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Brim v. Donovan

United States District Court, W.D. Wisconsin

September 7, 2017

FRADARIO BRIM, Plaintiff,
v.
MICHAEL DONOVAN, CHAD FRAPPIER, and SCOTT ECKSTEIN, Defendants. [1]

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Pro se plaintiff Fradario Brim is a Muslim prisoner incarcerated at the Green Bay Correctional Institution (GBCI). In the spring of 2015, defendant Correctional Officer Chad Frappier, the GBCI chapel officer, wrote several reports concerning Brim's activities during Talim, a Muslim religious service held at the GBCI chapel. Defendant Chaplain Michael Donovan reviewed these reports and had a discussion with non-party GBCI Security Director John Kind, which resulted in Kind directing Donovan to bar Brim from attending any congregate religious services for 90 days. Around the same time, Donovan compiled a list of inmates who wished to fast during Ramadan that year-Brim's name wasn't on that list, even though he had participated in Ramadan for many years and wanted to participate that year. As a result, Brim did not receive specially timed Ramadan meals from the GBCI cafeteria and was forced to choose among buying food, not eating, or violating the strictures of his religion by eating meals in the cafeteria.

         Brim has sued defendants Frappier, Donovan, and GCBI Warden Scott Eckstein over their actions in 2015, claiming that they violated his free exercise and free speech rights under the First Amendment and his religious rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by barring him from attending congregate religious services and properly participating in Ramadan because of his religious speech. Defendants contend that they needed to bar Brim from attending congregate religious services because of his disruptive behavior and suspected drug smuggling and that Brim didn't get Ramadan meals because he didn't sign up for them on time. They have moved for summary judgment on all of Brim's claims. Dkt. 19. Brim has abandoned several of his claims, and his sole remaining RLUIPA claim is moot. But disputes of fact preclude summary judgment on the remaining free exercise and retaliation claims: Brim's version of the facts shows that he wasn't disruptive and wasn't smuggling drugs, calling into question defendants' justification for their actions. Those claims remain for trial.

         UNDISPUTED FACTS

         The following facts are undisputed, except where noted.

         Brim is an inmate in the custody of the Wisconsin Department of Corrections (DOC). He has been incarcerated at GBCI since 2012. Michael Donovan is the GBCI chaplain. He plans, administers, and supervises GBCI's religious programming for the DOC's recognized Umbrella Religion Groups (URG), including Islam. The religious programming for the Islamic URG includes an Islamic Talim study group and Salat al-Jum'ah, or Friday prayers, both of which are held in the GBCI chapel. An outside volunteer often leads Salat al-Jum'ah; but Talim is organized by the inmates, who sit in one or more circles and discuss the Qur'an, the Prophet Muhammad's teachings, and other Islamic topics. Brim, a practicing Muslim, has been part of the Islamic URG since 1995. He regularly attends Talim and Jum'ah, maintains a Halal diet, and fasts during Ramadan. He used to work in the chapel library, checking out religious books to other inmates.

         In early 2014, Donovan observed Brim's Talim discussions increase in intensity “to the point where he was telling other inmates they had to believe exactly as he believed and practice exactly the way he practiced.” Dkt. 22, ¶ 11. He was concerned that the “tension within the Talim group . . . could result in a physical altercation.” Id. So he and the chapel officer at the time, Correctional Officer Stone, met with Brim. According to defendants, Donovan and Stone told Brim “that he could not dictate to other inmates what they had to believe and practice.” Id. Brim does not dispute Donovan's observations about his behavior or the fact that a meeting took place, but he says that he has “never been admonished by Donovan or Officer Stone for extremist, disruptive, threatening, or domineering attitudes.” Dkt. 30, ¶ 42. Donovan admits that he has never witnessed Brim espouse “extremist views” or “threaten or verbally abuse” GBCI staff or inmates and has never written an incident report or conduct report concerning Brim's disruptive behavior. Dkt. 41-1, at 1, 2, 7.

