Jones v. West et al

Filing 17

ORDER signed by Judge Pamela Pepper on 7/17/2018. 13 Plaintiff's Motion for Sanctions DENIED. 15 Plaintiff's Motion for Judgment DENIED. 16 Plaintiff's Motion for Status Update GRANTED. Defendants to file responsive pleading to second amended complaint within 60 days. Parties may not begin discovery until the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Jumar Jones at Green Bay Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JUMAR JONES,
Plaintiff,
v.

Case No. 16-cv-1687-pp

KELLI WEST, MICHELLE HAESE,
KELLY SALINAS, ALAN DEGROOT,
MICHAEL DONOVAN, and
SCOTT ECKSTEIN,
Defendants.
______________________________________________________________________________
ORDER SCREENING PLAINTIFF’S SECOND AMENDED COMPLAINT (DKT.
NO. 11), DENYING PLAINTIFF’S MOTION FOR SANCTIONS (DKT. NO. 13),
DENYING PLAINTIFF’S MOTION FOR JUDGMENT (DKT. NO. 15), AND
GRANTING MOTION FOR STATUS (DKT. NO. 16)
______________________________________________________________________________
On February 28, 2017, the court gave the plaintiff an opportunity to file
a second amended complaint. Dkt. No. 9. The court received the amended
complaint on March 21, 2017. Dkt. No. 11. The law requires the court to
screen complaints, including amended 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
if the plaintiff raises claims that are legally “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. 28 U.S.C. §1915A(b).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
1

“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To proceed under 42 U.S.C. §1983, a plaintiff must allege that: 1) he was
deprived of a right secured by the Constitution or laws of the United States;
and 2) the defendant was acting under color of state law. Buchanan-Moore v.
Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of
N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980). I will give a pro se plaintiff’s allegations, “however
inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
A.

The Plaintiff’s Allegations
In 2016, Ramadan started on June 7 and ended on July 6, see

https://www.timeanddate.com/holidays/us (last visited on July 14, 2018). On
April 14, 2016, the plaintiff learned from other inmates that a sign-up sheet to
receive bagged meals during Ramadan had been posted in the chapel for a
couple of weeks; the deadline to sign up was April 7, nearly two months prior
to Ramadan. Dkt. No. 11 at ¶12.
The plaintiff sent defendant Chaplain Michael Donovan an
interview/information request, stating,
It is our understanding that this year’s Ramadan deadline
was April 7? If this is the case, there are numerous Muslim
inmates who received no notice of Ramadan. If this is your
policy not to issue timely notice, then you have imposed a
‘substantial burden’ and have put inmates who had wish[ed]
to participate cannot [sic], because they can’t afford the cost
2

of providing their own meals. Can you please explain why
you didn’t issue a[n] institution wide memo stating the start
of Ramadan and the deadline to sign up for ‘all’ Muslim
inmates? Thank you.”
Id.
Donovan responded the next day, telling the plaintiff, “I was directed by
management that I could post an announcement only in the chapel and
library.” Id. at ¶13. The plaintiff and another inmate spoke to Donovan later
that day about not being added to the bagged meal list. Id. at ¶14. Donovan
explained that there had been a change in policy about notification; all
notifications for religious celebrations would be posted only in the chapel or
library. Id. The plaintiff asked why religious notifications were being handled
differently from other non-religious notifications. Id. Donovan stated that he
did not know and he could not put the inmates on the bagged meal list. Id.
Donovan instructed the inmates to write to defendant Michelle Haese at social
services. Id.
That same day, the plaintiff sent a letter to Haese, asking her to add him
to the bagged meal list for Ramadan. Id. at ¶15. The plaintiff explained that
earlier in the year, Native American services had been posted. Id. He also
observed that the policy seemed unfair because non-religious notices were still
posted institution-wide and not all inmates attend the chapel or library
regularly. Id.
The next day, on April 16, 2016, Haese responded to the plaintiff and
denied his request to receive bagged meals during Ramadan. Id. at ¶16. She
explained that in the past, Green Bay Correctional Institution (GBCI) had put
3

