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Smith v. Jensen

United States District Court, W.D. Wisconsin

June 27, 2016

NEIL JENSEN, Defendant.


          WILLIAM M. CONLEY District Judge.

         Plaintiff Randy Jay Smith is presently committed as a sexually violent person under Wis.Stat. ch. 980 to the Sand Ridge Secure Treatment Center in Mauston, Wisconsin. The court previously authorized Smith to proceed on claims that defendant Neil Jensen denied his rights to practice his religious beliefs in violation of the Free Exercise and Establishment Clauses of the First Amendment. (Dkt. #11.) Pending before the court are defendant’s Motion for Summary Judgment (dkt. #25), which will be granted, and plaintiff’s Motion for Appointment of Council (dkt. #42), which will be denied.


         I. The Parties

         At all times relevant to the complaint, Smith has been confined as a patient at the Sand Ridge Secure Treatment Center (“Sand Ridge”), where defendant Neil Jensen is employed by the Wisconsin Department of Health Services (“DHS”) as a chaplain. Sand Ridge is a secure treatment facility operated by the DHS for persons who have been committed under Wisconsin’s sexually violent persons law, Chapter 980. Sand Ridge’s mission is to enhance public safety by providing specialized mental health treatment, rehabilitation, training and supervision to patients housed there.

         As chaplain, Jenson is charged with ensuring that patients have opportunities to participate in meaningful religious study groups and worship services. To that end, he coordinates pastoral visits, talks to patients, responds to patient interview requests, schedules religious programming, approves religious diets and processes patient requests for religious property. Jensen also oversees Sand Ridge’s religious programs for Christian bible studies, the Buddhist group, the Wicca group, the Islamic group and the Jewish group.

         II. Sand Ridge Computer Use Policies

         Sand Ridge permits patients to access computers for learning and treatment activities. No personal computers are allowed, but patients may access Patient LAN (local area network) computers upon request. When a patient’s request for computer usage is approved, that patient is assigned an H-drive account to save documents. The H-drives are monitored by Sand Ridge’s IT staff. This restriction applied equally to all patients.

         The terms of patient computer use are laid out in Sand Ridge Policy and Procedure # SR 364. Before April of 2013, SR 364 expressly permitted patients to save treatment, education and legal work to their H-drives, but did not address whether patients could save religious materials.

         Sand Ridge’s handbook further prohibits patients from communicating using unrecognizable languages, alphabets, symbols or codes. The justification for this restriction is that any type of secret code or language poses a security concern because it prevents staff from reviewing and translating notes and correspondence to determine if a security concern exists. Concerns include gang communications, an escape plan, inciting a riot, group resistance or a plan to engage in injurious behavior towards oneself, another inmate or staff. Communications in code also prevent Sand Ridge staff from learning whether patients are communicating in counter-therapeutic ways, such as planning criminal activities. In addition to using coded communications, unrestricted clip art is prohibited as an unauthorized communication, because certain pictures can trigger specific behaviors related to pedophilia, bestiality and other sexually-based crimes that can inhibit rehabilitation.

         III. February 2013 Investigation and Policy Change

         A February 2013 investigation showed that some patients were using the Patient LAN to access images, or “clip art, ” from unauthorized sources and computer applications in ways that were considered to be security risks, including:

• Some patients were saving these unauthorized images on institution computers in their H-drives.
• Some patients were using clip art as an unauthorized form of communication or code, and some were also writing journal entries related to clip art pictures of small children. Those journal entries were very graphic and considered counter-therapeutic.
• Patients created fictitious letterhead and certificates using clip art. Examples of such inappropriate use involved a patient creating a fake marriage license and another creating a contract used for potential gang recruitment.
• One patient used clip art/symbols from the Patient LAN to make up his own language to communicate in code using symbols. He claimed that this language was a part of his religious exercise.

         This investigation caused Sand Ridge staff to delve into whether patients could even use the Patient LAN for religious purposes, given that SR 364 only expressly permitted computer use for treatment education and legal work. Until SR 364 was revised to address these new security concerns, Sand Ridge’s Security Director Steve Schneider decided that Patient LAN use for religious purposes should be very limited, and he directed all religious groups to be temporarily prohibited from (1) using the computers to save religious documents and (2) using clip art. Security Director Schneider advised Chaplain Jensen about the results of the investigation.

         IV. The Restriction on Smith’s Access to the H-drive

         Smith practices the Wiccan religious faith and attends Wiccan services at Sand Ridge. For six years, Smith used the Patient LAN to access religious study programs and “clip art” related to his Wiccan faith. In particular, Smith has used clip art of religious symbols in connection with his religious studies and Wiccan rituals.

         On or around February 7, 2013, Schneider asked Jensen to inform the Wiccan group that computer use for religious purposes would be temporarily suspended until SR 364 could be clarified. He also told Jensen to inform the Wiccan patients that accessing clip art through the institution’s computer programs was no longer permitted. Although the restriction applied to all patients, Jensen was assigned this task because he was the supervising chaplain for the Wiccan group and he knew that the ...

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