Gill v. Brown County Jail et al

Filing 87

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 9/16/2019. 58 Plaintiff's motion for summary judgment DENIED. 84 Plaintiff's motion to strike DENIED. 62 Defendants' motion for summary judgment GRANTED. (cc: all counsel, via mail to Charles Gill at Kettle Moraine Correctional Institution

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHARLES B. GILL, SR.,
Plaintiff,
v.

Case No. 17-cv-873-pp

HEIDI MICHEL, J. MEKASH,
BRENT MEYER, and IAN HIGGINS,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT.
NO. 58), GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 62), DENYING PLAINTIFF’S MOTION TO STRIKE FILINGS
AND/OR MOTIONS (DKT. NO. 84) AND DISMISSING CASE
______________________________________________________________________________
Plaintiff Charles B. Gill, Sr., is a Wisconsin state prisoner representing
himself. The court screened his complaint and permitted him to proceed on a
claim that the defendants violated his First Amendment right to freely exercise
his religion based on allegations that they prevented him from praying correctly
for ten days while he was confined at the Brown County Jail. Dkt. No. 14 at 7.
The court also allowed the plaintiff to proceed on a Fourteenth Amendment
equal protection claim based on allegations that the defendants discriminated
against him because of his faith. Id. at 7-8. The plaintiff has filed a motion for
summary judgment, dkt. no. 58, and the defendants have filed a joint motion
for summary judgment, dkt. no. 62. The court addresses these motions below.

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I.

Facts
Since 1994, the plaintiff has been an American Sunni Muslim who

adheres to the tenets of Islamic Faith. Dkt. No. 70 at ¶3. The plaintiff was
confined at the Brown County Jail (“BCJ”) from August 19, 2016 to June 9,
2017, when he was transferred temporarily to the Outagamie County Jail due
to overcrowding. Id. at ¶¶7-8. Defendant Heidi Michel is a captain with the
Brown County Sheriff’s Office and works at the BCJ. Dkt. No. 72 at ¶12.
During the plaintiff’s confinement there, Michel was a lieutenant. Id. at ¶13.
Defendants Correctional Officers J. Mekash, Brent Meyer and Ian Higgins work
at the BCJ. Id. at ¶¶16-18. Chaplain Karen Konrad, who is not a defendant,
consults as the BCJ’s chaplain. Id. at ¶19.
The plaintiff received a copy of the inmate handbook and jail rules when
he entered the BCJ. Dkt. No. 72 at ¶2. One of the “Recreation area (gym)” rules
states: “Private inmate use of the gym is not allowed. All meetings/sessions
must be approved by Jail Administration.” Id. at ¶3. One of the “Dayroom”
rules states, “You are not allowed to loiter around the phone, sink, water
fountain, or gym entrance area. Standing in the dayroom for an unreasonable
amount of time can be considered loitering.” Id. The defendants construe these
rules to prohibit inmate-led worship in the gym and dayroom. Dkt. No. 72 at
¶4. According to the defendants, the policies and rules against inmate-led
worship in the inmate handbook and jail rules serve legitimate penological
interests and are in place to prevent inmates from plotting staff assaults,
escapes, or violations of prison rules. Dkt. No. 72 at ¶¶4, 5. The defendants
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state that these rules are in place primarily for security reasons, such as
maintaining social order, and preventing organized crime and gang activity
within the jail. Id. at ¶5.
In 2017, Ramadan took place from May 26, 2017 to June 24, 2017.1 Dkt.
No. 72 at ¶9. In her declaration, defendant Michel states that BCJ staff
received the plaintiff’s “first” religious request on May 21, 2017, when he asked
for a prayer blanket for Ramadan. Dkt. No. 64 at ¶10. She stated that the next
day, May 22, the plaintiff made a request for a Halal diet. Id. at ¶22. Michel
averred that these requests were denied “due to no mention of [the plaintiff’s]
Islamic faith at the time of booking.” Id. Despite that fact, Michel says that she
“reached out” to Chaplain Karen Konrad, who met with the plaintiff and
approved his dietary request. Id. at ¶13. Konrad confirmed in her declaration
that she received the requests for the prayer towel and the Halal diet on May
22, 2017. Dkt. No. 66 at ¶10. Konrad stated that she interviewed the plaintiff
the same day, concluded that he had a basic understanding of some of the core
beliefs of the Islamic faith, granted his request for a Halal diet and provided
him with a prayer towel. Id. at ¶¶11-13.
The plaintiff states that from May 26, 2017 (the first day of Ramadan) to
the afternoon of May 31, 2017, defendant Officer Higgins allowed him to pray

“Ramadan is a month of the Islamic calendar revered by Muslims as the
anniversary of the revelation of the first verses of the Quran. During Ramadan,
Muslims fast from sunrise to sunset.” Easterling v. Pollard, 528 F. App’x 653,
655 (7th Cir. 2013).
1

