West, Rufus v. Litscher, Jon
Filing
37
ORDER that plaintiff Rufus West's motion for class certification (dkt. # 19 ) is DENIED. Signed by District Judge William M. Conley on 12/21/2020. (lam),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RUFUS WEST,
Plaintiff,
OPINION AND ORDER
v.
17-cv-335-wmc
KEVIN CARR,
Defendant.
Plaintiff Rufus West a/k/a Mansa Lutalo Iyapo,1 an inmate at Green Bay
Correctional Institution (“GBCI”), is proceeding in this lawsuit against defendant Kevin
Carr in his official capacity as Secretary of the Wisconsin Department of Corrections
(“DOC”), asserting violations of the Religious land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc-1, and a related breach of contract. Specifically, as a
devout Muslim, West claims that the DOC’s practice of cancelling in-person, congregate
worship services and study groups violates his rights under RLUIPA and breaches the terms
of a settlement agreement he reached with the DOC to resolve an earlier lawsuit. West
has also filed a motion to certify a class of inmates for declaratory and injunctive relief with
respect to his RLUIPA claim. (Dkt. #19.) Given the breadth and indefiniteness of the
proposed class, as well as the inherently individualized nature of RLUIPA claims, the court
will deny plaintiff’s motion for class treatment as set forth below.
West’s briefing refers to himself as “Mansa,” but to be consistent with its past orders, the court again
refers to him by his last name.
1
1
BACKGROUND
A. The DOC’s Religious Policies
As explained by the DOC’s Religious Practices Coordinator Kelli Willard West, the
Division of Adult Institutions (“DAI”) provides inmates with opportunities to pursue
lawful practices of the religion of their choice. However, those opportunities must be
consistent with: security practices and principles; the rehabilitative goals of inmates; health
and safety; the allocation of limited resources; and the needs of the various correctional
institutions and facilitates. Although not exclusive, DAI attempts to accommodate various
religious beliefs by organizing available religious accommodations with an Umbrella
Religion Groups (“URGs”) structure, with each group sharing similar beliefs and practices.
Currently, although neither exclusive nor immutable, DAI recognizes eight formal URGs:
Catholic,
Eastern
Religions,
Humanist/Atheist/Agnostic,
Islam,
Judaism,
Native
American/American Indian, Pagan, and Protestant/Other Christian.
Prisoners seeking to access religious accommodations, including access to congregate
services, religious property, and diet, must formally declare a religious preference by filing
a Religious Preference Form (DOC-1090) and choosing which URG aligns most closely to
their own religious beliefs and practices.
Alternatively, prisoners may choose “No
Preference” or “Other.” If desired, the DAI also permits prisoners to change their religious
preferences once every six months by completing a new Religious Preference Form.
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B. Overview of eight URGs
The eight URGs hold unique religious views. Of particular relevance to West’s class
motion, the role and significance of congregate services and study groups within each URG
varies. Furthermore, according to Coordinator Willard-West, different theologians within
the same faith community may construe sacred texts very literally or under varying
interpretations. (Willard West Decl. (dkt. #30) ¶ 25.) Acknowledging that variations
exist between and within the URGs, the DAI created a resource manual, written by
community faith advisors, to guide DOC staff in accommodating each URG’s religious
beliefs and practices. (Willard West Decl., Ex. 105 (dkt. #30-3).) The following is an
overview of the DOC’s guidance with respect to each URG’s religious beliefs pertaining to
worship services and study groups:
Catholics.
This URG focuses on Catholic “sacramental life.”
Although all
sacraments require a priest as a spiritual leader and are communal in nature, a deacon or
trained layperson may be able to conduct a worship service to celebrate the Eucharist.
Some Catholics may find religious studies -- for example, scripture and spiritual reading or
praying the Rosary -- essential to spiritual development. (Id. at 6-7.) A Catholic spiritual
leader or volunteer is needed for such studies.
Eastern Religions. This Eastern religious URG focuses primarily on Buddhism and
Hinduism. Buddhism has many traditions, but it is customary to gather on a periodic
basis, usually weekly, “to chant sutras (sacred scriptures) that embody the tradition’s
teachings, to meditate and to offer prostrations and incense in honor of the Buddha.” (Id.
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at 9-11.) A spiritual leader or authorized volunteer leads the meditation practice and is
necessary for worship services. (Id.)
Hinduism, as described in the resource manual, is a “unique religion” with “no
founder, no uniform dogma, no hierarchical priesthood, no direct revelation and no rigidly
described moral code. Some Hindus worship spirits and other deities, while others engage
in the most profound philosophical speculation.” Similar to Buddhists, Hindus come
together regularly to worship with focus on a deity, including Shiva, Parvati, Ganesha,
Vishnu, and one of his avatara, Krishna. Before worship, a devout Hindu will purify
himself with water. For congregate worship, the worshipper places items for offering, such
as food or flowers, in a fire that a priest has blessed. The ashes are then rubbed on the
worshipper’s forehead.
