Schlemm, David v. Frank, Matthew et al
Transmission of Notice of Appeal, Docketing Statement, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 277 Notice of Appeal. (Attachments: # 1 Docketing Statement, # 2 Order, # 3 Judgment, # 4 Order, # 5 Docket sheet) (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION and ORDER
Pro se plaintiff David Schlemm turned to litigation after enduring years of what he
perceived to be a growing disdain and disrespect for his and other inmates’ Native American
religious culture and traditions. When Schlemm filed this case in April of 2011, he accused
the Wisconsin Department of Corrections (“DOC”) of arbitrarily restricting his religious
practices in numerous ways, including (1) denying him possession of certain religious
property, (2) limiting participation in sweat lodges, and (3) failing to permit traditional
spiritual foods at an annual Ghost Feast. Schlemm was permitted to proceed with claims
under both the First Amendment and the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”). As the litigation progressed, however, Schlemm’s claims have narrowed and
become more focused to fit within the contours of First Amendment and RLUIPA law. By
the time this case had gone through one round of summary judgment and an appeal, the only
issues remaining for resolution by this court at trial were whether Schlemm was entitled
under RLUIPA to: (1) eat venison Indian tacos during the annual Native American Ghost
Feast; and (2) wear a multicolored headband or bandana containing the color red 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).1
With respect to the multicolored headband, the state agreed before trial to allow
Schlemm to possess and wear a multicolored headband while praying in his cell and during
Consistent with that accommodation, a permanent injunction
regarding the headband will be entered as part of the order. Because of this concession, the
only issue remaining for trial concerned Schlemm’s request for venison meat at the annual
Ghost Feast. A bench trial was held on this issue on March 21 and 22, 2016. As discussed
in more detail below, plaintiff established at trial that defendant violated his rights under
RLUIPA by restricting his ability to obtain game meat and fried bread for use at an annual
The court will, therefore, enter an injunction requiring defendant to make
accommodations that will permit plaintiff to obtain the traditional foods he needs to hold a
meaningful Ghost Feast.
There were several matters that were resolved by the court shortly before trial. First,
plaintiff was offered an opportunity to have Perkins Coie LLP act as counsel during the trial.
The court had recruited Perkins to represent plaintiff after the case was remanded given their
When framed in this way, Schlemm’s remaining requests may seem minor to those outside the
prison system, although for Schlemm, as well as overtaxed officials and employees with the
Wisconsin DOC (and elsewhere across the country), these requests are a part of more significant
concerns regarding accommodations for religious traditions less familiar to prison administration,
that have been heightened by RLUIPA’s passage.
past willingness to represent other inmates on similar RLUIPA claims.
Later, the court
granted counsel leave to withdraw due to fundamental disagreements between counsel and
plaintiff over how to proceed.
Before trial, Perkins graciously offered to act as standby
counsel for plaintiff, but he declined this help and chose to proceed pro se at trial.
Second, on the morning of trial, plaintiff requested assistance from another inmate,
Johnson Greybuffalo, but that request was denied as being raised too late.
Third, a few days before trial, plaintiff had requested that the court issue subpoenas
for a number of his proposed witnesses. That request was denied as untimely. (Dkt. #200.)
In light of plaintiff’s pro se status and the difficulties inherent in contacting witnesses from
inside the prison, however, the court made efforts to contact all of the witnesses on plaintiff’s
witness list before the upcoming trial. The court successfully made arrangements for several
of plaintiff’s witnesses to testify, including the expert that had been recruited and retained by
plaintiff’s then counsel, Dr. Deward Walker.2 Plaintiff’s proposed witnesses Randy Cornelius
and Roy Red Hail did not respond to the court’s repeated efforts to contact them, however,
so they did not testify at trial.
Turning to the substance of plaintiff’s claim, RLUIPA prohibits the government from
imposing “a substantial burden on the religious exercise of a person residing in or confined to
an institution,” unless “imposition of the burden on that person: (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
The court also provided compensation to Dr. Walker for his trial testimony from the court’s pro
bono trust fund.
compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). RLUIPA protects “any exercise
of religion, whether or not compelled by, or central to, a system of religious belief,” § 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, 134 S. Ct. 2751, 2774 n. 28 (2014)).
Courts have placed the initial burden on the plaintiff to show that he has a sincere
religious belief and that his religious exercise was substantially burdened. Holt, 135 S. Ct. at
862; Koger v. Bryan, 523 F.3d 789, 797-98 (7th Cir. 2008); Vision Church v. Village of Long
Grove, 468 F.3d 975, 996-97 (7th Cir. 2006). If the plaintiff is able to meet this threshold,
the burden then shifts to the defendants to demonstrate that their actions further “a
compelling governmental interest” by “the least restrictive means.” Cutter v. Wilkinson, 544
U.S. 709, 712 (2005).
