JACKSON v. RAEMISCH

726 F.Supp.2d 991

Terry JACKSON, Plaintiff,

v.Rick RAEMISCH, Matthew Frank, Chris Roelke, Robert Springborn, Lori Simon, Beth Lind, Joe Hall, Brenda Rilling, Francis Paliekara, Rick Geiger, Michael Thurmer, Sandra Hautamaki, Randall Gerritson, June Kathy Meier and Shawn Mathwhich, Defendants. ¹

No. 09-cv-254-wmc.

United States District Court,W.D. Wisconsin.

June 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Terry Jackson, Waupun, WI, pro se.

Jody J. Schmelzer, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

[1] In this prisoner civil rights case brought under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1, plaintiff Terry Jackson is proceeding pro se on the following claims:

(1) defendants Chris Roelke, Shawn Mathwhich, Beth Lind, Randall Gerritson, Matthew Frank, Rick Raemisch, Michael Thurmer, Sandra Hautamaki, Francis Paliekara, Rick Geiger and Lori Simon prohibited plaintiff from praying while at his prison job, in violation of the Free Exercise Clause and the Equal Protection Clause of the United States Constitution, as well as the Religious and Land Use Institutionalized Persons Act; and

(2) defendants June Kathy Meier, Brenda Rilling, Robert Springborn and Beth Lind conspired to issue a false conduct charges against plaintiff in retaliation for plaintiff's filing of grievances and defendants Hall and Frank refused to take action to overturn the charges.

Defendants' motion for summary judgment is now before the court. Dkt. # 40. ² That motion will be granted on all claims with the exception of Jackson's retaliation claim against defendants Lind and Meier. Jackson's claim for affirmative injunctive relief under RLUIPA has been mooted because (1) he no longer works in food services and (2) there is no indication that he will return. Because monetary damages are not available under RLUIPA, there is no other relief that Jackson can obtain.

With respect to Jackson's Free Exercise claim, defendants are entitled to qualified immunity because Jackson has failed to show that it was clearly established that defendants' policy is unconstitutional. His Equal Protection claim fails because he has not adduced admissible evidence showing that any of the defendants treated Muslims who wish to pray in food services any differently from adherents of other religions.

Finally, with respect to Jackson's retaliation claim, he has not adduced any evidence that defendants Rilling, Springborn, Hall and Frank took any action because of Jackson's grievances. Jackson may, however, proceed to trial on his retaliation claim against Meier and Lind because he has raised a genuine issue of material fact regarding whether they were personally involved in issuing a conduct report to Jackson because of the administrative complaints he filed.

UNDISPUTED FACTS

The undisputed facts set forth here are taken from defendants' proposed findings of fact and Jackson's responses to those proposed findings. Jackson cites his own proposed findings of fact in his brief, but did not actually file proposed findings with the court. It is not clear whether that was an oversight or intentional. Regardless of the reason for the omission or the relative fault of the parties, ³ the court cannot consider proposed findings of fact that were never filed. In the interest of fairness to a pro se litigant, the court has nevertheless reviewed all of the evidentiary materials Jackson filed, including his affidavit, attached documents and affidavits of other prisoners. While the court cannot include this evidence in the undisputed facts (because it is not clear which part of these materials defendants may dispute), the court will discuss any relevant evidence in the context of the opinion.

A. Policy Regarding Prayer in the Kitchen at Waupun Correctional Institution

Terry Jackson is incarcerated at the Waupun Correctional Institution in Waupun, Wisconsin. Jackson is a Muslim. On September 19, 2006, he was hired by defendant Joe Hall, the food services manager, to begin working in the kitchen at the prison. Hall granted Jackson permission to perform salah ⁴ in the coat room for food services. (The kitchen does not have an area designated for prisoners to pray.)

Sometime after Jackson began working in the kitchen, defendant Randall Gerritson, a captain at the prison, posted a sign in the kitchen stating that “no inmates [are] allowed to pray in food service.” The sign was posted where only food service workers could see it.

During one of his shifts in October 2006, Jackson was performing salah in the coat room. When defendant Chris Roelke, a correctional officer, approached, Jackson said Hall had given him permission to pray. Roelke then said Jackson was not allowed to pray while at work. Roelke later spoke to defendant Beth Lind, the food services administrator, about Jackson's conduct. She agreed that Jackson should not be allowed to pray at work. Defendant Lori Simon, a program supervisor, concurred in this decision.

