Blake, Thomas v. Donovan, Michael et al

Filing 34

ORDER that Defendants' motion for partial summary judgment on exhaustion grounds, Dkt. 21 , is GRANTED in part. Plaintiff Thomas Blake's claims about the denial of prayer oils are DISMISSED without prejudice. Plaintiff's motion for a decision on defendants' summary judgment motion, Dkt. 30 , is GRANTED. Plaintiff's motion to be considered an expert, Dkt. 13 , is DENIED without prejudice. Defendants' motion to amend the schedule, Dkt. 33 , is GRANTED. The dispositive-motions deadline is extended to March 15, 2019. Signed by District Judge James D. Peterson on 02/07/2019. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THOMAS J. BLAKE,

v.

Plaintiff,
ORDER

MICHAEL DONOVAN, KELLI R. WILLARD-WEST,
SCOTT ECKSTEIN, JODIE PERTTU,
and BRADLEY HOMPE,

17-cv-774-jdp

Defendants. 1
Plaintiff Thomas Blake, a state of Wisconsin prisoner currently housed at Green Bay
Correctional Institution, alleges that prison officials are violating his right to practice the Asatru
religion by prohibiting him from possessing certain religious items, in violation of the Religious
Land Use and Institutionalized Persons Act (RLUIPA), the Free Exercise and Establishment
clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth
Amendment.
Currently before the court are motions from both sides: defendants have filed a motion
for partial summary judgment contending that Blake failed to exhaust his administrative
remedies with regard to some of his claims. Blake has filed a motion asking to be considered as
an expert witness on Asatru and more generally on Pagan religions. 2

1

I have amended the caption to provide the full names defendants Perttu and Hompe, as stated
by counsel in the state’s acceptance of service.
2

Asatru falls under the Pagan “umbrella” religious group organized by the DOC.

A. Exhaustion
Defendants seek summary judgment on exhaustion grounds concerning two sets of
Blake’s claims: his claims regarding the deprivation of prayer oil, and his claims against
defendant grievance examiners Jodie Perttu and Bradley Hompe. 3
Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to
prison conditions . . . until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory and “applies to all inmate
suits.” Woodford v. Ngo, 548 U.S. 81 (2006); Porter v. Nussle, 534 U.S. 516, 524 (2002). The
exhaustion requirement’s primary purpose is to “alert[ ] the state” to the problem “and invit[e]
corrective action.” Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).
Section 1997e(a) requires “proper exhaustion,” Woodford, 548 U.S. at 93; Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which means that the prisoner must follow
prison rules when filing the initial grievance and all necessary appeals, “in the place, and at the
time, the prison’s administrative rules require.” Burrell v. Powers, 431 F.3d 282, 284–85 (7th
Cir. 2005). “[A] prisoner who does not properly take each step within the administrative
process has failed to exhaust state remedies.” Pozo, 286 F.3d at 1024. The Wisconsin
Department of Corrections uses a four-step process called the Inmate Complaint Review
System (ICRS) to review inmate grievances. See Wis. Admin. Code Ch. DOC 310.
Because exhaustion is an affirmative defense, defendants bear the burden of establishing
that Blake failed to exhaust his available remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). At
the summary judgment stage, they must show that there is no genuine dispute of material fact

3

Blake has filed a motion asking for a decision on defendants’ summary judgment motion.
Dkt. 30. That motion will be granted.

2

and that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
First, the prayer-oil claims. Blake filled out a “Request for New Religious Practice or
Property” form asking for new types of Pagan prayer oil to be allowed. At the conclusion of the
multi-step process in which those types of requests are reviewed, Blake’s request was denied;
prison officials said that there were already different types of approved oils that he could use.
He filed a grievance about the deprivation of his prayer oil. But after the grievance was
dismissed, he didn’t file an appeal. That would ordinarily be enough to grant defendants’
motion, because Blake did not exhaust all the steps of the ICRS process.
Blake contends that he thought his administrative remedies were already exhausted
because of the final response he got on his religious-item-request form: the official checked the
boxes “ISSUE IS MOOT” and “allowable under current policy or pending policy revision.”
Dkt. 23-2. The official did not check the box stating that the request was denied and that the
inmate could file a grievance.
Because inmates must exhaust only remedies that are “available” to them, courts have
sometimes excused an inmate’s failure to complete the exhaustion process where the inmate is
led astray by confusing regulations or incorrect directions from prison officials. See, e.g., Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (“Prison officials may not take unfair advantage
of the exhaustion requirement . . . and a remedy becomes ‘unavailable’ if prison employees do
not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a
prisoner from exhausting.”); Naseer v. Belz, No. 13-cv-821-jdp, 2015 WL 519760, at *2 (W.D.
Wis. Feb. 9, 2015) (denying summary judgment to prison officials unable to explain why failure