         In May 2014, Chad Frappier became the GBCI chapel officer at GBCI. (He'd been working as a correctional officer at GBCI since 1991.) When he began working in the chapel, he was told that “there was an issue concerning Brim and how he was trying to lead the Muslim services” and that Donovan and Stone had already spoken to Brim about “how that was not allowed in the institution.” Dkt. 24, ¶ 6. A Division of Adult Institutions (DIA) policy provides, “Under no circumstances will an inmate be authorized to lead or conduct a religious service or study group.” Dkt. 22-1, at 3. Brim disputes whether leading a Talim group is prohibited at GBCI in practice. See Dkt. 49, ¶ 33 and Dkt. 30, ¶ 38.

         A. January 13 Talim

         On January 13, 2015, Frappier issued Brim a conduct report concerning Brim's involvement in a heated discussion during Talim. Frappier said that Brim and another inmate, Darin Cobb, were debating “something in the Quran” with “slightly elevated” voices and that Brim appeared to be “challenging Cobb in a verbal way that often leads to an argument.” Dkt. 24-2, at 1. Frappier described Brim as “incessant[ly] ranting” and explained that “[w]hat transpired at this study group, which should be a group discussion, turned into an intense heated argument that is not allowed at any religious group or study at GBCI.” Id. at 2, 4. According to Frappier, he asked Donovan to end Talim early and then followed the inmates back to their cell hall while Cobb continued to argue with another inmate, Andre Simpson; Brim hugged Simpson until Frappier told him to “break it up[, ] and he did.” Id. at 4.

         In an incident report written on the same day, Frappier gave his “opinion of the situation”: “Brim wants to be a leader and won't let anyone take away from him being the center of attention . . . he commands some kind of respect from the others . . . I believe he was setting up Cobb for a fight.” Dkt. 24-1, at 2, 3. He also mentioned that “[a]bout a month ago an issue being talked about in the Talim circle was something called zakat, ” which he thought meant “poor box or store for the muslim group.” Id. at 3. A supervisor commented on this, stating that according to Donovan, “there is no evidence that the inmates are paying Zakat either by money or in canteen goods.” Id. But because of Frappier's hunch, the supervisor encouraged “increased rounds in the chapel during the periods when this group meets.” Id.

         Brim had a hearing on Frappier's conduct report. He was found not guilty of disobeying orders and inciting a disturbance, but he was found guilty of disruptive conduct and lost 30 days of recreation as a penalty. Dkt. 24-2, at 8. Brim appealed this finding; it was affirmed.

         According to Brim, Frappier issued the January 13 conduct report because he was upset about a different conversation Brim held with another inmate, Allen Davis, shortly before Talim began the week prior. Brim was advising Davis on how to explain to his friends and family that Islam is the one true religion and telling Davis that a female officer soliciting a sexual relationship with Davis would be inappropriate under both DOC regulations and Islamic law. When Frappier heard Brim and Davis's conversation, he said, “If you come over here to run your mouth, you know, you all can leave right now. You can leave right now.” Dkt. 18 (Brim dep. 41:2-4). Brim believes Frappier was upset about the topic of solicitation because Frappier's ex-wife had been fired recently for soliciting an inmate. Frappier may have been upset about the religious topic as well, because Davis says that Frappier later told him, “You shouldn't let Brim tell you your family isn't going to Heaven.” Dkt. 31, ¶ 4. Another Talim participant heard Frappier tell Donovan “that he didn't have a problem with Brim until he talked about staff being disciplined for staff misconduct and said all non-Muslims would go to Hell.” Dkt. 36, ¶ 10.

         Brim says that his conversation with Davis led Frappier to issue the January 13 incident report, which “extremely exaggerated” the events of that day's Talim. Dkt. 18 at 45:3. Just before Talim began, Brim says, he and Cobb had a “normal” debate about whether one of Brim's books exhibited shirk (the sin of polytheism). Id. at 50:1. During Talim, Cobb sat outside of the circle, interrupting Brim and the other inmates and “yelling his argument to the circle.” Id. at 54:7. Members of the Talim circle would occasionally respond to Cobb. Frappier observed this but never told the inmates to stop arguing. Eventually, he went into Donovan's office, and Donovan came out to tell the group that Talim would be ending early that day. All of the inmates, including Brim, left the chapel. Brim hugged Cobb and Simpson before going to his cell because “Muslims do that” when they say goodbye. Id. at 67:24.

