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Greybuffalo v. Wall

United States District Court, W.D. Wisconsin

April 15, 2016




Pro se prisoner Johnson Greybuffalo is proceeding on claims that defendants Edward Wall, Gary Boughton, Kelli Willard West and Samuel Appau violated the Religious Land Use and Institutionalized Persons Act and the free exercise clause of the United States Constitution by prohibiting plaintiff from participating in devotional services with other members of the Native American Church and participating in a sweat lodge ceremony using religious items that are important to adherents of that church. Plaintiff seeks declaratory and injunctive relief.

Defendants have filed a motion for summary judgment, dkt. #49, which is ready for review. Defendants’ primary argument is that they have not stopped plaintiff from engaging in the religious exercises he is requesting. I agree with defendants that plaintiff is not entitled to a declaration or injunction regarding use of a gourd rattle or feather or wing fan because current policy allows Native American prisoners to use those items during group worship. In addition, I am dismissing the complaint as to defendant Appau because he is no longer employed at the prison, so he cannot provide any relief to plaintiff.

However, the record remains unclear whether plaintiff’s other requests are now permitted. Because defendants have not identified reasons for denying those requests, the case must proceed to trial. Further, because plaintiff’s request for relief is limited to declaratory and injunctive relief, the trial will be to the court rather than a jury. Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643, 648 (7th Cir. 2002) (“If the only relief sought is equitable, such as an injunction or specific performance (a type of affirmative injunction), neither the party seeking that relief nor the party opposing it is entitled to a jury trial.”).

From the parties’ proposed findings of fact and the record, I find that the following facts are undisputed.


Plaintiff Johnson Greybuffalo is a prisoner in the custody of the Wisconsin Department of Corrections. He is an adherent of the Native American Church, which is the faith of his tribe, the Sisseton-Wahpeton Oyate.

A. Religious Policies in the Wisconsin Department of Corrections

“Native American” is one of several “umbrella religion groups” recognized by the Department of Corrections. Others include “Catholic, ” “Pagan, ” “Eastern Religions, ” “Jewish, ” Islam” and “Protestant.” (Now the department recognizes a new group called “Humanistic/Atheist/Agnostic.”) These groups are not necessarily specific to particular denominations but are “designed to appeal to a wide range of religious beliefs within a given faith group.” Ewing Decl. ¶ 7, dkt. #52. There is no separate umbrella group for the Native American Church. Rather, defendants classify the Native American Church “as a religious sect falling under the Native American Religion Group.” Dfts.’ PFOF ¶ 46, dkt. #64.

If prisoners wish to participate in group worship or possess religious property, they must designate their affiliation with one of the umbrella religion groups. That designation determines which religious services and study groups a prisoner may attend, which religious property they may possess and which religious diet they may receive. In the absence of a more specific option, plaintiff has designated “Native American” as his religious group.

If a prisoner wants to engage in a religious practice or obtain a piece of religious property that is not yet authorized, he must submit a DOC-2075 form, “Request for New Religious Practice.” The chaplain makes an initial recommendation, which is then reviewed by a committee and then the warden.

B. Plaintiff’s Religious Requests

In 2010, when plaintiff was incarcerated at the Wisconsin Secure Program Facility, he requested both a gourd rattle and a “wing/feather fan.” Dkt. #63-5, exhs. dE and dF. (A feather fan is one large feather from a wing of a bird. A wing fan is an entire wing of a bird. Plaintiff does not suggest that there is any religious difference between the two types of fans.) The chaplain at the time (not a defendant) recommended approval of both requests. However, the “DAI Central Office” denied both requests.

With respect to the gourd rattle, the office designee wrote, “[a]though property items for Native American congregate [illegible] may expand in the future, the rattle would not apply as it’s for a half-moon ceremony which does not exist.” With respect to the fan, the office designee wrote, “The DOC finds that growth in inmate populations, limited space, security needs and the need to control property limits [sic]. Property items were determined in conjunction with outside religious consultants. A review of all Native American property items, congregate and individual, is currently occurring.”

In November 2011, plaintiff was incarcerated at the Waupun Correctional Institution. On November 29, 2011, he sent defendant Samuel Appau (the prison chaplain) an information request in which he asked Appau whether the prison would provide services for members of the Native American Church. In response, Appau wrote the following: “We can’t do that. We do not have Native American Church services approved by DOC. If we can get an approved Native American Church pastor we can bring him in to organize [services] after getting DOC to approve the NAC.”

In December 2011, when plaintiff asked defendant Appau what he needed to do to get Native American Church services approved, Appau told plaintiff to fill out a DOC-2075 form. Plaintiff provided Appau a completed form in which he asked the department to recognize the Native American Church as a religion.

Defendants have no record of what happened to plaintiff’s request after he gave it to defendant Appau. (Appau says that he recommended that plaintiff’s request be granted.) In 2012, Appau left his employment as chaplain for the Waupun prison and he had no further involvement in the issues raised in this case.

In 2013, after plaintiff was transferred back to the Wisconsin Secure Program Facility, he asked his program supervisor about the status of his request. In response, the supervisor wrote, “I checked with Madison and was told that they did not receive[] the DOC-2075 you are asking about. Ms. West said that you should submit another one.” Dkt. #1-1, exh. N, at 39.

In a DOC-2075 form dated April 30, 2013, plaintiff asked that the Native American Church be recognized as its own umbrella religious group. As part of that recognition, plaintiff asked for approval of various religious property items, such as a water drum, gourd rattle, eagle-bone whistle, ritual/ceremonial staff, feather fan, feather, cedar, sage, flag root, tobacco, corn husks, corn pollen, sacred medallion, medicine bag and various religious garments. On July 12, 2013, the Religious Practices Advisory Committee, including defendant Kelli Willard West, recommended denial of the request. (Defendants do not explain why the chaplain did not make an initial recommendation.)

In its lengthy decision, the committee did not address the merits of plaintiffs’ particular requests. Instead, the committee explained the reasoning for using umbrella religion groups. The purpose of those groups, the committee said, was to “meet spiritual needs of as many inmates as possible within the limits of institution time, space, staff, volunteer and resource availability” and “to accommodate the breadth of sub-group/denomination beliefs and practices with similar theology.” The committee stated that “[i]t would be impossible for WI-DOC to provide congregate programming to accommodate all inmate spiritual practices because of the wide diversity and sometimes very individualistic nature of religious beliefs and practices.”

The committee described other ways that prisoners can exercise their religion, such as individual study and meditation, participating in annual celebrations for their umbrella religion group, receiving visits from a religious volunteer and using religious property such as books and literature. The committee did not consider plaintiff’s particular requests for religious property and it did not explain its failure to do so.

Tim Haines, the warden at the time, affirmed the committee’s decision. (Defendant Gary Boughton is the current warden of the ...

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