Greene v. Teslik

JEREMY T. GREENE, Plaintiff, v. CHAPLAIN TESLIK, MICHAEL MEISNER, CINDY O'DONNELL, KELLI R. WILLARD-WEST,MS. SCHUELER, KEVIN CARR, RYAN BLOUNT, and CHARLES EACKTOR, Defendants.

18-cv-116-wmc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

May 6, 2021

OPINION AND ORDER

Pro se plaintiff Jeremy T. Greene, a prisoner at Waupun Correctional Institution, is challenging the denial of his access to religious oil in the practice of his Christian faith under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-2(b). Specifically, Greene claims that in 2013, while incarcerated at Columbia Correctional Institution ("CCI"), defendants Teslik, Schueler, Meisner, Willard-West, Facktor, Blount and O'Donnell denied his individual use of religious oil in violation of the First Amendment's free exercise and establishment clauses, as well as the Fourteenth Amendment's equal protection clause. Greene also claims that defendants Meisner and Carr are liable in their official capacity on a related RLUIPA claim.

While the Department of Corrections ("DOC") opened up personal use of religious oil to inmates of all faiths in August of 2016, Green filed suit in early 2018 challenging the 2013 denial. Now before the court is defendants' motion for summary judgment (dkt. #56), which will be granted based on then continuing security concerns with increased dissemination of such oils among individual users and remaining uncertainty as to the state of the law before August 2016.

UNDISPUTED FACTS¹

A. The Parties

Greene is a nondenominational Christian. Although now housed at Waupun, he was an inmate at CCI during all times material to this lawsuit. Defendants were all Wisconsin DOC employees, and include Columbia's Chaplain Mark Teslik, Warden Michael Meisner, Program Services Manager Schueler, and Inmate Complaint Examiner ("ICE") Ryan Blount. In addition, Greene names DOC's Secretary Kevin Carr, Administrator Cindy O'Donnell, Division of Adult Institutions ("DAI") Religious Practices Coordinator ("RPC") Kelli Willard-West, and Corrections Complaint Examiner ("CCE") Charles Facktor.

B. DOC Religious Property Policy

The DOC gives prisoners opportunities to pursue the lawful practices of their religion of choice. To that end, the DAI administers religious accommodations through Umbrella Religion Groups ("URGs"), a structure developed in consultation with community faith group leaders. Prisoners with similar beliefs and practices are grouped into URGs that represent and incorporate the range of religious denominations and sub-groups. The eight URGs are Catholic, Eastern Religions, Humanist/Atheist/Agnostic, Islam, Judaism, Native American/American Indian, Pagan, and Protestant/Other Christian. Each prisoner may choose and designate an URG, and this designation generally determines which (1) religious services or study groups a prisoner may attend, (2) religious property a prisoner may obtain, and (3) dietary accommodations a prisoner may be eligible to receive.

DAI Policy No. 309.61.02 addresses the acquisition, possession, and use of religious property by inmates, having evolved over time with respect to religious oils. (Dkt. #59-1.) When first approved in March 2006, only inmates identifying with the Islamic and Pagan URGs could possess oil, and they were limited to four scents. In August 2011, congregate use of scented oils was also approved for the Catholic URG, and in February 2015, for the Protestant/Other Christian URG. Finally, as of August 2016, individual and congregate use of religious oils was approved for inmates of any URG.

The parties dispute when Greene learned of this expansion. Greene attests that he did not become aware of it until July 31, 2020, when he received defendants' summary judgment materials. (Dkt. #82 at 25.) He specifically disputes that any revised religious property chart was ever placed in the DAI policy documents binder at any of the institutions in which he was housed during and after 2016, and asserts that no religious volunteer or leader ever notified him of the change. Defendants respond that they provided Greene with the 2016 DAI Religious Property Chart in April 2020 as part of discovery. Defendants further maintain that: (1) the updated policy would have been available for him to view in any prison law library binder or via written request; and (2) policy changeswere also broadcast on an institutional television channel. (Dkt. #94 at 9-11.)

As it stands now, inmates of any URG may possess in their cells up to one ounce of religious oil in any one of the now five, permitted scents: Frankincense, Olive Oil, Pine, Sandalwood, and unscented. (Dkt. #70-1 at 4.)² Contracted vendors sell these religious oils in .5 ounce and/or 1-ounce plastic bottles, depending on product sourcing and marketability. Among other reasons, inmates are limited to a maximum of one ounce of religious oil in order to reduce: (1) the opportunity for inmates to hide contraband in their cells and to barter or coerce each other into the illicit exchange of property; and (2) the risk of property hoarding situations that can lead to health, hygiene and pest infestation problems.

