Schlemm, David v. Frank, Matthew et al

Filing 124

ORDER that plaintiff David Schlemm is DENIED leave to amend his complaint to add a claim for damages under the First Amendment against defendant Edward Wall. As contemplated by the Seventh Circuit's remand order, therefore, this case will proceed on plaintiff's RLUIPA claims for declaratory and injunctive relief. Signed by District Judge William M. Conley on 11/18/2015. (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.
This case is on remand from the Court of Appeals for the Seventh Circuit for further
proceedings on plaintiff David Schlemm’s claimed rights under RLUIPA: (1) to game meat
(venison) for use during the Navajo Tribe Ghost Feast; and (2) to wear a multi-colored
headband or bandana while praying or meditating in his cell and during group religious
ceremonies. See Schlemm v. Wall, 784 F.3d 362 (7th Cir. Apr. 21, 2015) (dkt. #94-1). After
remand, the court recruited counsel for plaintiff, who after consulting with their client
advised that he also intended to pursue a First Amendment claim for monetary damages on
remand, in addition to his claims for injunctive relief under RLUIPA remanded by the
Seventh Circuit. The court directed the parties to file briefs addressing whether plaintiff
should be permitted to pursue a First Amendment damages claim in light of the procedural
history of the case, the Seventh Circuit’s decision and the doctrine of qualified immunity.
After reviewing the parties’ briefs, the court will not allow plaintiff to proceed with a
First Amendment damages claim in this case.

First, plaintiff did not plead a First

Amendment damages claim against defendant Wall. Second, the court denies a request to
amend his complaint to add such a claim at this stage in the proceedings, particularly where
such a claim would be subject to immediate dismissal on the grounds of qualified immunity.

Accordingly, this case will proceed only on plaintiff’s claims for injunctive relief under
RLUIPA.
PROCEDURAL BACKGROUND
Plaintiff filed this suit on April 18, 2011, claiming that prison policies prohibited his
access to game meat and the wearing of a multi-colored headband in violation of his rights
under the First Amendment’s Free Exercise Clause and RLUIPA. He named three defendants
in their individual and official capacities: (1) Matthew Frank, the former Secretary of DOC;
(2) Phil Kingston, the former warden at Waupun Correctional Institution (“WCI”); and (3)
James Muenchow, an inmate complaint examiner. (Dkt. #1).
On November 20, 2012, this court entered a screening order permitting plaintiff to
proceed on a First Amendment claim for money damages against Matthew Frank and Phil
Kingston.

(Dkt. #3).

The court dismissed as moot plaintiff’s claims against Frank and

Kingston for injunctive and declaratory relief under RLUIPA and the First Amendment, as
Frank no longer served as the Secretary of DOC and plaintiff was no longer at WCI where
Kingston was the Warden. Because Edward Wall had replaced Frank as the DOC Secretary,
however, the court substituted Wall, in his official capacity, as the proper defendant for
claims seeking injunctive relief.
On June 10, 2014, the court granted summary judgment to defendants, dismissing:
(1) certain claims for failure to exhaust administrative remedies; (2) plaintiff’s First
Amendment claims for damages against Frank and Kingston because they lacked necessary
personal involvement to sustain a finding of liability against them; and (3) all remaining
claims for failing to state a claim under RLUIPA and the First Amendment. (Dkt. #79).
With respect to the damages claims in particular, those claims were dismissed because

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plaintiff had not shown that Frank or Kingston were “personally involved” in decisions to
deny Schlemm religious accommodation.
Rather, the evidence showed that requests for new religious practices at WCI are
directed to a unit chaplain or the chaplain’s designee. (Dkt. #79 at 18). The chaplain makes
a recommendation to his supervisor and the Religious Practice Advisory Committee, which
reviews and processes the request before making a final recommendation. (Id.) The record
established that neither Frank nor Kingston had any involvement with the Committee or
with the requests for accommodation filed by plaintiff.
On appeal, the Seventh Circuit affirmed dismissal of the unexhausted claims and the
claims against Frank and Kingston. Schlemm, 784 F.3d at 366-67 (“The judgment is affirmed
to the extent it rejects some claims as unexhausted and entitles two of the defendants to
dismissal because they were not involved in the contested decisions.”). The Seventh Circuit
reversed dismissal of plaintiff’s RLUIPA claims for injunctive relief, but “bypass[ed]” the First
Amendment claims “because the Act [RLUIPA] provides greater protection.” Id. at 363.