“congregate” meal date notifications on “institution Channel 8;” however, in
2016, the institution changed its policy, posting notification of multi-day
religious meal accommodation and congregate meal dates only in the chapel,
library and on restricted housing unit (RSHU) carts. Id. Haese explained that
the new policy was in line with Department of Adult Institutions (DAI) policy
and was comparable to the procedures of other maximum security sites. Id.
On April 19, 2016, the plaintiff sent a letter to defendant warden Scott
Eckstein, explaining his communications with Donovan and Haese. Id. at ¶17.
The plaintiff asked Eckstein to allow him and the other inmates who did not
know about the sign-up deadline to participate. Id. According to the plaintiff,
Eckstein did not respond to the letter, but he met with the plaintiff and two
other inmates on April 22, 2016. Id. at ¶18.
Eckstein allegedly explained that he was new at GBCI, and he asked the
inmates how the notification system worked and why Donovan and Haese had
denied their requests to receive bagged meals during Ramadan. Id. The plaintiff
explained the change in the notification policy as it related to religious
observances. Id. Eckstein asked why the plaintiff did not attend chapel or go to
the library. Id. The plaintiff explained that there was a lot of gang activity and
fighting at the chapel services and his faith did not require that he attend
services there. Id. He also explained that access to the library is very limited,
with passes being handed out only once per week. Id. He stated that he has
gone weeks without going to the library because of misplaced passes. Id. The
plaintiff asked Eckstein why he had not responded to the plaintiff’s letter;
4

Eckstein said he was busy and needed time. Id. The plaintiff asserts that
Eckstein never responded. Id.
On April 24, 2016, the plaintiff sent an inmate complaint to defendant
Alan DeGroot, asking that he be allowed to receive bagged meals during
Ramadan. Id. at ¶19. The plaintiff explained that he did not know about the
sign-up deadline because of the change in policy. Id. DeGroot denied the
plaintiff’s request, and explained that the new policy was consistent with the
DAI policy requiring that notice be placed in the chapel and library and on the
RSHU carts. Id. He said posting notifications on channel 8 is only a courtesy.
Id. DeGroot also said that he could not make an exception to the sign-up
deadline because it would be discriminatory if one group got an exception but
others did not. Id. DeGroot told the plaintiff that inmates are responsible for
knowing their faith practices. Id. In any event, DeGroot concluded, the plaintiff
could still participate in the fast on his own through self-selection from the
general menu or use of canteen products. Id.
On April 25, 2016, the plaintiff again spoke to Haese about her refusal to
let him receive bagged meals during Ramadan. Id. at ¶20. He explained that
the date for Ramadan changes every year. Id. Haese said she did not care, and
good luck. Id. She said there would be no exceptions to the sign-up sheet
deadline. Id. The plaintiff asked Haese for the name of her supervisor, so he
could contact her. Id. Haese stated that she had already told defendant Kelli
West about the situation at the institution and that the policy change had
come from DAI. Id.
5

On May 14, 2016, the plaintiff filed another inmate complaint, which was
reviewed by Kelly Salinas. Id. at ¶21. The plaintiff complained that the
institution had changed its notification policy for religious observances without
informing the inmates of the change, and that Haese refused to make an
exception to the sign-up deadline even though he did not know about the
deadline. Id. Salinas responded:
The RPAC [Religious Practices Advisory Committee]
Executive Committee will use a memo each year indic[a]ting
the timeframe and deadlines for Mult[i]-Day Dietary
accommodations. This information is posted at GBCI as
noted in the ICE’s recommendations. This is done for
informational purposes to allow inmates to know sign[-up]
deadlines for Ramadan sign up and its start/end date. The
inmate failed to sign up for Ramadan, so his option is selfobserve Ramadan. The institution’s decision reasonably and
appropriately addressed the issue raised by this inmate. On
appeal, the inmate presented no information to warrant a
recommendation overturning that decision. Thus, it is
recommend[ed] this appeal be dismissed.
Id.
The plaintiff did not receive bagged meals during Ramadan. Id. at ¶19.
B.

