The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA W. KRUGER, )
)
Plaintiff, )
)
v. ) Case No. 19-cv-268-RJD
)
JOHN R. BALDWIN, et al., )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff Joshua Kruger, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were
violated while he was incarcerated at Menard Correctional Center (“Menard”) and Pontiac
Correctional Center (“Pontiac”). Plaintiff alleges the practice of his religion was burdened
insofar as he was not allowed to possess runestones or runic flashcards, have monthly feast trays,
participate in congregate worship, or wear religious medallions. Plaintiff also alleges he advised
staff and wrote grievances concerning these limitations, but to no avail. Plaintiff’s original
complaint was screened under 28 U.S.C. §191A, and he was subsequently allowed to file two
amended complaints. Plaintiff now proceeds on the following claims set forth in his Third
Amended Complaint (Doc. 125):
Count One: First Amendment claim against Jeffreys, Baldwin, Butler, Lashbrook,
Keim, Williams, Adamson, McCarty, Beekman, Walker, Parrack, Easton,
Lambert-Goheen, Norman-Rees, Claycomb, Wilhelm, and Harner for
refusing to allow Plaintiff to fully practice his Asatru-Odinist faith by
prohibiting him from possessing runestones or runic flashcards, disallowing
congregate worship, and denying religious feast trays.
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Count Two: RLUIPA claim against Jeffreys, Baldwin, and Keim for refusing to allow
Plaintiff to fully practice his Asatru-Odinist faith by prohibiting him from
possessing runestones or runic flashcards, disallowing congregate worship,
and denying religious feast trays; and
Count Three: First Amendment and RLUIPA claim against Jeffreys, Baldwin, Butler,
Hutchinson, Lashbrook, Wills, and Ewert for enacting, adopting, and/or
enforcing a policy and practice of refusing all Asatru-Odinist prisoners the
right to wear their religious medallions while at Menard.
The Warden of Pontiac, Teri Kennedy, was added as a defendant only in her official
capacity for the purpose of carrying out any injunctive relief. Pursuant to Federal Rule of Civil
Procedure 25(d), the current Warden of Pontiac, Mindi Nurse, has been automatically substituted
in her place.
Defendants filed a motion for summary judgment that is now before the Court (Doc. 151).
Plaintiff filed a timely response (Doc. 154). For the reasons set forth below, the Motion is
GRANTED IN PART AND DENIED IN PART.
As a preliminary matter, the Court addresses some ambiguities present in the
characterization of Count Three. First, as set forth in the Court’s initial screening order (Doc. 10),
the RLUIPA portion of the claim survives only as to Baldwin. Second, although the First
Amendment claim references the enactment, adoption, or enforcement of a “policy and practice,”
based on the inclusion of multiple defendants and the allegations against the same, the Court
clarifies that said claim has only been allowed to proceed against the named Defendants (Jeffreys,
Baldwin, Butler, Hutchinson, Lashbrook, Ewert, and Wills) in their individual capacities. The
Court’s analysis below will reflect the same.
I. Legal Standard
Summary judgment must be granted “if the movant shows that there is no genuine dispute
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as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind.,
Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the
light most favorable to the nonmoving party and draw all reasonable inferences in favor of that
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Chelios v. Heavener, 520 F.3d
678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to show the
court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712
F.3d 1166, 1168 (7th Cir. 2013). The moving party may satisfy its burden of production in one of
two ways. It may present evidence that affirmatively negates an essential element of the
non-moving party’s case, see Fed. R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence
to support an essential element of the non-moving party’s case without actually submitting any
evidence, see Fed. R. Civ. P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at
1169. Where the moving party fails to meet its strict burden, a court cannot enter summary
judgment for the moving party even if the opposing party fails to present relevant evidence in
response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings, but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere
existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by
“some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
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Corp., 475 U.S. 574 (1986). Rather, a genuine issue of material fact exists only if “a fair-minded
jury could return a verdict for the [nonmoving party] on the evidence presented.” Anderson, 477
U.S. 252.
II. Exhaustion of Administrative Remedies
Defendants first argue Plaintiff failed to exhaust his administrative remedies prior to filing
this lawsuit. Plaintiff asserts Defendants waived this affirmative defense and they should not be
entitled to summary judgment on this basis.
