Jones v. West et al

Filing 9

ORDER signed by Judge Pamela Pepper on 2/27/2017 GRANTING 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee; SCREENING 8 the Amended Complaint; DISMISSING defendants Kelly Salinas, Alan DeGroot and Michael Donovan; and ORDERING that the plaintiff file a second amended complaint by 3/31/2017. (cc: all counsel; by US Mail to plaintiff) (pwm)

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.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE (DKT. NO. 2), SCREENING AMENDED COMPLAINT (DKT. NO.
8), AND ORDERING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
this lawsuit under 42 U.S.C. §1983, dkt. no. 1, along with a motion for leave to
proceed without prepayment of the filing fee, dkt. no. 2. The plaintiff filed an
amended complaint on January 30, 2017. Dkt. No. 8. The amended complaint
replaces his original complaint. This order resolves his motion and screens his
amended complaint.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as he meets certain

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conditions. One of those conditions is that the plaintiff pay an initial partial
filing fee. 28 U.S.C. §1915(b).
On January 6, 2017, the court ordered the plaintiff to pay an initial
partial filing fee of $21.98. Dkt. No. 7. The plaintiff paid that fee on January 19,
2017. Accordingly, the court will grant the plaintiff’s motion. The court will
require the plaintiff to pay the remainder of the filing fee over time as set forth
at the end of this decision.
II.

Screening the Plaintiff’s Amended Complaint
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)).
“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;
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and 2) the defendant was acting under color of state law. Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v.
Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also
Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court gives 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
The plaintiff alleges that he learned in mid-April 2016 from a fellow

inmate named Ouati Ali that a list had been posted in the chapel, inviting
inmates to sign up for bagged meals to accommodate their observation of
Ramadan, which was to begin in June.1 Dkt. No. 8 at 4. Ali told the plaintiff
that he’d heard this from yet another inmate, Kamani Ward, and that Ward
had indicated that while the list had been posted in the chapel for about three
weeks, it wasn’t posted any longer. Ward had indicated that he believed that
the list required inmates to sign up for the meals by April 7, 2016. Id.
The plaintiff alleges that he sent an information request to defendant
Michael Donovan, the chaplain, asking whether the deadline had, in fact, been
April 7, 2016, and inquiring why a memo advising inmates of the list and
deadline had not been sent to the entire institution. Id. On April 15, 2016,

 In 2016, Ramadan started on June 6 and ended on July 5. See
https://www.timeanddate.com/ holidays/us/ramadan-begins (last visited on
January 25, 2017); dkt. no. 8 at 7.   
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Donovan responded that “[he] was directed by management that [he] could post
an announcement only in the chapel and library.” Id. at 5.
That same day, the plaintiff, along with inmate Ali, spoke to Donovan
about the fact that he had not had his name added to the Ramadan list
because he’d missed the deadline by seven days. Id. Donovan explained that
there had been a change in the DAI notification policy regarding religious
observances. Id. He said that notifications would be posted only in the chapel
or library. Id. The plaintiff told Donovan that notifications of changes to other
prison policies were posted, and asked why that wouldn’t be true for changes
in policies about religious observances. Id. Donovan directed the plaintiff and
Ali to contact defendant Michelle Haese in the social services department. Id.
The plaintiff wrote Haese a letter asking to be added to the Ramadan list.
Id. Haese denied his request on April 16, 2016. Id. In her response, Haese
stated,
Green Bay Correctional Institution used to make notifications on
the Institution channel 8 to provide notification of Congregate Meal
Dates. For the 2016 [sic], GBCI surveyed other maximum security
institutions, as well received [sic] feedback from DAI Central Office
to ensure we were completing all expectations for proper
notification to our inmates. Despite being a change to our
procedure, we found by posting our 2016 Mult-Day [sic] Religious
meal Accommodation & Congregate Meal Dates to our chapel,
library, and RSHU (Restricted Housing Unit) Carts not only do we
remain in-line with policy, we are also comparable to procedure
[sic] of other max sites.
Id.
On April 19, 2016, the plaintiff sent a letter to defendant Scott Eckstein,
the warden, asking to be added to the Ramadan list. Id. at 6. The warden did
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not respond to the plaintiff’s letter in writing, but he met with the plaintiff and
other inmates on April 22, 2016. Id. Eckstein explained that he was a new
warden and asked the inmates to explain to him how Ramadan worked at
Green Bay. Id. The plaintiff and the other inmates explained that notifications
always had been posted on “channel 8,” but that now that policy had changed.
Id. Eckstein asked why the inmates had not signed up while the lists were
posted in the library and chapel. Id. The plaintiff explained that an inmate
must request to go to the library and it may take up to a week to get a pass,
which lasts for only an hour. Id. The plaintiff also explained that he had
recently stopped going to the chapel because there was constant gang activity
there and that it was his understanding that he was not required to attend
Jumuah services while in prison. Id.
The plaintiff then explained that he had asked Haese to add him to the
list, but that she had denied his request. Id. Eckstein stated that he would talk
to Haese. Id. He said that he was very busy but he would “get back with [the
inmates].” Id.
On April 24, 2016, plaintiff complained to defendant Alan DeGroot (an
institution complaint examiner at Green Bay) that he was being denied
participation in Ramadan. Id. at 7. DeGroot informed the plaintiff that he was
responsible for knowing his own faith practices, and that there were multiple
ways an inmate could get answers to questions about religious
accommodations. Id. He also told the plaintiff that he could still participate in

