Greybuffalo, Johnson v. Wall, Edward et al

Filing 129

ORDER denying plaintiff's 107 Motion for Summary Judgment; granting defendants' 111 Motion for Summary Judgment. The clerk of court is directed to enter judgment and close this case. Signed by District Judge Barbara B. Crabb on 2/1/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOHNSON W. GREYBUFFALO,
OPINION and ORDER
Plaintiff,
15-cv-8-bbc
v.
JON LITSCHER, KELLI WILLARD WEST
and GARY BOUGHTON,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner Johnson Greybuffalo brought this case to challenge what he viewed
as violations of his right to practice his religion. The court has dismissed some claims, dkt.
## 30 and 70, and the parties have settled others, dkt. #105. The only remaining issue is
whether prison officials are violating the Religious Land Use and Institutionalized Persons
Act and the free exercise clause of the First Amendment by refusing to hold a separate sweat
lodge ceremony for prisoners like plaintiff at the Wisconsin Secure Program Facility who
are adherents of the Native American Church. The prison already holds a sweat lodge
ceremony on a regular basis, but plaintiff says that the ceremony offered now is not
conducted in accordance with the principles of the Church.
Both sides have moved for summary judgment, dkt. ##107 and 111, and both
motions are ready for review. I agree with defendants that plaintiff’s claim is premature for
two reasons: (1) plaintiff has never requested a separate sweat lodge ceremony through the
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required administrative process; and (2) plaintiff has not identified anyone who could lead
a sweat lodge ceremony for adherents of the Native American Church. Accordingly, I am
granting defendants’ motion for summary judgment as to this claim.

OPINION
A. Failure to Complain to Prison Officials Before Filing This Lawsuit
The primary issue discussed by the parties is whether plaintiff complied with 42
U.S.C. § 1997e(a), which requires a prisoner to exhaust all available administrative remedies
before filing a lawsuit in federal court related to his treatment in prison. Porter v. Nussle,
534 U.S. 516, 524 (2002). Prisoners in the Wisconsin Department of Corrections must
complete and submit a form called “DOC-2075” if they wish to participate in a new religious
practice or obtain approval for a new religious item. Lagar v. Tegels, 94 F. Supp. 3d 998,
1003-04 (W.D. Wis. 2015); Meyer v. Wisconsin Dept. of Corrections, No. 09-cv-312-bbc,
2010 WL 2486242, at *1 (W.D. Wis. June 16, 2010); Lindell v. Casperson, 360 F. Supp.
2d 932, 942 (W.D. Wis. 2005). Thus, if a prisoner files a lawsuit about the denial of a
religious practice without submitting a DOC-2075 form about the practice, then the
prisoner’s claim about that issue must be dismissed for his failure to exhaust his
administrative remedies. Schlemm v. Frank, No. 11-cv-272-wmc, 2014 WL 2591879, at *9
(W.D. Wis. June 10, 2014), aff'd in relevant part, Schlemm v. Wall, 784 F.3d 362, 363 (7th
Cir. 2015).
The parties debate three issues related to DOC-2075: (1) whether a form plaintiff

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submitted in 2013 included a request for a separate sweat lodge ceremony; (2) if not,
whether a grievance plaintiff filed the following year satisfied any requirement to raise the
issue administratively; and (3) if not, whether the court should conclude that plaintiff did
not need to raise the issue before filing this lawsuit. I will consider each argument in turn.

1. DOC-2075 form
The first issue is resolved by this court’s previous order addressing the question
whether plaintiff had exhausted his administrative remedies on his claim that he was entitled
to have feasts after religious ceremonies. Greybuffalo v. Wall, No. 15-cv-8-bbc, 2015 WL
5093340 (W.D. Wis. Aug. 28, 2015), dkt. #30. In that order, I noted that plaintiff’s 2013
form is limited to a request to “officially recognize the Native American Church as one of
its ‘Umbrella’ Group Religions” and to approve various property items related to the religion.
Because plaintiff did not include a request for religious feasts, he had not exhausted his
administrative remedies as to that claim.
In this case, plaintiff does not deny that his DOC-2075 form says nothing about a
separate sweat lodge ceremony, but he says that “any reasonable person would understand
that” approval of a new religious group “would entail accompaniment of Religious Services
both Congregate in nature and Study Group related.” Plt.’s Resp. to Dfts.’ PFOF ¶ 7, dkt.
#125. That is essentially the same argument that plaintiff made with respect to his religious
feasts claim and I rejected the argument:
The DOC-2075 form instructs prisoners to “[w]rite a detailed description of
the religious practice that you want to participate in and what the request is
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based on.” Dkt. #1-1 at 1. Generally, a prisoner must comply with prison
rules regarding the type and amount of information that needs to be included
in a grievance or form. Jones v. Bock, 549 U.S. 199, 218 (2007); King v.
McCarty, 781 F.3d 889, 896 (7th Cir. 2015). At a minimum, the prisoner
must provide enough information to alert prison officials to the nature of his
problem. Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005). Without a
specific request by plaintiff, officials would have no way of knowing that they
were supposed to be considering a request for a religious feast as part of a
general request for group recognition.
Dkt. #30 at 4.
This reasoning applies to plaintiff’s claim regarding a separate sweat lodge ceremony
as well. Under prison rules, plaintiff was required to identify each new practice that he was
requesting, even if he believed that it was obvious what he wanted. Although group worship
is a common aspect of religious exercise, it is not necessarily universal.