Plaintiff filed this action on March 6, 2019. Defendants Baldwin, Butler, Hutchinson,
Lashbrook, Keim, Harner, and Kennedy were served and filed their answer on November 1, 2019
(Doc. 32). In their answer, Defendants pled the affirmative defense of exhaustion of
administrative remedies. An Initial Scheduling and Discovery Order was entered on November
26, 2019 (Doc. 36). Pursuant to said Order, Defendants were directed to file any motions for
summary judgment on the issue of exhaustion of administrative remedies by January 28, 2020.
This Order also indicated that any subsequently added parties were to file any motions for
summary judgment for failure to exhaust administrative remedies within 60 days from the date the
party files its answer.
On January 31, 2020, Defendants Baldwin, Butler, Harner, Hutchinson, Keim, Kennedy,
and Lashbrook filed a motion to withdraw their affirmative defense of exhaustion that was granted
(Docs. 48 and 51).
Plaintiff subsequently filed a Second Amended Complaint that identified the John Doe
Defendants as Alyssa Williams, George Adamson, Leslie McCarty, Echo Beekman, Lu Walker,
Jennifer Parrack, Christopher Easton, Lauren Lambert-Goheen, Karen Norman-Rees, James
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Claycomb, and Chase Wilhelm (Doc. 56). Plaintiff was allowed to file a Third Amended
Complaint on March 26, 2021 that named as additional defendants Anna Ewert, Anthony Wills,
and Robert Jeffreys (Docs. 124 and 125). Defendants filed their answer to the Third Amended
Complaint on May 27, 2021, wherein they set forth an affirmative defense of exhaustion of
administrative remedies. Defendants were subsequently granted leave to file an amended answer
that invoked a statute of limitations affirmative defense.
The Court entered a Scheduling Order on April 6, 2021, following the filing of Plaintiff’s
Third Amended Complaint (Doc. 129). This Scheduling Order was directed at discovery on the
merits of the case and indicated that any dispositive motions on the merits of Plaintiff’s claims
were to be filed by March 4, 2022. This deadline was extended on request of Defendants, and
they ultimately filed their motion for summary judgment now before the Court on April 18, 2022
(Docs 151 and 152).
In their motion for summary judgment, Defendants assert that although the Seventh Circuit
prefers that exhaustion issues be resolved before the parties conduct merits discovery and move for
summary judgment, it held in White v. Bukowski, 800 F.3d 392 (7th Cir. 2015), that the issue can
be considered at a later date under certain circumstances. In Bukowski, the Seventh Circuit
allowed Defendants to raise the affirmative defense of exhaustion about a year and a half into
merits discovery. Id. at 394. In so doing, the Seventh Circuit remarked that the defendants
raised the defense in their answer to the plaintiff’s complaint and there was no indication that the
defendants’ delay in pursuing said defense harmed the plaintiff.
The circumstances here are distinguishable from those relied on in Bukowski. First, it
does not appear there was any deadline to file a motion for summary judgment on the issue of
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exhaustion imposed by the Court in Bukowski. Here, the Court’s Initial Scheduling and
Discovery Order not only imposed a deadline of January 28, 2020 to file dispositive motions on
the issue of exhaustion, but it directed late-appearing parties, such as defendants added through an
amended complaint, to file any such motions within 60 days of filing an answer.
As stated by the Seventh Circuit in Bowman v. Korte, “[s]cheduling orders and
court-imposed deadlines matter.” 962 F.3d 995, 998 (7th Cir. 2020). Federal Rule of Civil
Procedure 6(b)(1)(B) is clear that “[w]hen an act may or must be done within a specified time, the
court may, for good cause, extend the time … on motion made after the time has expired if the
party failed to act because of excusable neglect.”
Defendants in this instance clearly failed to act in accordance with this Court’s Orders in
filing a motion for summary judgment on the issue of exhaustion. Despite the untimeliness of
their motion, they make no effort to set forth any good cause or excusable neglect to allow for
consideration of the issue1.