Greene does not dispute that olive-scented oil became available as of August 2020, but he remains dissatisfied with this product because it is purportedly neither actual olive oil nor olive oil-based scented oil. (Dkt. #94 at 45-46.) Defendants counter that Greene has not submitted evidence that the available oil is dangerous to apply to a person's skin or otherwise inappropriate for religious use, nor has he identified any other olive oil available for sale in the approved amounts and packaging. (Dkt. #94 at 46.) DOC's Religious Practices Coordinator ("RPC") Willard-West further attests that it is impossible to honor every inmate's personal product and vendor preferences when making religious accommodations for more than 23,000 inmates. (Dkt. #59 at 13.)

C. Greene's Attempts to Possess Religious Oil at Columbia

On January 30, 2013, Greene apparently first attempted to buy a bottle of frankincense-scented oil through Columbia's canteen. The canteen supervisor denied his order because, as a member of the Protestant/Other Christian URG, Greene was not on the list of prisoners approved to purchase oil. Greene wrote to Columbia's Chaplain Teslik on February 4 about his desire to purchase religious oil, supporting his request with biblical citations. Teslik responded by confirming that then DOC policy prohibited members of all Christian URGs from ordering religious oil for personal use. On February 16, Greene next wrote to Teslik's supervisor, Ms. Schueler, but she also denied his request based on DOC policy.

Although Greene does not appear to have made any further personal requests for religious oil after these denials, he did file two grievances and sought a DOC-wide policy change regarding broader access to religious oils. Specifically, on February 10, 2013, Greene submitted inmate complaint CCI-2013-3634 about his inability to purchase frankincense oil, explaining that he used religious oil for prayer and anointing. Greene also argued that he should be allowed to purchase it just as Muslims and Pagans were allowed to do. Nevertheless, ICE Blount recommended dismissal because at that time non-congregate religious oil was not an allowable property item for the Protestant and Catholic URGs. Columbia Warden Meisner adopted Blount's recommendation and dismissed the complaint on February 25, 2013.

Greene next appealed to the DOC, challenging the warden's reliance on a policy Greene argued was unfair to Christians. After consulting with Willard-West, CCE Facktorrecommended dismissal of the appeal because Greene had not yet exhausted his administrative remedies related to this religious practice issue. Specifically, Facktor noted that Greene had not submitted a Request for New Religious Practice Form (DOC-2075) before pursuing his inmate complaint.³ DOC Administrator O'Donnell accepted that recommendation and dismissed the appeal on March 8, 2013.

Consequently, Greene submitted a DOC-2075 form on March 18, 2013, requesting that Christians be allowed to purchase either "an olive oil based" anointing oil (or the same oils as Muslims and Pagans) for individual use. (Dkt. #60-2 at 11.) In support, Greene explained that: "Anointing oil and scented oil (perfumes) are used in my religion to heal from sickness, consecrate items/areas/oneself before God and going to God in prayer. Oil is also used when fasting, so that others will not be aware of such acts of righteousness." (Dkt. #60-2 at 11.) Greene again provided numerous biblical citations referencing the use of anointing oil.⁴

Greene's DOC-2075 form request was processed through various defendants, beginning with the Columbia Chaplain Teslik, who recommended denial because he did not see a necessity for Protestant Christians to possess oil for individual use, given that they generally used it in a congregate setting and for hygienic, rather than for ritualistic, purposes when fasting. Teslik attests that he reached this conclusion after reviewing theNew Testament, including those chapters Greene referenced, and reflecting on his knowledge of how the Protestant and Catholic denominations have long practiced corporate anointing of the sick. (Dkt. #62 at 3-4.) Although Chaplain Teslik does not use this language, defendants characterize his conclusion as doubtful of plaintiff's sincerity in his purported need for oil, but Greene disputes this proposed fact, noting that no defendant ever "asserted" or "indicated" an "intent to challenge [his] belief in a need for [oil] to exercise religion as insincere." (Dkt. #94 at 26.) Regardless, Chaplain Teslik then forwarded his denial recommendation to his supervisor at Columbia, Schueler, who agreed and forwarded Greene's request to RPC Willard-West for consideration by the Religious Practices Advisory Committee ("RPAC...