The Court’s Analysis
The plaintiff explains that, prior to 2016, GBCI posted all notices,

including those about religious observances on “channel 8.” In 2016, the
institution changed that policy and began to post notices of religious
observances only in the library, chapel and on the RSHU carts. The plaintiff
states that the institution did not inform inmates about the change. In
addition, because the plaintiff did not visit the library or chapel (and was not in
restricted housing), he was unaware that the sign-up sheet to receive bagged
6

meals during Ramadan had been posted. Once the plaintiff learned about the
sign-up sheet, he immediately requested to be added to it, but Donovan and
Haese refused to add him even though he had missed the deadline by only
about a week and Ramadan was nearly two months away.
Prisoners retain a right to free exercise of religion under the First
Amendment, subject to legitimate penological demands of the state. Tarpley v.
Allen County, Ind., 312 F.3d 895, 898 (7th Cir. 2002). In Conyers v. Abitz, 416
F.3d 580 (7th Cir. 2005), the Seventh Circuit Court of Appeals considered a
situation in which an inmate was told he could not receive bagged meals
during Ramadan because he had missed the sign-up deadline. Id. at 582-83.
The court rejected the institution’s “rigid and unsupported assumption that a
sign-up deadline like the one imposed is a reasonable administrative
requirement under any circumstances.” Id. at 585. The court found that
“convenience and notice to prison staff” did not justify “the rejection of [the
plaintiff’s] request to participate in the fast, especially since he missed the
notification deadline by just four days and in fact alerted the defendants that
he desired to participate in the Feast of Ramadan two days before it began.” Id.
The plaintiff has alleged sufficient facts to allow him to proceed on a First
Amendment claim against Haese, based on his allegations that she refused to
add him to the bagged meal list shortly after the deadline even though the
plaintiff explained that he did know that the sign-up sheet had been posted.
The plaintiff also has alleged sufficient facts to allow him to proceed
against Eckstein, West, DeGroot and Salinas on failure-to-intervene claims,
7

based on his allegations that all of them knew about Haese’s refusal to make
an exception to the sign-up deadline and either approved, condoned, or turned
a blind eye to her refusal to add him to the bagged meal list. See Perez v.
Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015) (holding that supervisory
officials and grievance officials can be liable under §1983 if they fail to exercise
their authority to intervene on a prisoner’s behalf to rectify the situation.)
The court will not allow the plaintiff to proceed on a free-exercise claim
against Donovan. “It is well established that for constitutional violations under
§ 1983 . . . a government official is only liable for his or her own misconduct.”
Perez, 792 F.3d at 781. The Court of Appeals for the Seventh Circuit has
explained that “no prisoner is entitled to insist that one employee do another’s
job.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009).
The plaintiff states that he asked Donovan to add him to the bagged meal
list, and Donovan said that he could not. Instead, Donovan directed the
plaintiff to Haese, the person with the authority to make an exception to the
deadline. Because Donovan did not have the authority to add the plaintiff to
the bagged meal list after the deadline (or to order Haese to do so), he cannot
be held liable for her decision.
The court will also allow the plaintiff to proceed on his allegation that
Haese, Eckstein, West, DeGroot, Salinas and Donovan violated the First
Amendment when they adhered to and enforced a DAI policy requiring that
institutions provide notice of religious observances to inmates only in specific
locations, rather than on channel 8, where all non-religious notices were given.
8

The Seventh Circuit has explained that, “In the prison context, a regulation
that impinges on an inmate’s constitutional rights, such as one imposing a
‘substantial burden’ on free exercise, may be justified if it is ‘reasonably related
to legitimate penological interests.” Kaufman v. Pugh, 733 F.3d 692 (7th Cir.
2013) (citations omitted). Further, “the Establishment Clause may be violated
even without a substantial burden on religious practice if the government
favors one religion over another (or religion over nonreligion) without a
legitimate secular reason for doing so.” Id.
The plaintiff’s assertions that the limited notice prevented him from
learning about and participating in important religious observances is
sufficient for him to proceed. In addition, because the plaintiff is challenging
both the policy and the decision of those who enforced it, he may proceed
against Haese, Eckstein, West, DeGroot, Salinas and Donovan1 in both their
individual and official capacities. See Hill v. Shelander, 924 F.2d 1370, 1372
(7th Cir. 1991) (explaining that an official-capacity suit is appropriate when a
person is executing or implementing the official policy or custom of a
government entity).
The court will not, however, allow the plaintiff to proceed on equal
protection or due process claims based on these same allegations. As the
Seventh Circuit has noted in similar circumstances, the plaintiff’s First
The plaintiff alleges that Donovan told him that management directed him to
post the announcement only in the library and chapel. The plaintiff does not
clarify whether Donovan had the authority or ability to post the announcement
on channel 8; however, because the court must construe a pro se plaintiff’s
allegations broadly, the court will allow the plaintiff to proceed on this claim
against Donovan.
1

9

Amendment claim will “gain nothing by attracting additional constitutional
labels.” Conyers, 416 F.3d at 586 (citing Graham v. Connor, 490 U.S. 386, 395
(1989) for the proposition that claims are to analyzed under the most explicit
source of constitutional protection).
C.

