Rufus West v. Gregory Grams

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 21, 2015 *

Decided April 22, 2015

Before

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 14-3623

RUFUS WEST, Appeal from the United States District

Plaintiff-Appellant, Court for the Western District of Wisconsin.

v. No. 11-cv-687-slc

GREGORY GRAMS, et al., Stephen L. Crocker,

Defendants-Appellees. Magistrate Judge.

ORDER

Rufus West is a Wisconsin inmate formerly incarcerated at Columbia Correctional

Institution, a maximum-security prison, and currently incarcerated at Green Bay

Correctional Institution. West, who is Muslim and uses the religious name

Mansa Lutalo Iyapo, sued members of Columbia’s staff and the Secretary of the

Wisconsin Department of Corrections, seeking damages and injunctive relief for

perceived violations of the First Amendment, see 42 U.S.C. § 1983, and the Religious

*

After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.

34(a)(2)(C).

No. 14-3623 Page 2

Land Use and Institutionalized Persons Act, see 42 U.S.C. § 2000cc–1. First, he alleged,

over a multi-year period staff impeded his free exercise of religion by canceling Islamic

services at Columbia when Muslim staff or outside volunteers were unavailable to lead

the services, rather than allowing services to proceed with inmate leaders. Second, West

asserted, after he complained that his evening meal was being delivered too late for him

to break his Ramadan fast right at sunset, Columbia staff retaliated by scheduling meal

delivery during Ramadan at the latest possible hour. A magistrate judge, presiding by

consent, granted the defendants’ motion for summary judgment. Because a finder of fact

could not reasonably conclude from West’s evidence that the defendants burdened his

religious exercise under the First Amendment or retaliated against him because of

protected speech, we affirm the dismissal of his constitutional claims. But we disagree

with the magistrate judge’s conclusion that West’s transfer to Green Bay mooted his

RLUIPA claim, and on that claim we remand for further proceedings.

Since we are reviewing a grant of summary judgment, we construe the evidence

and draw all reasonable inferences in favor of West, the opposing party. See Williams v.

City of Chicago, 733 F.3d 749, 752 (7th Cir. 2013). Wisconsin’s Department of Corrections

requires that “[c]ongregate religious services” and religious study groups held in

Wisconsin prisons “be led by an approved spiritual leader/clergy, volunteer, or

Chaplain.” This policy, which dates to 2001, states expressly that no inmate may “lead”

or “conduct” religious services or groups. The Columbia Security Director explained the

policy’s rationale: Allowing inmates to lead religious activities could create “a

perception of authority over other inmates,” “allow an inmate to influence other

inmates’ actions,” obscure the “necessary distinction between staff and inmates,” and

permit inmates to use religious services as a cover for gang activity.

Columbia uses outside volunteers to lead some Islamic services. Although the

Department of Corrections employs two Muslim religious leaders, they are not assigned

to Columbia and are unable to lead services regularly at that prison. Instead, Columbia’s

chaplain, who is Protestant, recruits Muslim volunteers from the community to lead

Islamic services. Those services include Jumu’ah, a group prayer service held on Fridays;

Talim (or Taleem, but we adopt West’s spelling), a religious study period generally held

weekly; and Eid al-Fitr, the services and feast that mark the conclusion of Ramadan the

month during which Muslims fast from sunrise to sunset.

According to West, attending Jumu’ah every Friday is a mandatory tenet of Islam,

and participating in Talim, though not “obligatory,” is necessary. At Columbia, though,

a shortage of volunteers resulted in one or both of these services being cancelled during

No. 14-3623 Page 3

more than 150 weeks of the 6-year period ending with West’s transfer to Green Bay. In

contrast, the defendants do not dispute that Christian services rarely were cancelled in

the same period. West also says that at Columbia the Eid al-Fitr celebration was

scheduled late in 2007, 2008, 2009, and 2012—in his view, stripping the celebration of its

religious significance—because an outside volunteer was unavailable to lead the

celebration.