         B. April 10 Talim

         On April 10, 2015, Frappier wrote another incident report concerning Brim's actions during Talim. He explained that Talim “is always headed by” Brim and that at this particular Talim, Brim told another inmate, Jaison Coleman, that “Islam is the only religion, all other religions fall to Islam . . . that is what Mohammed said . . . Islam will wipe all other religions from the earth.” Dkt. 24-3, at 2. Frappier continued his description:

Coleman again stepped in and said something to Brim and the group . . . . Brim stopped and started in on Coleman saying that this was his Halaqah, meaning circle, and that it was his discussion. Coleman said something again and Brim turned around and walked 3 steps toward Coleman and took off his jacket. Inmate Williams . . . stood up and said that's enough slow down, talking to Brim. . . . I told Brim to back off, Brim knelt down to one knee very close to Coleman and whispered something to Coleman . . . I told Brim to move away from Coleman and he did ..... I told Brim to get his pass and that his Talim was done for the day and he took his pass and started walking out of the chapel. . . . I . . . told Coleman that he too was to leave the chapel. Coleman . . . took his Quran and read a passage from it and told the group that this was what the Quran says not what they just had been told. Coleman denied all the “Islam is the only religion” talk that Brim was saying then left the chapel . . . .

Id. Frappier then offered his general opinion on Brim:

Brim is no slouch, he does know his Quran and he does put off the vibe that he knows all and says all, and you better not doubt him. [Brim] push[es] his belief system on everyone else. I call it the “Brim” [Talim] group because Brim is the only one talking in the group and no one else ever says anything unless asked. That is not what a Talim is. Brim has never went on a tirade like the one he did on the 10th. I can't say he never spoke of wiping out all other religions before, this is just the first time I heard him blatantly say it. . . .
The other group is the group that I refer to as the “real” muslims. They are the one that actually seem to follow the peaceful teachings of Mazin, the [volunteer] religious leader, and the Quran. This group doesn't really have a leader but the closest thing to it would be Harley . . . . Harley told me that . . . Brim was starting a problem for the rest of the Muslims in the group. He said that that was not true Islam it was HISLAM. . . .
I don't claim to be a knowledgeable expert on Islam but from what I have heard and read about radical Islamist trying to recruit in American prisons, this stuff computes. It isn't just this one time when I heard Brim talking about wiping out all other religions for Mohammed, it's the whole Brim consortium of holding basically his private, members only Talim. . . . Brim [is] acting as though he was the only person gifted enough to preach his version of Islam or Hislam. . . . [O]ther inmates approached me and said what Brim is doing is giving them a harder time in the eyes of those who are not Islam in the prison setting.

Dkt. 24-3, at 2-3.

         Brim disputes Frappier's description of the incident. He says that Coleman was the disruptive one and that Frappier refused to intervene until Brim “asked Coleman if he wanted to join the group to give his opinion instead of yelling at” them, at which point Frappier immediately told Coleman and Brim to leave the chapel. Dkt. 30, ¶¶ 14, 15. Brim claims that he never said that “Islam will wipe out all other religions.” Id. ¶ 17.

         Frappier did not issue a conduct report or recommend that any specific action be taken regarding Brim; he only wrote the incident report. But Donovan emailed two other GBCI officials about the incident report, explaining that he was “unaware of the entire situation [but w]hen Frap[pier] told [him] what he heard Brim say, it sounded quite extreme for Islam.” Dkt. 41-4, at 4. Donovan went on, “I'm concerned if [Brim] is starting to proclaim an extremist form of Islam. . . . Brim's aggressive behavior seemed no different than what we have addressed with him in the past.” Id. A supervisor, Captain VandeWalle, reviewed the incident report and suggested that “Brim should possibly be removed from Muslim study groups entirely.” Id. at 3. Security Director Kind reviewed the incident report and spoke to Donovan. He followed up with an email to Donovan stating, “[W]hat have we done with inmate Brim and him causing problems in the group? I believe we talked and you were going to remove him.” Id. at 7. On April 24, Donovan suspended Brim's congregate services ...


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