The Plaintiff’s Motion for Sanctions and Motion for Judgment
On June 22, 2017, the court ordered that the plaintiff could pay the

remainder of the $350 filing fee from his release account. Dkt. No. 12. The
court ordered the warden of GBCI to withdraw $328.02 from the plaintiff’s
release account and forward that sum to the clerk of court by July 31, 2017.
Id.
On September 1, 2017, the plaintiff filed a motion for sanctions, dkt. no.
13, and, on January 10, 2018, the plaintiff filed a motion for judgment, dkt.
no. 15, based on his assertions that the warden had failed follow the court’s
order.
Court staff contacted the business office at GBCI to find out why the
remainder of the filing fee had not been withdrawn from the plaintiff’s release
account and forwarded to the court. The business office explained that the
plaintiff did not follow the institution’s policies regarding the disbursement of
funds. Specifically, the plaintiff wrote two letters to the warden, telling him that
the court had issued its order and demanding that the funds be taken out of
his account. Dkt. No. 14-1. He did not, however, provide the business office
with a copy of the court’s order, a prepaid envelope, and a disbursement

10

request, which is what institution policy requires for the business office to
process the payment.
The court will deny the plaintiff’s motions. He must follow the
institution’s policies regarding disbursements. If he has additional questions
regarding the policies, he should contact the institution’s business office. The
court reminds the plaintiff that, because he already paid an initial partial filing
fee, the court granted his motion to proceed without prepayment of the filing
fee, dkt. no. 9. That means that the fact that the court has not yet received the
balance of the filing fee has not delayed the court’s handling of the case.
D.

Status Motion
Finally, the plaintiff filed a motion asking this court to rule on his motion

for sanctions, and to “move this case forward without undue delays, if
possible.” Dkt. No. 16. By way of this order, the court is granting that motion.
The court acknowledges, with regret, that it has taken the court a very long
time to screen the amended complaint and get this case moving. That is not
because it has not received the balance of the filing fee. It is because of this
court’s backlog of cases. The delay is solely the court’s fault; the court regrets
that it has fallen behind, not only on this plaintiff’s case, but on many others.
This order should get the case moving again. The court apologizes to the
plaintiff for the delays.
E.

Conclusion
The court DENIES the plaintiff’s motion for sanctions. Dkt. No. 13.
The court DENIES the plaintiff’s motion for judgment. Dkt. No. 15.
11

The court GRANTS the plaintiff’s status motion; this order constitutes a
status update. Dkt. No. 16.
The court ORDERS that, under an informal service agreement between
the Wisconsin Department of Justice and this court, copies of plaintiff’s second
amended complaint and this order are being electronically sent to the
Wisconsin Department of Justice for service on defendants Kelli West, Michelle
Haese, Kelly Salinas, Alan DeGroot, Michael Donovan and Scott Eckstein.
The court ORDERS that under the informal service agreement between
the Wisconsin Department of Justice and this court, defendants Kelli West,
Michelle Haese, Kelly Salinas, Alan DeGroot, Michael Donovan and Scott
Eckstein shall file a responsive pleading to the second amended complaint
within sixty days of receiving electronic notice of this order.
The court ORDERS that the parties shall not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that, under the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
who will scan and e-mail documents to the Court. The Prisoner E-Filing
Program is in effect at Dodge Correctional Institution, Green Bay Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure Program
Facility; if the plaintiff is no longer incarcerated at one of those institutions, he
will be required to submit all correspondence and legal material to:

12

Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
The court advises the plaintiff that if he does not file documents or other
required information by the deadlines the court sets, the court may dismiss his
case for failure to diligently pursue it. The parties must notify the Clerk of
Court of any change of address. Failure to do so could result in orders or other
information not being timely delivered, thus affecting the legal rights of the
parties.
Dated in Milwaukee, Wisconsin this 17th day of July, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

13