Humanist/Atheist/Agnostic:2 This URG is comprised of humanists, atheists and
agnostics, none of whom tend to hold a particular creed or dogma, and instead focus on
the value of humans. There are generally no requirements to be a member in these belief
systems. Electronic video streaming (live or recorded) are acceptable for services, with the
most important part of the service being a discussion that takes place after the formal
service. (McKenzie Decl. (dkt. #31) ¶¶ 13-16.)
Islamic: Islam is a monotheistic religion focused on the teachings of Muhammad,
as is this URG.
The standard practice depends on “what constitutes an islamically
The resource manual was created prior to the DOC creating this URG, which is why the DOC provided
a description of this URG from Zachary McKenzie, the Chaplain at Taycheedah Correctional
Institution. (McKenzie Decl. (dkt. #31).) McKenzie explains that in 2016 he became a Humanist and
is endorsed by the Humanist Society as a Chaplain/Celebrant. (Id. ¶ 13.)
2
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acceptable observance in the controlled environment of a corrections facility.” (Ex. 105
(dkt. #30-3) at 17.)
For congregate services, Muslim prisoners attend a Friday
congregational prayer, during which an Imam -- the leader of the Mosque -- conducts the
prayers and worship services. Muslim inmates are to pray individually five times per day.
Muslims also have obligatory days of special significance:
Ramadan (29-30 days of
disciplined fasting); Eid ul Fitr, and Eid ul Adha. (Id. at 17-20.)
Judaism:
Groups within the Judaism URG are (1) Orthodox Judaism, (2)
Conservative Judaism, (3) Reform Judaism, and (4) Reconstructionist Judaism. These four
groups have variations with respect to beliefs, practices, ritual observance, lifestyles and
degree of acculturation. However, a common focus is regular group worship. The DOC’s
resource manual provides that “[a] quorum (Minyan) of ten adult Jewish males and/or
females is usually required to hold a formal Jewish worship service, but this requirement
may be waived in a prison setting.”
(Id.)
Portions of the Torah are publicly read
throughout the Jewish calendar year on Sabbath (Friday), and each Monday and Thursday.
There are other readings on various holy days. Devout Jewish prisoners are required to
pray three times a day, but those prayers can be private.
Pagan: Paganism is a “worldwide Nature religion rooted in antiquity.” This URG’s
belief system takes many forms, including the Wiccan religion, Animism, Pantheism,
Druidism, Heathenism, and others. Pagan congregate services include rituals for the eight
Sabbats, lunar rituals, and instruction. The rituals can include “purification of participants
and the site, casting the circle, invocations, meditation, prayer, chanting, energy work,
thanksgiving, and uncasting the circle. (Id.)
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Native American: There are eleven federally recognized tribes in Wisconsin, each
holding its own tradition, beliefs and history. Faith subgroups with a significant presence
in Wisconsin include Native American Church, Midewiwin, General Anishinabe
Traditions and Beliefs, Big Drum, and Longhouse. However, Native American spirituality
is fluid and personal; each claim or family line, and each religious or spiritual society may
have different traditions, beliefs, and history, many of which relate to nature and the
natural world. Ceremonies are led by elders and spiritual leaders, but the leaders do not
impose beliefs or doctrines. Leadership is chosen, inherited, or the result of a personal
calling or vision.
Protestant: Protestantism arose from a split with the Catholic Church in the 15th
century, and it now includes more than two hundred denominations and churches. As a
result, this URG’s worship “ranges all the way from the quiet Quakers [meeting] to the
enthusiasm of [a] Pentecostal[] [revival] . . . from complete freedom of expression and
spontaneity to relatively set patterns of worship.” (Id. at 49-52.) Protestant prisoners
often meet in groups once a week, preferably Sunday. Pastors or priests lead worship or
Bible study. Depending on the standards of the officiating clergy, Protestant prisoners are
allowed to take Holy Communion at worship services. (Id.)
C. Congregate and non-congregate services in prison
DAI attempts to provide prisoners with a URG designation worship services
consistent with their personal faith. DAI policy requires congregate religious services (e.g.,
worship, study groups, readings, prayers, choir, drumming) to be facilitated or supervised
by a community volunteer spiritual leader/clergy, chaplain, or other DOC staff member.
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(Willard-West Decl., Ex. 101 (dkt. #30-2) 7.) Worship services in particular must be
facilitated by a Chaplain of that faith or by a qualified volunteer.