Consistent with this law, the parties agreed before trial that the disputed issues to be
resolved were whether: (1) plaintiff’s requests for venison at the Ghost Feast are motivated
by sincerely held religious beliefs; (2) the DOC’s policies substantially burdened his religious
exercise; and (3) the DOC’s policies are the least restrictive means of furthering a compelling
Sincerity of Plaintiff’s Religious Beliefs.
The court has no trouble concluding that plaintiff’s request for venison or other game
meat at the annual Ghost Feast is motivated by a sincerely held religious belief. Plaintiff
testified credibly at trial that:
(1) the Ghost Feast is essential to his Native American
religious practice and (2) traditional foods, including game meat, must be served for the feast.
(Trial Trans., day 1, at 53-54.) Game meat could be venison, but may also be buffalo or wild
turkey. Other traditional foods that plaintiff believes should be present are fried bread, corn
and berries. (Id. at 57, 63.) Plaintiff testified that without the traditional foods of game
meat and fried bread, the Ghost Feast would lack religious significance for him.
Plaintiff called several witnesses that supported his testimony regarding the nature,
purpose and significance of the Ghost Feast and of the presence of traditional foods,
including game meat, corn and berries. Jose Villarreal, a Native American inmate at Green
Bay Correctional Institution, testified that the Ghost Feast was important to his identity as a
Native American and that it was important to have wild game served at the feast. (Id. at 23.)
Although Villarreal had attended numerous Ghost Feasts while incarcerated in the Wisconsin
prison system, he declined to eat the non-game meat served at those feasts. (Id. at 28.)
Johnson Greybuffalo, a Native American inmate at the Wisconsin Secure Program
Facility, testified that: (1) the purpose of the Ghost Feast is to honor one’s loved ones that
have passed; (2) traditional foods are a significant part of the ceremony; and (3) there needs
to be some kind of game meat traditionally hunted by Native people -- such as buffalo,
venison, bear meat, pheasant, or wild turkey -- as well as other traditional foods such as corn,
water and fruit. (Id. at 38-39, 41-42.) In addition, plaintiff’s expert, Dr. Walker, testified
that the Ghost Feast is a traditional ceremony that celebrates and honors ancestors, who
exercise important influence in the lives of tribal members. The preparation and presentation
of traditional foods, including corn, venison and bison, express an admiration, concern and
love for ancestors. (Id. at 94, 110.) Walker explained that in addition to consumption of
traditional foods, the ceremony generally includes praying to ancestors for guidance, healing
and protection. If the traditional details are not followed, the ceremonies lose their value in
providing the help, teaching and healing for the participants. (Id. at 104.)
Finally, Robert Ryan Krist, a Native American spiritual advisor for the DOC, testified
that he has advised the DOC regarding Ghost Feast traditions. In particular, he has advised
the DOC that the Ghost Feast is a traditional feast honoring the dead and that traditional
foods must be present, including water, berries, corn, buffalo or venison, and frybread, if
available. (Id. at 115.)
All of this testimony support a finding that plaintiff’s request for venison and fried
bread is motivated by a “sincerely held religious belief” and that these foods are necessary
components of the annual Ghost Feast. This testimony also confirms that for plaintiff, as
well as many other practitioners of Native American religious traditions, serving game meat
and other traditional foods allows participants to honor and commune with their ancestors.
Although defendant attempted to challenge the sincerity of plaintiff’s religious beliefs,
and his request for venison in particular, its evidence does not undermine this finding. First,
defendant presented evidence that in 2008 and 2009, plaintiff asked the prison to serve
Indian tacos made with ground beef at the Ghost Feast.
As part of these same requests,
plaintiff stated that the tacos on the regular menu at GBCI could accommodate part of his
feast food needs. Second, defendant presented evidence that plaintiff chose not to attend the
Ghost Feast in 2015, despite the fact that his recruited counsel and the DOC had made
accommodations to ensure that he would have venison and an Indian taco at the feast.
Defendant’s position is that these facts undermine plaintiff’s testimony that venison is a
necessary component of the Ghost Feast, and also raise questions whether the Ghost Feast
itself is as important to his religious practice as he has claimed.
