Powell v. Konrad et al

Filing 58

ORDER signed by Judge J P Stadtmueller on 11/16/2021. IT IS ORDERED that Defendant's motion for partial summary judgment (Docket # 20 ) be and the same is hereby DENIED; IT IS FURTHER ORDERED that Defendant's motion for summary judgment ( Docket # 47 ) be and the same is hereby GRANTED in part as to Plaintiff's First Amendment claim and DENIED without prejudice as to Plaintiff's RLUIPA claim; IT IS FURTHER ORDERED that the parties are to brief the Court on mootness. IT IS FURTHER ORDERED that Plaintiff's motions to either amend or supplement his complaint (Docket # 35 , # 43 , # 52 ) be and the same are hereby DENIED; and IT IS FURTHER ORDERED that Plaintiff's motion to stay discovery (Docket # 37 ) and motion to compel (Docket # 39 ) be and the same are hereby DENIED as moot. (cc: all counsel and mailed to pro se party)(rcm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANTWON CORDERREL POWELL,
Plaintiff,
v.
CHAPLAIN KAREN KONRAD,

Case No. 20-CV-951-JPS-JPS

ORDER

Defendant.
1.

INTRODUCTION
On January 27, 2021, District Court Judge Lynn Adelman screened

Plaintiff Antwon Corderrel Powell’s (“Plaintiff”) complaint and allowed
him to proceed on claims arising under the First Amendment and the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) against
Defendant Chaplain Karen Konrad (“Defendant”). (Docket #8). The case
was reassigned to this branch of the Court on February 17, 2021. Since then,
the parties have filed a series of motions including two for summary
judgment and multiple related to discovery and amending and/or
supplementing the complaint. This Order resolves all pending motions in
this case.
2.

LEGAL STANDARDS
Federal Rule of Civil Procedure 56 provides that a 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); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A
fact is “material” if it “might affect the outcome of the suit” under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. A court
construes all facts and reasonable inferences in the light most favorable to
the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th
Cir. 2016). In assessing the parties’ proposed facts, a court must not weigh
the evidence or determine witness credibility; the Seventh Circuit instructs
that “we leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618
F.3d 688, 691 (7th Cir. 2010).
3.

RELEVANT FACTS
Plaintiff asserts that he has been a follower of Islam for ten years and

is a “firm believer in the Islamic ways and practices.” (Docket #1 at 2). He
has been incarcerated at Brown County Jail (the “Jail”) for over two years.
(Id.) Plaintiff complains that Defendant has prevented him from practicing
his religion. (Id. at 3). According to Plaintiff, in 2019, Defendant prevented
him from receiving bagged meals during Ramadan, a time when Muslims
are to abstain from eating or drinking when the sun is up. (Id.) Specifically,
it appears that the Jail removed Plaintiff from its Religious Diet Program
(the “Program”) based on a recommendation by Defendant, the Jail’s
chaplain. (Docket #49 at 2). Although he could buy food at the commissary,
Plaintiff writes that he was unable to buy enough food to meet his
nutritional needs and lost a lot of weight, felt nauseous, and suffered
tremendous hunger pains. (Docket #1 at 3–5).
Plaintiff explains that he filed a grievance asking why he was unable
to receive bagged meals to eat when the sun was down. (Id. at 3–4). Another
prison official told Plaintiff that he had violated Rules 7 and 8 of the
Program. (Id. at 3). Rule 7 informs prisoners that they are not permitted to
make menu choices on a meal-to-meal basis, and Rule 8 informs prisoners
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that violation of the restrictions may result in removal from the Program.
(Docket #1-1 at 1). In 2020, Plaintiff again requested to receive bagged meals
during Ramadan. (Docket #1 at 3). The Jail denied his request, explaining
that, because Plaintiff had been removed from the Program the previous
year, he could not participate again during the same period of incarceration.
(Id.) Defendant states that she recommended that Plaintiff be removed from
the Program because he made several unapproved food purchases during
Ramadan, including cocoa mix packets, a mayonnaise packet, and Cheetos.
(Docket #49 at 4).
Defendant states that, in 2021, the Jail instated a “second chance” diet
program, which allows an inmate to participate in the Program despite
having been previously removed. (Docket #49 at 5). Pursuant to the Jail’s
second chance program, Plaintiff was allowed to participate in Ramadan
2021. (Id. at 6). Plaintiff, however, refused the Ramadan meals, indicated
that he never asked for them, and asked to be taken off the diet. (Id.)
4.