Each DOC facility establishes its own guidelines with respect to the minimum
number of prisoners that must designate a particular religious preference before a religious
worship service or study group is authorized. For example, where West is incarcerated at
GBCI, a minimum of 15 participants are required before a URG is allowed to hold
congregate religious services.3
When no religious volunteer is available to attend a scheduled religious service, DAI
policy further prohibits prisoners from leading their own religious services or study groups,
in light of numerous security concerns associated with prisoner-led worship services.
However, when a volunteer is unavailable, the DOC offers alternatives to cancelling the
services; indeed, the DAI encourages facilities to permit a URG to gather at the scheduled
time using other means, such as a movie, or to permit the URG to reschedule the event
when a volunteer is available.
Additionally, DAI Policy 309.61, “Congregate Religious Event Conduct,” provides
an avenue for facility chaplains to allow prisoners to take on a very limited role in leading
congregate services. For example, under this policy, a chaplain (or his or her designee) may
assign and supervise one or more prisoners to carry out certain roles within a congregate
event, such as calling the prayer, carrying the pipe, leading the choir, reading a designated
Currently, due to the COVID-19 pandemic, volunteer entry has been suspended to limit the spread
of the disease.
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passage, performing as a musician, or acting as a fire starter, although the policy requires
that prisoner roles rotate to avoid having any prisoner be labeled a “leader.”
In 2016, the DOC also started a project offering Jumu’ah services via live video
stream from Fox Lake Correctional Institution (“FLCI”). This program has extended to 28
sites. It began as a function of West’s settlement with the DOC regarding cancellation of
services.
D. West’s prior lawsuit and allegations
As mentioned already, this lawsuit is an offshoot of one brought by West in 2011,
in which he alleged that the DOC violated his rights under RLUIPA in cancelling
congregate religious services and study groups due to the unavailability of a qualified
chaplain or volunteer to act as its required leader. West v. Grams, No. 11-cv-687 (W.D.
Wis.). In that case, the court recruited Attorney Michael J. Modl to represent West.
Following a mediation with Magistrate Judge Peter Oppeneer, West and the DOC reached
a settlement of West’s case.
According to West, an important component of the settlement was “system-wide
relief” to address his concerns about cancellations of religious services or study groups for
inmates of all religions, not just for Muslim inmates like West. With respect to that
concern, the settlement agreement stated:
Defendants agree that routinely scheduled congregate religious
programming, including Friday services (Jumuah), weekly study groups
(Talim), and Eid al-Fitr prayer will not be cancelled for lack of having a
community leader or DOC Chaplain of that faith available to lead the
event(s). However, if an emergency or disturbance or other circumstances
occurs that prevents the normal functioning of the institution, the
department may postpone, cancel, or reduce the duration/frequency of
routinely scheduled congregate religious programming.
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(Modl Decl., Ex. 1 (dkt. #22-1) 2.) The parties do not dispute that this agreement applied
to all adult facilities and institutions within the DOC, and it covered all congregate
programming for all religions. The agreement further required the posting of a notice by
September 21, 2016, to inmates in a library, chapel, or other central location detailing that
these religious programs would not be canceled for that reason.
After the agreement went into effect on September 25, 2016, however, West alleges
that he and other inmates experienced cancellation of congregate religious services and
study groups due to the unavailability of a qualified chaplain or volunteer to lead the
services. After West communicated as much to Attorney Modl, he also started receiving
information from other DOC inmates confirming similar cancellations. After this lawsuit
commenced and the court screened West’s claims to go forward, Modl further represents
that he started communicating with “well over 100 inmates” through CorrLinks, the
DOC’s email system, regarding cancellation of congregate religious services and study
groups due to the lack of a qualified person to lead these activities. Additionally, Attorney
Modl received scores of letters from inmates providing information about cancellation of
congregate religious services or study groups for multiple religions. (Pl. Br. (dkt. #20) 8.)
OPINION
Plaintiff seeks to certify a class under Federal Rules of Civil Procedure 23(a) and
23(b)(2) to pursue declaratory and injunctive relief. The proposed class definition is:
All inmates at adult DOC institutions, beginning four years prior to this
Court’s screening decision on August 14, 2019 (Dkt. 6), who have submitted
Religious Preference Forms, who are members of an Umbrella Religious
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Group (“URG”), and who have experienced or are likely to experience a
cancellation of a URG congregate religious service or study group, where such
service or study group is a religious exercise, due to the unavailability of a
qualified chaplain or volunteer to lead the service or study group.
(Pl. Br. (dkt. #20) 10.)
To certify a class, plaintiffs must satisfy a two-step process. See Fed. R. Civ. P. 23(a)(b); Lacy v. Cook Cty., Ill., 897 F.3d 847, 864 (7th Cir. 2018). First, the proposed class
must satisfy the four threshold requirements under Rule 23(a): numerosity, commonality,
typicality and adequacy. Fed. R. Civ. P. 23(a). If the Rule 23(a) prerequisites are satisfied,
then “the plaintiffs must demonstrate that one of the conditions of Rule 23(b) is met.”
