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Aiello v. West

United States District Court, W.D. Wisconsin

September 14, 2016




         In this proposed class action, plaintiffs Luigi E. Aiello and Joshua Scolman are proceeding on claims that certain employees of the Wisconsin Department of Corrections (“DOC”) violated their rights under the First Amendment and specific provisions of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.. Generally, plaintiffs allege violation of those rights by (1) limiting access to Shabbat services, (2) denying Seder meals at Passover and (3) reducing the number of ready-to-eat kosher meals.

         This opinion will address three, currently pending motions: (1) plaintiffs' renewed motion for assistance in recruiting counsel (dkt. #27), which will be granted; (3) plaintiffs' motion for summary judgment (dkt. #37), which will be denied; and (4) defendants' motion for summary judgment (dkt. #53), which will be granted in part and denied in part. As a result of these rulings, the sole claim remaining for trial relates to Shabbat services. Once counsel is recruited, the court will schedule a telephonic conference to discuss (1) whether plaintiffs wish to continue to pursue class certification and (2) how trial will proceed.


         I. The Parties

         At all relevant times for purposes of this lawsuit, plaintiffs have been confined at the Waupun Correctional Institution (“WCI”). Defendant Kelli West is the “Religious Practices Coordinator” for the DOC Division of Adult Institutions (“DAI”). Defendant Cathy A. Jess is the “Administrator of the DAI.” Among other things, she is responsible for the creation and implementation of the challenged DAI policies. Defendant Paul Ludvigson is the “Corrections Program Director” at WCI, responsible for the programming needs of inmates, which includes religious programming.

         II. Relevant DOC Policies

         DOC DAI Policy #309.61.01 establishes “umbrella religion groups” (“URG”) for accommodation, which include Protestant, Islam, Native American, Catholic, Jewish, Eastern Religions and Pagan. Inmates may designate any religious preference while incarcerated, and they may change their designation every six months. Regardless of their specific URG designation, they may also engage in individual faith practice or study. Aiello's religious preference at WCI has always been Jewish. Up until 2014, Scolman's preference was also Jewish, but in May of 2014, he changed his religious preference to Pagan.

         Among its provisions, DAI Policy #309.61.01 states that “[u]nder no circumstances will inmates be authorized to lead or conduct a Religious Service or Study Group.” Instead, a religious service for a particular umbrella religion group must be led “by a qualified person of that particular Umbrella Group Religion.” (Emphasis in original.) According to defendants, the ban on inmate-led services was adopted in 2001 because of security problems that arose when individual inmates differentiated themselves as leaders of a particular religious sect, including prison security being threatened. More generally, there appears to be no dispute that perceived power differentials among inmates can create the potential for violence, attempts to control the actions of other inmates, gang activity or other unlawful activity, such as the introduction of contraband and group resistance. As related to gang activity in particular, defendants state that DOC has historically had problems with gangs attempting to take over religious groups. Additionally, defendants state that inmate-led groups have previously disrupted the power dynamics in prison, blurring the line between the staff and leader-inmates.

         III. Availability of Shabbat Services at WCI

         Shabbat is a ritual observance in Judaism that is a day of rest and spiritual enrichment, which occurs on the seventh day of the week. Under DAI Policy #309.61.01, only a Jewish rabbi may facilitate a Shabbat or other service, but a chaplain or another staff member may facilitate a Jewish study group. As the Religious Practices Coordinator, defendant West has, therefore, recommended that chaplains should hold a study group to provide a religious accommodation when a Jewish spiritual leader is unavailable to lead a worship service, including Shabbat. This practice was and is not unique to Jewish services, but rather is the approach taken with respect to all recognized religions.

         From 2004 through 2006, Friday Shabbat services took place in the WCI chapel and included matzah, candles and grape juice. Despite the fact that DAI Policy #309.61.01 was in effect, Aiello was permitted to meet with up to four other inmates in the resource room from 2005 to 2006 under the supervision of WCI Chaplains. This room is walled with windows, equipped with a microphone and located across from an officer's station. As a result, chapel staff watched and listened to Aiello and his fellow inmates during their weekly services. Aiello states that during the inmate-led sessions he participated in, there were never any incidents.