Defendants’ failure to establish excusable neglect and good cause in this instance is even
further complicated by the fact that a number of defendants – Baldwin, Butler, Harner,
Hutchinson, Keim, Kennedy, and Lashbrook – withdrew their affirmative defense of exhaustion.
While the Court understands Defendants’ position that said defense was reasserted in their answer
to Plaintiff’s Third Amended Complaint, the Court finds this circumstance, at the very least,
caused unnecessary and avoidable confusion, particularly when considering Plaintiff’s status as a
pro se litigant. Plaintiff represents that because of Defendants’ affirmative withdrawal of the
1 In Thompson v. Swisher, Case No. 19-cv-1058-RJD, 2022 WL 2817438 (S.D. Ill. July 19, 2022), the undersigned
allowed the defendants to file a motion for summary judgment on the issue of exhaustion of administrative remedies
after time had expired. Thompson is easily distinguishable from the case at hand. In particular, in Thompson, the
plaintiff failed to respond to said motion or demonstrate any harm caused by the late filing, and the defendants had
never sought to withdraw the defense.
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defense of exhaustion he did not conduct any further discovery regarding the same, and that he was
“sandbagged” with the filing of the motion now at bar. The Court agrees and finds that due to
Defendants’ failure to bring this issue to the Court within the time prescribed, Plaintiff was
necessarily hindered in his ability to conduct discovery on the issue. The Court also notes
Defendants were granted leave and filed an amended answer on March 3, 2022. The filing of this
amended answer did not “reset” the 60-day timeframe in which they were required to file
dispositive motions on the issue of exhaustion. The amended answer only allowed Defendants to
set forth an affirmative defense invoking the statute of limitations.
Based on the foregoing, the Court finds that Defendants’ invocation of their affirmative
defense of exhaustion of administrative remedies is untimely, and the substance of the argument
cannot be considered. Summary judgment will not be awarded on this basis.
III. Statute of Limitations
Defendants assert Plaintiff’s claims arising from his incarceration at Pontiac Correctional
Center (“Pontiac”) are barred by the statute of limitations. In support of this argument,
Defendants assert the record is void of any written grievances or requests from Plaintiff to the
chaplain for runestones or seeking to congregate to worship from November 2013 to October
2015. Defendants further assert Plaintiff’s last request for religious trays at Pontiac was on July 6,
2015, and urges the Court to adopt this date as the accrual date for his religious tray claim. Based
on these dates, Defendants assert Plaintiff’s filing date of February 28, 2018 was out of time.
Plaintiff disagrees, and argues July 6, 2015 should not be the accrual date for his cause of
action because Chaplain Kennell responded to said request indicating he would respond to the
same after he received advice from Chaplain Keim and the Religious Practice Advisory Board
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(“RPAB”). Plaintiff asserts he never received a further response from Kennell and, as such, his
statute of limitations period has not expired.
Relevant Facts
Plaintiff transferred to Pontiac in November 2013 (Deposition of Joshua Kruger, Doc.
152-1 at 3). Plaintiff testified he sought approval for High Holy Day religious feast trays in 2014
or 2015 through correspondence with Chaplain Kennell (who is deceased and no longer a
defendant) (id at 5-6). The record includes a letter dated March 1, 2015, from Plaintiff to
Chaplain Kennell inquiring about said feast trays (see Doc. 152-3 at 3-4). Chaplain Kennell
responded to Plaintiff on March 3, 2015, indicating that Plaintiff’s request was being forwarded to
Defendant Chaplain Keim, the Chief Chaplain of IDOC, for advice (Declaration of Joshua Kruger,
Doc. 154 at p. 24, ¶ 30); see Doc. 154 at 33). Plaintiff wrote another letter directed to Defendant
Chaplain Keim on July 6, 2015, asking for an update on his request for religious feast trays (Doc.
152-3 at 5-7). Plaintiff attests he also spoke with Chaplain Kennell inquiring about his ability to
possess runestones, and Chaplain Kennell told Plaintiff they are not allowed pursuant to IDOC
policy (Doc. 154 at p. 24 at ¶ 31).