Lacy, 897 F.3d at 864. In this case, in which plaintiff pursues class-wide declaratory and
injunctive relief, plaintiff must further establish that the challenged conduct “appl[ies]
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Because plaintiff’s
proposed class is not sufficiently definite and does not meet the requirements of Rule
23(a)(1) and (3), however, the motion will be denied. Lacy, 897 F.3d at 863 (“A class may
only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites
for class certification have been met.” (quoting Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360,
373 (7th Cir. 2015)).
I.
Class definition
As an initial matter, a plaintiff seeking class certification must show that the
proposed class “is indeed identifiable as a class.” Oshana v. Coca-Cola Co., 472 F.3d 506,
514 (7th Cir. 2006). If “there is no way to know or readily ascertain who is a member of
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the class,” then it “lacks the definiteness required for class certification.”
Jamie S. v.
Milwaukee Pub. Sch., 668 F.3d 481, 495 (7th Cir. 2012). “Cases have recognized the
difficulty of identifying class members whose membership in the class depends on each
individual’s state of mind.” Simer v. Rios, 661 F.2d 665, 669 (7th Cir. 1982). As a result,
courts are instructed that “[a] class is ascertainable when defined by objective criteria that
are administratively feasible, without a subjective determination.” McBean v. City of New
York, 228 F.R.D. 487, 492 (S.D.N.Y. 2005).
Plaintiff argues that the putative class members here are ascertainable because the
class is limited to inmates who submitted a Religious Preference Form from August 14,
2015, to the present, and are members of a recognized URG. While plaintiff’s current
class definition makes it feasible to identify the larger group of some 24,000 prisoners who
include all potential class members, that does not answer the question of whether they are
members of the class.4 To narrow that group down to class members would require an
inquiry into what constituted a cancelled congregate worship service or study group, and
who actually intended to attend. In fairness, plaintiff attempts to address the vagueness
of the class definition by adding the phrase “who have experienced or are likely to
experience a cancellation of a URG congregate religious service or study group,” but
defendant argues that whether an individual suffered a cancellation depends on the
subjective beliefs and intentions of each prisoner, especially in the context of the DOC’s
4
During discovery, West also represents he learned of at least 23,523 prisoners who submitted Religious
Preference forms in the four years leading up to the court’s screening order.
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efforts to provide alternatives to in-person services or study groups for eight different URGs
and the individual beliefs of subgroups and individuals within each URG.
Defendant in particular points to numerous gray areas within the URGs with respect
to whether the DOC actually cancelled a service or offered perfectly acceptable
alternatives.5 According to Michael Donovan, GBCI’s Chaplain, Catholics may attend a
live-stream worship service, if necessary, but only priests or deacons are permitted to lead
Catholic services. (Donovan Decl. (dkt. #27) ¶¶ 9, 15.). Therefore, a livestream of a
Catholic mass may be an acceptable alternative (particularly during the time of COVID19), but if the DOC could not provide an ordained priest or deacon for a service in person,
that could constitute a cancellation. Defendant also points out that depending on the
availability of the volunteer, services may need to be rescheduled for another day or the
volunteer may not be acceptable to some of the inmates attending a worship service,
creating questions as to whether such attempts at accommodation itself constitute a
cancellation.
Plaintiff’s reply to defendant’s examples just highlights the problem. (Pl. Reply Br.
(dkt. #33).) He primarily argues that: the DOC never took the position that the meaning
of “cancelled” may be ambiguous during settlement negotiations; and regardless, this court
can “in framing an appropriate injunction, require the parties to work out a functional
Defendant also asserts that when it entered into a settlement agreement with plaintiff, the DOC’s
position was that showing a live-stream of Jumu’ah to Muslim inmates, instead of in-person with a
volunteer, did not constitute a cancellation. In contrast, plaintiff now asserts that live streaming Jumu’ah
was “not Jumu’ah for me.” (Pertuu Decl., Ex. 104 (dkt. #32-2) 11.) Although the court agrees that the
meaning of the term “cancelled” bears on whether the class is ascertainable, it applies only insofar as
individual inmates deem services cancelled. Regardless, the DOC’s belief about whether it was adhering
to the terms of its settlement agreement with West does not make his class definition any more
ascertainable. Indeed, that dispute may not even be a class-wide right.
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meaning of ‘cancel’ and, if unsuccessful, the [c]ourt, with input from the parties, can
determine this issue.” (Id. at 4.) As laid out above, these may well be issues the court will
need to address on the merits, but the purpose of a clearly defined class seeks to avoid just
such questions as to class membership, and plaintiff’s reply gives little to no assurance that
the parties, much less possible class members, will be able to come to an agreement about
the meaning of “cancelled” that will not require individualized assessments of each
potential class member’s beliefs and treatment related to specific worship services and/or
study groups.