3

to exhaust under one grievance system was dispositive, where grievance was routed though
separate grievance mechanism).
Here, the choice of the “moot” option as the final response to Blake’s religious-item
request was not ideal. Prison officials didn’t really mean that Blake’s request was moot, because
Blake was in fact denied the item he actually wanted. Their point was that various oils were
already available to him under existing policies. But that response is not reason to deny
defendants’ summary judgment motion. Given the facts here, no reasonable factfinder could
conclude that Blake was misled into thinking he had done all he could do, because he didn’t
stop when he received that denial. He went on to file a grievance about the denial, so it is clear
that he knew that option was available to him. Blake’s failure to follow though with the entire
ICRS process cannot be blamed on the religious-item-request form.
Blake also argues that the religious-item-request process was enough to exhaust his
administrative remedies, because that process included a denial by defendant Kelli WillardWest on the Religious Practice Advisory Committee. Blake suggests that Willard-West was,
practically speaking, the final DOC authority on religious items, so it makes no sense to force
him to exhaust through the ICRS system, when the chaplain, warden, and institution or
corrections complaint examiners could not overrule Willard-West. I’m not convinced that the
officials Blake names would truly be forbidden from overruling a decision by Willard-West in
the religious-item-request process. But regardless, Blake leaves out the final decision-maker in
the ICRS system, the secretary of the DOC, who clearly has final say over department
operations. So I reject Blake’s argument that Willard-West’s decision should be considered to
be the last step in the exhaustion process. I conclude that Blake failed to exhaust his available
administrative remedies on his prayer-oil claims, so I will grant defendants’ motion for

4

summary judgment on those claims. That dismissal will be without prejudice. Ford v. Johnson,
362 F.3d 395, 401 (7th Cir. 2004) (dismissal for failure to exhaust is always without prejudice).
This means that Blake can refile his prayer-oil claims if he can successfully exhaust them.
The second set of claims on which defendants seek summary judgment is a series of
claims against defendants Perttu and Hompe. I granted Blake leave to proceed on
constitutional claims against them in their roles as grievance examiners for intentionally failing
to consider each religious-item grievance on its own merit.
Defendants contend that Blake failed to exhaust his administrative remedies on those
claims by failing to file a grievance directly about Perttu’s and Hompe’s actions. 4 But
defendants do not develop this argument: they do not cite to any legal authority showing that
claims against grievance examiners for failing to stop a deprivation of an inmate’s constitutional
rights must be exhausted separately from the grievances directly about the deprivation. And
this argument runs counter to cases stating that a prisoner need not name any particular
defendant in a grievance to properly exhaust his claim, Jones v. Bock, 549 U. S. 199, 219 (2007),
and that a prisoner is not required to mention each specific instance in a chain of misconduct
by prison officials, Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). So I conclude that
defendants have not met their burden to establish that Blake failed to exhaust his
administrative remedies on his claims against Perttu and Hompe, and I will deny defendants’
motion for summary judgment on those claims.

4

Blake says that he concedes his claims against Hompe are unexhausted because he did not
file a grievance against him. Dkt. 26, at 1. But as stated in this opinion, he was not required to
formally name Hompe in a grievance, and I do not have to accept Blake’s incorrect
interpretation of the law, particularly given that he is appearing pro se.

5

Defendants have filed a motion to amend the March 1, 2019 dispositive-motions
deadline to give the parties more time to file dispositive motions after the issuance of an order
on the exhaustion motion. Dkt. 33. Defendants alternatively ask for 30 or 45 days from the
exhaustion decision. I will move the deadline to March 15, 2019.
B. Motion to present expert testimony
Blake has filed a motion to be considered as an expert in Pagan and Asatru theology.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999), the court must serve as a gatekeeper to ensure that
proffered expert testimony meets the requirements of Federal Rule of Evidence 702.
Defendants say that it is “problematic” under Rule of Evidence 403 for Blake to testify
as an expert on his own behalf, arguing that his testimony will likely be more prejudicial than
probative. I take their point that Blake has incentive to provide self-serving expert testimony,
but I’m not convinced that this alone is a reason to deny the motion: the court has allowed
DOC defendants to testify as experts in the fields of medicine or prison security before.
I will deny Blake’s motion, without prejudice, for two reasons: (1) he did not provide a
summary of what he would testify about until his reply brief, so defendants did not have a
chance to address the substance of his proposed testimony in their response; and (2) it is
premature to know whether Blake’s testimony will assist the court or jury with deciding a
relevant issue. See Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). Given recent
developments in religious-freedom cases, it is unclear that it will ultimately matter whether
Blake is an expert in Paganism or Asatru; the important question is whether prison officials are
burdening Blake’s own religious practices. See Holt v. Hobbs, 135 S. Ct. 853, 862–63 (2015)
(“the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is not

6

limited to beliefs which are shared by all of the members of a religious sect.” (internal quotation
omitted)); Tanksley v. Litscher, No. 15-cv-126-jdp, 2017 WL 3503377, at *6 (W.D. Wis. Aug.
15, 2017) (“Under Holt, RLUIPA protects every religious preference, no matter how
idiosyncratic or how minor to the inmate’s professed religion.”).
Blake should be aware that even without being declared an expert, he is already free to
testify about his own religious practices or personal knowledge of events that he has been
involved in. He may renew his motion to present expert testimony, but if he does so, he should
explain what parts of his testimony he considers to be expert testimony as opposed to testimony
about his firsthand experiences practicing Asatru or Paganism. He should also explain how he
believes that his proposed expert testimony will assist the court or jury with deciding a relevant
issue.

7

ORDER
IT IS ORDERED that:
1. Defendants’ motion for partial summary judgment on exhaustion grounds, Dkt. 21,
is GRANTED in part. Plaintiff Thomas Blake’s claims about the denial of prayer
oils are DISMISSED without prejudice.
2. Plaintiff’s motion for a decision on defendants’ summary judgment motion, Dkt. 30,
is GRANTED.
3. Plaintiff’s motion to be considered an expert, Dkt. 13, is DENIED without
prejudice.
4. Defendants’ motion to amend the schedule, Dkt. 33, is GRANTED. The dispositivemotions deadline is extended as stated in the opinion above.
Entered February 7, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

8