West also accuses the prison chaplain, a shift captain, and the food service

administrator of retaliating after he complained about the timing of meal service during

Ramadan. He explains that he alerted the chaplain that meals were being delivered to

Muslim inmates well after sunset during Ramadan, and he asked the chaplain for

assistance in getting an earlier delivery time, such as at 7:30 p.m. After this conversation

the chaplain issued a memo announcing that evening meals during Ramadan would be

served at 8:30 p.m. West concluded that the decision to serve supper at 8:30 p.m.—the

latest possible time to serve meals to inmates—had been selected to retaliate for his

complaint about meal timing.

The defendants moved for summary judgment on each of West’s claims. First,

they argued that the policy precluding inmates from leading religious services does not

substantially burden West’s rights under RLUIPA. Although the defendants conceded

that Jumu’ah was not offered each week at Columbia, they explained that in the past the

service typically was held twice monthly and that the Columbia chaplain regularly

arranged a Talim study group through an electronic medium during weeks that a

volunteer was unavailable to lead Jumu’ah. And when the usual volunteers could not

conduct Jumu’ah for several weeks in a row, the chaplain explained, he had contacted

multiple Muslim groups or leaders seeking more volunteers, but without success. More

recently, the Columbia chaplain had found a volunteer to lead Jumu’ah services and a

Talim group every other Friday, as well as a Talim group and Zuhr prayer on Tuesdays

of the intermediate weeks. In addition, the defendants noted another policy of the

Department of Corrections that enables West to practice his religion in a variety of ways,

including through special diet, individual study, personal meditation, religious books,

pastoral visits, and abstention from work on religious days of observance. Further, the

Eid al-Fitr feast was always held within the timeframe established by the Department of

Corrections Religious Practices Advisory Committee. In any event, the defendants

contended, the volunteer policy is the least restrictive means to achieve a compelling

interest of maintaining security.

No. 14-3623 Page 4

Second, the defendants contended that West’s right to free exercise under the

First Amendment had not been violated because the challenged policy was applied to all

religious groups, and was reasonably related to prison security. The defendants also

asserted that they were entitled to judgment as a matter of law on West’s retaliation

claim because he had not engaged in a constitutionally protected activity, nor had he

shown that the scheduling of the meal time at 8:30 p.m. would deter future protected

activity. Finally, the defendants contended that they were entitled to qualified immunity

on all of West’s claims, including his RLUIPA claim.

West countered with his own motion for summary judgment. He argued that the

challenged policy, although facially neutral, is discriminatory in practice because

Muslim inmates are affected disproportionately. West noted that all maximum-security

facilities in Wisconsin have Christian chaplains and are located in communities with a

plethora of available Christian volunteers, so Christian services rarely are cancelled.

Moreover, he argued, the defendants had not offered convincing evidence that

forbidding inmates to lead religious services is necessary to promote prison security.

Any safety concern is minimal, West asserted, because prayer services are held in an area

with large windows and cameras allowing guards to monitor the activities. In addition,

West produced affidavits from two prisoners at Columbia who aver that from 2004 until

2008 they attended Jumu’ah services led by an inmate. As for his retaliation claim, West

explained that the decision to set the meal time at 8:30 p.m. had “haunted” him and

deterred him from filing future complaints.

In reply the Columbia chaplain conceded that the former program supervisor at

Columbia had acknowledged that “she did, on occasion, allow the inmates to lead the

Jumah prayer” and that “they had to rotate the leader of the prayer among the group.”

The chaplain recalled that the practice was ended because “the inmates refused to

cooperate with the rotation,” leaving the same inmate to lead the service each time and,

according to the chaplain, leaving one inmate in an unacceptable “position of authority

and power over the other inmates.” The defendants also included an affidavit from the

DOC Administrative Policy Advisor who justified the policy, in part, by stating that

there had been “much negative feedback from facilities across the United States that

have allowed inmate-led religious services.” He cited instances of security breaches

related to inmate-led services in Pennsylvania, Michigan, and Nebraska.

In ruling for the defendants, the magistrate judge first reasoned that, because this

court had rejected identical free-exercise claims in the past, the defendants were entitled

to qualified immunity. The magistrate judge then rejected the RLUIPA claim on the

No. 14-3623 Page 5

belief that, for that claim too, the defendants were shielded by qualified immunity. The

judge expressed uncertainty whether the defendants had substantially burdened West’s

exercise of religion under the more protective RLUIPA standard, but reasoned that they

did not violate any clearly established right by enforcing the challenged policy. Finally,

the judge rejected West’s retaliation claim with the explanation that moving the meal

time to 8:30 p.m. could not have deterred an inmate of ordinary firmness from lodging

future grievances.