But plaintiff adequately explained at trial his requests for ground beef in 2008 and
2009, and his choice to skip the Ghost Feast in 2015. Neither explanation was contrary to
plaintiff’s sincerely held religious beliefs regarding the Ghost Feast. Plaintiff testified that he
requested Indian tacos with ground beef in the past because he believed (probably correctly)
that was all the prison would provide. He also denied ever believing that ground beef tacos
would satisfy his religious needs for a meaningful Ghost Feast. With respect to the 2015
Ghost Feast, plaintiff found the timing and events planned for the ceremony rendered the
Ghost Feast meaningless for him, despite the availability of venison. In particular, plaintiff
testified that the Ghost Feast should have been held in October or November, rather than in
September when the 2015 feast was held, and the feast needed to include a sweat lodge,
tobacco burning and spiritual songs.3
Both of these explanations are supported by documentary evidence in the record. In
particular, it is undisputed that in 2008 and 2009, the prison had ground beef available as
part of the regular institution diet, but did not offer venison. With respect to 2015, there is
also evidence that plaintiff objected to the timing and content of the Ghost Feast before its
occurrence. Taken as a whole, the testimony and evidence presented at trial confirmed that
plaintiff’s requests for venison or other game meat and fried bread at the Ghost Feast have
been motivated by sincerely held religious beliefs.
Although the court permitted plaintiff to testify regarding his objections to the timing and
activities in the context of explaining why he did not attend the 2015 Ghost Feast, plaintiff has
not allayed RLUIPA claims regarding the timing and activities of the feast in this case. That
being said, Kelli-Willard West, religious policy coordinator for the DOC, testified that the Ghost
Feast would be held at a later date beginning in 2016. (Trial Trans., day 1, afternoon at 94.)
The next question is whether plaintiff established that the DOC’s policies affecting his
ability to obtain venison and fried bread for the annual Ghost Feast impose a “substantial
burden” on the exercise of his religion. As noted in the Seventh Circuit’s opinion remanding
this case, the United States Supreme Court recently defined “substantial burden” as
something that “seriously violates [one’s] religious beliefs,” regardless of whether alternative
means of religious exercise are available. Schlemm, 784 F.3d at 364-65 (quoting Holt, 135 S.
Ct. at 862 (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014))). The
Seventh Circuit further advised that “seriously violates” means more than just a “modest”
violation. Schlemm, 784 F.3d at 365. In other cases, the Seventh Circuit also explained that
“substantial burden” results when the government “put[s] substantial pressure on an
adherent to modify his behavior and to violate his beliefs.” Thompson v. Holm, 809 F.3d 376,
379-80 (7th Cir. 2016) (quoting Thomas v. Review Bd., 450 U.S. 707, 717-18 (1981)). See
also Holt, 135 S. Ct. at 862 (policy that forces a prisoner to choose between violating his
beliefs and facing discipline is a substantial burden).
As an initial matter, the court concludes that a complete prohibition on game meat or
fried bread at the Ghost Feast would substantially burden plaintiff’s exercise of sincerely held
religious beliefs. As discussed above, plaintiff and all of his witnesses testified that the Ghost
Feast is a significant part of plaintiff’s and many other Native American’s religious traditions
and that having game meat and fried bread is essential to a meaningful Ghost Feast because
without it, plaintiff and other participants cannot properly honor their ancestors. Plaintiff’s
testimony also supports the conclusion that being unable to properly honor ancestors at the
annual Ghost Feast would seriously violate his religious beliefs.
But this broad conclusion does not resolve the question whether defendant’s policies
substantially burden plaintiff’s religious exercise. That question is complicated by the fact
that there are multiple policies affecting plaintiff’s ability to consume venison at the Ghost
Feast, some of which have changed over the life of this case. When plaintiff filed this case in
2011, there were no policies in place that would have clearly enabled plaintiff, or anyone else,
to bring game meat to the annual Ghost Feast. Under the Division of Adult Institution’s
(“DAI”) “Religious Diets” policy 309.61.03, which was in effect when this case was filed,
each umbrella religious group was permitted to hold an annual congregate celebratory meal.
The food for the annual feast, however, was taken from the regular institution menu,
although inmates, through the chaplain, could request a particular meal from the regular
weekly menu be served on the day of the event. Even though the DOC was prohibited at the
time from purchasing, preparing or subsiding ceremonial foods, an institution’s food service
staff and its chaplain frequently collaborated to swap the weekly menu so that the regular
meal served on the day of the event would include foods that somewhat resembled those
traditionally consumed during that particular celebratory feast.
Under this policy, the
institution usually offered beef stew or brisket during the annual Ghost Feast celebration, but
did not offer venison because game meat is not part of the regular institution menu.