         In 2006, however, Shabbat services were discontinued altogether due to a lack of a volunteer Jewish leader. Instead, matzah and grape juice were sent to the inmates' cells for a period of time until WCI obtained a rabbi to lead weekly services. Eventually, WCI engaged Rabbi Mosheh Stallman for services, and he led the weekly services on Thursdays until December 2011. From late 2011 into early 2012, Jewish inmates, including Aiello and Scolman, were permitted to attend weekly services led by non-Jewish chaplains, Dr. Sam Appau and Chaplain Francis Paliekara. Unfortunately, Appau left in December 2012. At that point, WCI again had no other volunteer to supervise the weekly Shabbat services.

         In January 2013, Rabbi Mitchell Cohen volunteered to supervise Jewish services. He conducted services routinely two Thursdays per month, and during the weeks that Cohen was not present for services, inmates were permitted to attend the chapel. In February 2013, however, Chaplain Paliekara informed the inmates at WCI that they could no longer attend chapel during Rabbi Cohen's off weeks. Rabbi Cohen served as the Jewish volunteer until July 2015, taking a break between September 2013 and January 2014. WCI does not have a current Rabbi volunteer but defendants state that they are continually seeking to fill the void.[2]

         Since Rabbi Cohen left in July of last year, Chaplain George has made attempts to locate a volunteer by informing defendant West of the need, as well as asking the Milwaukee Jewish center and the Aleph institute for volunteers. As a substitute for group Shabbat services, inmates may also request time in the resource room for a prayer session or to attend a service through an electronic medium such as video tapes and/or DVDs. As mentioned, the resource room is across from an officer's station, but current policy provides that inmates may only watch the videos individually -- not as a group.

         IV. Seder Observance at WCI

         The Jewish faith observes Seder during the first two nights of the annual Passover holiday. The Seder ritual meal involves eating certain symbolic foods, including a shank bone, lettuce, hard-boiled eggs, nuts, apples, spices and bitter herbs. The meal also involves recitation of blessings, ritualistic hand washing and readings from the Bible. According to Aiello, observance of Seder “is the most important and vital component of the Passover holiday.” (Aiello Decl., dkt. #41, ¶ 18.)

         Under DOC Policy, all URGs may have an “Annual Religious Celebratory Meal/Observance, ” if required by that religion. DOC does not, however, provide foods of special or cultural significance for any annual celebration.[3] Instead, “[a]n approved celebratory meal will consist of a regular institution/center meal.” DAI Policy 309.61.01. Despite this, DOC's Religious Practices Advisory Committee (“RPAC”) and DAI leadership learned that some institutions were nevertheless purchasing special Seder foods for Jewish inmates, leading to a concern that these institutions were giving preference to Jewish inmates.

         Apparently WCI was one of the facilities that violated DOC's written policy, because Chaplain Francis issued a memo on January 31, 2013, stating that the general policy would be followed. Going forward, the Chaplain's memo also advised that: WCI would be denying individual Seder plate items through donations; inmates could not purchase the ingredients for the Seder meal; and as an alternative during the Seder ritual meal, inmates would receive a picture of a Seder plate. After Chaplain Paliekara and Rabbi Cohen voiced concerns about these changes with defendant West at DAI in February of 2013, Rabbi Cohen was ultimately allowed to donate a single communal Seder plate.[4]

         On July 1, 2013, after inmates complained about the policy change, DAI Policy #309.61.02 was also updated to include Seder plate food items in the Religious Property Chart. This policy change officially permitted Rabbi Cohen to bring in a communal plate when he came to WCI to perform the Seder ritual. Thus, in 2013, in 2014 and 2015, Rabbi Cohen presided over the Seder ritual meal, at which a communal plate was available to participants.

         On January 1, 2016, a new version of DAI Policy #309.61.03 became effective. This policy now states that inmates may request individual accommodation to purchase an individual portion of a shelf-stable, ceremonial food item for personal consumption in conjunction with the URG Annual Religious Celebratory Congregate Meal. To obtain the accommodation, an inmate must submit a form at least 90 days before the event and list the requested food item, the religious/spiritual/ceremonial significance, the source of the food item, the individual portion cost, the delivery method and charges, as well as any possible substitutions. Aiello and Scolman are both aware of this policy change; Scolman has stated that he has no plan to participate because he is now Pagan.

