Schlemm, David v. Frank, Matthew et al

Filing 100

ORDER granting 95 Motion for Assistance in Recruiting Counsel; granting 96 Motion for Preliminary Injunction; denying 98 Motion for Reimbursement of Costs/Declaration and Bill of Costs. The clerk's office shall enter Attorneys David Ha rth and David Anstaett of Perkins Coie as plaintiff's counsel of record and set this case for a pretrial conference in late June of 2015, as this court's schedule allows. Signed by District Judge William M. Conley on 5/18/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DAVID SCHLEMM,
Plaintiff,

OPINION AND ORDER

v.
11-cv-272-wmc
EDWARD WALL,
Defendant.
On appeal from this court’s order granting defendants’ motion for summary judgment,
the Seventh Circuit reversed in part the court’s order, and remanded the case for further
proceedings on two claims: (1) a claim seeking accommodation of game meat (venison) to be
used during Navajo Tribe Ghost Feast; and (2) a claim seeking accommodation to “wear a
multi-colored headband or bandana while paying or meditating in his cell and during group
religious ceremonies such as the sweat lodge.” Schlemm v. Frank, No. 14-2604, slip op. at *2,
*7 (7th Cir. Apr. 21, 2015) (dkt. #94-1). Specifically, the Court of Appeals remanded both
claims for reconsideration under the “substantial burden” prong of the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a), as recently
interpreted by the United States Supreme Court in Holt v. Hobbs, 135 S. Ct. 853 (2015), and
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) -- “a standard much easier [for a
plaintiff] to satisfy” than that previously articulated by the Seventh Circuit and applied by
this court. Schlemm, slip. op. at *4.1

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The court’s judgment was affirmed in certain respects, including the court’s dismissal of two
defendants for lack of personal involvement as required under 42 U.S.C. § 1983. The court,
therefore, has amended the caption to reflect that defendant Edward Wall, the Secretary of
the Wisconsin Department of Corrections, is the only remaining defendant. The clerk of
court is directed to make this same change to the docket.

In its opinion, the Seventh Circuit also advised that “the district court should
seriously consider recruiting counsel to assist Schlemm.” Id. at *8. Consistent with that
direction, Schlemm has also filed a motion for assistance in recruiting counsel. (Dkt. #95.)
The court will grant Schlemm’s motion, and has recruited Attorneys David Harth and David
Anstaett of the law firm of Perkins Coie in Madison, Wisconsin, to represent him pro bono for
the remainder of this civil action. See 28 U.S.C. § 1915(e)(1) (“The court may request an
attorney to represent any person unable to afford counsel.”); Pruitt v. Mote, 503 F.3d 647,
653-54 (7th Cir. 2007) (en banc) (noting that § 1915(e)(1) confers, at most, discretion “to
recruit a lawyer to represent an indigent civil litigant pro bono publico”). Accordingly, the court
will enter their appearance as plaintiff’s pro bono counsel for the record.
Plaintiff should appreciate that his counsel accepted this representation out of a sense
of professional responsibility, which includes representing zealously those clients they take
on.

Now that he is represented by counsel, plaintiff is advised that in return for

representation plaintiff, too, has taken on a responsibility.

For example, all future

communications with the court must be through his attorney of record. Plaintiff must also
work directly and cooperatively with his attorney, as well as those working at his direction,
and must permit them to exercise their professional judgment to determine which matters are
appropriate to bring to the court’s attention and in what form. Plaintiff does not have the
right to require counsel to raise frivolous arguments or to follow every directive he makes.
On the contrary, plaintiff should expect his counsel to tell him what he needs to hear, rather
than what he might prefer to hear, and understand that the rules of professional conduct may
preclude counsel from taking certain actions or permitting plaintiff from doing so. If plaintiff
decides at some point that he does not wish to work with his lawyers, he is free to alert the

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court and end their representation, but he should be aware that it is highly unlikely that the
court will recruit a second set of attorneys to represent him.
In its order, the Seventh Circuit further directed the court to “issue a preliminary
injunction entitling Schlemm to wear a headband in his cell and during religious ceremonies
(provided that the headband does not contain any red), and have a supply of venison for the
Ghost Feast. Schlemm, slip. op at *8-9. Schlemm subsequently filed a motion and brief in
support of a temporary order and preliminary injunction. (Dkt. #96.) At the direction of
the Seventh Circuit, the court will grant that motion and enter a preliminary injunction as
previously defined by that court and set forth below in the order.
Finally, Schlemm has filed a motion for reimbursement of his costs for the appeal.
(Dkt. #98.) Since the Final Judgment from the Seventh Circuit Court of Appeals ordered
that there be no award of costs (dkt. #94), that motion will be denied. See Fed. R. App. P.
39 (describing the rules for assessing costs, but specifically providing that the rules apply
“unless . . . the court orders otherwise).
With all pending motions addressed, the next step is for the parties to reconsider their
positions, to take what additional discovery may be justified and to rebrief plaintiff’s RLUIPA
claims under the appropriate standard as articulated by the Supreme Court, as well as to set
this matter for trial, if necessary. Plaintiff’s counsel will no doubt need to consult with their
client, and then with counsel for defendant in order to determine if a reasonable
accommodation can be reached, or what discovery may still be required. So that counsel will
have sufficient time to complete these tasks in advance of a preliminary pretrial conference,
the clerk’s office will be directed to set that conference sometime in late June.

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ORDER
IT IS ORDERED that:
1. Plaintiff David Schlemm’s motion for recruitment of pro bono counsel (dkt. #95) is
GRANTED.
2. The clerk’s office shall enter Attorneys David Harth and David Anstaett of Perkins
Coie as plaintiff’s counsel of record and set this case for a pretrial conference in
late June of 2015, as this court’s schedule allows.
3. Plaintiff’s motion for preliminary injunction (dkt #96) is GRANTED. Pending
final resolution of the merits of plaintiff’s claims, defendant shall take all
reasonable steps: (a) to ensure that plaintiff David Schlemm is provided venison
for the Ghost Feast; and (b) to wear a headband in his cell and during religious
ceremonies, provided it does not contain the color red.
4. Plaintiff’s motion for reimbursement of costs (dkt. #98) is DENIED.
Entered this 18th day of May, 2015.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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