ANALYSIS
4.1

Defendant’s Motion for Partial Summary Judgment
(Docket #20)

Defendant’s motion for partial summary judgment challenges
whether Plaintiff exhausted his administrative remedies as to the inmate
grievance he filed in 2019. (Docket #20). Defendant seeks summary
judgment on any claims that arise out of the 2019 decision. (Docket #21 at
1).
The Prison Litigation Reform Act (the “PLRA”) establishes that,
prior to filing a lawsuit complaining about prison conditions, a prisoner
must exhaust “such administrative remedies as are available.” 42 U.S.C. §
1997e(a). A prisoner must do so precisely in accordance with the rules of
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the incarcerating institution; substantial compliance does not satisfy the
PLRA. Id.; Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005). A suit must
be dismissed if it was filed before exhaustion was complete, even if
exhaustion is achieved before judgment is entered. Perez v. Wis. Dep’t of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). The exhaustion requirement furthers
several purposes, including restricting frivolous claims, giving prison
officials the opportunity to address situations internally, providing the
parties opportunity to develop the factual record, and reducing the scope
of litigation. Smith v. Zachary, 255 F.3d 446, 450–51 (7th Cir. 2001). Failure to
exhaust administrative remedies is an affirmative defense to be proven by
a defendant. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).
The Brown County Jail Inmate Handbook (the “Handbook”)
requires that inmates file written grievances within 48 hours of an incident.
(Docket #24-1 at 10). The grievance will be reviewed by prison officials, and
a prison official will respond to it. (Id.) An inmate has the right to one appeal
of the prison’s response, and the inmate must submit such appeal within 48
hours of receipt of the response. (Id. at 10–11). A staff member who has an
equal or higher rank than the staff member from whom the inmate received
the response will handle the appeal. (Id.)
Here, both parties agree that Plaintiff received a copy of the
Handbook, that the Handbook explains the grievance process, and that
Plaintiff filed his grievance within 24 hours of the alleged incident. (Docket
#21 at 4, #33 at 2). Both parties also agree that Plaintiff did not appeal the
2019 decision. (Docket #21 at 2, #33 at 3). But Plaintiff argues that the
Handbook expressly disallowed him from doing so. (Docket #33 at 2–3).
Specifically, Plaintiff quotes the following section of the Handbook:
“Grievances on facility schedules, facility security measures, cell
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assignments, pod assignments, and jail discipline will not be accepted.”
(Docket #24-1 at 10) (emphasis in original).
Plaintiff’s grievance concerned his removal from the Program
because Defendant believed that Plaintiff had violated Rules 7 and 8 of the
Program. Defendant concedes as much. (Docket #21 at 2). In Plaintiff’s
words, “rule infraction plus punishment equals discipline.” (Docket #33 at
2). Based on his reading of the Handbook’s bolded exception to the
grievance process, Plaintiff believed that he was not permitted to file a
grievance for his removal from the Program. (Id.)
Certainly, it gives the Court pause that, despite his reading of the
Handbook, Plaintiff still filed a grievance in 2019. However, Plaintiff states
that this grievance concerned him not being supplied with “any factual
basis” on which the decision rested. (Docket #34 at 2). He wanted a reason
for the decision, but it appears that he always understood the Handbook to
disallow a grievance and appeal of the 2019 decision itself. Plaintiff’s
reading of the Handbook’s bolded section as it applied to his situation
appears reasonable. However, in light of its analysis in Section 4.2, infra, the
Court need not reach an answer on this issue.
4.2

Defendant’s Motion for Summary Judgment (Docket #47)

Defendant moves for summary judgment on four grounds, which
the Court will address in turn. Plaintiff failed to respond to Defendant’s
motion, and, because of Plaintiff’s failure to comply with local rules about
responding to motions, Defendant argues that the Court should grant what
would be essentially default summary judgment. The Court cannot do this.
A plaintiff’s “failure to file a timely response to [a motion for
summary judgment] is not a basis for automatically granting summary
judgment as some kind of sanction.” Robinson v. Waterman, 1 F.4th 480, 483
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(7th Cir. 2021). “Even where a nonmovant fails to respond to a motion for
summary judgment, the movant still had to show that summary judgment
was proper given the undisputed facts . . . with those facts taken as usual in
the light most favorable to the nonmovant.” Id. (quotation and citation
omitted). Thus, the Court may treat Defendant’s statement of facts as
undisputed (although in a light most favorable to Plaintiff), but it must
engage in legal analysis of Defendant’s motion. Id.
4.2.1

