Schlemm, David v. Frank, Matthew et al

Filing 361

ORDER denying 357 Motion for Finding of Contempt. Signed by District Judge William M. Conley on 10/31/2024. (lam),(ps)

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

OPINION AND ORDER

v.

11-cv-272-wmc

JARED HOY,1
Defendant.
_________________________________________________________________________________
On November 9, 2016, the court entered a permanent injunction against the Wisconsin
Department of Corrections, authorizing plaintiff David Schlemm to possess a “Four
Directions” headband in the colors of red, yellow, black, and white for use in his prison cell
and at congregate Native American religious services and study groups. (Dkt. #212, at 1.)
Plaintiff has filed a motion for contempt, stating that prison officials seized his headband on
January 4, 2024, in violation of the court’s injunction. (Dkt. #357.) The motion will be
denied for reasons that follow.
OPINION
To prevail on a motion for contempt, plaintiff must prove by clear and convincing
evidence that: (1) the injunction set forth an unambiguous command; (2) the command was
violated; (3) the violation was significant; and (4) the violating 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).

Defendant Jared Hoy has filed a response to plaintiff’s

The court has substituted the current Wisconsin Department of Corrections Secretary as defendant,
see Fed. R. Civ. P. 25(d).
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contempt motion and provides a declaration from Chaplain Myron L. Olson. (Dkt. ##359360.)

Chaplain Olson explains that plaintiff was transferred to Jackson Correctional

Institution from the Wisconsin Secure Program Facility on January 3, 2024. (Olson Decl. (dkt.
#360) at ¶ 4.) Olson acknowledges that plaintiff’s headband was seized upon his arrival
because it is not normally an allowed item. (Id. at ¶ 5.) As soon as staff verified that the item
was allowed by a court order, the headband was returned to plaintiff by personnel in the
property department on January 8, 2024. (Id. at ¶¶ 5-6.) Since that time, plaintiff has worn
his headband regularly during the weekly pipe and drum services at the unit. (Id. at 8.)
The undisputed record shows that plaintiff was deprived of his headband for no more
than five days following his transfer to a different prison facility and that the headband was
promptly returned once staff verified that he was allowed to have the item. Plaintiff has not
shown that there was a significant violation of the court’s injunction or that the defendant
failed to satisfy, or make reasonable efforts to satisfy, an unambiguous command. Because
plaintiff has fallen far short of the showing necessary for a finding of contempt, his motion will
be denied.
ORDER
IT IS ORDERED that plaintiff David Schlemm’s motion for finding of contempt (dkt.
#357) is DENIED.
Entered this 31st day of October, 2024.
BY THE COURT:
/s/
_____________________________
WILLIAM M. CONLEY
District Judge

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