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in the gym.2 Dkt. No. 70 at ¶4. On May 31, 2017, defendant Officer Meyer told
the plaintiff to pray in his cell and did not let the plaintiff pray the last three
prayers of that day in the gym. Id. at ¶5. On June 4, 2017, Higgins told the
plaintiff to pray in his cell. Id. at ¶7.
That day—June 4, 2017—the plaintiff filed grievance #2017-001125.
Dkt. No. 70 at ¶6. In the grievance, the plaintiff alleged that the BCJ offered
services to Christians, who could pray in the gym, but not to Muslims. Dkt. No.
72 at ¶27. He also alleged that, as a Muslim, he could not pray in his cell
because he would have to pray next to a toilet. Id.
In her declaration, Konrad stated, “Over the years, I contacted Imams—
religious leaders in the Muslim community—at mosques in Green Bay,
Appleton, and Milwaukee to enquire if they would come to the BCJ to lead
prayer services. Each Imam declined.” Dkt. No. 66 at ¶14. Konrad attested that
she’d also asked the Imams about whether Islamic prayer rules “prohibited an
inmate from praying on their own, in their cell, due to the presence of a toilet.”
Id. at ¶15. She stated,
16. Based on my conversations with the Green Bay Mosque Imam,
Appleton Mosque Imam, and the Milwaukee Mosque Imam; my
understanding was that Islamic rules did not prohibit [the plaintiff]
from praying in his cell because the Islamic god, Allah, would be
understanding about [the defendant’s] circumstances while praying.
17. The Imams stated that he could pray in his cell if he kept it
clean and prayed as far away from the toilet as possible, and they
also said that laying something over the top was an option as well.

The defendants object to this proposed fact as impermissibly vague because
the term “allowed” is ambiguous. Id.
2

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Id. at ¶¶16-17.
In her declaration, Michel stated, “On June 4, 2017, [the plaintiff] filed a
grievance against BCJ for not offering Islamic prayer services, and Correctional
Officer Mekash met with [the plaintiff] after I spoke to the Chaplain.” Dkt. No.
64 at ¶14. This statement doesn’t provide a clear chronology, but it appears
that after Michel saw the plaintiff’s complaint, she contacted Konrad. Michael
indicates that Konrad told her about reaching out to Imams in Green Bay and
Milwaukee, and about the information the chaplain had learned from them. Id.
at ¶¶15-16. The chaplain also told Michel that she’d tried to get Islamic leaders
to come lead services at BCJ but had been unsuccessful. Id. at ¶16. Michel
attested that she’d “reported back to correctional officer (“CO”) Mekash before
his meeting with [the plaintiff].” Id. at ¶17. Konrad confirmed in her declaration
that she’d “discussed the June 4, 2017, grievance and what [she] learned from
the Imams with then-Lieutenant Michel.” Dkt. No. 66 at ¶18.
Defendant Officer Mekash attested that he reviewed the plaintiff’s
grievance. Dkt. No. 65 at ¶6. Mekash averred that he explained to the plaintiff
that the BCJ didn’t have a volunteer to lead Islamic services in the gym or
dayroom, but asked the plaintiff to let the chaplain know if the plaintiff knew of
anyone who qualified. Id. at ¶¶7-8. He also explained to the plaintiff the policy
that prohibited inmates from using the gym or the dayroom for individually-led
services. Id. at ¶9. Finally, he stated that he relayed to the plaintiff the
chaplain’s information about the Imams’ views of performing prayers ina call
with a toilet. Id. at ¶10. He suggested that the plaintiff put something in front
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of the toilet to block it, and concluded that the plaintiff’s grievance was
unfounded. Id. at ¶¶11-12. The plaintiff’s proposed findings of fact indicate
that during this meeting with Mekash, the plaintiff “explained to Mekash about
Catholics praying and taking communion in the gym.” Dkt. No. 60 at ¶9.
On June 5, 2017, the plaintiff appealed the ruling. Id. at ¶11. Michel
says that she reviewed the appeal and concluded that it was unfounded. Dkt.
No. 64 at ¶20. Michel attached the grievance and the summary showing her
response to her declaration. Dkt. No. 64-2. The summary shows that Michel
responded to the appeal as follows:
Mr. Gill, I am in receipt of your appealed grievance. I understand
your frustration however we are not denying your right to practice
your religion. We do not allow inmate led religion practices that is
why you cannot utilize the gym for praying. The other religions you
reference are actually ran by the jail ministry. We have attempted
many times to obtain someone from the Muslim faith to volunteer in
our facility but we have not had any success. As far as your concern
with praying by the toilet, we have investigated this matter and
many of the leaders in the Muslim religion have indicated that is
preferred not to pray by a toilet but exceptions can be made—the
important thing is to pray no matter where you are. Grievance is
closed and unfounded.
Id. at 3.
The plaintiff states in his proposed findings of fact that he told both
Michel and Mekash that it was forbidden for him to pray next to a toilet. Dkt.
No. 60 at ¶17. Catholics could pray and take communion in the gym because
they were led by an outside religious leader. Id. at ¶18. The plaintiff states that
he felt “emotional as well as felt some type of prejudice” because of his religion,
because the Catholics could pray in the gym and he could not. Id. at ¶20.

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The plaintiff states in his declaration that from May 31, 2017 until his
June 9, 2017 transfer to the Outagamie County Jail, he was not allowed to
pray correctly at the BCJ, and that he was forced to miss forty-eight prayers
during the month of Ramadan. Dkt. No. 61 at ¶19. He says that while at the
Outagamie County Jail, he prayed in the dayroom without a problem. Id. ¶20.
II.

