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Schlemm v. Wall

United States District Court, W.D. Wisconsin

November 8, 2016

EDWARD WALL, Defendant.



         Pro se plaintiff David Schlemm turned to litigation after enduring years of what he perceived to be a growing disdain and disrespect for his and other inmates' Native American religious culture and traditions. When Schlemm filed this case in April of 2011, he accused the Wisconsin Department of Corrections (“DOC”) of arbitrarily restricting his religious practices in numerous ways, including (1) denying him possession of certain religious property, (2) limiting participation in sweat lodges, and (3) failing to permit traditional spiritual foods at an annual Ghost Feast. Schlemm was permitted to proceed with claims under both the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). As the litigation progressed, however, Schlemm's claims have narrowed and become more focused to fit within the contours of First Amendment and RLUIPA law. By the time this case had gone through one round of summary judgment and an appeal, the only issues remaining for resolution by this court at trial were whether Schlemm was entitled under RLUIPA to: (1) eat venison Indian tacos during the annual Native American Ghost Feast; and (2) wear a multicolored headband or bandana containing the color red while praying or meditating in his cell and during group religious ceremonies. See Schlemm v. Wall, 784 F.3d 362 (7th Cir. Apr. 21, 2015).[1]

         With respect to the multicolored headband, the state agreed before trial to allow Schlemm to possess and wear a multicolored headband while praying in his cell and during religious ceremonies. Consistent with that accommodation, a permanent injunction regarding the headband will be entered as part of the order. Because of this concession, the only issue remaining for trial concerned Schlemm's request for venison meat at the annual Ghost Feast. A bench trial was held on this issue on March 21 and 22, 2016. As discussed in more detail below, plaintiff established at trial that defendant violated his rights under RLUIPA by restricting his ability to obtain game meat and fried bread for use at an annual Ghost Feast. The court will, therefore, enter an injunction requiring defendant to make accommodations that will permit plaintiff to obtain the traditional foods he needs to hold a meaningful Ghost Feast.


         I. Preliminary Matters

         There were several matters that were resolved by the court shortly before trial. First, plaintiff was offered an opportunity to have Perkins Coie LLP act as counsel during the trial. The court had recruited Perkins to represent plaintiff after the case was remanded given their past willingness to represent other inmates on similar RLUIPA claims. Later, the court granted counsel leave to withdraw due to fundamental disagreements between counsel and plaintiff over how to proceed. Before trial, Perkins graciously offered to act as standby counsel for plaintiff, but he declined this help and chose to proceed pro se at trial.

         Second, on the morning of trial, plaintiff requested assistance from another inmate, Johnson Greybuffalo, but that request was denied as being raised too late.

         Third, a few days before trial, plaintiff had requested that the court issue subpoenas for a number of his proposed witnesses. That request was denied as untimely. (Dkt. #200.) In light of plaintiff's pro se status and the difficulties inherent in contacting witnesses from inside the prison, however, the court made efforts to contact all of the witnesses on plaintiff's witness list before the upcoming trial. The court successfully made arrangements for several of plaintiff's witnesses to testify, including the expert that had been recruited and retained by plaintiff's then counsel, Dr. Deward Walker.[2] Plaintiff's proposed witnesses Randy Cornelius and Roy Red Hail did not respond to the court's repeated efforts to contact them, however, so they did not testify at trial.

         II. RLUIPA

         Turning to the substance of plaintiff's claim, RLUIPA prohibits the government from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution, ” unless “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 governmental interest.” 42 U.S.C. § 2000cc-1(a). RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief, ” § 2000cc- 5(7)(A), but “a prisoner's request for an accommodation must be sincerely based on a religious belief and not some other motivation.” Holt v. Hobbs, 135 S.Ct. 853, 862 (2015) (citing Burwell v. Hobby Lobby, 134 S.Ct. 2751, 2774 n. 28 (2014)).

         Courts have placed the initial burden on the plaintiff to show that he has a sincere religious belief and that his religious exercise was substantially burdened. Holt, 135 S.Ct. at 862; Koger v. Bryan, 523 F.3d 789, 797-98 (7th Cir. 2008); Vision Church v. Village of Long Grove, 468 F.3d 975, 996-97 (7th Cir. 2006). If the plaintiff is able to meet this threshold, the burden then shifts to the defendants to demonstrate that their actions further “a compelling governmental interest” by “the least restrictive means.” Cutter v. Wilkinson, 544 U.S. 709, 712 (2005).

         Consistent with this law, the parties agreed before trial that the disputed issues to be resolved were whether: (1) plaintiff's requests for venison at the Ghost Feast are motivated by sincerely held religious beliefs; (2) the DOC's policies substantially burdened his religious exercise; and (3) the DOC's policies are the least restrictive means of furthering a compelling government interest.