In Lindh v. Dir., Fed. Bureau of Prisons, No. 2:14-cv-151-JMS-WGH, 2015 WL
179793, at *3-4 (S.D. Ind. Jan. 14, 2015), the plaintiff sought to enjoin a policy
prohibiting Islamic inmates from wearing a hem or pants above the ankle under the
Religious Freedom Restoration Act. Id. at *1. The plaintiff also sought to represent a class
defined as “all male Muslim prisoners confined within the Bureau of Prisons,” or
alternatively, a narrower class defined as “all male Muslim prisoners confined within the
Bureau of Prisons who identify, or will identify, themselves as being required by their
religious beliefs to wear their pants above the ankle.” Id. In denying class certification,
the court found the description not sufficiently definite given that there was:
no evidence in the record . . . that members of the . . . class would be
ascertainable by reference to objective criteria - i.e., that male Muslim
prisoners ever specifically disclose to the BOP their position as to whether
their understanding of Islam requires them to wear their pants above their
ankles.
Id. at *4.
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The proposed class here suffers from the same problem. Although the DOC can
certainly identify inmates who are members of a URG and have filled out a Religious
Preference Form over the past five years, that only narrows the possible class members to
roughly 24,000, which even defendant agrees is larger than the actual class. Unfortunately,
defendant raises a fair -- and undisputed -- concern that there are too many inconsistencies
between the eight URGs, and among the thousands of inmates within a designated URG,
to avoid inquiring into the specific beliefs of each class member.
Accordingly, class
certification must be denied.
II.
Rule 23(a) requirements
Even assuming the court could modify the proposed class definition to address, or
were willing to put off questions as to the knotty meaning of “cancellation” of services or
study groups between URGs, subgroups and individual members, plaintiff’s proposed class
does not satisfy Rule 23(a)’s commonality and typicality requirements for much the same
reason.
A. Commonality
To meet the commonality requirement, plaintiff must show that “there are
questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). To establish
commonality, plaintiff “must assert a common injury that is ‘capable of class-wide
resolution -- which means that determination of its truth or falsity will resolve an issue that
is central to the validity of each one of the claims in one stroke.’” Lacy, 897 F.3d at 865
(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Put another way, “the
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key to commonality is ‘not the raising of common “questions” . . . but, rather, the capacity
of a class-wide proceeding to generate common answers apt to drive the resolution of the
litigation.’” Id. (quoting Wal-Mart, 546 U.S. at 350). As such, this analysis “may ‘entail
some overlap with the merits of the plaintiff’s underlying claim.’” Philips v. Sheriff of Cook
Cty., 828 F.3d 541, 550 (7th Cir. 2016) (quoting Wal-Mart, 564 U.S. at 351).
Since the common questions here do not begin to address the two inquiries pivotal
to the resolution of plaintiff’s RLUIPA claim, he cannot meet the commonality
requirement. Plaintiff identifies the common questions of law and fact as:
1. Whether Defendant had a practice of cancelling URG
congregate religious services or religious study groups
because a qualified chaplain or volunteer was not present
to lead the service or study group; and
2. Whether cancellation of congregate religious services or
study groups, under these circumstances, violates the
RLUIPA.
(Pl. Br. (dkt. #20) 14.) Plaintiff further argues, without citation, that “[e]very inmate who
was prohibited from performing his religious exercise based on Defendant’s practice would
have the same answer under RLUIPA: the practice imposed a substantial burden.” (Pl.
Br. (dkt. #33) 10.) Moreover, since he is seeking certification under Rule 23(b)(2),
plaintiff asserts that the focus should be on defendant’s practice, not on the injury to any
plaintiff, which is why “injunctive actions by their very nature often present common
questions satisfying Rule 23(a)(2).” 7A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Fed. Prac. & Proc. § 1763 (1986). However, plaintiff’s argument does not
address what answering his cited common questions of fact and law would actually
accomplish, which would appear to be very little in the context of plaintiff’s RLUIPA claim.
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To start, as previously addressed and defendant pointed out, not all class members
would provide a single answer as to whether defendant had a practice of “cancelling URG
congregate religious services or religious study groups” for want of a qualified Chaplain or
volunteer, which is central to plaintiff’s RLUIPA claim. Rather, because the eight URGs,
their sub-groups and individual members vary with respect to the acceptable modes of
carrying out communal services, some may find “cancelled” services to be completely
appropriate, or at least an acceptable compromise. Defendant again provides numerous
examples in which defendant’s alternative to an in-person leader may (or may not)
constitute a “cancellation”:
•
Since Catholic mass must be led by an ordained priest or deacon, questions include
whether a non-Catholic Chaplain leading an in-person service constitutes a
cancellation or whether a video-stream of a mass from another location constitutes
a cancellation.