Analysis
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.” See Anderson, 477 U.S. at 248. A
dispute over “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 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.
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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.

The Plaintiff’s Motion for Summary Judgment (Dkt. No. 58)

The plaintiff’s brief asserts that the court should not grant summary
judgment to Michel, Mekash, Meyers or Higgins because he told each of them
that praying next to a toilet was forbidden in Islam, but they ignored him. Dkt.
No. 59 at 1. He says that the court should deny summary judgment to Michel
and Mekash because they admitted that they allowed Catholics to pray in the
gym, but didn’t allow the plaintiff to do so. Id. He asserts that the defendants
are not entitled to qualified immunity. Id. at 2. Finally, he asserts that the
court should grant judgment in his favor, award him punitive and
compensatory damages and order the BCJ to “change its policies to allow all
faiths to pray and meet in the gym like Catholics do without reprisal.” Id.
The plaintiff’s brief in support of his motion contains a brief statement of
facts, id. at 2, a list of the Islamic requirements of prayer, id., a description of
his participation in Ramadan, id. at 3, the summary judgment standard of
review, id., and a section entitled “Conclusions of Law,” id. Under the
“Conclusions of Law” section, the plaintiff has a number of sub-sections,
including “Wis. Stat. § 227.10,” id. at 4, and “RLUIPA,” id. at 5.
Wis. Stat. §227.10(2) says that no agency may promulgate a rule that
conflicts with state law. Section (2m) says that an agency can’t implement or
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enforce a standard, requirement or threshold unless that standard,
requirement or threshold is required or permitted by statute or rule.
This is a state law. Federal courts do not have jurisdiction to decide
state-law claims, unless they have jurisdiction to decide a federal claim and the
state claim is “so related to claims in the action within [the court’s federal]
jurisdiction that they form part of the same case or controversy under Article III
of the United States Constitution.” 28 U.S.C. §1367. The court did not allow
the plaintiff to proceed on a claim under Wis. Stat. §227.10. See Dkt. No. 14.
Even if it had, the plaintiff has not identified an agency that promulgated a
rule, or identified a rule, that conflicts with state law. He identifies certain
polices, like the policy prohibiting inmates from praying on their own in the
gym or the dayroom, but does not state a claim that that policy is not
permitted by statute or rule. The court has allowed him to proceed only on his
claims that individual state officials violated his constitutional rights. There is
no basis for the court to grant summary judgment in favor of the plaintiff based
on Wis. Stat. §227.10.
Nor did the court allow the plaintiff to proceed on a claim under the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§2000cc, et
seq. See Dkt. No. 14. Even if it had, the RLUIPA “does not create a cause of
action against state employees in their personal capacity.” Grayson v. Schuler,
666 F.3d 450, 451 (7th Cir. 2012) (citing Nelson v. Miller, 570 F.3d 868, 88689 (7th Cir. 2009)). “[I]njunctive relief is the sole remedy for a RLUIPA claim.”
West v. Grams, 607 Fed. App’x 561, 565 (7th Cir. 2015) (citing Grayson, 666
9