         V. Kosher Diet Accommodations

         DOC inmates may request a diet that comports with their personal religious beliefs. For example, inmates designating a Jewish URG preference have the option to request a Kosher diet. Because DOC facilities do not have kitchens that comply with Kosher rules for separation of dairy and meat, the DOC follows the Academy of Nutrition and Dietetics (“AND”) guidelines for serving Kosher meals in non-Kosher commercial kitchens. To that end, the DOC Kosher menu includes pre-packaged certified-Kosher entrees, individual serving-size products, separate preparation and double-wrapping of side dishes and disposables for serving. To follow AND, DOC serves milk with the meatless morning and evening meals. Because the midday meals often contain meat, however, dairy products are never served with that meal.

         Before 2012, inmates who kept Kosher at WCI received two ready-to-eat warm Kosher meals per day. DOC then changed the Kosher menu. Before the change, the evening meal included two slices of bread and one of a variety of warm Kosher entrees, but after the change, the evening meal was substituted with a cold, prepackaged meatless Kosher bag meal, containing among other items, saltines, graham crackers, jelly and peanut butter.

         Defendants explained that this change occurred for four reasons: (1) to make the caloric and nutritional content of Kosher meals consistent with the general, plant-based and halal menus; (2) to save kitchen labor and resources; (3) to reduce costs; and (4) to replace powdered milk with liquid milk provided by the DOC dairy.

         As for nutrition, defendants' position is that the current Kosher diet exceeds the DOC's nutritional goals. DOC uses the brand “My Own Meals” for the Kosher entrees, and supplements those entrees with fruit, vegetables and beverages. Although Scolman disputes the nutritional value of the changed Kosher menu, as explained further below, his evidence does not effectively dispute the fact that the average caloric value of the current Kosher diet exceeds the DOC's nutritional goal of 2500-2750 calories per day.

         As for resource and cost savings, defendants offer evidence that: (1) the cost of Kosher meals is markedly greater than other meals; and (2) the change in the Kosher diet was intended to even out the costs among the different diet plans. Specifically, defendants point out that as of November 2015, one halal meal cost $1.06, one Ramadan meal cost $1.13, one Kosher for Passover meal cost $4.13; one plant-based meal cost $0.88 and one general meal cost $0.92. In contrast, one Kosher meal, including the prepackaged entrée and additional produce and beverage, is approximately $3.68. Moreover, from 2008 to 2012, the annual expenditure on Kosher means increased from $73, 540.20 to $504, 904.50.

         Finally, as for the switch to liquid milk, DOC represents it stopped using powdered milk because inmates had begun using it as a commodity, creating a security risk. Apparently, this is because powdered milk is valued by some inmates, who use it for body-building purposes.

         Plaintiffs dispute each of these stated justifications for the change, except for cost savings. However, plaintiffs only cite as support Aiello's affidavit and defendants' internal correspondence, which actually describe all of defendants' justifications, not just the reduction in costs. (Pl. PFOF, dkt. #39, ¶¶ 30-31.) Plaintiffs further claim that the change targeted Jewish inmates alone, because no other religious diet or meal -- Halal or plant-based -- contains saltines, graham crackers, packets of jelly and peanut butter. More specifically, plaintiffs assert that Muslim and vegetarian inmates on the halal diet continue to receive hot meal entrees in both their lunch and evening meals. Scolman in particular avers that he abandoned the Jewish faith and became Pagan because he became frustrated with what he felt were inadequacies in the Kosher diet and prayer services. While acknowledging that he is not a dietitian or nutritionist, Scolman further claims that the meal change lacks sufficient calories.


         I. Summary Judgment

         Plaintiffs claim that their rights under the First Amendment and RLUIPA are being violated by: (a) WCI's refusal to allow inmates-led Shabbat services; (b) the restrictions on the availability of Seder food items; and (c) the change in Kosher meals. The parties both seek summary judgment of all claims in their favor. Both the First Amendment and RLUIPA analyses involve balancing religious freedoms against government interests in their impingement. As the more exacting of the two standards, though affording only prospective relief, the court will center its liability analysis on plaintiffs' RLUIPA claims.

         The relevant section of RLUIPA provides in pertinent part:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling ...

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