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Greybuffalo v. Litscher

United States District Court, W.D. Wisconsin

February 1, 2017

JOHNSON W. GREYBUFFALO, Plaintiff,
v.
JON LITSCHER, KELLI WILLARD WEST and GARY BOUGHTON, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge.

         Pro se prisoner Johnson Greybuffalo brought this case to challenge what he viewed as violations of his right to practice his religion. The court has dismissed some claims, dkt. ## 30 and 70, and the parties have settled others, dkt. #105. The only remaining issue is whether prison officials are violating the Religious Land Use and Institutionalized Persons Act and the free exercise clause of the First Amendment by refusing to hold a separate sweat lodge ceremony for prisoners like plaintiff at the Wisconsin Secure Program Facility who are adherents of the Native American Church. The prison already holds a sweat lodge ceremony on a regular basis, but plaintiff says that the ceremony offered now is not conducted in accordance with the principles of the Church.

         Both sides have moved for summary judgment, dkt. ##107 and 111, and both motions are ready for review. I agree with defendants that plaintiff's claim is premature for two reasons: (1) plaintiff has never requested a separate sweat lodge ceremony through the required administrative process; and (2) plaintiff has not identified anyone who could lead a sweat lodge ceremony for adherents of the Native American Church. Accordingly, I am granting defendants' motion for summary judgment as to this claim.

         OPINION

         A. Failure to Complain to Prison Officials Before Filing This Law suit

         The primary issue discussed by the parties is whether plaintiff complied with 42 U.S.C. § 1997e(a), which requires a prisoner to exhaust all available administrative remedies before filing a lawsuit in federal court related to his treatment in prison. Porter v. Nussle, 534 U.S. 516, 524 (2002). Prisoners in the Wisconsin Department of Corrections must complete and submit a form called “DOC-2075” if they wish to participate in a new religious practice or obtain approval for a new religious item. Lagar v. Tegels, 94 F.Supp.3d 998, 1003-04 (W.D. Wis. 2015); Meyer v. Wisconsin Dept. of Corrections, No. 09-cv-312-bbc, 2010 WL 2486242, at *1 (W.D. Wis. June 16, 2010); Lindell v. Casperson, 360 F.Supp.2d 932, 942 (W.D. Wis. 2005). Thus, if a prisoner files a lawsuit about the denial of a religious practice without submitting a DOC-2075 form about the practice, then the prisoner's claim about that issue must be dismissed for his failure to exhaust his administrative remedies. Schlemm v. Frank, No. 11-cv-272-wmc, 2014 WL 2591879, at *9 (W.D. Wis. June 10, 2014), aff'd in relevant part, Schlemm v. Wall, 784 F.3d 362, 363 (7th Cir. 2015).

         The parties debate three issues related to DOC-2075: (1) whether a form plaintiff submitted in 2013 included a request for a separate sweat lodge ceremony; (2) if not, whether a grievance plaintiff filed the following year satisfied any requirement to raise the issue administratively; and (3) if not, whether the court should conclude that plaintiff did not need to raise the issue before filing this lawsuit. I will consider each argument in turn.

         1. DOC-2075 form

         The first issue is resolved by this court's previous order addressing the question whether plaintiff had exhausted his administrative remedies on his claim that he was entitled to have feasts after religious ceremonies. Greybuffalo v. Wall, No. 15-cv-8-bbc, 2015 WL 5093340 (W.D. Wis. Aug. 28, 2015), dkt. #30. In that order, I noted that plaintiff's 2013 form is limited to a request to “officially recognize the Native American Church as one of its ‘Umbrella' Group Religions” and to approve various property items related to the religion. Because plaintiff did not include a request for religious feasts, he had not exhausted his administrative remedies as to that claim.

         In this case, plaintiff does not deny that his DOC-2075 form says nothing about a separate sweat lodge ceremony, but he says that “any reasonable person would understand that” approval of a new religious group “would entail accompaniment of Religious Services both Congregate in nature and Study Group related.” Plt.'s Resp. to Dfts.' PFOF ¶ 7, dkt. #125. That is essentially the same argument that plaintiff made with respect to his religious feasts claim and I rejected the argument:

The DOC-2075 form instructs prisoners to “[w]rite a detailed description of the religious practice that you want to participate in and what the request is based on.” Dkt. #1-1 at 1. Generally, a prisoner must comply with prison rules regarding the type and amount of information that needs to be included in a grievance or form. Jones v. Bock, 549 U.S. 199, 218 (2007); King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015). At a minimum, the prisoner must provide enough information to alert prison officials to the nature of his problem. Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005). Without a specific request by plaintiff, officials would have no way of knowing that they were supposed to be considering a request for a religious feast as part of a general request for group recognition.

         Dkt. #30 at 4.

         This reasoning applies to plaintiff's claim regarding a separate sweat lodge ceremony as well. Under prison rules, plaintiff was required to identify each new practice that he was requesting, even if he believed that it was obvious what he wanted. Although group worship is a common aspect of religious exercise, it is not necessarily universal. Even if it is reasonable to assume that a request for a new group will include some type of request for a group exercise, the rules required plaintiff to provide information about his request. This rule makes sense because different group exercises will impose different financial, administrative and security burdens on the prison.

         In this case, the scope of plaintiff's request was not as obvious as he suggests. Plaintiff says now that he wanted at least two different kinds of separate group exercises, a sweat lodge ceremony and a congregate church service. Plaintiff identifies no way that prison officials could have anticipated those requests without specific notice from him. Particularly because plaintiff did not identify any problems with the current sweat lodge ceremony that would have required a separate ceremony, I do ...


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