F.3d at 451). Once a plaintiff has been released from the facility where his
rights allegedly were violated, any official capacity injunctive relief claims he
may have had (such as this plaintiff’s request that the court order the BCJ to
change its policies to allow all faiths to meet and pray in the gym) become
moot, and he may pursue only “his personal-capacity damages claim under
section 1983.” Grayson, 666 F.3d at 451. At the time the plaintiff filed this
lawsuit, he was no longer in the BCJ (he was in the Outagamie County Jail), so
he cannot not pursue an official capacity claim for injunctive relief under the
RLUIPA.
The plaintiff also included in his brief a subsection entitled “Discovery.”
Dkt. No. 59 at 6. In this section, he asserts that on October 8, 2018, defendant
Michel signed a sworn document attesting that the answers she had provided
to the plaintiff’s interrogatories were true. Id. He asserted that Michel’s answer
to three of the plaintiff’s interrogatories stated that she consulted with the BCJ
chaplain and spoke to Imams in Milwaukee and Green Bay. Id. He says that
Michel also represented in her response to his grievance appeal that she’d
consulted with Muslim leaders regarding the question of praying near a toilet.
Id. The plaintiff alleges, however, that in another place, Michel “clearly admits
in diametric opposition she never spoke to any Islamic Leader from the Muslim
Community.” Id. The plaintiff asserts that Michel lied, and that on this basis
alone, the court should grant summary judgment in his favor as to Michel. Id.
at 6, 8. He cites the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372,
380 (2007) for the proposition that when opposing parties tell two different
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stories, and one version is blatantly contradicted by the record so that no
reasonable jury could believe it, the court should not adopt the contradicted
version for the purpose of ruling on a summary judgment motion. Id. at 3.
The plaintiff attached to his motion three pages—pages 5-6 of what
appear to be someone’s responses to interrogatories and page three of what
appear to be responses to his requests to admit. Dkt. No. 59-1. The plaintiff
asserts that these are pages from Michel’s responses to his interrogatories and
requests for admission, but there is no way for the court to confirm that as to
the first two pages. The first page contains Interrogatory No. 12, in which the
plaintiff asked, “Did you even try to Google the fact that it is forbidden/Haraam
(No Permissible) for Mr. Gill to pray in a place like graveyards, bathrooms or
places that there is no walls and doors between the bathroom and a regular
room?” Id. at 1. The response contains an objection, and the statement
“[s]ubject to and notwithstanding that objection, I consulted the jail’s chaplain
and spoke to imams in Milwaukee and Green Bay.” Id. The second page
contains Interrogatory No. 15, “Please explain how you investigated this matter
as you stated in the Grievance Appeal 2017-001125.” Id. at 2. The response
indicates, “I consulted the jail’s chaplain and spoke to imams in Milwaukee
and Green Bay.” Id. It also contains Interrogatory No. 16, which asks the
respondent to list the names and contact information of all the Muslim leaders
“whom you spoke with in your investigation who indicated that it is preferred
not to pray by a toilet by exceptions can be made—the important thing is to
pray no matter where you are.” Id. The response indicates, “I do not know the
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names, addresses, and phone numbers of all the Muslim leaders with whom I
spoke regarding the subject matter in this Interrogatory. Discovery is ongoing.”
Id.
The third page refers to Michel, saying in response to a request for
admission which does not appear in the document that “the information known
or readily obtainable by Michel is insufficient to enable her to admit or deny the
accuracy of the date referenced in this Request.” Id. at 3. The court can infer
from that statement that the third page is from Michel’s responses to the
plaintiff’s requests for admission. The last request on that page states, “Admit
that you never spoke with an Islamic Leader from the Muslin [sic] Community.
If you did, please list their name, address and phone number.” Id. The word
next to “RESPONSE” is “Admit.” Id.
In their opposition brief, the defendants indicate that Michel’s responses
and declarations “were clear when considering all the evidence, as Chaplain
Konrad’s declaration states that she reached out to Imams after being
contacted by then-Lieutenant Michel.” Dkt. No. 69 at n.2.
The court cannot conclude from the plaintiff’s attachments that Michel
lied. The documents the plaintiff attached are not evidence, nor is there proof
that they are Michel’s responses. The evidence before the court includes
Michel’s declaration (which does not indicate that she, personally, spoke to any
Imams) and her response to the plaintiff’s grievance appeal (which again does
not indicate that she personally spoke to any imams; she uses the word “we” in
referring to BCJ staff). Even if Michel had represented to the court that she,
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and not Konrad, had spoken to the area Imams, that fact would be concerning,
but would not require the court to grant summary judgment in favor of the
plaintiff. The question of who spoke to the Imams is not material to whether
the named defendants violated the plaintiff’s rights to freely exercise his
religion or to equal protection.
The remainder of the plaintiff’s summary judgment arguments relate to
the merits of the claims the court allowed him to pursue, and the court will
consider them as part of its consideration of the defendants’ motion for
summary judgment.
C.

The Defendant’s Motion for Summary Judgment (Dkt. No. 62)
1.

The Parties’ Arguments

In their opposition to the plaintiff’s motion for summary judgment, the
defendants contend that as to his First Amendment claim, the plaintiff has not
demonstrated that the BCJ’s policy prohibiting inmates from praying alone in
the gym or the dayroom placed a substantial burden on his religious practices.
Dkt. No. 69 at 5. They assert that the plaintiff has not shown how the alleged
impingement targeted a specific religion or religious practice. Id. The
defendants explain that the plaintiff could pray in his cell and that he had the
ability to clean his jail cell and toilet according to his own standards. Id. at 5-6.
The defendants also point out that Chaplain Konrad communicated with
Muslim leaders and confirmed that the plaintiff’s ability to pray in his cell was
not contrary to Islamic law. Id. at 6.

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They argue that for both his First and Fourteenth Amendment claims,
the plaintiff has not demonstrated that the burden on his rights was not
reasonably related to a legitimate penological interest. Id. They assert that
security and economic concerns are the reason for the policy against inmateled prayer in the gym or dayroom. Id.
In their brief in support of their own motion for summary judgment, the
defendants contend that the plaintiff cannot prove a First or Fourteenth
Amendment claim of unequal or disproportionate treatment because the
Constitution does not require prison officials to treat all religious sects the
same. Dkt. No. 63 at 7. They also contend that the plaintiff has not
demonstrated that their conduct deprived the plaintiff of a reasonable
opportunity to pursue his faith. Id. at 8. The defendants argue that the
plaintiff’s First Amendment free exercise claim fails as a matter of law because
the jail’s policy against inmate-led worship in common areas did not impose a
substantial burden on the plaintiff’s religious rights,3 id. at 9-10, 11-12, and
because the jail’s policy was reasonably related to legitimate penological
interests, including maintenance of security, institutional order, and staff
safety, id. at 12-13. Finally, the defendants contend that they are entitled to
qualified immunity. Id. at 13-15.
The plaintiff contends in his opposition brief that the defendants have
provided no evidence that there was a written policy prohibiting inmate-led
As explained below, in their summary judgment reply brief the defendants
acknowledge that not being able to pray in the gym or the day room did place a
substantial burden on the plaintiff’s religious practice. Dkt. No. 78 at 4.
3

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religious practices in the gym or day room. Dkt. No. 72 at 2-3. He also argues
that the restriction that he had to pray in his cell substantially burdened the
practice of his religion because his sincerely held religious beliefs prohibit him
from praying in a room with a toilet, and required him to pray five times a day.
Id. at 4. The plaintiff states that the defendants’ refusal to allow him to pray
somewhere other than his cell required him either to forgo the prayers or pray
in a manner that violated his religious beliefs. Id. The plaintiff also states that
while he could clean his cell daily between 5:30 a.m. and 10:30 a.m., he could
not clean his cell after that so if he or his cellmate used the toilet after 10:30
a.m., he would have to pray in an area with urine and/or feces around him. Id.
at 7.
2.

