Jones v. West et al

Filing 58

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 2/11/2020. 31 Defendants' motion for summary judgment GRANTED. (cc: all counsel, via mail to Jumar Jones at Redgranite Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JUMAR K. JONES,
Plaintiff,
Case No. 16-cv-1687-pp
v.
KELLI WEST, et al.,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 31) AND DISMISSING CASE

The plaintiff, who is representing himself, filed this lawsuit under 42
U.S.C. §1983. The court allowed him to proceed on claims that the defendants
violated his First Amendment free exercise rights when they prevented him
from observing Ramadan. Dkt. No. 17. The defendants have filed a motion for
summary judgment. Dkt. No. 31. The court will grant their motion and dismiss
the case.
I.

RELEVANT FACTS1
The plaintiff, who has been a practicing Muslim since 1996, was an

inmate at Green Bay Correctional Institution when the incidents alleged in his
complaint occurred. Dkt. No. 33 at ¶¶1, 55. Defendant Kelli West is the
Division of Adult Institution (DAI) religious practices coordinator; defendant
Michelle Haese was the social services director at Green Bay and she

Under Civil L.R. 56(b)(4), the court will deem undisputed those proposed facts
to which a party does not respond.
1

1

supervised defendant Michael Donovan, the chaplain at Green Bay; defendant
Kelly Salinas is a corrections complaint examiner (CCE); defendant Alan
DeGroot is an institution complaint examiner (ICE) at Green Bay; and
defendant Scott Eckstein was the warden at Green Bay. Id. at ¶¶3-8.
The facts giving rise to the plaintiff’s claims are largely undisputed. In
2016, Ramadan started on June 7 and ended on July 6 with the Eid al-Fitr
feast. Dkt. No. 33 at ¶56; see https://www.timeanddate.com/holidays/us.
During the month of Ramadan, Muslims fast during the daylight hours,
breaking their fast daily sometime after sundown and before sunrise. Dkt. No.
32 at 2.
Inmates incarcerated at DAI prisons may participate in the Ramadan
fast; they are given meal bags during non-fasting hours (meals to eat after
sundown and before sunrise) which contain a day’s worth of food. Dkt. No. 33
at ¶¶9-11. Under DAI policy 309.61.03, inmates who want to receive bagged
meals during Ramadan must submit an interview/information request to the
chaplain at least sixty days before the first bagged meal. Id. at ¶¶12-13. There
are some exceptions to the sixty-day sign-up deadline. For example, if an
inmate transfers into the institution after the sixty-day deadline or during
Ramadan, that inmate may receive bagged meals upon confirmation that he
was receiving Ramadan meals at his prior institution or had signed up for
meals prior to Ramadan at his prior institution. Id. at ¶13. The institution
assumes that there will be few transferring inmates to accommodate under this
exception. Id. at ¶77. There is no “start date” for asking to be added to the list;
an inmate may ask as early as he wishes (presumably, an inmate could have
asked in May 2019 to be put on the bagged meal list for the 2020 celebration,
scheduled to start Friday, April 24, 2020). Id. at ¶14. At Green Bay, inmates
2

may place their request forms in the internal mailbox in their housing unit or
in the chapel request box in the rotunda; they also may give their request
forms directly to Donovan. Id. at ¶¶17-18. The sixty-day sign-up deadline for
Ramadan and all other multi-day religious observances has been in effect since
2012. Id. at ¶19. The plaintiff timely asked to participate in Ramadan every
year since the policy went into effect. Id. at ¶55.
The defendants explain that planning for Ramadan each year is “a
considerable undertaking with many moving parts.” Id. at ¶62. Planning for
Ramadan starts about three months in advance. Id. at ¶63. The food services
administrators at institutions throughout Wisconsin submit month-long
Ramadan menus to the dietetic services director for approval. Id. at ¶64. There
are different menus for general fare, Halal, plant-based and dairy-free
Ramadan bags. Id. Other diets also may be needed if there are participants on
low-sodium or low-fat diets or who require a peanut-free or soy-free diet. Id.
The dietetic services director considers the menus in light of product
availability, ingredients, packaging, serving size and updates to nutrition
standards. Id. at ¶65. If changes to a menu are required, there can be
significant back and forth between the food service administrator and the
dietetic services director. Id. at ¶68.
After the menus have been approved, the Department of Corrections tries
to give the menus to its vendor up to eight weeks in advance of ordering the
food. Id. at ¶69. It does this to allow the vendors an opportunity to acquire
adequate stock. Id. If a vendor is unable to acquire adequate stock, further
adjustments to the menu may need to be made. Id. Although the DOC can
estimate quantities of food based on prior years’ data, participation each year
varies. Id. at ¶70. From 2011 through 2016, the number of DOC-wide
3