•
Since Buddhist inmates typically gather every week, would it constitute a
“cancellation” if a volunteer is available only every other week.
•
Similarly, Muslim inmates differ with respect to whether a service is valid if it is
not in-person with a qualified leader.
•
Orthodox Jews may not deem a congregate service necessary if they do not follow
the worship practices of that leader’s denomination.
•
Native American volunteer leaders may not be available for a particular tradition,
so the DOC providing a member of a different tradition may or may not constitute
a cancellation.
•
Since Protestant mass generally also requires a volunteer, does the DOC’s offer of
a “joint mass” with a single leader of either (or a different faith tradition) for
Protestants and Catholics constitute a cancellation. Relatedly, if the leader of a
Protestant mass does not offer the sacraments to an inmate based on whether that
inmate was baptized within his or her faith tradition, would that be a cancellation
for that inmate?
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•
Atheists, Humanists, and Agnostics may disagree whether watching a movie or
having a discussion constitutes a service, or whether a substitute teaching that event
constitutes a cancellation.
•
Similarly, Pagans may accept a live stream as a valid service, and they may also
have an inmate read pre-approved scripts so the service is not cancelled, but some
inmates may disagree as to whether the service was cancelled if the inmate is not
sufficiently qualified.
As for the second common question, plaintiff’s position is conclusory: “Without
question, all putative class members suffered the same injury -- not being able to participate
in religious exercises that are critical to their religion.” (Pl. Br. (dkt. #20) 14.) Again,
plaintiff’s assumption that all putative class members will deem the absence of in-person
communal services a substantial burden of their religious practices is belied by (1) the factintensive inquiry necessary to resolving RLUIPA claims and (2) the unrefuted differences
among inmates regarding the significance of in-person communal services.
The relevant portion of RLUIPA states:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution, . . . even if the burden results from a rule of general
applicability, unless the government demonstrates that
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 compelling
governmental interest.
42 U.S.C. § 2000cc-1(a).
The Supreme Court further explained that a “substantial
burden” is something that “seriously violates [one’s] religious beliefs,” regardless of
whether alternative means of religious exercise are available. Holt v. Hobbs, 135 S. Ct. 853,
862 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014)).
While “seriously” provides scant more guidance than “substantial burden,” the Seventh
17
Circuit advises that it means the violation is “more than ‘modestly’ and less than
‘overwhelmingly.’” Schlemm v. Wall, 784 F.3d 362, 365 (7th Cir. 2015).
In the context of plaintiff’s claim, the question then becomes whether the
cancellation of an in-person worship service or study group (however defined) presents a
substantial burden on each class member’s religious beliefs. For plaintiff to satisfy the
commonality requirement, therefore, he would need to make some showing that it is
possible to answer this question for all inmates within the class with a straightforward “yes”
or “no” and without the need for significant, individual inquiry. Given the breadth of the
proposed class, the contrary is true. Plaintiff does not attempt to refute defendant’s
evidence of the varying ways in which inmates -- even those designating the same URG -hold different, sincerely held beliefs with respect to what constitutes congregate worship
services and study groups, nor could he. Again, Catholics and Protestants differ as to
whether they must attend mass weekly or just for religious holidays. Regardless, according
to multiple DOC officials, the majority of the inmates who submit a Religious Preference
form do not routinely attend services or study groups, even when offered. (See McKenzie
Decl. (dkt. #31) ¶ 9; Donovan Decl. (dkt. #27) ¶ 7; O’Boyle Decl. (dkt. #29) ¶ 6; Willard
West Decl., Ex. 100 (dkt. #30-1) 2.) Furthermore, over the four years of the parties’
settlement agreement, an inmate’s belief in the importance of congregate services and study
groups may have changed. More practically, if the proposed class were to be certified, the
court has no basis to infer that evidence about the significance of attending in-person
weekly communal services to plaintiff applies to other Muslim inmates, much less any
inmates belonging to a different URG. As such, common actions, such as designating a
18
URG within four years of the screening order and having congregate religious services or
study groups cancelled, would not “actually advance all of the class members’ claims.”
Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 550-51 (7th Cir. 2016) (affirming
decertification of class of detainees bringing Eighth Amendment deliberate indifference
claims related to delayed dental care, since analysis of the claims required consideration of
different dental issues, prison staff and medical professionals, as well as types of
deficiencies); see also McFields v. Dart, No. 20-1391, 2020 WL 7223689 (7th Cir. Dec. 8,
2020) (affirming denial of class certification of proposed class of detainees bringing claims
of inadequate dental care at Illinois’ Cook County Jail, since resolution of the claims
involves an individualized inquiries into the circumstances of the dental care).