The record also includes two grievances submitted by Plaintiff on January 8 and January
29, 2018 (Doc. 152-4 at 1-7). In these grievances, Plaintiff asserts he is experiencing a
“continuing violation” of his religious right to practice his faith and complains that the Religious
Practice Advisory Board (“RPAB”) and Chaplain Keim have failed to respond or act on Plaintiff’s
requests to fully practice his faith. Plaintiff specifically mentions the possession of runestones,
ability to engage in group worship, and the ability to receive feast trays on High Holy Days.
Plaintiff transferred from Pontiac to Menard Correctional Center (“Menard”) in October
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2015 (Doc. 152-1 at 6).
Discussion
Although § 1983 does not contain an express statute of limitations, it is well established in
this Circuit that the limitations and tolling laws in the state where the alleged injury occurred are
applied. Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992). Illinois law prescribes that actions
for personal injury must be commenced within two years after the cause of action accrued; thus,
this case is governed by a two-year statute of limitations period. 735 ILCS § 5/13-202; see Ashafa
v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998) (citations omitted).
Defendants assert that because Plaintiff was transferred from Pontiac to Menard in October
2015, all of his Pontiac claims had to accrue, at the latest, by the date of his transfer. Defendants
further conclude that because Plaintiff failed to attempt to exhaust his administrative remedies,
there was no tolling of the limitations period and, as such, his filing of this lawsuit on February 28,
2018 was beyond the allowable limitations period and such claims are barred.
Accrual of claims is governed by federal law. Savory v. Lyons, 469 F.3d 667, 672 (7th
Cir. 2006). A claim accrues when the plaintiff knows or should know that his or her
constitutional rights have been violated. Id. (internal quotation omitted). A court engages in a
two-part inquiry to determine the accrual of a claim. Id. (citation omitted). First, a court must
identify the injury. Then, the court must determine the date on which the plaintiff could have
sued for that injury. Id. (internal quotation omitted). The Seventh Circuit, however, recognizes
the “continuing violation doctrine,” with regard to claim accrual. The continuing violation
doctrine is applicable in instances when the state actor has a policy or practice that brings with it a
fresh violation each day. Id. (citations omitted). The Court finds this doctrine applicable in this
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instance. Although Plaintiff references both Pontiac and Menard in his complaint, the claims
arising from each facility are not distinct and are based on what appears to be an IDOC-wide
policy or practice rather than a policy or practice specific to Pontiac. Defendants have not pointed
to discrete acts attributable only to Pontiac. There also does not appear to be a defendant whose
claims arise from actions taken solely at, and attributable to Pontiac. The crux of Plaintiff’s
complaint is the implementation or maintenance of system-wide practices or policies that Plaintiff
contends inhibit his ability to practice his religion. These policies appear to be ongoing at least
through the date of filing. Thus, this case presents a scenario in which there is a “fresh violation”
each day. In other words, this is an instance where it would be unreasonable to require Plaintiff to
file a lawsuit each time he was denied the religious accommodations he sought from the IDOC.
See Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001) (“This refusal [to treat the plaintiff’s
medical condition] continued for as long as the defendants had the power to do something about
his condition, which is to say until he left the jail. Every day that they prolonged his agony by not
treating his painful condition marked a fresh infliction of punishment that caused the statute of
limitations to start running anew.”).
For these reasons, the Court finds Plaintiff’s claims arising from his incarceration at
Pontiac are not barred by the statute of limitations and summary judgment is not warranted on this
basis.
IV. Personal Responsibility
Defendants assert that aside from Defendant Ewert, the record is void of evidence that the
alleged constitutional deprivations Plaintiff complains of occurred at their direction or with their
knowledge or consent. Defendants assert there is no evidence they personally reviewed or
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responded to any grievances or responses to grievances, or reviewed any letters submitted to the
chaplains. Defendants Wills and Jeffreys assert that insofar as they, or someone with their
signature authority, reviewed Plaintiff’s May 29, 2020 grievance regarding his Valnut medallion,
this is insufficient to establish personal involvement. No affidavit was submitted by Wills or
Jeffreys to support this assertion.
Plaintiff disagrees and asserts that Defendants failed to contradict his deposition testimony
and declaration regarding Defendants’ personal involvement. Plaintiff also points to the 2015
letter in the record to Chaplain Keim, as well as other letters and documents that Plaintiff argues
demonstrates knowledge of the claims at issue by Defendants.