participants ranged from 764 to 933. Id. In the last five years, the number of
participants at Green Bay ranged from 61 to 110. Id. at ¶71.
Once the menus have been set and the vendor is on notice, the
institutions need to recalculate their purchasing and production number as
precisely as possible for the various Ramadan bags. Id. at ¶72. Serving certain
inmates with Ramadan bags results in changes being made to the quantities
needed for non-Ramadan meals. Id. According to the defendants, the DOC’s
limited food budget does not allow institutions to maintain extra inventory. Id.
at ¶73. But institutions cannot afford to run short on inventory because
security problems may arise if the last inmates served receive different food
items from those previously served. Id. Meeting those competing objectives is
why the institutions strive to determine the precise quantities of food needed.
Id.
It can take a vendor up to four weeks to fill an institution’s order,
depending on the order quantity and the availability of the products. Id. at ¶74.
The institution must have the food two weeks prior to the start of Ramadan, so
that it can thaw it in accordance with food service standards. Id. at ¶74. The
institution then prepares the food three to four days before it is served. Id. at
¶75.
According to the defendants, there are generally no extra Ramadan meals
available on any given day. Id. at ¶76. To accommodate an inmate not on the
bagged-meal list, the kitchen staff would have to use food intended for other
purposes or would have to purchase extra food to ensure food is on hand, but
the food budget does not allow for such purchases. Id. As a result, staff do not
add inmates to the Ramadan list after the sign-up deadline passes unless the

4

inmate satisfies one of the narrow exceptions stated in the policy (which are
not relevant to the plaintiff’s claims). Id. at ¶13, 77.
While the sign-up deadline has been in place at all institutions since
2012, prior to 2016, each institution was free to determine how to notify
inmates of sign-up deadline. Id. at ¶21. According to the defendants, the DAI
reviewed the varying institution practices for providing religious notices and
identified several concerns with having different approaches at different
institutions. Id. at ¶¶22-28. For example, an inmate who received notices a
certain way at one institution might expect the same kind of notice upon
transfer to another institution, despite differences in institution practices. Id.
at ¶23. Some facilities were selectively publicizing only certain religious
accommodations via television, perhaps giving rise to a perception of preference
for some faiths over others. Id. at ¶28. Accordingly, in 2016, the DAI created a
policy requiring prisons to post a DAI memo containing all the dates and
deadlines for the upcoming year’s temporary, multi-day religious fasting and
dietary observations. Id. at ¶31. The policy required that the memo be posted
in the chapel. Id. The policy allowed the prisons to post the memo elsewhere,
but they were not required to post it any other place. Id. at ¶¶31, 36. According
to the defendants, any notices that institutions posted in places other than the
chapel were a courtesy to the inmates. Id. at ¶32.
Prior to 2016, Green Bay had posted reminders about the Ramadan signup deadline on institution television. Id. at ¶38. After surveying the practices of
other maximum-security prisons, wanting to be fair to inmates who didn’t have
televisions, and considering the DAI’s warning that all faith groups needed to
receive the same notices, Green Bay decided to stop posting religious notices
on institution television. Id. at ¶¶39-41. Haese and Eckstein made this decision
5

on the advice of West. Id. at ¶42. Donovan, DeGroot and Salinas were not
involved in the decision. Id.
According to the defendants, the DAI deadlines memo for 2016 was
released on December 2, 2015. Id. at ¶45. It listed the sign-up deadlines for
Lent, Baha’I, Passover, Ramadan, Tisha B’Av and Yom Kippur. Id. at ¶46. At
some point, no later than February 5, 2016 (about four months before
Ramadan started), Green Bay posted the memo in the chapel, the library and
on the restricted housing unit carts. Id. at ¶47. Islamic inmates were offered a
weekly service and a weekly study group in the chapel, id. at ¶49, and were
told of the 2016 Ramadan sign-up deadline during the group services, id. at
¶50. Inmates also could ask the chaplain or staff about the dates of religious
observances, could ask each other or could ask family members. Id. at ¶¶5152.
The plaintiff was aware that a sign-up deadline existed; he had signed up
to receive bagged meals during Ramadan every year since the deadline had
been put in place. Id. at ¶55; Dkt. No. 50 at ¶¶9-11. The plaintiff explains,
however, that because the start of Ramadan changes every year according to
the sighting of the new moon, he had relied on posted notices to determine the
start of Ramadan, and by extension, the deadline by which he had to sign up to
receive bagged meals.2 Dkt. No. 50 at ¶¶6-8, 44. The plaintiff explains that
prior to the 2016 policy taking effect, Green Bay had posted religious notices
on institution television, which informed viewers who wished to participate in
Ramadan to send a request to Donovan for bagged meals. Id. at ¶10. As
previously noted, starting in 2016, religious notices were no longer played on
The plaintiff’s reliance on notices is understandable. In 2012, Ramadan
began on July 20; in 2013, it began on July 9; in 2014, it began on June 29;
and in 2015, it began on June 18. https://www.timeanddate.com/holidays.
2