Analysis
a.

Plaintiff’s Requests for Declaratory and Injunctive
Relief

In their motion for summary judgment, the defendants argue that the
plaintiff’s claims for injunctive and declaratory relief are moot because he is no
longer at BCJ. Dkt. No. 63 at 7. The plaintiff does not appear to dispute this,
responding that he never asked for injunctive or declaratory relief. Dkt. No. 72
at 5. The plaintiff is mistaken on that point; the “Relief Wanted” section of the
complaint includes the statement that the plaintiff would like BCJ “to change
their policy and allow all faiths to pray and meet in the gym like the Catholics
do without reprisal.” Dkt. No. 1 at 7.
The plaintiff was confined at BCJ in 2016-2017; his request for
injunctive relief is moot because he is no longer there. See Maddox v. Love, 655
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F.3d 709, 716 (7th Cir. 2011); Nelson, 570 F.3d at 882-83, abrogated on other
grounds by, Jones v. Carter, 915 F.3d 1147 (7th Cir. 2019). The court will
grant summary judgment in favor of the defendants as to those requests.
b.

First Amendment Free Exercise of Religion Claim

Prisoners have a limited right to exercise their religion under the First
Amendment. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987);
Turner v. Safley, 482 U.S. 78, 89-91 (1987); Tarpley v. Allen Cty., 312 F.3d
895, 898 (7th Cir. 2002). To establish a Free Exercise violation, the plaintiff
must demonstrate that the defendants’ actions “placed a substantial burden on
[his] religious practices.” Thompson v. Holm, 809 F.3d 376, 379 (7th Cir.
2016). A substantial burden “put[s] substantial pressure on an adherent to
modify his behavior and to violate his belief.” Id. (quoting Thomas v. Review
Bd., 450 U.S. 707, 717-18 (1981)). “A burden is unjustified if it is not
reasonably related to a legitimate penological interest.” Id. (citing Turner, 482
U.S. at 89-91).
The defendants acknowledge that the plaintiff has demonstrated that
“not being able to pray in the gym or dayroom ‘placed a substantial burden on
his religious practices.’” Dkt. No 78 at 4. By not allowing the plaintiff to pray in
the gym or day room, and by telling him that he had to pray in his cell, the
defendants forced the plaintiff to choose between not praying or violating a
central tenet of his religious belief by praying in his cell next to toilet. See
Thompson, 809 F.3d at 380; see also Jackson v. Raemisch, 726 F. Supp. 2d
991, 999 (W.D. Wis. 2010) (“The question is not whether a restriction places a
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substantial burden on an average adherent, but whether the plaintiff is
substantially burdened in practicing his sincerely held beliefs.”); Ortiz v
Downey, 561 F.3d 664, 669 (7th Cir. 2009) (“A person’s religious beliefs are
personal to that individual; they are not subject to restriction by the personal
theological views of another.”).
The defendants contend, however, that the plaintiff cannot meet his
burden at summary judgment because (1) his religious belief was not sincere,
dkt. no. 63 at 10-11; (2) “prayer within one’s cell is an adequate alternative
that is not considered a substantial burden on an inmate,” dkt. no. 78 at 4;
and (3) the plaintiff “did not even attempt to demonstrate that the policy was
not reasonably related to a legitimate penological interest, because there is no
argument to refute the asserted interests,” id. at 4-5.
“A prison is entitled to ensure that a given claim reflects a sincere
religious belief, rather than a . . . prisoner’s desire to make a pest of himself
and cause trouble for his captors.” Vinning-El v. Evans, 657 F.3d 591, 594 (7th
Cir. 2011). The defendants question the sincerity of the plaintiff’s religious
beliefs because he did not mention them, or his religious affiliation, when he
arrived at the jail, and instead “did not make a request regarding Ramadan
until after the first week of Ramadan[.]” Dkt. No. 63 at 11. But the defendants
have not disputed the plaintiff’s assertion that he has been a practicing Muslim
since 1994. And contrary to the defendants’ assertion, the plaintiff requested
Ramadan meals a few days before the start of Ramadan in 2017. Ramadan
began on May 26, 2017, and the plaintiff asked for a Halal meal on May 21 and
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for a prayer rug on May 22. Konrad interviewed the plaintiff, approved his
request for Ramadan meals based on his knowledge of Islamic faith core
beliefs, and issued him a prayer towel. The facts do not support the defendants’
claim that the plaintiff did not have a sincere belief, or that the defendants did
not believe that he had sincere religious belief.
That leaves the question of whether the defendants had a legitimate
penological justification for requiring the plaintiff to pray in his cell. In deciding
whether restrictions are reasonably related to legitimate penological interests,
the court considers four factors: (1) whether a valid, rational connection exists
between the policy and a legitimate government interest behind the rule; (2)
whether there are alternative means of exercising the right in question that
remain available to prisoners; (3) whether accommodation of the asserted
constitutional right would have a negative impact on guards, other inmates,
and the allocation of prison resources; and (4) whether obvious, easy
alternatives exist as evidence that the regulation is not reasonable. Turner, 482
U.S. at 89–91.
Under the first factor, “the governmental objective must be a legitimate
and neutral one” and “a regulation cannot be sustained where the logical
connection between the regulation and the asserted goal is so remote as to
render the policy arbitrary or irrational.” Id. at 89-90. Legitimate penological
interests can include security and economic concerns. Ortiz, 561 F.3d at 669.
Prisons “need not . . . allow inmates to conduct their own religious services, a
practice that might not only foment conspiracies but also create (though more
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likely merely recognize) a leadership hierarchy among the prisoners.” JohnsonBey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988).
The defendants contend that security and economic concerns are major
factors in the jail’s rules prohibiting inmate-led prayer in the gym or dayroom,
and that the jail is entitled to enforce policies that prevent gang-related activity
and organized crime from taking place within the jail. Dkt. No. 69 at 6. They
explain that the jail’s policies and rules require that a non-inmate lead
religious practices in the day room and gym areas because the involvement of a
non-inmate helps ensure that such meetings will not lead to organized crime or
gang activity, or other plots that a congregation of inmates could devise if left
unsupervised in large groups. Id.
The court first notes that the jail’s gym and dayroom rules do not
mention inmate-led prayer. The gym rule state that no “private inmate use” is
permitted and the dayroom rule states that loitering is not permitted. The
defendants have interpreted these rules as a ban on inmate-led religious
services or inmate-led worship. It is not clear whether the defendants also
interpret the rules as prohibiting the plaintiff from praying by himself in those
locations. But the economic and security justifications the defendants provide
relate to prohibiting an inmate from leading group worship or prayer in the
gym or dayroom. The court cannot conclude that the plaintiff praying by
himself in one of those areas would raise concerns of inmate plots, gang-related
activity or organized crime, and the defendants do not provide any security or