         A. Sincerity of Plaintiff's Religious Beliefs.

         The court has no trouble concluding that plaintiff's request for venison or other game meat at the annual Ghost Feast is motivated by a sincerely held religious belief. Plaintiff testified credibly at trial that: (1) the Ghost Feast is essential to his Native American religious practice and (2) traditional foods, including game meat, must be served for the feast. (Trial Trans., day 1, at 53-54.) Game meat could be venison, but may also be buffalo or wild turkey. Other traditional foods that plaintiff believes should be present are fried bread, corn and berries. (Id. at 57, 63.) Plaintiff testified that without the traditional foods of game meat and fried bread, the Ghost Feast would lack religious significance for him.

         Plaintiff called several witnesses that supported his testimony regarding the nature, purpose and significance of the Ghost Feast and of the presence of traditional foods, including game meat, corn and berries. Jose Villarreal, a Native American inmate at Green Bay Correctional Institution, testified that the Ghost Feast was important to his identity as a Native American and that it was important to have wild game served at the feast. (Id. at 23.) Although Villarreal had attended numerous Ghost Feasts while incarcerated in the Wisconsin prison system, he declined to eat the non-game meat served at those feasts. (Id. at 28.)

         Johnson Greybuffalo, a Native American inmate at the Wisconsin Secure Program Facility, testified that: (1) the purpose of the Ghost Feast is to honor one's loved ones that have passed; (2) traditional foods are a significant part of the ceremony; and (3) there needs to be some kind of game meat traditionally hunted by Native people -- such as buffalo, venison, bear meat, pheasant, or wild turkey -- as well as other traditional foods such as corn, water and fruit. (Id. at 38-39, 41-42.) In addition, plaintiff's expert, Dr. Walker, testified that the Ghost Feast is a traditional ceremony that celebrates and honors ancestors, who exercise important influence in the lives of tribal members. The preparation and presentation of traditional foods, including corn, venison and bison, express an admiration, concern and love for ancestors. (Id. at 94, 110.) Walker explained that in addition to consumption of traditional foods, the ceremony generally includes praying to ancestors for guidance, healing and protection. If the traditional details are not followed, the ceremonies lose their value in providing the help, teaching and healing for the participants. (Id. at 104.)

         Finally, Robert Ryan Krist, a Native American spiritual advisor for the DOC, testified that he has advised the DOC regarding Ghost Feast traditions. In particular, he has advised the DOC that the Ghost Feast is a traditional feast honoring the dead and that traditional foods must be present, including water, berries, corn, buffalo or venison, and frybread, if available. (Id. at 115.)

         All of this testimony support a finding that plaintiff's request for venison and fried bread is motivated by a “sincerely held religious belief” and that these foods are necessary components of the annual Ghost Feast. This testimony also confirms that for plaintiff, as well as many other practitioners of Native American religious traditions, serving game meat and other traditional foods allows participants to honor and commune with their ancestors.

         Although defendant attempted to challenge the sincerity of plaintiff's religious beliefs, and his request for venison in particular, its evidence does not undermine this finding. First, defendant presented evidence that in 2008 and 2009, plaintiff asked the prison to serve Indian tacos made with ground beef at the Ghost Feast. As part of these same requests, plaintiff stated that the tacos on the regular menu at GBCI could accommodate part of his feast food needs. Second, defendant presented evidence that plaintiff chose not to attend the Ghost Feast in 2015, despite the fact that his recruited counsel and the DOC had made accommodations to ensure that he would have venison and an Indian taco at the feast. Defendant's position is that these facts undermine plaintiff's testimony that venison is a necessary component of the Ghost Feast, and also raise questions whether the Ghost Feast itself is as important to his religious practice as he has claimed.

         But plaintiff adequately explained at trial his requests for ground beef in 2008 and 2009, and his choice to skip the Ghost Feast in 2015. Neither explanation was contrary to plaintiff's sincerely held religious beliefs regarding the Ghost Feast. Plaintiff testified that he requested Indian tacos with ground beef in the past because he believed (probably correctly) that was all the prison would provide. He also denied ever believing that ground beef tacos would satisfy his religious needs for a meaningful Ghost Feast. With respect to the 2015 Ghost Feast, plaintiff found the timing and events planned for the ceremony rendered the Ghost Feast meaningless for him, despite the availability of venison. In particular, plaintiff testified that the Ghost Feast should have been held in October or November, rather than in September when the 2015 feast was held, and the feast needed to include a sweat lodge, tobacco burning and spiritual songs.[3]

         Both of these explanations are supported by documentary evidence in the record. In particular, it is undisputed that in 2008 and 2009, the prison had ground beef available as part of the regular institution diet, but did not offer venison. With respect to 2015, there is also evidence that plaintiff objected to the timing and content of the Ghost Feast before its occurrence. Taken as a whole, the testimony and evidence presented at trial confirmed that plaintiff's ...

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