6

institution television. The plaintiff asserts that according to the handbook,
notices of changes in policy and procedure should be provided on institution
television. Dkt. No. 50 at ¶39.
On April 4, 2016, three days before the April 7, 2016 sign-up deadline,
the plaintiff was talking with an inmate named Ouati Ali about whether Ali had
used the correct form asking to attend the Eid al-Fitr meal. Dkt. No. 33 at
¶¶53-43; Dkt. No. 50 at ¶20. In a lawsuit Ali filed in 2016, the plaintiff
submitted a declaration, stating that on April 4, 2016, Ali had showed the
plaintiff form correspondence between Ali and Donovan, and that while the
form was “dated April 4, 2016,” it did not include a response “to Ali’s request to
be placed on the list for Ramadan.” Dkt. No. 42-1 at ¶6.
The plaintiff explains that about a week later, on April 11, 2016, Ali told
the plaintiff that Ali’s cellmate had received a letter from Donovan confirming
that the cellmate’s name had been placed on the Ramadan list. Dkt. No. 50 at
¶21. The plaintiff says that Ali “thought it was strange” that although Ali had
been in communication with Donovan, Donovan hadn’t responded to Ali’s
request to be added to the list. Id. The plaintiff says this caused him to start “to
ask around” about whether anyone else had seen a sign-up deadline. Id. at
¶22. Later that day, another inmate told the plaintiff that Donovan had posted
the deadline in the chapel on March 25, 2016, and that the inmate (who
worked in the library) would check to see if it had been posted in the library.
Id. That same day, the plaintiff sent an information request to Donovan, which
stated: “You haven’t post[ed] the Ramadan Sign-Up Deadline yet. You just sent
a guy confirmation of his placement on the list, what[’s] going on, there’s no
post on Channel 8[;] can we sign up now or what?” Dkt. No. 50-1 at 39.

7

A few days later, on April 14, 2016, Ali showed the plaintiff Ali’s
interview/information request to Donovan, in which Donovan indicated that
the sign-up deadline was April 7. Dkt. No. 50 at ¶24. The plaintiff sent another
interview/information request to Donovan expressing his frustration. Dkt. No.
50 at ¶25. Donovan confirmed that the sign-up deadline was April 7, 2016. Id.
Donovan also told the plaintiff and two other inmates that he had been told to
post notification only in the chapel and the library. Id. at ¶26. The next day, on
April 15, 2016, Haese responded to the plaintiff’s letter; she told him about the
changes in the posting policy. Id. at ¶28. She also refused to add his name to
the list because he had missed the deadline. Id.
A few days after that, on April 19, 2016, the plaintiff sent Eckstein a
letter telling him that Donovan and Haese were refusing to add him to the list
to receive bagged meals. Id. at ¶29. The plaintiff and two other inmates spoke
to Eckstein about this issue a few days later, on April 22, 2016. Id. at ¶30.
Eckstein said he would look into it. Id.
On April 24, 2016, the plaintiff filed an inmate complaint stating that he
had been unaware of the sign-up deadline and that he wanted to be added to
the Ramadan list. Id. at ¶32. The next day, the plaintiff spoke with Haese and
informed her that he had filed an inmate complaint; he asked her if he could
write to her supervisor. Id. at ¶33. Haese said that her supervisor already knew
about her decision to deny his request to be added to the list. Id. She told the
plaintiff he could fast on his own. Id.
On May 10, 2016, DeGroot denied the plaintiff’s inmate complaint, and
the next day, Eckstein denied the plaintiff’s request. Id. at ¶¶34-35. The
plaintiff appealed DeGroot’s denial a few days later; Salinas denied the
plaintiff’s appeal on July 14, 2016. Id. at ¶38.
8

The plaintiff explains that he tried to observe the fast by supplementing
with food he purchased at the commissary, but due to his lack of funds, he
was unable to sustain his fast for the entire month. Id. at ¶40. The plaintiff
explains that he missed twelve fast days because he ran out of food. Id. The
defendants note that during Ramadan and shortly before it, the plaintiff bought
a lot of food at the commissary, which he could have eaten at night after
fasting during the day. Dkt. No. 33 at ¶61; Dkt. No. 34-2.
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 a “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.

9

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.

