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Tanksley v. Litscher

United States District Court, W.D. Wisconsin

August 15, 2017

JAMES A. TANKSLEY, Plaintiff,
v.
JON E. LITSCHER, BRIAN FOSTER, and WISCONSIN DEPARTMENT OF CORRECTIONS, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         Pro se plaintiff James A. Tanksley is a prisoner at the Waupun Correctional Institution (WCI), where he is serving a long sentence for sexual assault of a child. He practices the Hermetic Order of the Golden Dawn, which WCI recognizes as a legitimate religious faith. Practice of the Golden Dawn, like other occult religions, requires the use of tarot cards. Tanksley would like to acquire a specific tarot deck, the Initiatory Tarot of the Golden Dawn. But WCI officials won't let Tanksley have the Initiatory Tarot because some of the cards depict nudity in a realistic, eroticized way. Defendants contend that the Initiatory Tarot is a threat to the security of the prison and an impediment to Tanksley's rehabilitation as a sex offender. WCI allows inmates to have other tarot decks, but Tanksley is not satisfied with those because they do not have symbolism specific to the Golden Dawn, and even if they did, Tanksley prefers the Initiatory Tarot version.

         Tanksley contends that barring him from having the Initiatory Tarot violates his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a), and under Free Exercise Clause of the First Amendment. Defendants are the Wisconsin Department of Corrections, its secretary Jon Litscher, and WCI warden Brian Foster.

         Tanksley's case illustrates a fundamental tension under RLUIPA. On one hand, RLUIPA accords significant deference to the inmate's choice of religious exercise, which may be restricted only to serve a compelling government interest, and then only by the least restrictive means available. On the other hand, courts defer to the expertise of prison officials in matters of security and rehabilitation. So, the question here is whether Tanksley's religious preference for an erotic tarot deck must yield to the judgment of prison officials that such a tarot deck is disruptive contraband that should be banned. For reasons explained in this opinion, I conclude that RLUIPA does not require defendants to allow Tanksley, a convicted child sex offender, access to the erotic Initiatory Tarot, even if that tarot deck is part of a religious exercise. If Tanksley's RLUIPA claim fails, his Free Exercise claim necessarily fails, too. Defendants' motion for summary judgment, Dkt. 46, is granted.

         UNDISPUTED FACTS

         I draw the following facts from the parties' summary judgment materials. The facts are undisputed except where noted.

         In 2001, plaintiff James A. Tanksley was convicted of two counts of first-degree sexual assault of a child and one count of false imprisonment in Langlade County Circuit Court. These charges arose out of two incidents in 1996 and 1997 in which Tanksley sexually assaulted a nine-year-old boy and, in one incident, locked the door to prevent the boy from leaving. Tanksley received two consecutive 40-year sentences for the sexual assaults and a two-year consecutive sentence for the false imprisonment. He will be required to register as a sex offender for the rest of his life. The DOC's psychologist chief, Jonathan Dickey, determined that Tanksley has an above-average risk of recidivism. Tanksley disputes the risk assessment. Tanksley says that he lived with a lover for more than two years, which, if true, is a consideration that would reduce his risk of recidivism to average. Dickey recommended that Tanksley complete an intensive residential sex offender program for high-risk sex offenders. Tanksley is on the waitlist for this program and has not yet completed any sex offender treatment, which is typically provided for those nearing release.

         Throughout his incarceration, Tanksley has been a practicing believer in the Hermetic Order of the Golden Dawn. WCI and the DOC recognize the Golden Dawn as a legitimate faith, and they have categorized it within the Pagan umbrella religious group. In 2011, Tanksley submitted a form DOC 2075, “Request for New Religious Practice, ” to ask that he be allowed to acquire at his own expense the Initiatory Tarot of the Golden Dawn by Giordano Berti, a tarot card deck with a companion booklet. He explained in his 2011 request that he is a member of the Golden Dawn and that the Initiatory Tarot “is the only Tarot deck codified for the Golden Dawn religion.” Dkt. 50-5, at 1. Chaplain Sam Appau recommended denying Tanksley's request because the Initiatory Tarot deck contains images of violence and nudity. Other WCI and DOC officials concurred and denied Tanksley's request on the grounds that the Initiatory Tarot contained inappropriate nude images that would be deemed pornographic under prison regulations and that another tarot deck had been approved for inmate use. Id. at 2-3.