Relevant Facts
As mentioned above, following his transfer to Pontiac in November 2013 (Doc. 152-1 at
3), Plaintiff sought approval for High Holy Day religious feast trays in 2014 or 2015 through
correspondence with Chaplain Kennell (id. at 5-6). The record includes a letter dated March 1,
2015 from Plaintiff to Chaplain Kennell inquiring about said feast trays (see Doc. 152-3 at 3-4).
Chaplain Kennell responded to Plaintiff on March 3, 2015 indicating that Plaintiff’s request was
being forwarded to Defendant Chaplain Keim, the Chief Chaplain of IDOC, for advice
(Declaration of Joshua Kruger, Doc. 154 at p. 24, ¶ 30); see Doc. 154 at 33). At his deposition,
Plaintiff testified that Kennell also told Plaintiff he would forward Plaintiff’s request to the
Religious Practice Advisory Board (“RPAB”). Plaintiff wrote another letter directed to
Defendant Chaplain Keim on July 6, 2015 asking for an update on his request for religious feast
trays (Doc. 152-3 at 5-7). Plaintiff attests he also spoke with Chaplain Kennell inquiring about
his ability to possess runestones, and Chaplain Kennell told Plaintiff they are not allowed pursuant
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to IDOC policy (Doc. 154 at p. 24 at ¶ 31).
At his deposition, Plaintiff testified he submitted written requests for religious
accommodations soon after he was transferred to Menard in October 2015 (Doc. 152-1 at 6). He
sent these letters of request to the wardens and the chaplains (Id.).
The record includes a memorandum sent to Plaintiff from Defendant Kimberly Butler, the
Menard Warden at the time, dated May 18, 2016, in which Butler indicates she is in receipt of
Plaintiff’s correspondence regarding his personal property concerns and asserts that “[a]llowable
items are currently being reviewed” (Doc. 154 at 35). The record also includes a letter directed to
Warden Lashbrook from Plaintiff dated August 1, 2017 (see id. at 37-38). The letter was stamped
as “Received” by the “Warden’s Office” at Menard on August 7, 2017. In this letter, Plaintiff
asserts he has sought approval for his religious practice requests from the chaplain since his
transfer to Menard, but to no avail. Plaintiff details his filing of grievances and letters for the
same. There is no mention of the medallion issue. On August 29, 2017, Defendant Howard
Harner, a chaplain at Menard, approved Plaintiff’s request for a religious diet (see id. at 39).
Defendant Chaplain Claycomb sent Plaintiff a letter that was stamped as “Received” on March 29,
2018 regarding a dietary substitution for Plaintiff’s “Midsummer Feast” (see id. at 47).
A grievance dated May 29, 2020, submitted by Plaintiff concerning the confiscation of his
“religious necklace,” is also in the record (see Doc. 152-4 at 14-18). Plaintiff’s counselor
responded to this grievance on June 2, 2020, and the Grievance Officer recommended that it be
denied on June 5, 2020. The CAO signed in concurrence with the Grievance Officer’s
recommendation on June 11, 2020. The signature reads “A. Wills” with the appearance of
additional initials at the top-right of the signature. Sherry Benton, on behalf of the ARB, denied
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the grievance on November 13, 2020 finding the issue was appropriately addressed by the facility.
IDOC Director Jeffreys concurred with the denial. The signature read “Rob Jeffreys,” with what
appears to be the initials “edw” immediately following the signature.
Plaintiff’s response to Defendants’ motion for summary judgment also included emails
documenting Defendant Keim’s inquiry into Plaintiff’s request to possess runestones (see Doc.
154 at 59-61). More specifically, Defendant Keim sought assistance from “Legal and the
Religious Practice Advisory Board” to address the issue of an inmate’s possession of runestones
on May 25, 2016. Keim’s email was sent to Reiko Suber, Kimberly Butler, George Adamson,
Howard Harner, and James Claycomb. George Adamson provided a response, as did Reiko
Suber (who is not a named defendant).