First Amendment Law

Under the “free exercise” clause of First Amendment, individuals have
the right to freely exercise their religion. Cutter v. Wilkinson, 544 U.S. 709, 719
(2005). Prison officials are prohibited from “intentionally and substantially”
preventing an inmate from practicing his or her religion. Garner v. Muenchow,
715 F. App’x 533, 537 (7th Cir. 2017). “When a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests.” Kaufman v. McCaughtry, 419 F.3d 678,
682-83 (7th Cir. 2005) (citations omitted).
When evaluating a free-exercise claim, a court first must consider
whether an inmate’s right to practice his religion was burdened in a significant
way. Id. at 683. If so, it then must consider (1) whether the prison’s regulation
was rationally connected to a legitimate governmental purpose; (2) whether the
inmate “had an alternative means to vindicate his free exercise rights;” (3) the
effect that accommodating an inmate’s rights would have on the guards and
other inmates; and (4) whether there are alternatives to the regulation. Tarpley
v. Allen Cty., Ind., 312 F.3d 895, 898 (7th Cir. 2002).
The “establishment clause” of the First Amendment “sets forth a
principle of government neutrality.” Milwaukee Cty. Sheriffs’ Ass’n v. Clarke,
588 F.3d 423, 527 (7th Cir. 2009). “It prohibits the government from promoting
‘a point of view in religious matters’ or otherwise taking sides between ‘religion
and religion or religion and nonreligion.’” Id. (quoting McCreary Cty. v. ACLU,
10

545 U.S. 844, 860 (2005)). Under the test articulated by the Supreme Court in
Lemon v. Kurtzman, 403 U.S. 602 (1971), “government action violates the
Establishment Clause if it has any of the following characteristics: (1) a nonsecular purpose; (2) the principal or primary effect of advancing or inhibiting
religion; or (3) fostering and excessive government entanglement with religion.”
Id. (citing Lemon, 403 U.S. at 612). See also, Kaufman, 419 F.3d at 684
(citations omitted).
C.

The Court’s Analysis

The plaintiff is proceeding on three claims: 1) that the defendants
violated the First Amendment when they stopped posting religious notices on
institution television, 2) that they violated the First Amendment when they did
not inform inmates that religious notices no longer would be posted on
institution television, and 3) that they violated the First Amendment when they
refused to add the plaintiff to the bagged-meal list even though he explained
that he did not know about the deadline and he had missed the deadline by
only one week.
1.

The Decision to Stop Posting Religious Notices on Institution
Television

The defendants are entitled to summary judgment on the plaintiff’s claim
that their decision to stop posting religious accommodation notices on
institution television violated the Free Exercise or Establishment clauses of the
First Amendment, because no reasonable jury could conclude that their
decision substantially burdened the plaintiff’s right to practice his religion or
somehow advanced or hindered a religion or created excessive entanglement
with a particular religion.
As to the plaintiff’s claim that terminating television notices violated his
right to freely exercise his faith, the plaintiff has not established the first prong
11

of a free exercise claim: that the termination of television notices substantially
burdened the exercise of his faith. The defendants have provided evidence that
notice of the bagged meal sign-up deadline was posted in the chapel, the
library, the restricted housing unit library and the restricted housing unit
carts. Dkt. No. 36-2 at 1. They have provided evidence that the notice would
have been posted no later than February 5, 20163, two months before the signup deadline, and that the posting of the sign-up deadline would have been
discussed during weekly services. The plaintiff asserts that his library time was
restricted to Monday nights, dkt. no. 50 at ¶19, but even if the plaintiff went to
the library only one night a week, that would have given him up to eight
opportunities to see the notice in the library alone.4 If he attended weekly
services or study in the chapel, he had similar opportunities to see the notice
there.5
Notices were not the only way the plaintiff could have found out about
the deadline. Donovan was a source of that information. It is true that the
Seventh Circuit rejected an argument that an inmate should have anticipated
Ramadan in time to contact the chaplain in Conyers v. Abitz, 416 F.3d 580,
585 (7th Cir. 2005)—a case the plaintiff cites. But in Conyers, the plaintiff had

While the plaintiff asserts that another inmate told him that that inmate saw
Donovan posting the notice in chapel on March 25, 2016, the plaintiff provided
no evidence supporting that assertion.
3

In his amended complaint, the plaintiff says that he told Eckstein inmates
could access the library only with a pass, that passes were issued only once a
week and that he had “missed weeks of library time by missed placed passes.”
Dkt. No. 11 at ¶18.
4

In his amended complaint, the plaintiff says he told Eckstein that he didn’t
attend services “because of the constant gang activity and arguing of minor
things, and that he did not want to be part of any negative spirit.” Dkt. No. 11
at ¶18.
5