The other relevant “policy” in place at the time this case was filed is the DAI
“Religious Property Chart,” attached to DAI 309.61.02, which identifies particular religious
items, including food items, that inmates identifying under particular religious umbrella
groups may possess. Under the Property Chart effective at the time plaintiff filed suit, there
was no provision allowing Native American inmates to bring any food to the annual Ghost
The only provision regarding food items for Native American inmates was found
under the “sweat lodge” category, which permitted “spirit foods” to be consumed during
sweat lodge ceremonies. Specifically, that provision allowed “Spirit Foods (e.g. dried corn,
dried berries, dried meat, nuts) – vendor-sealed, clear plastic package(s), no more than 16 oz.
total quantity. Opened package(s) must be dispensed of or taken out at the conclusion of the
sweat lodge ceremony.” (Trial Exh. 503.) Because sweat lodge ceremonies do not always
coincide with the Ghost Feast, however, even the provision of those food stuffs were not
clearly permitted to inmates during the Ghost Feast.
In short, both the “Religious Diets” policy and the “Religious Property Chart” in
effect when plaintiff filed suit in 2011 prevented plaintiff from obtaining venison or any
other traditional foods for the Ghost Feast, unless already included on that institution’s menu,
which in the case of game meat in particular was highly unlikely. Because these policies
completely restricted plaintiff’s access to game meat and fried bread for the annual Ghost
Feast, they substantially burdened his religious exercise. Indeed, if these were the policies
currently in place, the court would easily conclude that defendant’s policies substantially
burdened plaintiff’s religious exercise for purposes of establishing a RLUIPA violation.
In response to changes in the law and cases like this one, however, defendant
amended the policies affecting religious property and food for religious celebratory meals,
after plaintiff filed suit. Since then, defendant has taken the position that the amended
policies provide the accommodations to which plaintiff is entitled. Not surprisingly, plaintiff
Thus, the court must consider whether these amended policies substantially
burden plaintiff’s exercise of religious beliefs, or the new policies now provide adequate
Effective December 15, 2015, and also amended again on April 1, 2016, DAI’s
Religious Property Chart permits “spirit foods” to brought and consumed at Native American
group ceremonies, not just at the monthly sweat lodge. Under the new Property Chart, the
spirit foods must be “shelf-stable products (e.g. dried corn, dried berries, dried meat, nuts) in
vendor-sealed, clear package(s).” (Trial Exh. 503A.) The policy also continues to limit the
total quantity of spirit foods to 16 oz., and it requires that opened packages be disposed of or
taken out at the conclusion of the ceremony.
Although the policy does not say so expressly, Kelli Willard-West, DOC’s religious
practices coordinator, testified that the spirit foods must be brought it by the spiritual advisor
leading the ceremony, with any remnants being taken out by the advisor at the close of the
ceremony. (Tr. at 80, 91.) Under this policy, the spiritual advisors may bring in dried meats,
including venison, to the Ghost Feast. (Tr. at 116.)
Effective January 1, 2016, DAI also implemented a new version of DAI Policy
309.61.03, “Religious Diets.” Under the new policy, DOC continues to provide inmates
attending an annual, celebratory religious meal with the regular meal tray normally served at
the institution that day, whether that is a medical diet tray, a religious tray or a general meal
tray. The meal trays are delivered to the location in the institution where the celebration is
being held, so the participating inmates can eat together. DOC will also continue to work
with the chaplain to use items from the regular menu that most closely resemble traditional
foods served at a religious celebratory meal.
Under the new policy, inmates attending a congregate religious meal may also request
“individual accommodation to purchase an individual portion of a shelf-stable ceremonial
food item for personal consumption” from a commercial vendor.
Inmates requesting an
individual accommodation must submit a request identifying: (1) the specific ceremonial
food item requested; (2) the religious/spiritual/ceremonial significance of the food; (3) the
source of food item from a commercial food vendor; (4) an individual portion cost; (5) a
delivery method and charges; and (6) possible substitutes if the preferred foods are not
approved or are unavailable. If the individual’s request is approved, the food item is ordered
and processed through the mail room, stored until the time of the annual meal, and
distributed by the chaplain on the date of the meal. Inmates must consume the entire food
item during the event or dispose of it at the conclusion of the event, and are not permitted to
share the ceremonial foods with other inmates. DAI 309.61.03.
As the DOC policies stood at trial, therefore, plaintiff and other inmates may obtain
game meat or other specifically desired ceremonial foods at the annual Ghost Feast by: (1)
relying on a spiritual advisor or other approved volunteer to bring in a tray of 16 ounces of
“spirit foods” to be shared among all attendees at the feast; and/or (2) ordering an individual
portion of a shelf-stable ceremonial food item for personal consumption at the feast. Under
the substantial burden prong, the question is then whether plaintiff’s religious exercise
continues to be substantially burdened despite these two options.