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the fast through “self-selection from the general menu or with use of canteen
food products.” Id.
On April 25, 2016, the plaintiff spoke to Haese about her refusal to let
him participate in Ramadan. Id. Haese told the plaintiff there would be no
exceptions. Id. She said the policy change came from DAI and that defendant
Kelli West, the Religious Practice Coordinator, was aware of her decision to
deny the plaintiff’s participation in Ramadan. Id. The plaintiff complained that
they couldn’t deny him the opportunity to participate in Ramadan just because
he didn’t know the start date. Id. Haese told the plaintiff to fast on his own
because he should know the start date of his religion. Id. at 8. He explained
that Ramadan starts on a different date each year, but she said she didn’t care;
she then wished him good luck. Id.
On May 14, 2016, the plaintiff complained to defendant Kelly Salinas (the
corrections complaint examiner) about being denied his request to be added to
the Ramadan list. Id. He explained that he didn’t know the sign-up date
because it hadn’t been announced on channel 8 as in years past. Id. The
plaintiff states that Salinas dismissed his complaint on June 14, 2016. Id.
B.

Analysis

Before reaching the “meat” of the plaintiff’s claims, the court notes that it
will dismiss defendants Donovan, DeGroot, and Salinas. Section 1983 limits
liability to public employees who are personally responsible for a constitutional
violation. Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). For
liability to attach, the individual defendant must have caused or participated in
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a constitutional violation. Hildebrandt v. Illinois Dept. of Natural Resources,
347 F.3d 1014, 1039 (7th Cir. 2003).
With regard to Donovan, the plaintiff alleges only that he posted the
Ramadan sign-up sheet in the chapel as directed by the new policy. When the
plaintiff informed Donovan that he wanted to be added to the Ramadan list,
Dononvan directed him to Haese, the prison official with responsibility for the
list. It is reasonable to infer from the plaintiff’s allegations that Donovan had no
authority to add the plaintiff to the list, which is why he directed the plaintiff to
Haese. Because Donovan was not involved in the decision to deny the plaintiff
an opportunity to received bagged meals during Ramadan, the court will
dismiss him as a defendant.
The court will dismiss DeGroot and Salinas for similar reasons. To
establish a claim against these administrative officials for denying his
grievances, the plaintiff would have to show that they were personally
responsible for the alleged constitutional deprivation. See Antonelli v. Sheahan,
81 F.3d 1422, 1428 (7th Cir. 1996). Just because an inmate has complained to
prison officials does not mean that the administrator who reviewed but denied
the complaint bears personal responsibility for the alleged conduct. See Adams
v. Durai, 153 Fed.Appx.972, 975 (7th Cir. 2005).
Turning to the core of the plaintiff’s amended complaint: The plaintiff
alleges that he did not know about a change in the policy regarding notice to
inmates of religious activities. Starting in 2016, rather than posting notice of
religious activities on “channel 8” along with other institution notices, the
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institution opted to post notice of religious activities only in the library, chapel,
and on the restricted housing unit carts. Because the plaintiff did not visit
those locations, he was unaware of the sign-up sheet to participate in
Ramadan and missed the deadline to sign up. The plaintiff asserts that the
defendants impeded his ability to practice his religion when they failed to add
him to the Ramadan list even though he missed the deadline to sign up by only
a week. He argues that the institution should have made an exception for him,
because he did not know about the sign-up sheet due to a change in policy
that had occurred without notice to the inmates.
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 dinners
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.