Discussion
Defendants are correct insofar as liability under § 1983 is predicated on a defendant’s
personal involvement in the alleged constitutional violation. Palmer v. Marion County, 327 F.3d
588, 594 (7th Cir. 2003) (citations omitted). To be personally responsible, an official “must know
about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Knight v. Wiseman,
590 F.3d 458, 463 (7th Cir. 2009) (quoting Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006)
(citing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
Defendants’ motion is unclear as to whether they seek summary judgment based on
Plaintiff’s purported failure to demonstrate their personal liability on each count. Because the
only proper defendants for Plaintiff’s RLUIPA claims in Counts Two and Three are those
defendants that can ensure injunctive relief is carried out, and said defendants are only sued in their
official capacity, any request for summary judgment on Plaintiff’s RLUIPA claims based on
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personal liability is denied.
With regard to the remaining First Amendment claims, Defendants’ argument is generally
that the “record is void of evidence that any of the alleged conduct causing the constitutional
deprivations occurred at any of the Defendants’ direction or with their knowledge and consent.”
Thus, Defendants assert there is an absence of evidence supporting an essential element of
Plaintiff’s claim. If a party chooses to make such an argument regarding the absence of evidence,
the burden at summary judgment on the moving party is not “onerous” and may be discharged by
“showing,” or “pointing out” to the district court, that there is an absence of evidence to support
the nonmoving party’s case. Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (internal
quotations removed). Defendants, however, still bear “the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with affidavits if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S.
at 323 (internal quotation omitted).
In support of their summary judgment motion, Defendants point to scant evidence to
support the absence of personal liability. Indeed, Defendants cite only generally to Exhibits C
and D. The letters and grievances included in Exhibits C and D demonstrate certain attempts by
Plaintiff to communicate his complaints regarding his religious accommodations to certain
individuals. Defendants’ reliance on this evidence does little to prove an absence of personal
liability. However, insofar as Defendants attempt to point out the same, Plaintiff must “make a
showing sufficient to establish the existence” of this element of his case. Modrowski, 712 F.3d at
1169. The Court considers, then, whether the evidence in the record, when considered in the light
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most favorable to Plaintiff, could demonstrate personal liability on behalf of Defendants.
In responding to Defendants’ motion, Plaintiff asserts his deposition testimony and
declaration have not been contradicted by any evidence submitted by Defendants. Plaintiff also
asserts that his deposition and other documents in the record establish that Keim, Adamson, Butler,
Lashbrook, Kennedy, Harner, Claycomb, Easton, Norman-Reees knew about the denials
regarding his requests for religious accommodations and turned a blind eye to the same.
In reviewing the record, Plaintiff’s deposition testimony sets forth some evidence that has
not been contradicted by Defendants that he requested religious accommodations from the
“wardens and chaplains” at Menard upon his transfer. The Court finds this sufficient, in light of
Defendants’ failure to contradict the same, that Defendants Lashbrook and Butler (both wardens at
Menard at times relevant), and Defendants Harner and Claycomb (both chaplains at Menard at
times relevant) had actual knowledge of Plaintiff’s complaints regarding his religious
accommodations at issue in Count One and failed to address the same2, suggesting they either
approved or turned a blind eye to the allegedly unconstitutional restrictions being placed on
Plaintiff’s religious faith.
Documentary evidence in the record also supports a finding that Defendants Lashbrook,
Butler, Harner, Claycomb, Keim, and Adamson had notice of Plaintiff’s religious practice
violations at issue in Count One and failed to act. Defendants make no argument with regard to
the documents in the record evidencing this potential notice; therefore, the Court finds the record
sufficient to establish a basis for personal liability. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th
Cir. 2015) (holding that a grievance could put an official, who reviews such grievance, on notice of
2 Defendants Hutchinson and Wills were also wardens at Menard at times relevant. However, these Defendants were
not named in Count One of the Third Amended Complaint.
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a constitutional deprivation such that the grievance official’s “refusal or declination to exercise the
authority of his or her office may reflect deliberate disregard.”) (quoting Vance v. Peters, 97 F.3d
987, 993) (7th Cir. 1996)).
