.
On April 4, 2016, Donovan sent Plaintiff a “New Religious Practice or
Property” form. Id. Plaintiff alleges that this “was the incorrect form.” Id. He
further alleges that Donovan never acknowledged whether Plaintiff had been
placed on the list for Ramadan participation as he had requested. Id. On April
5, 2016, Plaintiff sent an interview/information request to Donovan, asking
if he had been added to the list for Ramadan participation. Id. at 4–5.
Donovan replied on April 13, 2016, stating in part that “[t]he deadline to sign
up for Ramadan was April 7, 2016. . .and management would not allow him
to put a memo on channel 8, posting a deadline date.” Id. at 5.
On or around April 15, 2016, Plaintiff, along with a fellow Muslim
inmate, were en route to the dining facility when they crossed paths with
Donovan. Id. Plaintiff asked Donovan again whether he had been placed on
the “Ramadan list.” Id. Donovan responded that he would not place
Plaintiff’s name on the list and that Plaintiff should write to Haese. Id.
Plaintiff

did

so

on

April

15,

2016,

sending

Haese

“an

Interview/Information Request attached with Donovan’s response.” Id.

1

He does not state that he ever actually submitted such a request, only that another
inmate advised him to do so.

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Plaintiff does not further describe what he wrote in this request to Haese. See
id. She responded on some later date, saying “[b]e patient, I am trying to
resolve the problem.” Id. On April 18, 2016, Plaintiff filed an inmate
grievance which “presented facts relating to [the amended] complaint.” See
id. at 3. He provides no further details as to the contents of that grievance. See
id.
On or around April 22, 2016, Plaintiff, along with two other inmates,
met with Eckstein and prison security director Kind (whose first name is not
given). Id. at 5. Plaintiff claims that he and his associates questioned Eckstein
and Kind regarding being denied participation in the 2016 Ramadan fast.
Id. The inmates voiced concern that they “were not notified of the 2016
Ramadan by channel 8 bulletin and how the institution never notified
inmates of this change in policy.” Id. According to Plaintiff, Eckstein “agreed
that the new system was not working, for there had been other inmates
complaining of not being notified.” Id. Eckstein “assured [the inmates] that
he [would] look into the issue” and follow up with them. Id.
On May 11, 2016, the complaint examiner dismissed Plaintiff’s April
18 complaint, which Plaintiff appealed on May 20. Id. at 3. On June 14, 2016,
the dismissal was affirmed by the corrections complaint examiner. Id.
Plaintiff received notice of this decision on July 13, 2016. Id. at 4.
Based on these facts, Plaintiff alleges two claims for deprivation of his
constitutional rights pursuant to 42 U.S.C. § 1983. Id. at 6. First, Defendants
violated his right to the free exercise of his religion under the First
Amendment when they denied him participation in the Ramadan fast. Id.
Second, Defendants violated his due process rights under the Fourteenth

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Amendment when they “deprived him of his liberty to practice his religion
without government interference.” Id.
Plaintiff’s amended complaint generally fails to state claims upon
which relief may be granted. The Court will discuss each of Plaintiff’s specific
claims in turn, but first, it should be noted that the amended complaint omits
several details which were included in the original complaint. Plaintiff was
expressly instructed in the Court’s original screening order that his amended
complaint “supersedes the prior complaint and must be complete in itself
without reference to the original complaint.” (Docket #8 at 7) (citing Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056–57 (7th
Cir. 1998)). Plaintiff’s failure to both replicate his prior allegations and
improve upon them is the source of many of the deficiencies described
below.
1.

FREE EXERCISE CLAIM
To prevail on a claim that Defendants, by denying him participation

in the Ramadan fast, deprived Plaintiff the right to the free exercise of his
religion, Plaintiff must allege facts showing that the prison officials in
question “personally and unjustifiably placed a substantial burden on his
religious practices.” Thompson v. Holm, 809 F.3d 376, 379 (7th Cir. 2016);
Conyers v. Abitz, 416 F.3d 580, 585 (7th Cir. 2005). A burden is “substantial”
when it “put[s] substantial pressure on an adherent to modify his behavior
and to violate his beliefs,” Thomas v. Review Bd., 450 U.S. 707, 717–18 (1981),
or where it forces a person to “choose between following the precepts of her
religion and forfeiting [governmental] benefits, on the one hand, and
abandoning one of the precepts of her religion. . .on the other hand,” Sherbert