When Lind told Jackson that he could no longer pray in the kitchen, Jackson asked whether he could take time off work until the issue was resolved so that he could pray in his cell. Lind told Jackson that his only options were to refrain from praying at work or to quit his job. Jackson continued to work in the kitchen.

More than 200 prisoners are employed in food services. At any given time, 60-80 food service workers help produce three meals a day for the approximately 1000 inmates that come to food services to eat each day. To have the meals prepared at the required times, a strict schedule must be maintained for both food production and maintaining and cleaning the facilities. Prisoners who work in the kitchen do not receive regularly scheduled breaks. Rather, breaks are determined by work flow.

B. Jackson's Grievances

On October 31, 2006, Jackson filed a grievance against defendant Roelke, complaining that Roelke had unnecessarily interrupted his prayer. The inmate complaint examiner recommended that the grievance be dismissed because the examiner found “no information that would support any staff misconduct or work rule violation on the part of staff.” Defendant Michael Thurmer (the warden) and defendant Rick Raemisch (Secretary of the Department of Corrections) affirmed that decision. Defendant Lind received a copy of the decision.

On November 1, 2006, Jackson filed a second grievance in which he complained generally that he was not allowed to pray at work. The inmate complaint examiner recommended dismissal because Jackson filed his grievance before asking the chaplain to authorize a new religious practice. Defendant Raemisch and others affirmed that decision.

C. Jackson's Conduct Report

In April 2007, defendant June Kathy Meier, a corrections food service leader, issued a conduct report to Jackson, charging him with battery and engaging in disruptive conduct. The report included the following allegations:

On the above date and time, I June (Kathy) Meier CFSL2 was watching the main serving line with CFSL2 Brenda Rilling with my back to the refrigerated cooler. Inmate Jackson, T 121898 then left his assigned area, walked up to me abruptly in an aggressive manner and while in a bladed stance stated in a loud tone of voice, “Remember what you talked to me about this morning keeping the line moving.” He proceeded to move closer to me while forcefully poking me on the right forearm with a rigid finger. He left me no room to move away from him. I directed inmate Jackson to move away from me. At that point inmate Jackson did move back. I instructed inmate Jackson that he is not allowed to touch staff. I immediately informed Sgt. Navis of this incident. Let it be known that inmate Jackson's actions caused numerous inmates to stop working and observe the incident.

Defendant Brenda Rilling, another corrections food service leader, assisted Meier in writing the report. Defendant Robert Springborn, a correctional officer, was present during the events that gave rise to the conduct report. Rilling and Springborn did not know about Jackson's previous grievances related to praying at work. Defendant Lind did not participate in writing the report.

Jackson complained to defendant Hall about the conduct report. Hall told Jackson that it was never appropriate to touch a staff member and that he would not intervene on Jackson's behalf. Jackson wrote to defendant Matthew Frank, who was Secretary of the Wisconsin Department of Corrections at the time. Frank took no action.

After a hearing, Jackson was found guilty of disruptive conduct but not guilty of battery. The hearing officer wrote:

I agree that battery is not substantiated in the report as it is written.

The actions of inmate Jackson obviously drew the attention of others in and around the area.

The inmate admits coming up to the chef and touching her; he also states that he did not hinder the chef from moving however the conduct report states that Jackson left her no room to move away and that she had to direct the inmate to move away from her. I also note that both witnesses [prisoners Jeffrey Bland and Jarmal Nelson] state that the chef had to take a step back because of the inmate approaching her.

After reviewing the report, evidence and all of the testimony I find that it is more likely than not that the inmate engaged in actions that disrupted the reasonably orderly environment of the Food Service department in the institution.

As a result of the conduct report, Jackson lost his job in the kitchen and received a sentence of disciplinary separation. A few months later, Jackson “chose to come back” to work in the kitchen.

Jackson worked in the kitchen from September 2006 to April 2007 and again from January 2008 to January 2009. (The parties do not explain why plaintiff left his job in January 2009). Currently, Jackson does not have a work assignment....