Four days after this ruling, the defendants alerted the magistrate judge that

injunctive relief is the sole remedy for a RLUIPA claim, see Grayson v. Schuler, 666 F.3d

450, 451 (7th Cir. 2012), and, thus, qualified immunity cannot be a defense,

see Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 758 (7th Cir. 2012). Instead, they

argued, the judge should revise his decision to reject the statutory claim on the ground

that the challenged policy had not substantially burdened West’s exercise of his religion.

Meanwhile, almost six months after the defendants had raised this concern, West was

transferred to Green Bay. West notified the clerk of court about his transfer, and only

then did the magistrate judge act on the defendants’ request for a revision to the

RLUIPA analysis. But instead of addressing the claim on the merits, as the defendants

had asked, the judge concluded that the RLUIPA claim had been mooted by West’s

transfer. As far as we can tell from the record, that contention had never been made by

the defendants.

On appeal West challenges the adverse decision on each of his claims, but two of

those claims require little discussion. It has never been clearly established that inmates

have a right to inmate-led group worship under the First Amendment. In fact, we have

rejected this argument on nearly identical facts, where non-inmate volunteers are

unavailable and prison administrators justify the restriction for security reasons.

See Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988); Hadi v. Horn, 830 F.2d 779,

784–85 (7th Cir. 1987); see also Baranowski v. Hart, 486 F.3d 112, 120–22 (5th Cir. 2007);

Spies v. Voinovich, 173 F.3d 398, 402, 405–06 (6th Cir. 1999). West cites no authority casting

doubt on this established precedent. As for West’s retaliation claim, his appeal is

patently frivolous. We can ignore that Ramadan falls at different times from year to year,

and that in some years the 7:30 p.m. meal time requested by West would fall before

sunset. In fact, in 2011 the 8:30 p.m. meal time ranged from slightly before sunset to 33

minutes after, and in 2012 it ranged from 8 to 49 minutes after sunset. More importantly,

we agree with the magistrate judge that setting the meal time an hour later than West

had requested would not have deterred an inmate in his position from engaging in

future protected speech. See Surita v. Hyde, 665 F.3d 860, 878–79 (7th Cir. 2011). As we

No. 14-3623 Page 6

said in Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982), we would “trivialize the First

Amendment” by holding that harassment for exercising a First Amendment right is

“always actionable no matter how unlikely to deter a person of ordinary firmness from

that exercise.” And the change in meal time surely did not deter West, who in the

following two years submitted no less than 100 grievances at Columbia.

That brings us to the RLUIPA claim, which is more substantial. As a starting

point, West asserts that the magistrate judge erred in dismissing the claim as moot

because, West surmises, the defendants transferred him to Green Bay in retaliation for

filing this lawsuit and with the express purpose of rendering the RLUIPA claim moot.

According to West, administrators at Columbia had said he would remain there for

another year, yet soon after transferred him to Green Bay. But West’s suspicions rest

entirely on speculation, not evidence, and do not persuade us that corrections officials

moved him to Green Bay in order to moot his RLUIPA claim. The defendants, after all,

had raised a concern about the magistrate judge’s mistaken reliance on qualified

immunity five months before West was transferred, and even after the transfer it was the

judge, not the defendants, who brought up the question of mootness.

That we see nothing untoward in the defendants’ conduct, however, does not

mean that we agree with the magistrate judge’s determination of mootness or with the

defendants’ support of that ruling on appeal. Under RLUIPA the remedy available to

West was limited to declaratory or injunctive relief. See Sossamon v. Texas, 131 S. Ct. 1651,

1660 (2011); Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011); Nelson v. Miller, 570 F.3d

868, 886–89 (7th Cir. 2009). And though a prison transfer might moot a claim for

injunctive relief if the transfer means that the inmate no longer is laboring under the

allegedly unconstitutional policy or practice, see Maddox v. Love, 655 F.3d 709, 716 (7th

Cir. 2011); Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009), that is not the case here.

