West v. Kind et al

Filing 118

ORDER signed by Chief Judge Pamela Pepper on 6/4/2024. 100 Plaintiff's objections to the court's order for injunctive relief OVERRULED. 94 Order for Injunctive Relief is the court's final order on plaintiff's RLUIPA claim. 117 Defendants' motion to dismiss injunctive relief claims DENIED AS MOOT as to RLUIPA claim. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RUFUS WEST,
Plaintiff,
v.

Case No. 17-cv-482-pp

JOHN KIND, WARDEN SCOTT ECKSTEIN,
BRAD HOMPE, CINDY O’DONNELL,
and ISAAC BUHLE,
Defendants.
______________________________________________________________________________
ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO COURT’S ORDER
FOR INJUNCTIVE RELIEF (DKT. NO. 100)
______________________________________________________________________________
The Court of Appeals for the Seventh Circuit remanded this case and
ordered that this district court should enter appropriate injunctive relief on the
plaintiff’s claim under the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. §§2000cc, et seq., in which the plaintiff sought an
injunction exempting him from cross-sex strip searches conducted by a male
transgender officer who is a biological female. West v. Radtke, 48 F.4th 836,
840, 842, 852.1 This court ordered the parties to submit a joint proposal for the
language of a RLUIPA injunctive order and stated that, if they were unable to

The court of appeals also remanded the case regarding the plaintiff’s Fourth
Amendment claim. West, 48 F.4th at 840. At screening, this court did not allow
the plaintiff to proceed on a claim under the Fourth Amendment based on
circuit precedent holding that an incarcerated individual has no Fourth
Amendment interest against visual inspections of the body. Id. The court of
appeals’ decision in Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc)
overruled that precedent. In this case, the defendants have filed a motion for
judgment on the pleadings regarding the plaintiff’s Fourth Amendment claim.
Dkt. No. 104. The court will address that motion in a separate order.
1

1

reach an agreement on the language of that order, each could file their own
proposed language. Dkt. No. 86. The parties filed separate proposed orders for
the court’s review. Dkt. Nos. 90, 91. Based on the court of appeals’ opinion, the
applicable law and the parties’ submissions, the court entered the following
order for injunctive relief:
The court ORDERS that the State of Wisconsin Department
of Corrections (“DOC”) is ENJOINED from requiring or permitting
DOC employees or other authorized persons who are not of the male
gender based on their biological characteristics at birth to conduct
or observe strip searches (as defined by Wisconsin Division of Adult
Institutions Policy #306.17.02 p.2 (dated Mar. 26, 2015, effective
May 1, 2015)) of Rufus West (also known as “Muslim Mansa Lutalo
Iyapo”), except in exigent circumstances (see Wis. Div. of Adult Insts.
Policy #306.17.02(III)(A) p.4 (dated Mar. 26, 2015, effective May 1,
2015)). This order applies to any DOC institution where Rufus West
is incarcerated.
Dkt. No. 94 at 2. The court gave the parties time to file objections to that order.
Dkt. No. 95.
The plaintiff filed an objection in which he contends that the language
“except in exigent circumstances” should be removed from the order because it
leaves determination of what is an exigent circumstance to the discretion of the
DOC officers, staff and others in charge of conducting any future strip searches
of the plaintiff. Dkt. No. 100 at 1-2. The plaintiff cites the definition of “exigent
circumstances” as provided in the Division of Adult Institution (“DAI”) policy,
which is, “Temporary and unforeseen circumstances that require immediate
action in order to combat a threat to the security or institutional order of a
facility.” Id. (citing DAI Policy #306:17.02 (Definitions)). According to the
plaintiff, while the DAI policy does allow an exigent circumstances exception in
2