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In this case, the plaintiff appears to have missed the sign-up deadline by
only seven days, and he asked to be added to the list almost two months before
Ramadan was to begin. While it is clear that, as of late April, Haese continued
to refuse to allow the plaintiff to be added to the Ramadan list, it is unclear
whether she maintained that position through Ramadan, which, as the court
noted, was observed starting in June of 2016. In other words, the plaintiff
never indicates whether he did or did not receive bagged meals during
Ramadan.
The plaintiff can state a claim against Haese only if she persisted in her
refusal to add him to the Ramadan list throughout Ramadan. Similarly, the
plaintiff can state a claim against Eckstein and West only if they knew of
Haese’s persistent refusal to add the plaintiff to the Ramadan list and, despite
having a reasonable opportunity to intervene, turned a blind eye or condoned
that refusal. See Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995); 
Fillmore v. Page, 358 F.3d 496, 505-06 (7th Cir.2004).
The plaintiff cannot state a claim against Haese, Eckstein, or West
merely because the institution changed its notice procedures or merely because
Haese initially refused to add the plaintiff to the Ramadan list. To put it plainly,
if the plaintiff ultimately received bagged meals during Ramadan, he has no
claim against any of the defendants. Certainly it may have been inconvenient
and frustrating for the plaintiff to have to persistently fight to be added to the
Ramadan list, but if he was eventually added, there was no constitutional
violation.
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The court needs additional information from the plaintiff before it can
determine whether he states a claim. Specifically, the court would like to know
whether the plaintiff received an accommodation with regard to his meals
during Ramadan (e.g., bagged meals) that enabled him to fast as his religion
requires. The court would also like to know whether West has supervisory
authority over Haese and whether the plaintiff ever contacted her directly about
his desire to be added to the Ramadan list.
If the plaintiff wants to proceed, he must file a second amended
complaint curing the deficiencies in his amended complaint as described in
this order. The plaintiff must file a second amended complaint on or before
March 31, 2017. If the plaintiff does not file a second amended complaint by
the deadline, the court will assume that he no longer wishes to prosecute this
action and will dismiss this lawsuit based on his failure to diligently pursue it.
See Civil L.R. 41(c). If, based on the court’s explanation above, the plaintiff no
longer believes that he states a claim against any of the defendants, he does
not need to take any further action.
The second amended complaint must bear the docket number assigned
to this case and must be labeled “ Second Amended Complaint.” The second
amended complaint takes the place of the prior complaints and must be
complete in itself without referring to or relying on the prior complaints. See
Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054,
1056-57 (7th Cir. 1998). If the plaintiff files a second amended complaint, the
court will screen it pursuant to 28 U.S.C. § 1915A.
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III.

Conclusion

The court DISMISSES defendants Kelly Salinas, Alan DeGroot, and
Michael Donovan.
The court ORDERS that the plaintiff may file a second amended
complaint on or before March 31, 2017. The plaintiff should allow sufficient
time for mailing so that his second amended complaint arrives by the deadline.
If the plaintiff does not file a second amended complaint by the deadline, the
court will dismiss this lawsuit based on the plaintiff’s failure to diligently
pursue it.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee (Dkt. No. 2).
The court ORDERS that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff’s prisoner trust
account the $328.02 balance of the filing fee by collecting monthly payments
from the plaintiff’s prison trust account in an amount equal to 20% of the
preceding month’s income credited to the prisoner’s trust account and
forwarding payments to the Clerk of Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). Please identify
the payments by the case name and number assigned to this action.
The court also ORDERS that, pursuant to 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
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Institution, Waupun Correctional Institution, and Wisconsin Secure Program
Facility and, therefore, if the plaintiff is no longer incarcerated at one of those
institutions, he will be required to submit all correspondence and legal material
to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS.
It will only delay the processing of the matter.
In addition, 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.
The court will send a copy of this order to the warden of the institution
where the plaintiff is confined.
Dated in Milwaukee, Wisconsin this 27th day of February, 2017.

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