12

not had access to any notice of the deadline for signing up for bagged meals,
because he was in segregation and the institution did not provide notice to
inmates in segregation. Id. at 583. Here, the plaintiff knew there was a deadline
for signing up for bagged meals (he’d signed up in every prior year since 2012),
and he has provided no evidence that he didn’t have access to the library and
the chapel, where the notices were posted.
Other inmates also were a source of information about the deadlines. The
plaintiff himself has submitted evidence in Ouatri Ali’s case indicating that the
plaintiff had reason to know on April 4, 2016 that Ali had asked to be added to
the Ramadan list, and hadn’t received a response. The plaintiff could have
asked Ali or Donovan about the deadline at that time—still a few days before
the expiration of the deadline.
It appears that the institution television channel was the plaintiff’s
customary and preferred method of receiving notice of the bagged meal
deadline. He cites no authority, and the court cannot find any, for the
proposition that the institution must provide notice of the deadline by
television. The issue is whether the change in the manner of providing notice—
particularly, the termination of one type of notice—substantially burdened the
plaintiff’s religious exercise. As the defendants note, changing the method of
providing notice to inmates about religious accommodations does not affect the
accommodation itself. Dkt. No. 32 at 28. Inmates may participate in the
accommodation regardless of how they learn about it. The defendants did not
prohibit the plaintiff from celebrating Ramadan. They provided notice about
how to do so, even if it wasn’t the notice the plaintiff was used to. They
accommodated inmates who observed the notice and timely asked to be added
to the list (like Ali’s cellmate).
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While it is not the basis for the court’s decision, the court notes that
there is circumstantial evidence showing that, prior to the deadline, the
plaintiff had reason to suspect that the deadline might be looming. The plaintiff
had participated in the Ramadan fast in previous years and had added his
name to the bagged-meal list in those years. He knew the bagged-meal list
existed, and he knew the process for adding his name to the list. He knew that
the start date for Ramadan changed each year. The affidavit the plaintiff
submitted in Ali’s case indicates that he knew as of April 4—three days before
the deadline—that Ali had asked to be placed on the list.6 Yet the plaintiff did
not ask Ali about the deadline, or ask Donovan or other prison staff or other
inmates.
No reasonable jury could conclude that the termination of the television
notices substantially burdened the plaintiff’s free exercise of his right to
practice his faith. Even if the plaintiff could prove that terminating the
television notices constituted a substantial burden, he could not prove the
other elements of a free exercise claim. The defendants have provided evidence
that the decision to terminate television notices was rationally connected to a
legitimate governmental purpose—the effort to provide the same kind of notice
to all inmates of all faiths, regardless of whether they had televisions. As the
court already has discussed, the plaintiff had alternate means to vindicate his
free exercise rights—he had access to the library and the chapel, where notices
were posted, and he could have talked to Donovan or to other inmates. Finally,

The plaintiff insists that this declaration does not demonstrate that he knew
of the sign-up deadline. Dkt. No. 50 at ¶44. He doesn’t acknowledge that the
language of the declaration—indicating that the document he reviewed with Ali
on the fourth of April did not include a response to Ali’s request to be placed on
the Ramadan list—indicates that at the very least, his conversation with Ali
should have prompted him to ask someone about the deadline.
6

14

while there was an alternative to terminating the television notices—continuing
them—that alternative was not necessary, given that other forms of notice were
available to allow the plaintiff and others to vindicate their free exercise rights.
The defendants are entitled to summary judgment on the plaintiff’s claim that
terminating the television notices violated his right to freely exercise his
religion.
Nor could any reasonable jury conclude that the defendants’ decision to
stop broadcasting religious accommodation notices on institutional television
violated the Establishment Clause of the First Amendment. The plaintiff has
provided no proof that the decision to stop broadcasting the notices via
television did not have a secular purpose, and the defendants have identified
several secular purposes, including a desire to avoid the appearance of favoring
one faith over another (a preference the Establishment Clause prohibits), or
favoring inmates who had televisions over those who did not. Not broadcasting
the notices via television neither advanced nor inhibited religion, nor did it
foster excessive entanglement with religion.
The court will grant judgment in favor of the defendants on the plaintiff’s
first claim.
2.

The Failure to Notify Inmates that the Institution Would Not
Post Religious Notifications on Institution Television

If no reasonable jury could conclude that the decision to stop posting
religious accommodation notices on institution television substantially
burdened the plaintiff’s ability to practice his religion because that information
was available from other sources, it follows that no reasonable jury could
conclude that failing to notify the plaintiff of the termination of notice via
television substantially burdened his ability to practice his religion. The
defendants’ failure to notify inmates that the notices would not be broadcast
15

via television did not prevent inmates from seeing the notices in the chapel or
the library, hearing the deadline discussed at weekly services, or asking the
chaplain or fellow inmates about the deadline.
The plaintiff’s argument that the handbook requires staff to post all
changes in policy on institutional television does not change the court’s
analysis. Policy violations, in and of themselves, are not constitutional
violations actionable under §1983. See, e.g., Earl v. Karl, 751 Fed. App’x 535,
537 (7th Cir. 2018); Estate of Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir.
2017).
The defendants are entitled to summary judgment on the plaintiff’s claim
that their failure to notify him that they would no longer publicize religious
accommodations via television violated his constitutional rights.
3.