other situations, the likelihood of urgency, driven by the “threat to the security
or institutional order of a facility,” “seems very low in the case of the need to
conduct a strip search by a person who is prohibited from doing so by the
remainder of the Court’s proposed order.” Id. The plaintiff also contends that
the exception for exigent circumstances is not necessary or permitted under
RLUIPA. Id. at 4. He maintains that the Supreme Court’s analysis in Holt v.
Hobbs, 574 U.S. 352 (2015), requires that “while an injunction in a case
involving prison regulations must be narrowly construed in favor of the
institution under the PLRA, because the regulation and procedure at issue
involves impact on a person’s exercise of religion, the injunction cannot be so
narrow as to conflict with the requirements of RLUIPA.” Id. at 4-5. According to
the plaintiff, an exception is not necessary because of “the obviously low
likelihood of an urgency of such a degree that a male staff person could not be
located to conduct a strip search of [the plaintiff], even in a situation where
there was a genuine threat to the security or order of the facility.” Id. at 5. In
the alternative, he states that even if an exception for exigent circumstances is
necessary, the court’s order should be more narrowly drawn to avoid
unwarranted infringement of his religious exercise in accordance with Holt. Id.
The defendants respond that removing the exigent circumstances
exception would give the plaintiff greater protection than what RLUIPA requires
and would violate the Prison Litigation Reform Act (PLRA). Dkt. No. 103 at 2.
According to the defendants, the exigent circumstances exception provides the
least restrictive means to further the prison’s compelling interest in
3

maintaining security and order because it requires the plaintiff to submit to a
strip search by a transgender man only if there are temporary and unforeseen
circumstances which require a transgender man to strip search the plaintiff to
combat a threat to security or order. Id. at 2. They argue that the exception is
narrow and that it should arise only if there is no other person available to do
the strip search and the security issue is both sudden and time sensitive. Id.
According to the defendants, it is unfeasible and unnecessary to craft new
language (as the plaintiff suggests) because the definition of exigent
circumstances found in DAI policy already provides proper limitations. Id. at 3.
The defendants also contend that the PLRA requires an exigent circumstances
exception and that removing the language would be contrary to the plain
language of the PLRA because it would “extend the injunctive relief further
than necessary to correct the violation of RLUIPA by completely ignoring the
prison’s compelling security interests” and “remove all consideration for public
safety or the operation of a criminal justice system.” Id. at 4.
In reply, the plaintiff contends that the language of the definition of
“exigent circumstances” is too broad and is susceptible to misapplication
regarding searches conducted of the plaintiff. Dkt. No. 108 at 2. He states that
inherent susceptibility argues for two things in this case: (1) if there is to be an
exception for certain exigent circumstances, searches under the exception
should be documented; and (2) if there must be an exception, the language of
the current definition must be modified so as to minimize the chance for
infringement of the primary purpose of the court’s injunction order and the
4

RLUIPA. Id. The plaintiff states that the defendants should suggest new
language. Id. at 3. He also asserts that while his position remains that there is
no need for an exception, using modified language that would allow a
prohibited strip search in, for example, a “genuine emergency” or even an
“emergency,” would appear to be a narrower range of circumstances than the
language a “threat to the security or institutional order of a facility.” Id.
The Prison Litigation Reform Act provides: “The court shall not grant or
approve any prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct the violation of
the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right.” 18 U.S.C. §3626(a)(1)(A). See Westefer v. Neal,
682 F.3d 679, 681 (7th Cir. 2012) (quoting 18 U.S.C. §3626(a)(1)(A)); see also
Rasho v. Jeffreys, 22 F.4th 703 (7th Cir. 2022).
In this case, Holt does not support the plaintiff’s argument that the
court’s injunction order should not contain an exigent circumstances
exception. According to the plaintiff, the Court in Holt “does make clear that
when the free exercise of religion of a person who is in confinement is at stake,
the rule, or in this case, an exception to an injunction order, must be quite
narrow and ‘customized’ to the particular person and context.” Dkt. No. 108 at
4-5. In Holt, the Court held that the Arkansas Department of Corrections’
grooming policy violated RLUIPA insofar as it prevented an incarcerated
individual from growing a 1/2-inch beard in accordance with his religious
beliefs. Holt, 574 U.S. at 369-70. The Court reasoned that while the
5