Even if it is

reasonable to assume that a request for a new group will include some type of request for a
group exercise, the rules required plaintiff to provide information about his request. This
rule makes sense because different group exercises will impose different financial,
administrative and security burdens on the prison.
In this case, the scope of plaintiff’s request was not as obvious as he suggests. Plaintiff
says now that he wanted at least two different kinds of separate group exercises, a sweat
lodge ceremony and a congregate church service. Plaintiff identifies no way that prison
officials could have anticipated those requests without specific notice from him. Particularly
because plaintiff did not identify any problems with the current sweat lodge ceremony that
would have required a separate ceremony, I do not accept plaintiff’s contention that a
separate sweat lodge ceremony was implicit in his request for approval of a new religious

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group.

2. Grievance
With respect to plaintiff’s second argument, that he raised the relevant issue in a
2014 grievance, he cites no authority for the view that a grievance may serve as a substitute
for a DOC-2075 form. Under Jones, 549 U.S. at 218, prisoners are required to follow the
procedures established by prison officials for exhausting administrative remedies. Further,
the court of appeals has upheld the requirement that prisoners must submit a DOC-2075
form to exhaust administrative remedies as to a claim about a new religious practice.
Schlemm, 784 F.3d at 363. Both Jones and Schlemm provide strong support for the
conclusion that plaintiff could not bypass the special procedure created for religion claims
and choose on his own to use the more general grievance procedure instead.
Even if I considered plaintiff’s grievance, it would not help him. The subject of the
grievance is the denial of his request in his DOC-2075 form to recognize the Native
American Church as an “umbrella religious group.” Dkt. #115-2, exh. 108, at 9-11. The
grievance does not even mention sweat lodge ceremonies.
Plaintiff says that “Congregate Group Services are directly discussed within the
Complaint itself,” Plt.’s Resp. to Dfts.’ PFOF ¶ 10, dkt. #125, but he does not cite any
particular passages from the grievance. There is a quotation in the grievance from the
chaplain, who allegedly told plaintiff, “we do not have Native American Church services.”
Dkt. #115-2. exh 8, at 10. However, plaintiff does not include a request for separate

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services in the grievance. Even if plaintiff’s inclusion of that quotation could be construed
as a request for services, plaintiff himself has treated “services” separately from a sweat lodge
ceremony. In fact, in their “stipulation for partial dismissal,” dkt. #105, the parties settled
plaintiff’s claim regarding “devotional services,” but not the claim regarding a separate sweat
lodge ceremony. In sum, the grievance did not give prison officials notice of a claim that
plaintiff needed a separate sweat lodge ceremony in order to practice his religion.

3. Availability of remedy
Plaintiff devotes nearly all of his opposition brief to his third argument, which is that
DOC-2075 does not qualify as an “available” administrative remedy, so he was not required
to use it. Plaintiff’s discussion is somewhat difficult to follow, but I see two possible
arguments: (1) the DOC-2075 form is only a “policy,” so it does not have the “force and
effect of law,” dkt. #124 at 3; and (2) the DOC-2075 form provides no relief to prisoners.
Neither of these arguments can carry the day for plaintiff.
As to the first argument, plaintiff’s position seems to be that exhaustion requirements
must be embodied in regulations in the administrative code, but none of the authority cited
in his brief supports that view. Section 1997e(a) itself does not include such a requirement
and case law establishes that no such requirement exists. A prisoner must follow any prison
“policy” regarding exhaustion, so long as that policy is communicated to the prisoner in
advance. King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015) (“To the extent the policy
[in this case, a jail handbook] was available to [the prisoner], he was required to follow its

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specific procedures. . . . Prisoners are required to exhaust grievance procedures they have
been told about.”). Because it is undisputed that plaintiff was aware of the requirement to
submit a DOC-2075 form, this argument fails.
Alternatively, if plaintiff means to argue that he did not need to comply with DOC2075 because it is an ineffective remedy, that argument fails as well. In Booth v. Churner,
532 U.S. 731, 741 n.6 (2001), the Supreme Court rejected the view that lower courts may
excuse the exhaustion requirements on the ground that it would be futile to use the
administrative process. Plaintiff quotes the statement from Ross v. Blake, 136 S. Ct. 1850,
1859 (2016), that “an administrative procedure is unavailable when it operates as a simple
dead end—with officers unable or consistently unwilling to provide any relief to aggrieved
inmates.” However, plaintiff cites no examples other than his own in which officials have
denied requests for new religious practices, so he has failed to show that officials are
“consistently unwilling to provide any relief.”