At trial, plaintiff made several arguments as to why his religious exercise was
substantially burdened under the new policy, most of which were unsupported by evidence.
First, plaintiff argued that fresh game meat must be served at the Ghost Feast, while the new
policies would allow only dried or otherwise preserved game meat, but he introduced no
evidence that game meat served at the Ghost Feast must be “fresh” meat, and his own
testimony on the issue was vague and unpersuasive. One of plaintiff’s witnesses, Robert
Ryan Krist, suggested that the “spirit foods” already approved under the Property Chart,
including dried meat, would be acceptable to use at a Ghost Feast. (Trial trans., day 1, at
The only evidence potentially supportive of plaintiff’s position was the
testimony of Dr. Walker, who explained that “the more unadulterated the meat . . . the
better,” and that “using preparations such as nitrate, for example, in the meat to preserve it
might be objectionable.” (Id. at 96.) Even this testimony did not establish that all dried or
preserved meat would be unacceptable, however, and Dr. Walker later testified that Native
Americans have traditionally preserved and dried meats. (Tr. at 108-09.) Further, a quick
online search for commercially available game meat revealed multiple sources that offer game
meat dried without nitrates or other chemical preservatives.4
Accordingly, the court finds
that DAI policies restricting outside vendors from delivering fresh game meat into the prison
does not impose a substantial burden on plaintiff’s religious exercise.
Plaintiff’s second argument is that the new policies do not allow the possibility that
food for the Ghost Feast be provided by a Native American caterer or restaurant. From his
perspective, this would be the best option for supplying food for the Ghost Feast, arguing the
food would be fresh, traditional and appropriate, and it would satisfy all of the religious
needs of the Native American attendees of the Ghost Feast. Plaintiff also proposes that the
inmates could collect money to pay for this catering. While the court certainly appreciates
that a fully catered fresh meal for attendees of the Ghost Feast would be far preferable for
inmates, and even for DOC, if the inmates paid for the food and security concerns could be
addressed, the plaintiff has not shown that denying this option imposes a substantial burden
See, e.g., http://www.jerky.com/products/all-natural-venison-jerky;
http://www.swansonvitamins.com/golden-valley-natural-natural-buffalo-jerky-original-flavor-3-ozpkg; http://www.elkusa.com/buy_Venison_jerky.htm (sites last visited on November 7, 2016).
on the exercise of his religious beliefs.5
In particular, plaintiff offered no evidence
establishing that a full meal from a Native American caterer or restaurant is necessary for a
religiously significant Ghost Feast, nor that a full meal of traditional foods is required at all.
Rather, his own testimony, as well as that of his witnesses, confirm only that a
meaningful Ghost Feast must include traditional foods for the benefit of the ancestors, not to
satiate the attendees. Of course, the attendees partake of the traditional foods, but there was
no testimony that the traditional foods must be in large enough quantity to comprise an
entire meal. See, e.g. Krist at 116, 122 (describing Ghost Feast as including traditional food
that is “shared” among participants, and stating that “a Ghost Feast is a simple dish that is
passed within”). In other words, attendees of the Ghost Feast do not need to have a full,
catered meal of traditional foods provided by a Native American caterer.
That being said, plaintiff and other attendees must have the opportunity to partake of
traditional foods at the Ghost Feast, and uncertainty remains on this record as to whether
DAI’s current policies will provide this opportunity. Under DAI’s Religious Property Chart,
the quantity of spirit foods that may be brought in by the spiritual advisor is limited to just
16 ounces, or two cups. While attendees of the Ghost Feast do not need an entire meal,
having only two cups of traditional food to share among all attendees is not sufficient.
According to defendant’s records, there are close to 80 inmates who identify under the
Native American religious group at GBCI alone. (Trial Exh. 527.) Although not all of the
Plaintiff also offered no evidence that this would be a feasible option. For example, he
submitted no evidence of any Native American or other catering company willing and able to
provide traditional foods for a Ghost Feast held at the GBCI. In contrast, defendant presented
testimony from Sarah Cooper, the deputy warden at GBCI, that she had attempted to find a
caterer or restaurant capable of providing venison Indian tacos for a Ghost Feast and was
unsuccessful. (Trial Trans., day 2, at 128.)
inmates attend the Ghost Feast on an annual basis, arbitrarily limiting the Ghost Feast to 16
ounces of dried meat, corn, berries and water without allowance for the number of attendees
is not sufficient, by itself, to ensure that attendees are able to partake of traditional foods at
the Ghost Feast.