Whether Defendant Acted Under Color of State Law

In order to prevail on a § 1983 claim, a plaintiff must show that the
defendant (1) deprived him of a federal constitutional right (2) while acting
under color of state law. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.
1996). Defendant argues that she cannot be liable under § 1983 because she
did not act under color of state law.
First, Defendant argues that she did not “act” against Plaintiff.
Defendant states that she did not have the authority to make a decision
against Plaintiff and that a supervising corporal “typically” asks for her
advice and then makes an ultimate decision. (Docket #49). Defendant’s use
of the word “typically” raises flags for the Court—and a lack of an explicit
statement of what actually happened in the present case does no better. In
her proposed finding of facts, Defendant states that “[a]s a result of
[Plaintiff]’s extraneous meal purchases, [Plaintiff] was removed from the
Ramadan meal plan.” (Docket #49 at 4). Defendant cannot use the passive
voice as a tool to obfuscate her involvement in the Jail’s decision making.
Defendant has not told the Court what happened; at the very least, all
parties agree that Plaintiff “was removed” from the Program based on and
because of Defendant’s recommendation. Defendant previously and
continuously stated that “[Defendant] found that, based on her
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understanding, [Plaintiff] was violating Rules #7 and #8 of the Religious
Diet Program.” (Docket #22 at 2; see also Docket #21 at 2, #48 at 3).
Second, Defendant argues that, as a chaplain, she cannot be
considered a state actor. Defendant cites unhelpful and inapposite case law
to support this position. For example, Defendant cites Rodriguez v. Plymouth
Ambulance Service that, in relevant part, states, “[the Supreme Court] ha[s]
held that ‘a public defender does not act under color of state law when
performing a lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding.’” 577 F.3d 816, 824 (7th Cir. 2009) (discussing Polk
County v. Dodson, 454 U.S. 312 (1981)). In a footnote to this sentence (and
separately cited by Defendant), the Seventh Circuit noted that “the Court
of Appeals for the Eighth Circuit applied the Supreme Court’s decision in
[Polk] to the ecclesiastical activities of a prison chaplain.” Id. at 824 n.12
(citing Montano v. Hedgepeth, 120 F.3d 844, 851 (8th Cir. 1997)). This
reference in a footnote is not the Seventh Circuit adopting the rule stated in
Montano, and, even if it were, Montano limited the rule to situations wherein
a chaplain “engages in inherently ecclesiastical functions (that is, when he
performs spiritual duties as a leader in his church).” 120 F.3d at 851.
Defendant cites no case law—and the Court will not go looking for it on
Defendant’s behalf—but it is unlikely that making recommendations on
whether an inmate violated a prison rule and should face repercussions for
it falls under “spiritual leadership.”1 Defendant’s arguments on this issue
fail.
Defendant also cites Larry v. Goetz, 575 F. Supp. 2d 965, 968 (W.D. Wis.
2007), wherein a district court held that “plaintiff ha[d] adduced no admissible
evidence from which a jury could infer that defendant[, a chaplain,] had either a
responsibility or the authority to arrange Jumah services at the jail and defendant
ha[d] submitted evidence that he had no such authority.” Larry is also
1

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4.2.2

First Amendment

Defendant moves for summary judgment on the merits of Plaintiff’s
First Amendment claim for several reasons. The Free Exercise Clause of the
First Amendment “prohibits the state from imposing a substantial burden
on a central religious belief or practice.” Kaufman v. Pugh, 733 F.3d 692, 696
(7th Cir. 2013) (internal quotations and citation omitted). A person’s
religious belief must be sincerely held for the First Amendment’s
protections to attach. See Vinning-El v. Evans, 657 F.3d 591, 593 (7th Cir.
2011) (“Sincere religious beliefs must be accommodated . . . but nonreligious beliefs need not be.”).
In the prison context, although an inmate has the right to practice his
religion during incarceration, this right may be restricted. “[A] regulation
that impinges on an inmate’s constitutional rights, such as one imposing a
‘substantial burden’ on free exercise, may be justified if it is ‘reasonably
related to legitimate penological interests.’” Kaufman, 733 F.3d at 696
(quoting O’Lone v. Est. of Shabazz, 482 U.S. 342, 349 (1987)). “A substantial
burden ‘put[s] substantial pressure on an adherent to modify his behavior
and to violate his beliefs.’” Thompson v. Holm, 809 F.3d 376, 379 (7th Cir.
2016) (quoting Thomas v. Review Bd., 450 U.S. 707, 717–18 (1981)).
First, Defendant argues that Plaintiff did not sincerely hold the
beliefs of a practicing Muslim. As evidence, Defendant states that (1) in
2018, Powell did not attempt to participate in Ramadan until after it had
already begun, (2) Powell made purchases from the jail canteen that were
prohibited by the Program (e.g., Cheetos, hot cocoa, and ramen), and (3)
distinguishable as it involved a failure to act and a lack of evidence that there was
a duty to do so. In the present case, Plaintiff alleges that Defendant took action
against him.