Also in the record are documents evidencing potential notice of the alleged
unconstitutional policy at issue in Count Three to Defendants Butler, Wills, and Jeffreys. Again,
Defendants failed to set forth any evidence to contradict the inference of notice and failure to
rectify the purported constitutional violation. As such, the Court finds sufficient evidence in the
record to establish a basis for personal liability against Defendants Butler, Wills, and Jeffreys with
regard to Count Three.
The record, however, is devoid of any evidence to establish personal liability, or even
notice of the alleged constitutional deprivations, with regard to Defendants Jeffreys (Count One),
Baldwin (Counts One and Three – First Amendment claim), Hutchinson (Count Three),
Lashbrook (Count Three), Williams, McCarty, Beekman, Walker, Parrack, Easton,
Lambert-Goheen, Norman-Rees, and Wilhelm. As such, the Court shall enter summary judgment
in favor of these Defendants (on the counts specified, as applicable) finding no evidence to
demonstrate they were personally involved in the alleged constitutional violations.
V. Plaintiff’s Free Exercise of His Religion
Under the First Amendment, prisoners enjoy a right to the free exercise of their religion.
Vinning-El v. Evans, 657 F.3d 591, 592-93 (7th Cir. 2011). However, a prison may impose
restrictions on the exercise of religion that are reasonably related to the legitimate penological
objectives of the state. Tarpley v. Allen County, Ind., 312 F.3d 895, 898 (7th Cir. 2002) (citations
omitted). In determining whether an asserted justification is rationally related to a legitimate
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penological objective, courts consider whether there are alternative means of exercising the right
that remain open to the inmate, the impact an accommodation of the asserted right would have on
guards and other inmates, and whether there are “obvious alternatives” to the restriction. Ortiz v.
Downey, 561 F.3d 664, 669 (7th Cir. 2009).
Defendants assert summary judgment in their favor is warranted because the record is void
of any evidence that Defendants imposed any burden on Plaintiff’s ability to possess runestones or
runic flashcards, congregate to worship, or receive religious feast trays at Pontiac or Menard. In
support of this argument, Defendants assert there is no record that Plaintiff requested runestones or
sought the ability to congregate to worship from facility staff while at Pontiac or Menard.
Defendants further assert there is no record Plaintiff submitted requests for religious feast trays
while at Menard, and insofar as there is documentation that Plaintiff submitted requests for
religious feast trays at Pontiac, Defendants assert there is no evidence that the Warden of Pontiac
or Defendant Keim were made aware of this request. Thus, the crux of Defendants’ argument is
that Defendants could not have imposed a burden on Plaintiff’s practice of religion because they
were not aware of and, therefore, could not have refused or denied accommodations that were
never requested.
The Court’s analysis of Defendants’ argument is abbreviated insofar as the Court has
already determined there is at least some evidence that Defendants Butler, Lashbrook, Keim,
Harner, Adamson, and Claycomb had notice of the issues set forth in Count One and failed to act
or otherwise address Plaintiff’s requests for religious accommodations. Thus, there is at least
some evidence in the record to demonstrate Defendants imposed a burden on Plaintiff’s practice of
his religion. Based on this finding, the Court denies Defendants’ request for summary judgment
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on this issue.
VI. Religious Medallions
In addition to the First Amendment (detailed above), inmates are also afforded religious
protections under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which
prohibits prisons receiving federal funds from imposing a substantial burden on an inmate’s
religious exercise unless prison officials can demonstrate 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). Unlike
cases arising under the Free Exercise Clause of the First Amendment, RLUIPA applies even where
the burden on the prisoner “results from a rule of general applicability.” Koger v. Bryan, 523 F.3d
789, 796 (7th Cir. 2008). In establishing a claim under RLUIPA, the plaintiff bears the initial
burden of showing (1) that he seeks to engage in an exercise of religion, and (2) that the challenged
practice substantially burdens that exercise of religion. 42 U.S.C. §2000cc-1. Once the plaintiff
establishes his prima facie case, the defendants “bear the burden of persuasion on any [other]
element of the claim,” id., namely, whether their practice “is the least restrictive means of
furthering a compelling governmental interest.” Koger, 523 F.3d at 796.
Defendants assert that the record establishes Plaintiff’s necklace with a Valnut medallion
was confiscated because it posed a safety and security threat after evaluation by property officers.