OPINION
I.

Plaintiff Has No First Amendment Damages Claim Remaining in this Case.
The only First Amendment damages claims alleged in this case were those against

Frank and Kingston.

When the Seventh Circuit affirmed dismissal of the claims against

Frank and Kingston for lack of personal involvement, therefore, it also affirmed dismissal of
the only First Amendment damages claims pled in this case. Accordingly, plaintiff cannot
now pursue a First Amendment damages claim unless the court grants him leave to amend his
complaint to add a new damages claim to the case.

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Plaintiff nevertheless argues that the court should permit him to pursue a damages
claim on remand against defendant Wall, the current DOC Secretary. The court disagrees.
Not only did plaintiff fail to plead a claim for damages against Wall, he never sought leave to
amend his complaint to add such a claim before appealing to the Seventh Circuit. As a
result, this case was remanded with specific instructions to address plaintiff’s RLUIPA claims
for injunctive relief, not to add new damages claims at this late stage in the proceedings.
Moreover, plaintiff has not alleged facts showing that he could plead a viable damages
claim against Wall under the First Amendment. Indeed, his original damages claims against
Frank and Kingston were dismissed because the evidence established that neither the DOC
Secretary nor the warden, respectively, were personally involved in denying plaintiff’s
requests for religious accommodation. Having failed to point to any facts suggesting that the
outcome of the claim would be different as to Wall, the court is strongly disinclined to
complicate this already lengthy litigation further by granting plaintiff leave to pursue a
similar claim against Wall. Specifically, while plaintiff argues that he should be permitted to
seek damages from Wall in his individual capacity, because Wall “may well have been aware of
the denial of [plaintiff’s] requests for religious items,” (Pl.’s Br., dkt. #113, at 19) (emphasis
added), plaintiff does not explain why he believes Wall may have been personally involved
where Frank was not, beyond stating that “DOC staff may have informed Wall about the
denial of [plaintiff’s] requests for religious items or Wall may have reviewed for himself the
denials” of plaintiff’s requests.

(Id.)

These vague and speculative statements are not

sufficient to persuade the court to grant plaintiff leave to add a damages claim against Wall.

II.

Qualified Immunity.

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Even if the court were so inclined, another reason to deny the addition of a damages
claim against Wall is that such a claim would necessarily fail. CogniTest Corp. v. Riverside Pub.
Co., 107 F.3d 493, 499 (7th Cir. 1997) (leave to amend may be denied “where amendment
would be futile”). Indeed, as the Seventh Circuit acknowledged, the law was not clearly
established that plaintiff even had a right to eat venison at the Ghost Feast or to wear a
colored headband. Schlemm, 784 F.3d at 364. As a result, Wall would almost certainly be
entitled to qualified immunity. Carroll v. Carman, –– U.S. ––, 135 S. Ct. 348, 350 (2014) (“A
government official sued under § 1983 is entitled to qualified immunity unless the official
violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct.”).
As the Seventh Circuit already explained, under the legal standard that existed at the
time plaintiff filed suit, he “would lose” his claim based on the denial of venison at the Ghost
Feast because he could not show that denial of the venison rendered religious exercise
“effectively impracticable,” since this was the standard for showing a “substantial burden” on
the exercise of his religion. Schlemm, 784 F.3d at 364 (under previous standard, “Schlemm
would lose, for he still could dance and pray during the Ghost Feast”). The Seventh Circuit
reversed this court’s grant of summary judgment on that claim only because the “substantial
burden” standard was recently interpreted by the Supreme Court in Holt v. Hobbs, 135 S. Ct.
853 (2015), and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), to be “a standard
much easier [for a plaintiff] to satisfy” than previously articulated by the Seventh Circuit. Id.
Although Holt and Burwell involved RLUIPA claims, RLUIPA provides more
protection for religion that the First Amendment. Id. at 363. Accordingly, if plaintiff would
have “lost” his RLUIPA claim for venison meat under the previous standard, he also would

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have lost any First Amendment claim for damages arising from the denial of venison.
Accordingly, the Seventh Circuit’s decision forecloses any argument by plaintiff that the state
violated a clearly established right by denying him venison meat at the Ghost Feast. Indeed,
understanding it is an uphill battle, there is still an apparent factual dispute as to whether the
state can show a compelling reason to restrict an inmate’s access to venison for the Ghost
Feast. And even after the Seventh Circuit’s decision, it is open to substantial debate whether
plaintiff’s First Amendment claim, as opposed to RLUIPA, would survive summary judgment.
With respect to the colored headband, the Seventh Circuit concluded the state failed
to prove that prohibiting colored headbands furthered a compelling interest. In particular,
the Seventh Circuit seemed skeptical of the argument that Wisconsin prisons need to limit
religious headgear in order to combat gangs: “[b]ecause gang information may be widely
available already, it is difficult to depict as ‘compelling’ a desire to cut out one potential
means of identification.”