The Failure to Add the Plaintiff’s Name to the List When He
Said He Was Not Aware of the Deadline and Missed It by
Only a Few Days

The plaintiff argues that the defendants’ strict adherence to the sign-up
deadline and refusal to put his name on the bagged meal list shortly after the
deadline expired caused him to miss twelve days of the fast, particularly given
his lack of funds to buy meals for himself. Dkt. No. 50 at ¶40. The Seventh
Circuit has “repeatedly held that forcing an inmate to choose between daily
nutrition and religious practice is a substantial burden.” Thompson v. Holm,
809 F.3d 376, 380 (7th Cir. 2016) (citations omitted). A reasonable jury could
conclude that the defendants’ decision to strictly enforce the sign-up deadline
for an inmate who missed that deadline by only a few days and who didn’t have
the funds to buy thirty days’ worth of meals substantially burdened the
plaintiff’s ability to practice his religion.

16

Given that, the court must consider (1) whether the defendants’ refusal
to add the plaintiff’s name to the list was rationally connected to a legitimate
governmental purpose; (2) whether the plaintiff had a different way of
practicing his religion; (3) the effect that accommodating inmates by adding
them to the list after the deadline would have on the guards and other inmates;
and (4) whether there were alternatives to strict enforcement of the sign-up
deadline.
As to the first factor—whether the refusal to add the plaintiff to the list
was rationally related to a legitimate governmental purpose—the evidence
shows that DOC institutions impose a sign-up deadline to allow food services
sufficient time to plan different menus, fine-tune food selections, place vendors
on notice so they can acquire stock, and adequately prepare the meals. The
defendants explain that the DOC food budget is tight, so they do not have the
luxury of ordering extra food. Conversely, they cannot run the risk of having
inadequate amounts of food because it could create a security risk if inmates
are served different food items. Presented with this explanation, other judges
have concluded that the sign-up deadline is rationally related to a legitimate
government purpose. See, e.g., Dangerfield v. Ewing, No. 18-cv-737, 2020 WL
94758, at *5 (W.D. Wis. Jan. 8, 2020); Ajala v. West, No. 13-CV-184, 2014 WL
6893722, at *1-2 (W.D. Wis. Dec. 5, 2014). This court agrees.
The plaintiff doesn’t challenge the validity of or the justification for the
sixty-day deadline, though. He challenges the defendant’s refusal to add his
name to the list when he asked them to do so. The sign-up deadline was April
7, 2016. The plaintiff asked to be added to the list on April 11, 2016—only four
days later. The plaintiff asserts that the staff—Donovan, in particular—had
made exceptions to the policy before. He implies that if he’d been added to the
17