The DAI’s new Religious Diets policy, 309.61.03, which allows inmates to order
individual portions of shelf-stable food items for congregate religious celebratory meals, could
theoretically be used to supplement the small amount of spirit foods brought in by a spiritual
advisor, but the new policy presents its own set of problems. First, as written, the new policy
seems to prohibit inmates from ordering more than one food item, even though Native
American inmates may require more than one religiously significant food item, such as game
meat, corn, berries and fried bread. Second, although plaintiff could likely find acceptable,
shelf-stable game meat to order under the policy, he is unlikely to find shelf-stable fried bread
that would qualify under the policy.6 This is significant because plaintiff testified, and the
court has found, that fried bread is an essential, traditional food at Ghost Feasts. Moreover,
the Property Chart does not expressly permit spiritual advisors to bring in “fried bread,”
meaning that plaintiff would be without means to obtain it for the Ghost Feast.7 Finally, the
The court was unable to find anything resembling a shelf-stable fried bread sold by any online
Although not clear from the language of the Property Chart itself, nor historical practice,
defendant’s counsel stated at trial that the property chart would permit a spiritual advisor to bring
in fried bread under the “sacramental bread” category applicable to all umbrella religious groups.
(Trial trans., day 2, at 43-44.) That category specifically permits a spiritual leader to bring in
“one piece of [sacramental bread] for each participant and spiritual leader” for use during
congregate services and approved pastoral visits. (Trial Exh. 503A.) Whether or not plaintiff or
other Ghost Feast attendees consider fried bread to be “sacramental,” defendant’s concession that
the Property Chart could technically allow the Native American spiritual leader to bring in fried
bread for each Ghost Feast attendee, without apparently raising any security concerns, is
significant for purposes of entering an appropriate injunction.
new policy seems likely to interfere with the communal aspect of the Ghost Feast, in that it
would result in each attendee, who is able to afford it, opening and consuming a separate
food item, rather than inmates partaking in traditional foods together.
Notwithstanding DOC’s seemingly good faith effort to develop a “one size fits all”
approach under its Property Chart and new Religious Diets policy, the court finds
defendant’s policies substantially interfere with plaintiff’s ability to obtain the traditional
foods he needs to have a religiously meaningful Ghost Feast.
Accordingly, plaintiff has
shown that defendant’s policies impose a substantial burden on his religious exercise.
“Least Restrictive Means” of Furthering a “Compelling Governmental
Because plaintiff has met his burden of proving a prima facie case under RLUIPA, the
burden shifts to defendant to show that its policies limiting plaintiff’s ability to obtain game
meat and fried bread are the least restrictive means of furthering a compelling governmental
interest. In evaluating defendant’s arguments, the court is mindful that the scrutiny required
under the “compelling government interest” standard must be balanced against the deference
due prison officials charged with maintaining order. On one hand, the standard Congress
chose is “exceptionally demanding” on the government.
See Holt, 135 S. Ct. at 864
(“Congress enacted RLUIPA . . . in order to provide very broad protection for religious
liberty.”). Id. at 859. On the other hand, the Supreme Court emphasized that “in applying
RLUIPA's statutory standard, courts should not blind themselves to the fact that the analysis
is conducted in the prison setting.” Id. at 866.8 When reviewing restrictions on religious
exercise in prison, therefore, courts must weigh both competing considerations without giving
too much or too little weight to one over the other. Holt, 135 S. Ct. at 864 (“Prison officials
are experts in running prisons and evaluating the likely effects of altering prison rules, and
courts should respect that expertise. But that respect does not justify the abdication of the
responsibility, conferred by Congress, to apply RLUIPA's rigorous standard.”).
Here, the relevant policies -- set forth in the Property Chart and Religious Diets
policies -- are primarily motivated by six concerns:
administrative; (4) safety; (5) security; and (6) fairness.
(1) health; (2) monetary; (3)
Although defendant presented
evidence at trial relevant to all of these concerns, the first and second categories were not
Defendant presented no evidence of significant health or dietary concerns
relating to the contents of a single meal. As for monetary concerns, the defendant raises this
concern in the broadest way possible -- in terms of a slippery slope -- without actually laying
out the associated relative costs of an annual meal for each of GBCI’s principal religious
groups. Regardless, plaintiff does not argue that the DOC must pay for a Ghost Feast meal,
but instead proposes that he and other attendees be permitted to organize and pay for the
This leaves defendant’s concerns about administration, safety, security and fairness.