Schlemm, 784 F.3d at 366.

Additionally, the court questioned

whether prohibiting plaintiff from wearing a colored headband in his cell or during religious
ceremonies actually reduced gang identification. Id.
Despite these questions, however, the Seventh Circuit did not hold that the state
lacked a compelling interest in imposing religious headgear restrictions under any
circumstances.

On the contrary, the court acknowledged that it had sustained prison

restrictions on headgear for the purposes of curtailing gang identification in a previous case,
Young v. Lane, 922 F.3d 370, 376 (7th Cir. 1991). In Young, the court had recognized that
that “modern-day courts recognize that gangs pose a ‘serious challenge’ to . . . institutional
security.”

Id.

Accordingly, the Seventh Circuit remanded these questions for further

exploration.

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In contrast, the relevant question for qualified immunity is whether plaintiff had a
“clearly established right” to wear a colored headband “at the time” his request for
accommodation was denied. Carroll, 135 S. Ct. at 350. “A right is clearly established only if
its contours are sufficiently clear that ‘a reasonable official would understand that what he is
doing violates that right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In
other words, “existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, at ––, 131 S.Ct. 2074, 2083 (2011). This
doctrine “gives government officials breathing room to make reasonable but mistaken
judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” Id. at ––, 131 S. Ct., at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
While plaintiff cites several cases that he claims clearly establish the right of inmates
to “wear religious headgear in their cell and at religious ceremonies” (Pl.’s Br., dkt. #113, at
23-26), plaintiff is seeking to wear a colored headband, and he cites no controlling cases in
which a court held that inmates have a right to do so regardless of security concerns.
Moreover, even if some of the cases cited by plaintiff could be interpreted as finding such a
right, the right cannot be said to be so “clearly established” that its “contours are sufficiently
clear” and “beyond debate.” This is particularly true in light of numerous cases in which
courts have upheld restrictions on religious property to prevent gang identification. See, e.g.,
Levy v. Holinka, No. 09-cv-279-vis, 2010 WL 1373828, at *4 (W.D. Wis. Mar. 31, 2010)
(rejecting RLUIPA challenge to restriction on wearing turbans, in part because turban could
be used to represent gang affiliation); Charles v. Frank, No. 02-C-626-C, 2004 WL 420153, at
*4 (W.D. Wis. Feb. 26, 2004) (rejecting RLUIPA challenge to ban on wearing prayer beads
that are visible outside clothes because of beads’ potential use as gang symbol), aff'd, Charles

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v. Frank, 101 Fed. Appx. 634, 636–37 (7th Cir. 2004) (“[S]uppressing gang activity to
promote a secure and safe prison environment is indisputably a compelling interest.”); Shaw
v. Norman, 6:07-cv-443, 2009 WL 1780123 (E.D. Tex. June 22, 2009) (upholding a prison
policy banning all colored prayer beads due to problems with gang affiliations); Luckette v.
Lewis, 883 F. Supp. 471, 482 (D. Ariz. 1995) (prison officials must allow prisoners to wear
religious headgear, but officials may limit colors worn for security reasons).
In light of the Seventh Circuit’s prior reasoning in Young, as well as numerous other
cases in which restrictions on colored and other religious property have been upheld to
prevent gang identification, plaintiff cannot show that he had an indisputable constitutional
right to wear a colored headband.

Accordingly, plaintiff may not proceed with a First

Amendment damages claim on this basis either.

ORDER
IT IS ORDERED that plaintiff David Schlemm is DENIED leave to amend his
complaint to add a claim for damages under the First Amendment against defendant Edward
Wall.

As contemplated by the Seventh Circuit’s remand order, therefore, this case will

proceed on plaintiff’s RLUIPA claims for declaratory and injunctive relief.
Entered this 18th day of November, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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