         Tanksley renewed his request for the Initiatory Tarot in 2013 with another form DOC 2075. This time, Tanksley did not contend that the Initiatory Tarot was the only tarot deck approved for the Golden Dawn. Rather, he explained that the Initiatory Tarot is “one of the newest approved Tarot Decks of the Golden Dawn Religion and is the most accurate in both symbology and imagery.” Dkt. 50-6, at 1. Tanksley explained that the previously approved tarot deck is Wiccan and “does not contain the correct symbology/symbols/ colors/imagery and meanings as those used for the Golden Dawn Religion.” Id.

         Again the reviewing chaplain recommended denial. The essence of the chaplain's decision was that the Initiatory Tarot was not specifically required for the Golden Dawn. As the chaplain put it:

I am not convinced by his indicated response and justification he provided to the question how initiatory tarot deck of the golden dawn is required to practice his chosen religious path. I get the impression that inmate Tanksley prefers the look and flavor of this new deck over the existing allowed deck of tarot cards not because it is a requirement but as a personal preference.

Dkt. 50-6, at 2. The chaplain also cited the logistical difficulties that would arise if the DOC had to cope with many inmate requests for specific tarot decks from among the many that are commercially available.

         Tanksley's 2013 request (like his 2011 request) was also reviewed by Kelli Willard West, an administrative policy advisor in the DOC's Division of Adult Institutions. As part of her duties, West was also the chair of the DOC's Religious Practices Advisory Committee, which reviews inmate requests for new religious exercise, sets DOC policy on religious practices, and advises institutions on the proper handling of religious issues. By the time West reviewed Tanksley's 2013 request, the DOC had modified the approved religious property list to include three tarot decks: the previously approved Aquarian Tarot, the Animal Wise Tarot, and the Rider-Waite Tarot. The Rider-Waite Tarot was deemed to “have roots in the Golden Dawn tradition according to the Pagan [umbrella religious group] advisors.” Id. at 4. West agreed with the chaplain's view that allowing every inmate preference in tarot decks would pose logistical difficulties. West concurred with the denial of Tanksley's request.

         At some point after Tanksley's 2013 request was denied, the DOC adopted a more flexible policy regarding requests for alternative tarot decks. Instead of being routinely denied based on the approved religious property list, each request is individually determined based on the inmates' own justification, available information about that tarot deck, and the advice of spiritual leaders. Dkt. 50, ¶¶ 39-40. Tanksley has not submitted a request under the new policy.

         In connection with this litigation, West has reviewed the Initiatory Tarot deck. She states that she would maintain her recommendation to deny Tanksley's request on the grounds that 13 of the 78 cards include imagery that would be deemed pornographic under DOC regulations.

         The Initiatory Tarot deck would not likely be considered “pornographic” under the common conception of the term. But some of the cards depict nude figures, rendered in full color in an eroticized style typical of some graphic novels. For example, here are two of the cards that the DOC finds objectionable:

         (Image Omitted)

         Dkt. 74, at 1, 3.

         At least some of the objected-to cards would fall within the definition of “pornography” used by the DOC. Division of Adult Institutions (DAI) policy 309.00.50 prohibits “inmates from possessing pornographic materials.” Dkt. 50-1, at 1. Pornography is defined in this policy somewhat flexibly, through a list of non-exclusive examples. In pertinent parts, the definition provides:

         B. Pornography includes, but is not limited to:

2. Any material, other than written material, that shows any of the following:
b. Sadomasochistic abuse, including but not limited to flagellation, bondage, brutality to or mutilation or physical torture of a human being.
3. Any commercially published material that features pictures/drawings of nudity on a ...

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