list on April 11, when he first asked, the staff would have known about his
request well in advance of Ramadan. He contends that all the institution
needed to do was to save his regular food tray for after sundown. The
defendants themselves concede that there was an exception to the sixty-day
requirement for inmates who transferred into the institution less than sixty
days before Ramadan or during Ramadan, assuming they’d been signed up for
bagged meals at their prior institution.
The defendants respond that it isn’t as simple as saving a regular meal
tray. They explain:
[Saving a tray] would not be feasible due to the timing of Ramadan,
the number of inmates participating, staffing in the middle of the
night, and the physical makeup of the prison. The prison lacks the
proper amount of cooler space to hold the trays for the 6 to 18 hours
which would be needed. The prison also has no way to reheat the
trays in the middle of the night to account for food safety concerns.
(Supp. Decl. Books ¶¶ 4-6.) Given these logistics, the only way to
provide meals for Ramadan at GBCI is to provide meals which can
be stored efficiently in a cooler on each unit and served cold without
needing to be reheated. This procedure requires advanced notice so
that Food Services can order the right amount of food to use in the
meal bags. (DPFOF ¶¶ 62-78).
Dkt. No. 51 at 5.
The defendants have demonstrated that their practice of strictly adhering
to the sixty-day rule relates to a legitimate government purpose. The institution
plans precisely for Ramadan, and orders carefully to ensure that it has the
necessary food that can be stored in the appropriate way. It builds in a slight
contingency for the small number of Muslim inmates who may transfer into the
facility in the sixty-day period before and during Ramadan. But if it were to
make an exception for inmates who didn’t pay attention to the posted notices
and didn’t meet the sign-up deadline, the exception could swallow the rule. The
plaintiff’s implication that he’s just one inmate, and that it isn’t that big a deal,
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is belied by his own assertions that other inmates failed to sign up by the sixtyday deadline. Even if the institution had one extra bagged meal on hand, or
two, it has presented evidence that it doesn’t have five, or ten, or fifteen, and
that it can’t afford to have that many. Where would it draw the line on late
sign-ups? Would the institution allow an inmate who missed the deadline by
two days to sign up, but refuse an inmate who missed it by four days? The
deadline would be of little use if it were not . . . well, a deadline.
The plaintiff asserts that the defendants throw away food. If true, that
fact does not show that the defendants could just save that food and use it for
Muslim inmates who failed to meet the bagged meal sign-up deadline. Some of
the food may not keep without refrigeration and might not be safe for an
inmate to eat if given to the inmate after sundown for eating before sunrise.
Some of the food may be contaminated. Some of it may not be Halal or may not
be suitable for Muslim inmates with food allergies. Budget and food safety
constitute legitimate government purposes.
As to whether the plaintiff had another way of exercising his rights, the
defendants assert that the plaintiff was free to observe the fast by purchasing
food from the commissary, including meats, beans, tortillas, rice, nuts, etc.
Dkt. No. 33 at ¶¶59-60. This argument is not persuasive. The fact that food is
available for purchase does not mean that a prisoner has the resources to
purchase it; the plaintiff asserts that he was not able to purchase enough food
to allow him to maintain his fast for the entire month. Dkt. No. 50 at ¶¶40-41.
This factor would weigh in favor of the plaintiff’s free exercise argument.
Third, the court considers the effect that accommodating the plaintiff’s
request to be added to the bagged-meal list after the deadline would have on
guards and other inmates. This factor weighs in favor of the defendants. As
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they explain, making an exception to the deadline for an inmate who asserts
that he didn’t know about the deadline (and, in this case, argues that he didn’t
know about it because he expected a certain type of notice) would render the
deadline meaningless. It also would thwart the institution’s ability to precisely
plan the amount of food needed. According to the defendants, there are rarely
extra Ramadan meals available on any given day, so kitchen staff would have
to use food designated for other purposes, which would lead to food shortages
elsewhere. Again, although the plaintiff asserts that when he worked in the
kitchen, staff would frequently throw away food that was not eaten by the
inmates, dkt. no. 50 at ¶54, serving leftovers from other meals could carry
health risks, and the plaintiff’s assertion does not address the defendants’
explanation that serving different meals to different inmates could create
security risks.
Finally, the plaintiff has not suggested, or provided evidence of, any
reasonable alternative to excluding inmates who do not timely sign up for
bagged meals.
The weight of the evidence indicates that no reasonable jury could find
that the defendants’ failure to add the plaintiff’s name to the list after the
deadline violated his free exercise rights. Even if there were a genuine dispute
as to an issue of material fact on this question, however, the court still would
be required to grant judgment in favor of the defendants, because they are
entitled to qualified immunity.
4.

The Defendants are Entitled to Qualified Immunity

The defendants argue that even if they did violate the plaintiff’s First
Amendment rights, they are entitled to qualified immunity. Dkt. No. 32 at 2226. The plaintiff responds that the defendants are not entitled to qualified
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immunity for all the reasons he provided in support of his claims. Dkt. No. 48
at 14-15.
A public official defendant is entitled to qualified immunity
unless two disqualifying criteria are met. First, the evidence
construed in the light most favorable to the plaintiff must support a
finding that the defendant violated the plaintiff’s constitutional
right. Second, that right must have been clearly established at the
time of the violation. Stainback v. Dixon, 569 F.3d 767, 770 (7th Cir.
2009). Courts may “exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case
at hand.” Pearson v. Callahan, 555 U.S. 223, 236 . . . (2009). “A
clearly established right is one that is ‘sufficiently clear that every
reasonable official would have understood what he is doing
violations that right.’” Mullenix [v. Luna, ___ U.S. ___, 136 S. Ct. 305,
308 . . . (2015)] (emphasis added).
Day v. Wooten, 947 F.3d 453, 460 (7th Cir. 2020).
The defendants all are public officials. The court already has concluded
that the evidence does not support a finding that stopping the televised notices
of religious accommodations, failing to notify inmates that they were
terminating the televised notices and not adding the plaintiff to the Ramadan
bagged meals list violated the plaintiff’s First Amendment rights. Nor did the
plaintiff have a “clearly established” right to receive television notices, to receive
notice of the termination of such notices or to have his name added to the
Ramadan list at the time of the alleged violations.
In Riley v. Ewing, 777 F. App’x 159, 161 (7th Cir. 2019), the plaintiff
challenged the district court’s conclusion that in denying him bagged meals,
the institution chaplain had not violated a clearly established right. The
plaintiff argued that in its decision in Conyers, the Seventh Circuit “clearly
established that inmates who did not receive notice of the sign-up deadline for
Ramadan meals and submitted an untimely request are nevertheless entitled to