Department had compelling security interests regarding the flow of contraband
into the institution as well as the appearance and potential disguise of
incarcerated individuals, the Department had not proven that its beard policy
sufficiently served those interests. Id. at 366-67.
RLUIPA prohibits a prison from substantially burdening an incarcerated
individual’s religious exercise unless doing so is the least restrictive means to
further a compelling governmental interest. In this case, the plaintiff already
has won on his claim that allowing a transgender male (biological female) to
participate in his strip search violates his rights under RLUIPA because it
substantially burdens the practice of his religion, and the DOC does not have a
compelling interest under Title VII or the Equal Protection Clause to refuse to
accommodate the plaintiff’s religious practice. The court’s injunction order
states that the DOC cannot allow any DOC employee or authorized person who
is not of the male gender based on their biological characteristics at birth to
strip search the plaintiff, except in exigent circumstances. Under RLUIPA, while
DOC policy does not permit female employees to conduct strip searches of
incarcerated individuals (or observe them), a prison must have the discretion to
allow a female employee to strip search a male incarcerated individual if
exigent circumstances exist. See West, 48 F.4th at 848 (quoting Cutter v.
Wilkinson, 544 U.S. 709, 722 (2005) (“We do not read RLUIPA to elevate
accommodation of religious observances over an institution’s need to maintain
order and safety.”).

6

RLUIPA was enacted with the anticipation that courts would apply its
standard with “due deference to the experience and expertise of prison and jail
administrators in establishing necessary regulations and procedures to
maintain good order, security and disciple, consistent with consideration of
costs and limited resources.” Cutter, 544 U.S. at 722. In its opinion remanding
this case, the court of appeals stated,
Accommodating [the plaintiff’s] request for an exemption from crosssex strip searches is substantially related to the important
governmental objective of respecting the RLUIPA and constitutionalprivacy rights of prison inmates. Indeed, the prison already prohibits
female guards from strip-searching male prisoners except in exigent
circumstances. If that is constitutionally permissible – and it is – so
too is [the plaintiff’s] requested accommodation.
West, 48 F.th at 852 (emphasis added). The court of appeals also referenced
the current DAI policy, which “specifically prohibits ‘cross gender’ strip
searches ‘except in exigent circumstances.” Id. at 841 (quoting Wis. Div. of
Adult Insts. Policy #306.17.02(III)(A)).2 The plaintiff has not demonstrated that
the court’s injunction order violates RLUIPA.
The court agrees with the plaintiff that it is unlikely that circumstances
would arise in which a male staff member would not be available to conduct a
strip search on the plaintiff. But it does not follow that an exigent
circumstances exception should not be written into the order for injunctive
relief, which tracks DAI policy and DOC regulation. The plaintiff has not shown

In addition, a DOC regulation provides that “[e]xcept in emergencies, a person
of the same sex as the inmate being searched shall conduct [a] strip search.”
Wis. Admin. Code §DOC 306.17(2)(b) (June 2018).
2

7

that RLUIPA is violated by the exigent circumstances exception in the court’s
order for injunctive relief.3
On May 31, 2024, the defendants filed a motion to dismiss the plaintiff’s
injunctive relief claims due to the plaintiff’s release from prison. Dkt. No. 117.
The court DENIES AS MOOT the defendants’ motion as it pertains to the
RLUIPA claim. The court will address the plaintiff’s Fourth Amendment claim
in a separate order.
The court OVERRULES the plaintiff’s objections to the court’s order for
injunctive relief. Dkt. No. 100. Having overruled the plaintiff’s objections to its
order for injunctive relief, the court ORDERS that its August 2, 2023 Order for
Injunctive Relief is the court’s final order on the plaintiff’s RLUIPA claim. Dkt.
No. 94.
Dated in Milwaukee, Wisconsin this 4th day of June, 2024
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

The court recently has been made aware that the plaintiff is no longer
incarcerated. In West v. Kind, No. 23-3075, 2024 WL 2271843, at *3 (7th Cir.
May 20, 2024), the court of appeals ordered that the plaintiff’s RLUIPA claim
was moot because he was released from prison in January 2024. Id. (citing
Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012)). Because this court’s
order for injunctive relief was entered before the plaintiff was released from
prison, this order considers the plaintiff’s objections and finalizes the order for
injunctive relief regarding his RLUIPA claim.
3

8