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v. Verner, 374 U.S. 398, 404 (1963). A burden is “unjustified” if it is not
reasonably related to a legitimate penological interest. Turner v. Safley, 482
U.S. 78, 89–91 (1987). A rule that is “neutral and of general applicability need
not be justified by a compelling governmental interest even if [it] has the
incidental effect of burdening a particular religious practice.” Church of
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); Koger v.
Bryan, 523 F.3d 789, 796 (7th Cir. 2008).2
Under the applicable standards, Plaintiff has stated a claim for
violation of his free exercise rights against the prison chaplain, Donovan, the
program director, Haese, and the warden, Eckstein. It appears that Donovan
ignored Plaintiff’s timely request to be placed on the list for Ramadan
participation and then denied his follow-up request as untimely. A free
exercise claim under Section 1983 requires that the prison official in question
act intentionally, not merely negligently, in placing a burden on the inmate’s
religious exercise. Lovelace v. Lee, 472 F.3d 174, 201 (7th Cir. 2006). Although
Donovan might proffer evidence showing that his failure to timely register
Plaintiff for Ramadan participation was not intentional, Plaintiff’s allegations,
taken as true, suffice to state a claim at the screening stage against Donovan.
Likewise, although Plaintiff fails to actually state that Haese denied his
request to participate in Ramadan, the Court can infer as much through a
generous construction of his existing allegations. After she is served, Haese

2

Of course, the free exercise right, enshrined in the First Amendment, is applicable to
state penal institutions only through the Due Process Clause of the Fourteenth Amendment. See
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Thus, Plaintiff’s free exercise claim arises not
under the First Amendment but under the Fourteenth.

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can argue that any such denial was unintentional or was justified by prison
policy.
Finally, although it is a close question, the Court finds that Plaintiff’s
allegations pass the screening stage with respect to warden Eckstein.
Donovan told Plaintiff that “management” prohibited him from notifying
inmates of the Ramadan sign-up deadline via the “channel 8
bulletin”—which the Court previously surmised is some sort of intra-prison
notification system. The Court assumes here that Eckstein, as the warden,
made this decision. This is corroborated by Plaintiff’s later conversation with
Eckstein, in which Eckstein admits that he had implemented a different
system to replace “channel 8.” The implementation of that new system, and
the refusal to permit use of the “channel 8” system, may easily be justified as
having general applicability despite their incidental effects on Plaintiff’s
religious exercise. See Church of Lukumi Babalu, 508 U.S. at 531. Yet at this
early juncture, the Court will permit the claim to proceed.
The same is not true, however, for any of the other defendants.
Although named as defendants in this case, Plaintiff’s factual allegations do
not touch upon West, Salinas, DeGroot, or O’Donnell. Section 1983 creates
a cause of action based on personal liability and predicated upon fault; thus,
“to be liable under [Section] 1983, an individual defendant must have caused
or participated in a constitutional deprivation.” Pepper v. Village of Oak Park,
430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). Liability may also attach
to acts that occur with a government official’s consent. Brokaw v. Mercer Cnty.,
235 F.3d 1000, 1012 (7th Cir. 2000); Gentry v. Duckworth, 65 F.3d 555, 561 (7th
Cir. 1995) (officials are liable for another’s constitutional violation only where

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they know of it, condone it, approve it, facilitate it, or turn a blind eye
toward it). Because personal involvement is required for liability to attach,
the respondeat superior doctrine—supervisor liability—is not applicable to
Section 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
Thus, these defendants cannot be liable for any other prison
employee’s constitutional violations. With respect to West, the Court
presumes that Plaintiff added her as a defendant because he believes that she,
as a supervisor for religious services provided in Wisconsin prisons, is
responsible for Donovan’s or Haese’s conduct. This is not so, and, absent any
allegations that she personally participated or even knew about their conduct
at the time it occurred, Plaintiff states no claim against her. Similarly, to the
extent Plaintiff seeks supervisory liability against Haese based on Donovan’s
actions, or against Eckstein for the actions of any other prison employee,
these theories must fail.
As to Salinas, DeGroot, and O’Donnell, these individuals deal with
inmate grievances in various capacities. The Court might presume that they
were involved in the disposition Plaintiff’s grievance of April 18, 2016,
though he does not say this in his amended complaint. Yet this alone does
not create a First Amendment claim against these officials. Plaintiff gives no
specifics as to what issues the April 18 grievance raised or how any examiner
or reviewing authority investigated and disposed of it. As noted above, the
Court cannot co-opt Plaintiff’s more detailed allegations regarding these
defendants from his initial complaint into his amended complaint. Duda, 133
F.3d at 1056–57. As such, Plaintiff’s potential First Amendment claims against
West, Salinas, DeGroot, and O’Donnell are without merit.

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2.

DUE PROCESS CLAIM
As for Plaintiff’s due process claim, its contours are somewhat unclear.