Defendant provided compelling arguments as to why DAI has imposed limitations on
bringing outside food into the institution for inmates. For example, defendant’s witnesses
In Cutter v. Wilkinson, 544 U.S. 709 (2005), the Supreme Court also emphasized the importance
of courts giving “due deference to the experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good order, security and discipline,
consistent with consideration of costs and limited resources.” Id. at 722-23.
explained that the new Religious Diets policy allows inmates to acquire religiously significant
foods for consumption for the annual celebratory meal, without the real security and
administrative challenges that would arise if each inmate were permitted to order an
individual meal from a local restaurant, caterer or other commercial vendor. In particular,
unlike shelf-stable food items ordered through the mail from a commercial vendor and
processed by the institution’s mail department, as permitted under the new policy, individual
food portions ordered from a restaurant or caterer would require the prison to implement
procedures for arranging delivery or pick-up and inspecting each food item for contraband,
not to mention, ensuring that the food is then consumed quickly enough (or otherwise stored
safely) to protect against food-borne illness.
Defendant also adequately explained why
individual food requests could not be processed in GBCI’s prison kitchen, as it lacks
equipment necessary to prepare individual meals, such as saute pans, friers or microwaves.
(Trial trans., day 2, at 36-37.)
Even so, these concerns do not justify the policies that prohibit vetted and approved
spiritual advisors or other volunteers from bringing in a sufficient amount of traditional foods
-- game meat with fried bread in particular -- for all Ghost Feast attendees. For legitimate
security and administrative reasons, the DAI may obviously limit the number and quantity of
supplies brought into the prison by a spiritual advisor, even one sufficiently vetted to limit
the potential security risks, but that is not what plaintiff requires.
Plaintiff’s sincere religious needs would be satisfied if the spiritual advisor was
permitted to bring in a large enough quantity of spirit foods and fried bread, such that each
attendee could consume a meaningful amount, though not necessarily an entire meal.
In contrast, defendant’s Property Chart limits spirit foods to the seemingly arbitrary
quantity of 16 ounces, regardless of the number of inmates attending a congregate religious
Defendant gave no persuasive explanation for this limitation; nor did defendant
explain why fried bread was not specifically included as a food that could be brought in by a
spiritual advisor to a congregate meal. On the contrary, defendant conceded that its own
staff will bring in pizzas for inmates at various times for fundraising and morale purposes.
Finally, defendant proposed at trial that fairness concerns dictated the Property Chart
Specifically, defendant suggested that the allowance of spirit foods in the
Property Chart is comparable to the “Seder plate” allowed for Jewish inmates, which a Jewish
spiritual advisor may bring to share among all the participants at the annual congregate
Passover observance. The Property Chart requires that this plate be brought in on the day of
service, and be a vendor-sealed, commercially available package.
The Seder Plate may
contain up to six traditional items, including: Chazeres (bitter herbs, horseradish, romaine);
Charoses (mixture of chopped nuts, grated apples, cinnamon, wine, dates, honey); Karpas
(Parsley, celery or potato dipped in salt); Z’roa (lamb or goat shankbone, chicken wing, or
chicken neck); Beitzah (hard-boiled egg); and Matzah.
(Trial Exh. 503A.)
position is that because Jewish inmates are limited to one Seder Plate to be shared among
participants at the annual congregate meal, Native American inmates must also be limited in
the amount of spirit foods available at the Ghost Feast.
Without deciding whether the notion of “fairness” among inmates of various religious
groups may be a compelling government interest, may prove impractical when it comes to the
Property Chart, since the sincere religious beliefs of each religious group necessarily vary in
substantial ways, as still the “least restrictive means” to accommodate those beliefs.
example, setting aside for another case the question whether a single shared Seder plate is
sufficient to meet the religious needs of Jewish inmates, the fact is that the Property Chart
does not limit Seder plates to the same extent it limits spirit foods. First, the Seder plate is
not limited to a seemingly arbitrary 16 ounces; in fact, nothing in the Property Chart states
what size the Seder Plate must be.9 Second, the food on the Seder plate does not have to be
“shelf stable,” like the spirit foods do. Willard-West testified that there were no security or
safety concerns with a non-shelf stable Seder plate because the food is brought in by a
spiritual leader and consumed on the same day. (Trial trans., day 1 afternoon, at 122.) But
then what of the security or safety concerns that prevent a Native American spiritual advisor
from bringing in non-shelf stable fried bread for the annual Ghost Feast?10
In sum, the court is not persuaded that defendant’s policies reflect the least restrictive
means of furthering a compelling government interest. As discussed in detail below, there are
less restrictive means by which defendant can achieve its goals of safety, security and fairness
while also accommodating plaintiff’s sincerely held religious beliefs.
requiring greater care in addressing group, and individual, religious beliefs will further tax an
already overtaxed staff and underfunded DOC, the court is hopeful that some individual
accommodation will add to the value of the religious celebration for participating inmates,
which after all is the goal of RLUIPA, both out of respect for that specific ceremony and
Even if the Property Chart were amended to require the Seder plate to be limited to 16 ounces,
there would be questions about fairness, given that there are only 18 inmates identifying as Jewish
at GBCI, compared to 78 Native American inmates. (Trial Ex. 527.)