4. Standing
I note that plaintiff’s failure to present his request to prison officials before bringing
this lawsuit has jurisdictional implications as well. Generally, a person seeking a particular
benefit under the law does not have standing to sue unless he was “personally denied” that
benefit. Freedom from Religion Foundation, Inc. v. Lew, 773 F.3d 815, 822 (7th Cir.
2014). Further, a plaintiff must have standing at the time he files the lawsuit, Hukic v.
Aurora Loan Services, 588 F.3d 420, 427 (7th Cir. 2009), so he cannot avoid dismissal of

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a lawsuit by satisfying the requirement while litigation is pending. Plaintiff does not point
to any request he made to any prison official before filing this lawsuit for holding a separate
sweat lodge ceremony, which raises the question whether plaintiff has standing to sue.
Defendants did not raise the issue of standing in their motion. Although standing is
a jurisdictional requirement that cannot be waived by the parties, Crosby v. Cooper B-Line,
Inc., 725 F.3d 795, 799-800 (7th Cir. 2013), I could not grant summary judgment on this
ground without giving plaintiff an opportunity to present additional evidence. Preddie v.
Bartholomew Consolidated School Corp., 799 F.3d 806, 820 (7th Cir. 2015). Standing is
generally a threshold issue, but courts are free to bypass even jurisdictional questions if a
claim can be resolved on a different procedural ground. Sinochem International Co. v.
Malaysia International Shipping Corp., 549 U.S. 422, 431 (2007). Accordingly, despite my
reservations about jurisdiction, I will grant defendants’ motion for summary judgment on
the ground that plaintiff failed to exhaust his administrative remedies.

B. Availability of Volunteer
For the sake of completeness, I will address defendants’ alternative argument, which
is that plaintiff’s claim must be dismissed because it is undisputed that plaintiff has not
identified anyone who could lead a sweat lodge ceremony using the principles of the Native
American Church. The prison chaplain is unaware of an available volunteer; plaintiff has not
offered any names of a potential volunteer, either prisoner or nonprisoner; and plaintiff says
that he is not comfortable leading the ceremony himself. Plt.’s Resp. to Dfts.’ PFOF ¶¶ 12-

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14, dkt. #125. Plaintiff does not argue that prisoners could hold the ceremony without a
leader or that the defendants are violating the Constitution by failing to make greater efforts
to find a volunteer, so it is not clear what plaintiff wants defendants to do. In fact, it is
undisputed that prison staff have told plaintiff that, if a volunteer is located, “a Native
American Church sweat lodge could be accommodated.” Id. at ¶ 15.
Despite defendants’ argument in their brief-in-chief that plaintiff’s claim is not ripe
until a volunteer can be located, plaintiff failed to address the issue in his response brief.
This is simply further proof that there is no real controversy between the parties and any
court resolution of the merits of plaintiff’s claim would be premature.

C. Manual
In his own motion for summary judgment, plaintiff raises another issue, which is
whether a manual on religion prepared by the Wisconsin Department of Corrections in 2011
violates plaintiff’s rights under the free exercise clause. Plaintiff did not raise this issue in
his complaint, so it is beyond the scope of this case. Anderson v. Donahoe, 699 F.3d 989,
997 (7th Cir. 2012).
Even if plaintiff could raise this issue now, he would not prevail on it. When plaintiff
discussed the manual in previous filings, I questioned the manual’s relevance:
Plaintiff seems to believe that the . . . manual is proof that defendants are
discriminating against him because it suggests that defendants have a policy
that is specific to Native American religions, but plaintiff does not identify any
reason to believe that the alleged policy treats Native Americans less favorably
than anyone else. . . . [E]ven if the manual was not favorable to Native
Americans, it is not clear how it would shed any light on whether defendants
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are discriminating against plaintiff in particular. What matters is defendants’
conduct, regardless of the language in a policy.
Dkt. #70 at 23. Plaintiff still has not explained how he believes the manual treats adherents
of Native American religions less favorably than members of other faiths and he has not
identified any way in which one of the defendants or anyone else used the manual in a way
that violated his rights or otherwise harmed him.

ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants Jon
Litscher, Kelli Willard West and Gary Boughton on plaintiff Johnson Greybuffalo’s claim
that defendants are denying his request for a separate sweat lodge ceremony, dkt. #111, is
GRANTED on the ground that plaintiff failed to exhaust his administrative remedies, and
plaintiff’s motion for summary judgment, dkt. #107, is DENIED. The clerk of court is
directed to enter judgment and close this case.
Entered this 1st day of February, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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