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economic justification for prohibiting an inmate from praying by himself in
these areas.
Turner’s second factor is whether there are alternative means of
exercising the right in question that remain available. Where an inmate has
“other avenues” to exercise the asserted right, the court must “be particularly
conscious of the ‘measure of judicial deference owed to corrections officials …
in gauging the validity of the regulation.’” Turner, 482 U.S. at 90 (citing Pell v.
Procunier, 417 U.S. 817, 827 (1974)). The defendants contend that prayer in
one’s cell “is an adequate alternative that is not considered a substantial
burden on an inmate.” Dkt. No. 78 at 4. The defendants cite to McRoy v. Cook
Cty. Dep’t of Corr., 366 F. Supp. 2d 662, 677 (N.D. Ill. 2005), aff’d sub nom.
McRoy v. Sheahan, 205 F. App’x 462 (7th Cir. 2006), in which the court
determined that a county correctional facility had a legitimate security interest
in cancelling Muslim services, along with other religious services and group
activities, during division lockdowns and staff shortages due to concerns
related to prison security. McRoy, 366 F. Supp. 2d at 675-76. The McRoy court
also determined that the prisoner had an alternative means of exercising his
religious right because he could pray in his cell and in the dayroom, and
because the prisoner had not alleged or argued that solitary prayer in his cell
or group prayer in the dayroom were insufficient alternatives to communal
services for the exercise of Muslim faith. Id. at 676-77.
The plaintiff’s case is distinguishable from the facts in McRoy; here, the
plaintiff alleges and argues that prayer in his cell is not an adequate alternative
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to praying in the gym or dayroom because praying next to a toilet violates his
religious beliefs. While in-cell prayer (and prayer in the dayroom) may have
been adequate alternatives to group prayer in McRoy, in this case in-cell prayer
next to a toilet was not an adequate alternative to prayer in the gym or day
room. The plaintiff did not pray for ten days and he says that he missed fortyeight prayers during Ramadan. Dkt. No. 61 at ¶21.
The court does not have enough information to evaluate Turner’s third
and fourth factors. Under the third factor, the court considers whether
accommodation of the asserted constitutional right would have a negative
impact on guards, other inmates and the allocation of prison resources. As
explained above, the defendants’ justification for the rule against inmate-led
worship appears to be based on an inmate leading one or more other inmates
in prayer or religious services, and not on the plaintiff praying by himself.
Perhaps allowing the plaintiff to pray alone in the gym or dayroom would have
some negative impact on guards, other inmates and prison resources. Perhaps
allowing an inmate to pray in the gym or dayroom would interfere with the
activities of the other inmates, such as watching TV or reading. Perhaps it
would require an additional guard, to protect the plaintiff from interference by
other inmates. Perhaps it would be too much of a burden on jail staff for the
plaintiff to travel back and forth from his cell to the gym or dayroom five times
a day—as early as 4:30 or 5:00 a.m. for the first prayer of the day and as late
as 9:30 or so for the last one; it might interfere with counts or meals or job
scheduling or visitation hours. But the defendants have not said as much.
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They have not addressed at all why the plaintiff could not pray alone in the
gym or dayroom; they appear to assume that the only way to accommodate the
plaintiff’s request to pray somewhere other than his room would be to allow
him to pray in an inmate-led group with others.
Turner’s fourth factor states that the court should consider whether
obvious, easy alternatives exist as evidence that the regulation is not
reasonable. It is possible that there might be obvious, easy alternatives to
requiring the plaintiff pray in his cell. Perhaps he could have prayed alone in
the gym or the dayroom. Perhaps he could have carried his prayer rug with him
during the day, and prayed wherever he happened to be at the appropriate
time. The court does not know, because the defendants did not discuss this
factor.
The court notes that the plaintiff is not the first inmate to have raised
this issue. In Jihad v. Fabian, 680 F. Supp. 2d 1021 (D. Minn. 2010), the
inmate plaintiff argued that because there was no Muslim chaplain and there
were only two Islamic services a week, the facility’s requirement that an
approved volunteer to be present during services substantially burdened his
First Amendment rights. Id. at 1026-27. The plaintiff further alleged that his
sincerely-held religious beliefs prevented him from praying in a room with a
toilet—his cell. Id. at 1027. The Jihad court concluded that “the safety of
prison inmate and staff would be jeopardized by the increased movement of
prisoners if inmates were allowed to leave their cells five times a day to pray,”
and that the facility’s policy of allowing an inmate to pray either during
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scheduled worship services or in his cell “was the least restrictive means of
achieving the defendants’ compelling interest in safety and security.” Id. The
defendants could have presented evidence regarding the difficulties or burdens
imposed by inmate movement, but did not. And unlike the facility in Jihad, the
BCJ has no Islamic services at all.
The plaintiff in Ahmad v. Ehrman, 339 F. Supp. 2d 1134 (D. Colorado
2004), reversed on other grounds, Ahmad v. Furlong, 435 F.3d 1196 (10th Cir.
2006), also argued that being forced to pray in his cell, near the toilet, violated
his sincerely held religious beliefs. The district court concluded that the
plaintiff had a reasonable alternative—he could participate in group prayer
every Friday. Id. at 1138. Again, the plaintiff here did not have that alternative
available to him.
On this record, the court cannot conclude as a matter of law at the
defendants’ requirement that the plaintiff pray in his cell was reasonably
related to a legitimate penological interest.
c.