The same question could be asked regarding non-shelf stable game meat and other spirit foods.
This question need not be addressed here, however, because plaintiff has not shown that his
religious exercise would be substantially burdened by denial of access to fresh game meat, as
discussed above. Of course, the DOC might still be well served by allowing fresh game meat out
of its fairness concern or simply to make the Ghost Feast more memorable for its participants.
religion, as well as for the dignity associated with being allowed to practice one’s faith, even
In light of the findings above, plaintiff is entitled to injunctive relief under RLUIPA.
The court concludes that plaintiff’s religious beliefs can, however, be satisfied by a relatively
simple accommodation, that should not impose a significant burden on defendant.
Specifically, defendant must permit a spiritual advisor or volunteer to bring traditional foods
for the Ghost Feast in sufficient quantity such that plaintiff and every other attending inmate
are able to partake of a meaningful amount. The specific amount shall be left up to the
discretion of the spiritual advisor or volunteer, although the traditional foods should include
the spirit foods identified on the current Property Chart, as well as fried bread, if available,
whether or not shelf-stable. If there is no spiritual advisor or volunteer available to bring
traditional foods for the Ghost Feast, individual inmates may avail themselves of the option
to order their own food items for consumption consistent with the new Religious Diets
The court is aware that this injunction will likely please neither side. Defendant may
feel that this will open up the proverbial floodgates to other inmates who wish to have
particular foods brought in by a spiritual advisor for their celebratory meal, or that it may
lead to disputes among inmates regarding which foods are most religiously significant.
Defendant presented no evidence to substantiate such concerns, however, and the court
concludes only that this is the most appropriate solution for the Native American Ghost
Feast at issue in this case.
For plaintiff, this solution does not provide him with the fresh venison Indian taco,
cooked by a Native American caterer, that he desires. Nor will this solution address his
concerns about perceived disrespect of Native American beliefs by the DOC more generally.
This relief does resolve plaintiff’s claim for purposes of RLUIPA, however, as well as being
narrowly tailored enough to satisfy the restrictions on injunctive relief set forth in the PLRA.
18 U.S.C. § 3626(a). Finally, acknowledging its limitations, the court is also hopeful that
this case will encourage all those involved to approach similar disputes in the future by
engaging in more open communication with outside spiritual advisors and inmates, in order
to find more creative solutions that could be implemented to allow inmates to practice
sincerely held religious beliefs while also protecting legitimate governmental interests.
IT IS ORDERED that:
Plaintiff has proven that defendant violated his rights under RLUIPA by failing
to accommodate his requests for (a) a multi-colored headband, and (b) game
meat and fried bread at the annual Ghost Feast.
The court enters the following permanent injunction:
Plaintiff shall be allowed to possess one headband identified as the
“Four Directions” headband in the colors of red, yellow, black and
white (contained in Dkt. #69, Trial Ex. 536), for use in his cell and at
congregate Native American religious services and study groups. The
headband may be replaced from time to time. Plaintiff’s use of the
headband must, however, abide by all other applicable institution
policies and procedures. Should plaintiff be found to be using his
headband in a manner that violates institution policies or procedures,
he may be required to relinquish the headband and dispose of it
according to DAI Policy 309.20.03. He must also dispose of the
previous turquoise headband he possesses.
Defendant shall allow an approved Native American spiritual advisor or
other approved volunteer to bring traditional foods for the annual
Native American Ghost Feast at Green Bay Correctional Institution in
sufficient quantity such that plaintiff and every other attending inmate
is able to partake of a meaningful amount of traditional foods. The
specific amount shall be left up to the discretion of the spiritual advisor
or volunteer. The traditional foods should include the spirit foods
identified on the current Religious Property Chart, as well as fried
bread, if available, which need not be shelf-stable.
If there is no spiritual advisor or volunteer available who can provide
the traditional foods for the annual Ghost Feast in sufficient quantity,
plaintiff and other interested inmates may order their own meal
consistent with the new Religious Diets Program.
The clerk of court is directed to close this case.
Entered this 8th day of November, 2016.
BY THE COURT:
William M. Conley
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