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the special religious diet.” Riley, 777 F. App’x at 161. The Seventh Circuit
rejected the plaintiff’s argument, holding that
Conyers does not clearly establish that [the chaplain] violated
[the plaintiff’s] free-exercise rights. Unlike the plaintiff in Conyers,
[the plaintiff] knew that there was a deadline to sign up for Ramadan
meals. . . . He could have asked about the deadline earlier, and
Conyers does not establish that the chaplain was obligated to notify
him when Ramadan was approaching. And unlike the defendants in
Conyers, [the chaplain] presented evidence that the logistical
challenges associated with ordering, receiving, and preparing
enough Ramadan meals justified limiting the exceptions to those
who entered the prison after the sign-up deadline. Moreover,
Conyers does not suggest that [the chaplain] would be liable for
declining to accommodate [the plaintiff] after he failed to adhere to
the sign-up policy.
Id. at 161-162.
So the defendants had no reason to be aware of a clearly-established
right for inmates who claimed to be unaware of the deadline for signing up but
missed it to nonetheless receive bagged meals, because there is no such
clearly-established right. Nor has the court identified any authority clearly
establishing a right for an inmate to receive notice of the sign-up deadline in a
particular way, or any authority clearly establishing a right for an inmate to be
notified if the institution decides to change the method of notice.
Because the court finds that there is no established law that would have
enabled the defendants to conclude that their actions were violating the
plaintiff’s First Amendment rights, they are entitled to qualified immunity.
5.

Other Issues

There are other reasons for the court to grant judgment in favor of
specific defendants, or on specific allegations.
In its order screening the second amended complaint, the court did not
allow the plaintiff to proceed on a free-exercise claim against Donovan, because
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he did not allege sufficient facts to show that Donovan had the authority to add
the plaintiff to bagged meal list or to require anyone else to do so. Dkt. No. 17
at 8.
To prove a defendant liable under §1983, the plaintiff must prove that
the individual was personally involved in the constitutional violation the
plaintiff claims to have suffered. Colbert v. City of Chi., 851 F.3d 649, 657 (7th
Cir. 2017). Neither Donovan, Salinas nor DeGroot played any role in deciding
to terminate the television notices, and the plaintiff presented no evidence
regarding who was responsible for deciding whether to notify inmates about the
termination of the television notices.7 There is no evidence that West, Salinas
or DeGroot played any role in refusing to put the plaintiff on the bagged meals
list.
The plaintiff filed a grievance about the fact that he wasn’t being allowed
to participate in the Ramadan fast, which complaint examiner DeGroot
reviewed; the plaintiff says that DeGroot responded to him by reviewing his
grievance, explaining why the plaintiff wasn’t being allowed bagged meals and
dismissing the grievance. Dkt. No. 11 at ¶19. The plaintiff appealed; Salinas
reviewed the appeal, explained why the plaintiff was not being allowed bagged
meals and recommended that the appeal be dismissed. Id. at ¶21.
The plaintiff did not allege that the two complaint examiners ignored his
grievances. Rather, he alleges that they “responded differently than he wished.”
Smego v. Hankins, 681 F. App’x 506, 508 (7th Cir. 2017). The plaintiff has not
accused these defendants of “refusing to do [their] job[s] and of leaving the
prisoners to face risks that could be averted by faithful implementation of the
In the amended complaint, the plaintiff indicated that Donovan told him that
he had been directed “by management” to post the notice of the sign-up
deadline only in the chapel and the library. Dkt. No. 11 at ¶13.
7

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grievance machinery. He contends, instead, that [the examiners] should be
held liable because [they] carried out [their] job[s] exactly as [they] were
supposed to do.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). A
complaint examiner is not liable under §1983 simply for denying an inmate’s
grievance, or for declining to agree with an inmate.
The second amended complaint did not allege that the defendants
violated the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§§2000cc, et seq. Dkt. No. 11. In his brief opposing summary judgment, the
plaintiff stated, for the first time, that the defendants violated his rights under
“RLUIPA.” Dkt. No. 48 at 9. Because the plaintiff did not raise an RLUIPA claim
in his second amended complaint, he cannot raise such a claim for the first
time in responding to a summary judgment motion. Nor did he cite any case
law analyzing RLUIPA or make any arguments about why he believed the
plaintiff’s violated it.
The court allowed the plaintiff to proceed on failure-to-intervene claims
against Eckstein, West, DeGroot and Salinas, because he alleged in his
complaint that all of them knew Haese had refused to add him to the sign-up
list and did nothing. Dkt. No. 17 at 7-8. The court has concluded that neither
Haese nor the other defendants violated the plaintiff’s rights by refusing to add
him to the list, and that they are entitled to qualified immunity. The court also
notes, however, that the plaintiff has presented no evidence that DeGroot or
Salinas, as complaint examiners, had the authority to add him to the bagged
lunch list.
III.

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

No. 31.
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The court DISMISSES the case and will enter judgment accordingly.
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 February, 2020.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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