Fourteenth Amendment Equal Protection Claim

The Equal Protection Clause prohibits state actors from purposefully
treating an individual differently because of his membership in a particular
class. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). A legitimate secular
reason for any difference in treatment is fatal to the plaintiff’s claim. Kaufman
v. McCaughtry, 419 F.3d 678, 683 (7th Cir. 2005); Reed v. Faulkner, 842 F.2d
960, 962 (7th Cir. 1988) (difference in treatment must only be non-arbitrary).
To prevail on his equal protection claim, the plaintiff must show that
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defendants refused to allow him to pray in the gym or the day room because he
is a Muslim, rather than because they believed that allowing him to pray in
either place created a security risk. Jackson, 726 F. Supp. 2d at 1005 (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (“Where the claim is invidious
discrimination . . . our decisions make clear that the plaintiff must plead and
prove that the defendant acted with discriminatory purpose” and that
defendant “undert[ook] a course of action because of, not merely in spite of, the
action’s adverse effects upon an identifiable group.”)); see also West v.
Kingsland, 679 F. App’x 482, 485 (7th Cir. 2017) (to avoid summary judgment,
plaintiff needs evidence that the defendants acted with discriminatory purpose,
meaning that their actions were motivated at least partly by a desire to
adversely affect Muslims).
The defendants have not disputed that Catholics could pray and take
Communion in the gym; they assert only that the reason Catholic could pray
and take Communion in the gym is because they were led by non-inmates. The
defendants argue that they—Konrad, specifically—tried to find a non-inmate to
lead Islamic services at the BCJ, but were unable to do so. The court cannot
conclude on this record that the defendants singled out Muslims. Rather,
religious groups that had an outside leader could participate in religious
services in the gym or dayroom, and religious groups that did not have an
outside leader could not. It is unfortunate that the BCJ has been unable to find
a non-inmate to lead Muslim worship services, but that inability does not

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constitute discrimination against Muslims. The court will grant the defendants’
motion for summary judgment on the plaintiff’s equal protection claim.
d.