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when he was added back into the Program in 2021, he asked to be removed.
(Docket #48 at 11). These facts are not enough to show that Plaintiff did not
sincerely hold his religious beliefs.
To begin, Plaintiff’s late entry into the Program in 2018 does not
mean that his faith was insincere—he may have been attempting to observe
the practice on his own but later concluded that it would be easier to
participate in the Program. Neither party discusses this, and the Court will
not assume. Second, a person’s failure to follow a prison’s interpretation of
a religious diet does not mean that the person failed to follow the actual
religious diet. The Court is unaware of proscriptions against Cheetos and
hot cocoa during Ramadan (just against eating between sunrise and
sunset—which Defendant does not allege Plaintiff did). Third, we do not
know why Plaintiff opted out of the program in 2021; perhaps he did so
because he felt he could better observe Ramadan without the Jail’s help. The
mere assertion of a religious belief does not automatically trigger First
Amendment protection; but Defendant has not presented the Court enough
evidence that Plaintiff’s beliefs were insincere.
Second, Defendant argues that Plaintiff’s religious rights were not
substantially burdened when he was removed from the Program.
Defendant writes that “[a]t no point did employees of the Jail state that
Plaintiff could not continue to participate in Ramadan prayer (or other
Muslim services) while at the Jail.” (Docket #48 at 11). They also state that
Plaintiff’s only gripe is that “he was often hungry during Ramadan.” (Id.)
In his complaint, Plaintiff states much more than that. He alleges that,
without access to the meals provided through the Program, he did not have
enough money to purchase full meals. (Docket #1 at 4). He states that he
lost “a large amount of weight” and suffered nausea. (Id. at 4–5). Having
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endured weeks of this, Plaintiff likened the experience to starvation. (Id. at
5). Courts “have observed that ‘forcing an inmate to choose between daily
nutrition and religious practice is a substantial burden.’” See Thompson v.
Bukowski, 812 F. App’x 360, 365 (7th Cir. 2020), reh’g denied (July 2, 2020)
(quoting Holm, 809 F.3d at 380). Defendant loses on this argument.2
Third, Defendant argues that Plaintiff’s removal from the Program
for violating its rules was a punishment reasonably related to legitimate
penological interests. “To ensure that courts afford appropriate deference
to prison officials . . . prison regulations alleged to infringe constitutional
rights are judged under a ‘reasonableness’ test less restrictive than that
ordinarily applied to alleged infringements of fundamental constitutional
rights.” O’Lone, 482 U.S. at 349 (citations omitted). Thus, “[w]hen a prison
regulation impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests.” Id. (citing
Turner v. Safley, 482 U.S. 78, 89 (1987)). A court must consider four factors
in assessing whether a prison regulation is reasonably related to a
legitimate penological interest: (1) “whether the regulation is rationally
related to a legitimate and neutral governmental objective;” (2) “whether
there are alternative means of exercising the right that remain open to the
inmate;” (3) “what impact an accommodation of the asserted right will have
on guards and other inmates;” and (4) “whether there are obvious
alternatives to the regulation that show that it is an exaggerated response
to prison concerns.” Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004).