Does Plaintiff believe that denial of participation in Ramadan constitutes a
denial of due process separate and apart from any free exercise violation? See
(Docket #9 at 6). Or does he instead challenge the denial of his April 2016
inmate grievance as a violation of his right to due process? He does not say,
but his allegations do not state a due process claim under any theory.
When a prisoner makes a due process claim, it is important to define
with precision the nature of the claim being raised. This is because the Due
Process Clause of the Fourteenth Amendment is the source of three separate
constitutional protections. The Supreme Court has explained:
First, the Clause incorporates many of the specific protections
defined in the Bill of Rights. A plaintiff may bring suit under §
1983 for state officials’ violation of his rights to, e.g., freedom of
speech or freedom from unreasonable searches and seizures.
Second, the Due Process Clause contains a substantive
component that bars certain arbitrary, wrongful government
action ‘regardless of the fairness of the procedures used to
implement them.’ Daniels v. Williams, 474 U.S. 327, 331 (1986).
As to these two types of claims, the constitutional violation
actionable under § 1983 is complete when the wrongful action
is taken. . . . The Due Process Clause also encompasses a third
type of protection, a guarantee of fair procedure. A § 1983
action may be brought for a violation of procedural due
process, but. . .[i]n procedural due process claims, the
deprivation by state action of a constitutionally protected
interest in ‘life, liberty, or property’ is not in itself
unconstitutional; what is unconstitutional is the deprivation of
such an interest without due process of law. . . . The constitutional
violation actionable under § 1983 is not complete when the
deprivation occurs; it is not complete unless and until the State
fails to provide due process.

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Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original; citations and
footnote omitted). In asserting a claim for deprivation of his First
Amendment rights, Plaintiff has relied on the “incorporation” function of the
Due Process Clause. He has not, however, alleged violations of substantive
or procedural due process protections afforded by the Clause.
As to a potential substantive due process claim, recall that Plaintiff
alleges that Defendants’ conduct “deprived him of his liberty to practice his
religion without government interference.” (Docket #9 at 4). This is a
restatement of Plaintiff’s First Amendment free exercise claim as a violation
of substantive due process principles. Yet, where a specific constitutional
provision protects a certain right, a plaintiff may not bring an alternative
claim that deprivation of that right is also a deprivation of substantive due
process. Albright v. Oliver, 510 U.S. 266, 273 (1994). In other words,
substantive due process is an inappropriate substitute for constitutional
analysis where the Constitution directly addresses a subject. See Koutnik v.
Brown, 456 F.3d 777, 781 (7th Cir. 2006); Conyers, 416 F.3d at 586. As a result,
Plaintiff has not stated any actionable substantive due process claim.
The Court turns next to whether Plaintiff has stated a procedural due
process violation. A procedural due process claim against a government
official requires proof of inadequate procedures and interference with a
protected liberty or property interest. Kentucky Dept. of Corr. v. Thompson, 490
U.S. 454, 460 (1989). In the prison context, protected liberty interests are quite
limited. See Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir. 1997). Pertinent to
this case, “[a]lthough the due process clause of the Fourteenth Amendment
requires prison officials to provide inmates with certain procedural
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protections when a liberty interest is implicated, [prisoners] do not enjoy a
liberty interest in obtaining satisfactory relief from the inmate complaint
examiner or from other prison officials at subsequent levels of appeal.”
Boribune v. Berge, No. 04-C-0015-C, 2005 WL 840367, at *3 (W.D. Wis. Apr. 11,
2005).
Under these standards, Plaintiff states no procedural due process
claim against any of the Defendants. As noted above, Plaintiff cannot form
a procedural due process claim using his First Amendment free exercise right
as the “liberty interest” which he was deprived of. See Koutnik, 456 F.3d at
781; Becker v. Kroll, 494 F.3d 904, 918–19 (10th Cir. 2007) (applying Albright to
procedural due process violations). Nor does he have a liberty interest in the
allegedly wrongful denial of his April 2016 inmate grievance. While prison
officials may not prevent inmates from filing grievances or lawsuits, there is
no allegation here that Defendants did so here; instead, Plaintiff appears to
believe simply that they were wrong to deny him relief based on the
grievance. That denial, and the affirmance of the denial on appeal, do not
constitute violations of Plaintiff’s due process rights. See Strong v. David, 297
F.3d 646, 650 (7th Cir. 2002) (“As long as [prison officials] did not deprive
Strong of his opportunity to contest the merits of the charge before the
grievance board or sabotage his chance to obtain redress in court, the
defendants’ uncooperative approach is not an independent constitutional
tort; there is no duty to assist in an effort to obtain private redress.”).
For the reasons stated above, the Court concludes that Plaintiff will be
permitted to proceed only on the following claim: a First Amendment claim

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against Donovan, Haese, and Eckstein for deprivation of the right to free
exercise of Plaintiff’s religion.
Accordingly,
IT IS ORDERED that Plaintiff’s claim for violation of his due process
rights under the Fourteenth Amendment be and the same is hereby
DISMISSED with prejudice;
IT IS FURTHER ORDERED that Defendants Kelli West, Kelly
Salinas, Alan DeGroot, and Cindy O’Donnell be and the same are hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that, pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s amended complaint (Docket #9) and this order will be
electronically sent to the Wisconsin Department of Justice for service on
Defendants Michael Donovan, Michelle Haese, and Scott Eckstein;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
those Defendants shall file a responsive pleading to the complaint within
sixty (60) days of receiving electronic notice of this order; and
IT IS FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 17th day of January, 2017.
BY THE COURT:

____________________________________
J.P. Stadtmueller
U.S. District Judge

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