Qualified Immunity

The defendants have argued that they are entitled to qualified immunity.
Qualified immunity “protects government officials from suit for damages when
their conduct does not violate clearly established statutory or constitutional
rights.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Determining whether a
state official is entitled to qualified immunity involves two inquiries: “(1)
whether the facts, taken in the light most favorable to the plaintiff, make out a
violation of a constitutional right, and (2) whether that constitutional right was
clearly established at the time of the alleged violation.” Williams v. City of Chi.,
733 F.3d 749, 758 (7th Cir. 2013). If either inquiry can be answered in the
negative, the official is entitled to summary judgment.
Courts may address the two prongs of qualified immunity in either order.
Pearson, 555 U.S. at 236. A right is clearly established if a “reasonable official
would have understood what he is doing violates that right.” Reichle v.
Howards, 566 U.S. 658, 664 (2012) (internal quotations and brackets omitted).
“[T]he crucial question [is] whether the official acted reasonably in the
particular circumstances that he or she faced.” Kemp v. Liebel, 877 F.3d 346,
351 (7th Cir. 2017)). In this case, the relevant question is whether the plaintiff
had a clearly established constitutional right to pray outside of his cell in the
gym or dayroom when, based on his sincere religious belief, he could not pray
in his cell. See Kemp, 877 F.3d at 352-53 (right allegedly violated must be
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defined at the appropriate level of specificity and, outside of an obvious case,
generalized Turner framework cannot create clearly established law).
Because the defendants have raised a qualified immunity defense, the
plaintiff must show that it was clearly established in the law that prohibiting
him from praying in the gym or dayroom, and requiring him to pray in his cell,
violated the Free Exercise Clause. Mannoia v. Farrow, 476 F.3d 453, 457 (7th
Cir. 2007); Alexander v. City of Milwaukee, 474 F.3d 437, 446 (7th Cir. 2007).
The plaintiff must point to a Supreme Court case, a case from the Seventh
Circuit or “a consensus of cases of persuasive authority such that a reasonable
officer could not have believed that his actions were lawful.” Wilson v. Layne,
526 U.S. 603, 617 (1999). Or, the plaintiff may show that “a general
constitutional rule already identified [applies] with obvious clarity to the
specific conduct in question, even though the very action in question has not
previously been held unlawful.” Michael C. v. Gresbach, 526 F.3d 1008, 1017
(7th Cir. 2008).
In Jackson, 726 F. Supp. 2d at 1003, the Islamic prisoner plaintiff raised
a genuine issue of material fact regarding whether the prison’s “no prayer” rule,
which prevented him from praying at his prison job and resulted in his missing
one or more of his five daily prayers, violated his rights under the Free Exercise
Clause. But the court determined that the defendants were entitled to qualified
immunity because the plaintiff pointed to no Supreme Court or Seventh Circuit
precedent to show that the defendants should have known that they were
acting unlawfully. Id. at 1003-04.
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The plaintiff has cited no cases from the Supreme Court or the Seventh
Circuit to show that the defendants should have known that they were acting
unlawfully when they did not let him pray in the gym or dayroom for ten days,
forcing him to pray in his cell near the toilet. The court has been unable to find
case law from the Supreme Court or from this circuit to show that the
defendants should have known that they violated the plaintiff’s constitutional
rights. While the court has identified two district court cases from other
districts, those cases did not address head-on the situation in which a Muslim
inmate had no alternative but to pray in his cell, and neither case is binding in
Wisconsin. The evidence demonstrates that the defendants believed that they
were accommodating the plaintiff—Konrad had talked to Imams, had tried to
get someone in to lead Islamic services and had asked whether prayer in the
cell was acceptable. The plaintiff received a Halal meal and a prayer rug.
Makesh suggested that the plaintiff block the toilet with something when he
prayed. There is no indication that the defendants had reason to believe that
they were violating the plaintiff’s right to freely exercise his religion.
The defendants are entitled to qualified immunity. The court will deny
the plaintiff’s motion for summary judgment and grant the defendants’ motion
for summary judgment on the plaintiff’s free exercise claim.
III.

Plaintiff’s Motion to Strike (Dkt. No. 84)
The plaintiff filed a motion to strike all filings and/or motions by Attorney

Kyle R. Moore. Dkt. No. 84. The plaintiff stated that he recently had received a
letter stating that Attorney Moore had withdrawn from representing the
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defendants because he was no longer with the defendants’ law firm. Id. at 1.
The defendants filed a response, dkt. no. 85, in which they point to Attorney
Moore’s June 7, 2019 Notice of Withdrawal Counsel, dkt no. 83. The
defendants explained that Attorney Samuel C. Hall and Benjamin A. Sparks
remain on as lawyers for the defendants. Dkt. No. 85. Attorneys Hall and
Sparks have continuously represented the defendants in this case since they
filed their notices of appearance, and they have submitted and signed all filings
on behalf of the defendants. Id. at 1-2. The fact that one of several attorneys
representing the defendants has left the firm does not invalidate that attorney’s
filings. There is no basis for striking any case filings and the court will deny the
plaintiff’s motion.
IV. Conclusion
The court DENIES the plaintiff’s motion for summary judgment. Dkt. No.
58.
The court GRANTS the defendants’ motion for summary judgment and
will enter judgment accordingly. Dkt. No. 62.
The court DENIES the plaintiff’s motion to strike filings and/or motions
filed by Attorney Kyle R. Moore. Dkt. No. 84.
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 thirty days of the entry of
judgment. See Fed. R. of App. P. 3, 4. This court may extend this deadline if a

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party timely requests an extension and shows good cause or excusable neglect
for not being able to meet the thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under limited 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 twenty-eight days of
the entry of judgment. The court cannot extend this deadline. See Fed. R. Civ
P. 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 Fed. R. Civ. P. 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 16th day of September, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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