Additionally, this section of Defendant’s motion is void of any case law—
on-point or otherwise—to guide the Court’s analysis of whether her stated facts
support her argument.
2

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As to the first factor, “the government interests of controlling costs
and managing the budget . . . and a streamlined meal plan system are
legitimate government objectives.” Crawford v. Bukowski, No. 10-CV-2242,
2013 WL 363923, at *7 (C.D. Ill. Jan. 30, 2013) (citing Koger v. Bryan, 523 F.3d
789, 800 (7th Cir. 2008)) (“orderly administration of a prison dietary system,
and the accommodations made thereunder, are legitimate concerns of
prison officials”); Al–Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991)
(noting that both security and economic concerns are legitimate penological
demands); see also Akbar v. Overbo, No. 17-CV-442-SLC, 2019 WL 6699743,
at *8 (W.D. Wis. Dec. 9, 2019), appeal dismissed, No. 19-3492, 2020 WL
3412697 (7th Cir. Feb. 5, 2020) (“DOC’s interest in orderly, efficient, costeffective, and safe food service is undoubtedly legitimate.”). Defendant
makes this argument and offers supporting case law, and the Court agrees
that this factor weighs in Defendant’s favor.
As to the third factor, the Jail’s rules are meant to prevent other
inmates from “potentially abusing a system that causes the Jail an
additional economic strain.” (Docket #48 at 13). The rules are clear to
inmates and promote order. See Crawford, 2013 WL 363923, at *8 (“As this
court is required to be deferential toward prison officials’ evaluation of their
own security needs, [the third] factor weighs in favor of Defendants.”).
As to the second and fourth factors, despite recognizing them,
(Docket #48 at 8–9), Defendant does not directly address or support them
with appropriate case law. However, as Defendant discusses, it is Plaintiff’s
burden to show that the alleged violation of his rights was not reasonably
related to a legitimate penological interest. Tatum v. Meisner, No. 13-CV-44WMC, 2016 WL 323682, at *11 (W.D. Wis. Jan. 26, 2016) (“Under [a] First
Amendment claim . . . the burden not only remains with [the plaintiff], but
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he must demonstrate that the burden on his rights is not reasonably related
to a legitimate penological interest.”) (citations and quotations omitted);
Allah v. Jordan-Luster, No. 04-1083, 2007 WL 2582199, at *7 (C.D. Ill. Aug. 3,
2007) (“The inmate has the burden of disproving the validity of a
challenged prison regulation . . . . Within the state penal system context,
federal courts accord deference to the decisions of prison administrators.”)
(citations omitted).
Defendant has given the Court sufficient undisputed factual basis
and law on which to find a legitimate penological interest for removing
Plaintiff from the Program. See, e.g., Tatum v. Meisner, No. 13-CV-44-WMC,
2016 WL 323682, at *11 (W.D. Wis. Jan. 26, 2016) (discussing only factor one)
(“As set forth in the findings of facts, plaintiff has failed to offer sufficient
evidence to create a genuine issue of material fact that the denial of his . . .
[religious] diet . . . was not reasonably related to a legitimate interest of
administrative ease, including controlling costs, offering straightforward
diets that can be consistently prepared by less than skilled staff, and
satisfying nutritional needs, food preferences and religious beliefs of a
large, diverse prison population.”). Plaintiff has not shown that his removal
from the Program was not reasonably related to a legitimate penological
interest. On this basis, Defendant is entitled to judgment as a matter of law
on Plaintiff’s First Amendment claim.
4.2.3

RLUIPA

Defendant moves for summary judgment on the merits of Plaintiff’s
RLUIPA claim for several reasons. RLUIPA prohibits prisons that receive
federal funds from imposing a “substantial burden” on an inmate’s
religious exercise unless the government can demonstrate “that imposition
of the burden on that person (1) is in furtherance of a compelling
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governmental interest; and (2) is the least restrictive means of furthering
that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a)(1)-(2).
RLUIPA protects “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” Id. § 2000cc–5(7)(A). But “a
prisoner’s request for an accommodation must be sincerely based on a
religious belief and not some other motivation.” Holt v. Hobbs, 135 S. Ct. 853,
862 (2015) (citing Burwell v. Hobby Lobby, 573 U.S. 682, 717, n.28 (2014)).
RLUIPA offers broader protections than the First Amendment. Grayson v.
Schuler, 666 F.3d 450, 451 (7th Cir. 2012). It applies to state and local
governments and to those acting under color of state law. See 42 U.S.C. §
2000cc-5(4).
Defendant make similar arguments to those she offers under the
First Amendment analysis: (1) Plaintiff does not have a sincerely held
religious belief; (2) Defendant’s actions did not substantially burden
Plaintiff’s religious practice; and (3) the Jail’s rule regarding the Program
(i.e., the one that requires removing an inmate from the Program for
violating a rule) is the least restrictive means of furthering a compelling
government interest. In addressing these arguments, however, it came to
the Court’s attention that Plaintiff’s RLUIPA claim may not present a live
case or controversy.
“Only prospective relief is available under RLUIPA. A plaintiff may
obtain an injunction or a declaration but not money damages.” Henderson v.
Jess, No. 18-CV-680-JDP, 2021 WL 1080269, at *5 (W.D. Wis. Mar. 19, 2021)
(citing Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012)). While the cases
on mootness under RLUIPA typically arise where an inmate has been
transferred to a different institution or released from incarceration, see, e.g.,
Bradford v. Kramer, No. 15-CV-1405-MJR-SCW, 2017 WL 2373441, at *2 (S.D.
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Ill. Apr. 27, 2017), report and recommendation adopted, No. 15-CV-01405JPG-SCW, 2017 WL 2361153 (S.D. Ill. May 31, 2017); Henderson, 2021 WL
1080269, at *5, they may apply in the present case. Defendant states that
Plaintiff has been given a “second chance” to participate in the Program
and that he refused this opportunity in 2021. (Docket #49 at 5–6). Certainly,
there are defenses to a mootness challenge to the Court’s jurisdiction (e.g.,
the “capable of repetition yet evading review” doctrine), but, at this
juncture, the Court will say no more on the matter.
The parties are instructed to brief the Court on whether Plaintiff’s
RLUIPA is moot. Defendant’s brief shall be due to the Court by December
14, 2021; Plaintiff shall respond within 30 days of Defendant’s brief; and
Defendant shall reply within 14 days of Plaintiff’s response. Defendant is
encouraged to also re-brief (in the alternative) her summary-judgment
arguments on the merits of Plaintiff’s RLUIPA claim, as she did in the
present motion. Defendant should file her initial brief as a motion.
5.