Finally, plaintiff cites multiple cases for the proposition that there is a presumption
of commonality in cases seeking injunctive relief. See Monroe v. Bombard, 422 F. Supp. 211
(S.D.N.Y. 1976) (granting class certification and awarding injunctive relief, concluding
that prison beard regulations violated the religious freedoms of Sunni Muslims); Parsons v.
Ryan, 754 F.3d 657 (9th Cir. 2014) (finding commonality requirement met and certifying
Rule 23(b)(2) class in challenge to conditions of confinement); Olson v. Brown, 284 F.R.D.
398 (N.D. Ind. 2012) (inmate class met commonality requirement for claims challenging
adequacy of law library access and opening prisoner mail from legal institutions and
attorneys, and granting injunctive and declaratory relief); see also Lacy, 897 F.3d at 847
(affirming grant of permanent injunctive relief and finding specifically that commonality
requirement was met with respect to detainees’ structural barriers for ADA claim).
19
However, only one of these cases involved common questions related to religious
beliefs. Monroe, 422 F. Supp. 211. And even Monroe is not particularly helpful to plaintiff,
since the proposed class in that case was decidedly narrower than plaintiff’s proposed class
here: the class was limited to followers of the “Orthodox Islam religion, commonly known
as Sunni Muslims,” id. at 215, and the court further limited the class to “all inmates . . .
who are Sunni Muslims required to grow beards as part of their religious observance,” id.
at 219.
On its face, plaintiff’s proposed class is substantially broader, not only
encompassing all Muslim inmates, but all inmates that have designated a URG and faced
the possibility of a cancelled congregate service or study group, without any consideration
as to whether such a service or group study is part of that URG’s, subgroup’s or individual’s
belief system.
In Lindh, No. 2:14-cv-151-JMS-WGH, 2015 WL 179793, defendant further points
out that the District Court for the Southern District of Indiana similarly found that that
the proposed class was not only indefinite, but failed to meet the commonality and
typicality requirements. In particular, the court held that the broadest class failed both
requirements because “the undisputed evidence in the record is that not all male Muslim
prisoners share this religious belief on this issue,” and thus the plaintiff failed to show “the
[proposed] class members have suffered the same injury.” Id. at *6. The court also held
that individualized assessments were necessary even as to a narrowed class, thus, again
failing to meet commonality and typicality requirements, explaining that “[a]nalyzing
individualized factors to determine the parameters of individual claims is the antithesis of
typicality.” Id. (citing Puffer v. Allstate Ins. Co., 255 F.R.D. 450, 469 (N.D. Ill. 2009)
20
(“Where, as here, a court would have to examine numerous individualized factors to
determine the parameters of individual claims, the typicality requirement is not met.”)
(citing Payton v. County of Carroll, 473 F.3d 845, 854 (7th Cir. 2007))).
Plaintiff’s proposed class here is far broader than even the plaintiff’s broadest
proposed class in Lindh, and he has not suggested any practical basis to narrow it.6 While
the plaintiff in Lindh was seeking certification under Rule 23(b)(3), not Rule 23(b)(2) as
plaintiff seeks here this case remains instructive. Plaintiff’s focus on the DOC’s actions in
particular does not account for the individualized nature of a RLUIPA claim, which is fatal
to his request, especially given the breadth of the class he seeks to represent. Accordingly,
the court find that plaintiff has failed to meet the commonality requirement.
B. Typicality
For much the same reason, the result is the same as to the typicality requirement of
Rule 23(a)(3). To meet this requirement, plaintiff must show that his claims have “the
same essential characteristics as the claims of the class at large.” Lacy, 897 F.3d at 866
(quoting Oshana, 472 F.3d at 514). In other words, plaintiff’s claim must “arise[] from the
same event or practice or course of conduct that gives rise to the claims of other class
members and [is] based on the same legal theory.” Id. (quoting Rosario v. Livaditis, 963
F.2d 1013, 1018 (7th Cir. 1992)).
To the contrary, plaintiff’s counsel notes that the plaintiff considers himself responsible for
representing the interests of all DOC prisoners, not just those who have designated the Islamic URG or
share his belief about the significance of in-person congregate worship services or study groups. (Pl. Br.
(dkt. #20) 6.) Were he willing to narrow the proposed class in both respects, it might become
manageable, although in the end it might not accomplish more than plaintiff could alone in terms of the
breadth of any injunctive relief.
6
21
Plaintiff argues that there are no differences between his claims and those of the
members of the putative class, asserting that “[w]hile religious services may vary based
upon the religion involved, the centrality of the services or study group to the practice does
not.” (Pl. Br. (dkt. #20) 15.) Plaintiff cites no evidence to support this finding, nor does
he confront defendant’s abundant evidence to the contrary, both among and within the
eight URGs, as to whether in-person services and study groups is an integral aspect of any
given religious practice and what they would entail. Indeed, defendant points out that
many inmates who have submitted Religious Preference Forms have never attempted to
attend a service, and even more specifically, the undisputed evidence shows that for any
given service, a majority of prisoners that identify with the URG do not attend.