West’s lawsuit challenges under RLUIPA a system-wide Department of Corrections

policy that applied at Columbia, still applies at Green Bay, and—unless modified—will

apply wherever West is next sent until his release. In fact, the defendants do not even

assure us that they have no present intention to transfer West back to Columbia in the

near future. Moreover, while Green Bay has seen more success in recruiting outside

volunteers to lead services for Muslim inmates, that good fortune is not guaranteed. The

defendants have admitted that securing Muslim volunteers to lead services has been a

significant challenge over the course of many years, and we are given no reason to

conclude that the complained-of conduct won’t be resumed. See Vincent v. City Coll. of

Chi., 485 F.3d 919, 925 (7th Cir. 2007); Kikumura v. Turner, 28 F.3d 592, 597 (7th Cir. 1994).

No. 14-3623 Page 7

The magistrate judge thus erred in dismissing this statutory claim as moot. That

mistake, coupled with the judge’s initial mistake in thinking that qualified immunity

barred the RLUIPA claim, means that the claim has yet to be addressed on the merits.

Under RLUIPA, the plaintiff has the initial burden to demonstrate that a challenged

prison policy substantially burdens the exercise of his religious beliefs. See 42 U.S.C.

§ 2000cc-2(b); Holt v. Hobbs, 135 S. Ct. 853, 862 (2015). RLUIPA applies to “any exercise of

religion, whether or not compelled by, or central to, a system of religious belief.” 42

U.S.C. § 2000cc–5(7)(A). In the past we have described a “substantial burden” as “one

that necessarily bears direct, primary, and fundamental responsibility for rendering

religious exercise . . . effectively impracticable.” Eagle Cove Camp & Conference Ctr., Inc. v.

Wooboro, 734 F.3d 673, 680 (7th Cir. 2013). After this appeal was briefed, however, we

concluded that this definition is incompatible with Holt and Burwell v. Hobby Lobby

Stores, Inc., 134 S. Ct. 2751 (2014). The correct standard, we explained, is whether a

particular restriction “seriously” violates or contradicts an inmate’s religious beliefs.

Schlemm v. Wall, No. 14-2604, 2015 WL 1787400, at *2 (7th Cir. Apr. 21, 2015). Whether or

not West satisfied that initial burden is significant because, as far as the current record

shows, a jury could find that the defendants did not offer persuasive evidence that the

existing policy serves a compelling interest in prison security, or, if it does, that the

policy in its present form is the least restrictive means of serving that interest. See 42

U.S.C. § 2000cc–1; Koger v. Bryan, 523 F.3d 789, 798 (7th Cir. 2008).

We do not doubt that a prison’s interest in order and security is compelling.

Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005). But to ensure that prison policies further

that compelling interest, a stated security concern must be “grounded on more than

mere speculation, exaggerated fears, or post-hoc rationalizations.” S. Rep. No. 103-111,

at 10 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1900. And here the defendants did little

to back up their assertion that the challenged policy is necessary, much less the

least-restrictive means of accomplishing their aim of preserving security while still

allowing Muslim adherents to worship on equal footing with other religions. In fact,

what little evidence the defendants offered was cut down by their admission that in the

past the volunteer policy had not been enforced and that Muslim inmates were allowed

to lead religious services on a rotating basis. The stated rationale for ending that practice

was, not that inmate leadership sparked hostility among inmates or toward prison staff,

but that not all inmates were willing to take a turn leading the group. This merely

demonstrates that the inmates could not agree on a leadership rotation that satisfied

prison officials. It does not show that prison security compelled a broad restriction on

inmate-led services.

No. 14-3623 Page 8

So we come back to the question whether West met his burden of establishing that

the policy against inmates leading religious services substantially burdens the exercise

of his religious rights. The magistrate judge did not attempt to resolve that question even

under our previous standard, and the parties have not had an opportunity to file briefs

discussing the impact of Schlemm. So rather than decide the question now, we conclude

that the better course is to let the magistrate judge address the issue in the first instance.

At the same time, the court may exercise its discretion to receive additional evidence on

both this issue and the defendants’ security justification for the policy.

Accordingly, the dismissal of West’s claim under RLUIPA is VACATED, and the

case is REMANDED for further proceedings on that claim. In all other respects, the

judgment is AFFIRMED. On remand the district court should substitute the current

director of the Department of Corrections as the named defendant on West’s claim for

injunctive relief under RLUIPA.