Defendants contend that Plaintiff was offered the option of having the necklace picked up or he
could pay to have it mailed outside of the institution. As such, Defendants contend confiscation
of the necklace and medallion was the least restrictive means of advancing each facility’s interest
in safety and security and, as such, there was no violation of RLUIPA or the First Amendment.
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In support of this assertion, Defendants rely exclusively on Plaintiff’s May 29, 2020
grievance (see Doc. 152-4 at 14-18). In response to this grievance, the counselor indicated that
per “property” the necklace was denied “due to the safety and security of the institution/does not
meet guidelines offender may chose [sic] to send the property home or destroy it.” The Grievance
Officer found the counselor responded to this grievance appropriately and indicated that Personal
Property confiscated the dog tag medallion and chain because it was too thick and not allowed for
the safety and security of the institution. The Grievance Officer cited to the “Jewelry policy” and
“DR 535.” Defendants contend this is evidence that the jewelry was evaluated by property
officers and deemed to be a safety and security concern.
Defendants’ argument is not properly supported. Notably, the only evidence Defendants
rely on to substantiate their claim that Plaintiff’s medallion was denied due to “safety and security
concerns” (that the Court infers Defendants would contend is a compelling governmental interest),
is a grievance, the contents of which the Court cannot accept as fact because it is hearsay. See
Heard v. Shicker, Case No. 14-cv-1027-JBM, 2018 WL 11272881, at *2 (C.D. Ill. April 23, 2018)
(Grievances and other written correspondence with IDOC officials are inadmissible hearsay and
cannot be used to support the truth of what is contained in them). The hearsay nature of the
statement that Defendants rely on is particularly tenuous, as said statement comes from the
counselor who purportedly communicated with “property” that the necklace was denied for safety
and security concerns. Simply put, Defendants have not presented any competent evidence that
the medallion was confiscated due to safety and security concerns. Defendants’ motion also fails
to address the nuance of Plaintiff’s claim as a policy and practice complaint. Indeed, as written,
Count Three concerns the purported policy and practice of refusing all Asatru-Odinist prisoners
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the right to wear their religion medallions that was adopted and implemented at Menard.
Defendants’ motion is focused solely on Plaintiff’s possession of his Valnut medallion and wholly
fails to address their involvement in implementing, condoning, or maintaining a policy that caused
the medallion to be denied. For these reasons, summary judgment is not warranted on this basis.
Conclusion
Based on the foregoing, Defendants’ Motion for Summary Judgment (Doc. 151) is
GRANTED IN PART AND DENIED IN PART. The Clerk of Court is directed to enter
judgment in favor of Defendants Alyssa Williams, Leslie McCarty, Echo Beekman, Lu Walker,
Jennifer Parrack, Christopher Easton, Lauren Lambert-Goheen, Karen Norman-Rees, Chase
Wilhelm, Robert Jeffreys as to Count One, John Baldwin as to Counts One and Three (only in his
individual capacity), Jeffrey Hutchinson as to Count Three, and Jacqueline Lashbrook as to Count
Three and against Plaintiff Joshua W. Kruger at the close of this case.
Plaintiff shall proceed in this matter on the following claims:
Count One: First Amendment claim against Butler, Lashbrook, Keim, Adamson,
Claycomb, and Harner for refusing to allow Plaintiff to fully practice his
Asatru-Odinist faith by prohibiting him from possessing runestones or runic
flashcards, disallowing congregate worship, and denying religious feast
trays.
Count Two: RLUIPA claim against Jeffreys, Baldwin, and Keim for refusing to allow
Plaintiff to fully practice his Asatru-Odinist faith by prohibiting him from
possessing runestones or runic flashcards, disallowing congregate worship,
and denying religious feast trays; and
Count Three: RLUIPA claim against Baldwin and First Amendment claim against
Jeffreys, Butler, Wills, and Ewert for enacting, adopting, and/or enforcing a
policy and practice of refusing all Asatru-Odinist prisoners the right to wear
their religious medallions while at Menard.
The Warden of Pontiac remains a defendant for purposes of carrying out injunctive relief.
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IT IS SO ORDERED.
DATED: January 9, 2023
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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