For instance, in 2019, at DOC’s Taycheedah Correctional Institution, a third of the
prisoners with a designated URG attended services at most: 15 out of 94 Catholic URG
prisoners;
5
out
of
36
Eastern
Religion
URG
prisoners;
10
out
of
29
Humanist/Atheist/Agnostic; 4 out of 16 Islamic URG prisoners; 3 out of 14 Jewish URG
prisoners; 31 out of 95 Native American/American Indian; 9 out of 77 Pagan URG
prisoners; and 100 out of 486 Protestant URG prisoners. So, too, at GBCI in 2019, only
65-75 inmates who self-identified as Protestant, attended congregate services out of a
possible 475. This evidence suggests that the designation of a URG does not equate to
belief that in-person worship services is central tenant of their faith, or even of substantial
value, meaning that the analysis of West’s RLUIPA claim is, if not unique to him, then
certainly to some subset of numbers of the Islamic URG. Defendant also repeats its
concern about the individualized nature as to whether the DOC’s alternatives constitute a
22
cancellation, pointing out that while West considers any services without an imam a
cancellation, he has not shown that this belief is consistent across all inmates in identifying
with the Islamic URG designation, much less any other faith covered by the eight URGs.
Plaintiff does not have a satisfying response to these assertions, beyond noting that
the focus of typicality should be on the defendant’s action, not plaintiff.
Again, this
argument both incorrectly assumes that West’s practices are the same as all inmates who
have submitted URG designations within the past four years and ignores that plaintiff’s
RLUIPA claim requires an initial assessment of the impact of the defendant’s conduct on
the ability to practice sincerely held religious beliefs.
Moreover, assuming that plaintiff’s personal views towards in-person congregate
worship services did apply to all class members, and plaintiff can prove that the DOC’s
practices related to in-person, congregate services and study groups places a substantial
burden on all members’ religious practices, only then would the burden shift to defendant
to establish that this burden furthers a compelling government interest using the least
restrictive means.
And, even then, this test must account for: (1) West’s particular
conditions of incarceration and sincerely held religious belief with respect to communal
worship in particular; and (2) the various approaches taken at the different DOC
institutions.
Courts cannot avoid these individual interests when adjudicating RLUIPA claims.
Indeed, as the Supreme Court recognized in Cutter v. Wilkinson, 544 U.S. 709 (2005):
We have no cause to believe that RLUIPA would not be applied in an
appropriately balanced way, with particular sensitivity to security concerns.
While the Act adopts a “compelling governmental interest” standard, . . .
“context matters” in the application of that standard. Lawmakers supporting
23
RLUIPA were mindful of the urgency of discipline, order, safety, and security
in penal institutions. They anticipated that courts would apply the Act’s
standard with “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 (internal citations omitted). Accordingly, plaintiff also has failed to make a
showing that his own conditions are consistent with those across all DOC institutions. See
Martinez v. Brown, No. 0-cv-565, 2011 WL 1130458, at *10 (S.D. Cal. Mar. 25, 2011)
(finding plaintiff’s RLUIPA claim not typical of putative class members, noting that when
“proof of liability requires individualized inquiry” a common legal theory cannot establish
typicality”) (citing Elizabeth M. v. Montenez, 458 F.3d 779, 787 (8th Cir. 2006).
Accordingly, plaintiff has failed to establish that his claim is typical of those within the
putative class, and the court is denying plaintiff’s motion for class certification.
III.
Other Considerations.
Without reaching the question of adequacy, the court would certainly have found
that Attorney Modl could adequately represent the class as counsel, but is far less
comfortable as to West acting as class representative. Indeed, given West’s apparent
position that there is no acceptable substitute for in-person worship services and study
groups — not only with respect to his own beliefs, but for his URG, much less other URGs
or individuals — the evidence that some portion of the proposed class members would
disagree and West’s failure to adduce any evidence suggesting otherwise, leaves the court
with real concerns that West’s interests may be unique, at least among prisoners that have
designated a different URG, if not within the Islamic URG itself. Added to this concern,
24
West’s breach of contract claim is unique to him, which may further impact his ability to
focus the litigation on the interests of the class, rather than his own.
Finally, in addition to all of the concerns above that would have complicated
certification of any class, there is the question as to whether the bang would be worth the
buck here, since both of West’s claims would appear to allow relief that would be binding
on the DOC for those similarly situated as a matter of claim and issue preclusion, if not in
the terms of any injunction itself. While the court’s denial of class certification does not
turn upon these other considerations, they further its reticent to grant his motion.
ORDER
IT IS ORDERED that plaintiff Rufus West’s motion for class certification (dkt.
#19) is DENIED.
Entered this 21st day of December, 2020.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
25
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