Motions to Supplement and Amend
Plaintiff submitted a series of motions to either amend or

supplement his complaint. (Docket #35, #43, #52). Plaintiff does not get to
clear out the motions and pleadings before the Court and begin afresh, carte
blanche, because the docket has become “complicated.” (Docket #52 at 1).
This case—filed in June 2020—has been screened, discovery has proceeded,
and dispositive motions have been briefed. Pro se litigants are given some
flexibility but may not respond to a meritorious motion for summary
judgment with a request to replead their case. The Court will deny
Plaintiff’s motions.

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6.

DISCOVERY MOTIONS
On June 24, 2021, Plaintiff filed a motion to stay discovery, (Docket

#37), and, on July 26, 2021, he filed a motion to compel discovery, (Docket
#39). Given that the Court is granting summary judgment to Defendant on
Plaintiff’s First Amendment claim, ordering additional jurisdictional
briefing on his RLUIPA claim, and denying his motions to amend and
supplement his complaint, the Court will deny Plaintiff’s discovery-related
motions as moot.
7.

CONCLUSION
For the reasons explained above, the Court will deny Defendant’s

motion for partial summary judgment for Plaintiff’s failure to exhaust.
(Docket #20). The Court will grant, in part, Defendant’s motion for
summary judgment, (Docket #47), as to Plaintiff’s First Amendment claim.
The Court will deny, without prejudice, this motion as to Plaintiff’s
RLUIPA claim and order the parties to brief the Court on whether the claim
in moot. The Court will deny Plaintiff’s motions to amend and supplement
his complaint. (Docket #35, #43, #52). Finally, the Court will deny as moot
Plaintiff’s motion to stay discovery, (Docket #37), and his motion to compel,
(Docket #39).
Accordingly,
IT IS ORDERED that Defendant’s motion for partial summary
judgment (Docket #20) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendant’s motion for summary
judgment (Docket #47) be and the same is hereby GRANTED in part as to
Plaintiff’s First Amendment claim and DENIED without prejudice as to
Plaintiff’s RLUIPA claim;

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IT IS FURTHER ORDERED that the parties are to brief the Court
on mootness as follows: Defendant’s brief shall be due to the Court by
December 14, 2021; Plaintiff shall respond within 30 days of Defendant’s
brief; and Defendant shall reply within 14 days of Plaintiff’s response.
Defendant is encouraged to also re-brief (in the alternative) her summaryjudgment arguments on the merits of Plaintiff’s RLUIPA claim, as she did
in the present motion. Defendant should file her initial brief as a motion.
IT IS FURTHER ORDERED that Plaintiff’s motions to either amend
or supplement his complaint (Docket #35, #43, #52) be and the same are
hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s motion to stay discovery
(Docket #37) and motion to compel (Docket #39) be and the same are hereby
DENIED as moot.
Dated at Milwaukee, Wisconsin, this 16th day of November, 2021.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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