Schlemm, David v. Frank, Matthew et al

Filing 355

ORDER that plaintiff David Schlemm's motion for finding of contempt (dkt. # 325 ) is DENIED. Signed by District Judge William M. Conley on 11/4/2021. (kmd),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
DAVID SCHLEMM,
Plaintiff,

OPINION AND ORDER

v.

11-cv-272-wmc

KEVIN A. CARR,1
Defendant.
_________________________________________________________________________________
Last year, plaintiff David Schlemm filed a motion for contempt (dkt. #325),
claiming that the Wisconsin Department of Corrections’ (“DOC”) conduct of the January
30, 2020, Native American Ghost Feast at Columbia Correctional Institution
(“Columbia”) violated this court’s injunction entered in this case on November 9, 2016
(the “Injunction”) (dkt. #212). The court will deny his motion for the reasons that follow.
OPINION
For the court to grant the relief Schlemm seeks, he must prove by clear and
convincing evidence that: (1) the Injunction set forth an unambiguous command; (2) that
command was violated; (3) the violation was significant; and (4) the party did not take
steps reasonably and diligently to comply with the Injunction. Lightspeed v. Media Corp. v.
Smith, 761 F.3d 699, 711 (7th Cir. 2014). The Injunction provides in relevant part:
(b)
Defendant shall allow an approved Native American spiritual advisor
or other approved volunteer to bring traditional foods for the annual Native

The court has substituted the current Wisconsin Department of Corrections Secretary as defendant,
see Fed. R. Civ. P. 25(d).
1

1

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 spiritual foods identified on the current
Religious Property Chart, as well as fried bread, if available, which need not
be shelf-stable.
(c)
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.
(Am. Judg. (dkt. #212).)
Although Schlemm is now incarcerated at Columbia, the DOC has agreed in the
past to comply with the terms of the Injunction at that institution as well. Accordingly,
he seeks a finding of contempt with respect to the January 30, 2020, Ghost Feast held at
Columbia because he did not have sufficient funds to pay the approximately $20 necessary
for him to purchase his own for venison summer sausage, which he argues amounted to a
denial of game meat as required by the Injunction. Although Schlemm has shown that he
could not make such a payment at that time, his lack of funds does not support a finding
of contempt.
Before the January 2020 Ghost Feast, Schlemm submitted the proper form
requesting to purchase a ceremonial food item, indicating his desire to purchase venison
summer sausage from an outside vendor, which would cost $15.99, plus $4.95 shipping.
While Columbia’s Chaplain Justin O’Boyle initially approved that request, Schlemm’s
disbursement request was denied because he lacked sufficient funds in his inmate account
to purchase the sausage, and he was not allowed to access his inmate release account for
2

that purchase. (Dkt. #326-5.)
Inmate release accounts are established for inmates to access upon release to assist
with necessary purchases at that time, such as clothing, transportation and other similar
items.

Wis. Admin. Code DOC § 309.02(18).

Under Wis. Admin. Code DOC

§ 309.466(2), with a few exceptions that do not include religious meals, release accounts
are not to be used before an inmate’s release from custody.
Nevertheless, Schlemm argues he only lacked the funds to purchase his own Ghost
Feast meal because DOC officials have been confiscating money from his inmate trust
account to pay his court-ordered financial obligations.2 However, Schlemm does not
suggest those confiscations are not consistent with DOC policy; rather, he seems to be
suggesting that his right to purchase special game meat for the Ghost Feast should have
trumped the DOC’s normal operations. Regardless, the court’s Injunction under which
Schlemm purports to be proceeding made no mention of a requirement that he be allowed
to access funds from his inmate release account to purchase his own meal, much less that
the DOC must subsidize the cost of a requested ceremonial food item if he lacks his own
funds to do so.
More importantly, Schlemm has not shown that the defendant failed to satisfy, or
make reasonable efforts to satisfy, an unambiguously command in the Injunction itself. To

Schlemm also blames his lack of funds on the DOC’s 2016 decision to increase the amount it
deducts from prisoner accounts from 25% to 50%, but any challenge to that change belongs in state
court. See Olson v. Schwochert, 783 F. App’x 614, 617-18 (7th Cir. 2019) (affirming dismissal of
constitutional challenges to the DOC’s decision to increase the percentage of deductions from 25%
to 50%).
2

3

the contrary, Schlemm acknowledges that the feast was led by Columbia’s Native American
spiritual volunteer, Shaw Paske, who brought in fry bread and the spirit foods dried
cherries, buffalo jerky and ground corn. (O’Boyle Decl. (dkt. #332) ¶ 6.) Columbia’s
Chaplain Justin O’Boyle further attests that there was enough spirit foods for all
participating inmates to partake, and in fact, many inmates had more than one piece of fry
bread, since Paske had brought enough for 50 inmates and only 28 inmates attended the
Ghost Feast activities at Columbia. (Id.) In fairness, Schlemm disputes this last part,
attesting that: (1) Chaplain O’Boyle was not present for the meal; and (2) during the meal,
Volunteer Paske actually apologized for not providing raw buffalo kidney but instead
bringing beef summer sausage, dried cherries and ground corn. (See dkt. #346.)
Even accepting Schlemm’s version of the food provided at the meal as true, however,
he has not established that defendant Carr failed to meet the requirements of the
Injunction. Indeed, although Schlemm asserts that he did not receive game meat, he also
admits that Spiritual Volunteer Paske had attempted to provide raw buffalo meet, but was
unable to obtain that food item. Thus, even accepting Schlemm’s assertion that he received
beef sausage rather than buffalo jerky as Chaplain O’Boyle attests, Schlemm has not shown
that this offering did not constitute a “reasonable attempt” by defendant to provide the
meats traditionally served at a Ghost Feast. (See dkt. #273-1, at 11.)
Since Schlemm has not submitted evidence that any Columbia officials were even
aware that Paske was unable to obtain game meat for the meal before January 30, the day
of the event, it would be unreasonable to find that defendant had violated the terms of the
injunction. As such, Schlemm has fallen far short of the showing necessary for a finding
4

of contempt, and this motion will be denied.

ORDER
IT IS ORDERED that plaintiff David Schlemm’s motion for finding of contempt
(dkt. #325) is DENIED.
Entered this 4th day of November, 2021.
BY THE COURT:
/s/
_____________________________
WILLIAM M. CONLEY
District Judge

5