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ScHlemm v. Litscher

United States District Court, W.D. Wisconsin

September 26, 2017

JON E. LITSCHER, Defendant.


          WILLIAM M. CONLEY, District Judge

         After a bench trial in March of 2016, this court found that the Wisconsin Department of Corrections (“DOC”) violated inmate David Schlemm's rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by failing to accommodate his requests for a multi-colored headband, game meat and fried bread at the annual Ghost Feast.[1] (Dkt. #211.) The court then entered an injunction requiring defendant to: (1) permit Schlemm to possess a “Four Directions” multi-colored headband, and (2) make accommodations that would permit Schlemm to obtain traditional foods he needs to hold a meaningful Ghost Feast at the Green Bay Correctional Institution. (Id.) Still pending before the court are three, post-judgment motions filed by plaintiff: (1) a motion to alter or amend the injunction to allow fresh foods at the Ghost Feast to be brought in by a volunteer, local tribes or a caterer (dkt. #214); (2) a motion for contempt regarding defendant's alleged refusal to notify spiritual volunteers of the court's injunction in time for the 2016 Ghost Feast ceremony (dkt. #232); and (3) a motion for contempt regarding defendant's alleged failure to allow plaintiff to possess the Four Directions headband (dkt. #249). More recently, the plaintiff also filed a motion for assistance in recruiting counsel going forward. (Dkt. #262.)

         For the reasons that follow, the court will deny all of plaintiff's post-judgment motions. The court will also deny his request for assistance in recruiting counsel to assist him with further proceedings in this case, if any, because: (1) plaintiff has previously proven unable to work with appointed counsel in the past; (2) he has shown an exceptional ability in representing himself; and (3) his post-trial motions have no merit.


         I. Plaintiff's Rule 59 Motion to Alter or Amend Judgment

         Plaintiff seeks relief from judgment under Rule 59(e) of the Federal Rules of Civil Procedure. “Courts may grant Rule 59(e) motions to alter or amend the judgment if the movant presents newly discovered evidence that was not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact.” Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012) (citation omitted). “But such motions are not appropriately used to advance arguments or theories that could and should have been made before the district court rendered a judgment, or to present evidence that was available earlier.” Id. Rule 59 motions also should not be used to reargue the merits of the case. See Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th Cir. 2003).

         Specifically, plaintiff's motion asks the court to amend its permanent injunction to provide that: (1) Native American volunteers be allows to bring in fresh game meat for the Ghost Feast; and (2) if the Native American volunteer cannot or chooses not to provide foods for the Ghost Feast, to permit “the Tribes of the State of Wisconsin to donate these Fresh foods or allow the Native American group as a whole to send monies from family and friends to Carol's Fry Bread caterer or another respected caterer/restaurant.” Additionally, plaintiff argues that the trial should be reopened because defendant improperly threatened one of his potential witnesses.[2]

         Because plaintiff failed to point out any manifest errors of law or fact, and he failed to submit any admissible evidence that was not available at the time of trial, his motion to amend the injunction must be denied. Additionally, plaintiff offers no evidence showing any improper threats by DOC to his witnesses. Accordingly, his Rule 59 motion identifies no basis for relief.

         A. Necessity of Fresh Game Meat at the Ghost Feast

         Plaintiff established at trial that his requests for venison or other game meat and fried bread at the annual Ghost Feast were motivated by sincerely held religious beliefs. (Dkt. #211 at 7.) The court concluded, however, that plaintiff failed to prove his sincere religious beliefs require that fresh game meat be served at the Ghost Feast, or that at minimum dried or otherwise preserved game meats are unacceptable. On this point, the court explained:

[Plaintiff] introduced no evidence that game meat served at the Ghost Feast must be “fresh” meat, and his own testimony on the issue was vague and unpersuasive. One of plaintiff's [own] witnesses, Robert Ryan Krist, suggested that the “spirit foods” already approved under the Property Chart, including dried meat, would be acceptable to use at a Ghost Feast. (Trial trans., day 1, at 115-16, 122.) The only evidence potentially supportive of plaintiff's position was the testimony of Dr. Walker, who explained that “the more unadulterated the meat . . . the better, ” and that “using preparations such as nitrate, for example, in the meat to preserve it might be objectionable.” (Id. at 96.) Even this testimony did not establish that all dried or preserved meat would be unacceptable, however, and Dr. Walker later testified that Native Americans have traditionally preserved and dried meats. (Tr. at 108-09.) Further, a quick online search for commercially available game meat revealed multiple sources that offer game meat dried without nitrates or other chemical preservatives. Accordingly, the court finds that DAI policies restricting outside vendors from delivering fresh game meat into the prison do not impose a substantial burden on plaintiff's religious exercise.

(Id. at 12.)

         Plaintiff maintains that the court's conclusions are erroneous for several reasons. First, he says that the trial testimony of Dr. Walker and inmate Johnson Greybuffalo support a finding that Ghost Feast foods must be fresh. However, even plaintiff concedes that neither witness testified that the foods must be “fresh” and not preserved; rather, they testified only that the foods must be “traditional” foods consumed by Native people. (Trial Trans., day 1, at 38-39, 41-42, 94, 110.) Next, plaintiff points out that inmates Jose Villarreal and David Doxtater testified at trial that, several years ago, DOC permitted outside tribes to donate food for the Ghost Feast. Again, however, neither inmate testified that preserved or shelf stable foods would be inadequate for a meaningful Ghost Feast, nor do any of the references on Ghost Feasts support that finding.

         Plaintiff further objects to the court's suggestion that there are shelf stable game meats that are commercially available and do not contain nitrates or other chemical preservatives. Plaintiff asserts that if a dried meat lists “salt” as an ingredient, the meat may contain a nitrate or nitrite. Plaintiff is mistaken. Under federal labeling laws, meat products using nitrates or nitrites as preservatives must identify those preservatives on the label. See 21 C.F.R. § 101.22. For example, as the court explained previously, the website offers several game meat products that are advertised as “all natural, ” which contain salt but not nitrates or nitrites. In contrast, the website also offers products that are not advertised as “all natural” and that specifically identify “sodium nitrite” as an ingredient. See In other words, plaintiff's argument that he cannot consume a product that lists “salt” as an ingredient because it might actually contain a chemical preservative has no factual underpinnings.

         Finally, plaintiff argues that this court was required to credit his testimony as to his own sincere religious belief that a Ghost Feast required fresh foods without chemical preservatives or any salt at all. As the trier of fact, however, it was this court's obligation to assess the credibility of the testimony and to weigh plaintiff's testimony against all of the other testimony and evidence submitted during trial. See United States v. Carraway, 312 F.3d 642, 645 (7th Cir. 2010) (trial court is the “trier of fact” at a bench trial and must make credibility determinations). Here, plaintiff introduced neither witness testimony nor documentary evidence at trial to support a conclusion that traditional Ghost Feast foods must be “fresh” and cannot contain preservatives or salt. And, again, one of plaintiff's own witnesses, this time Johnson Greybuffalo, stated that salt is actually one of the ingredients of fry bread. (Trial Trans., day 1, at 39.) As for plaintiff's own testimony on this issue, he never testified clearly as to why he believed the game meat had to be fresh and preservative-free, and he never stated at trial that Ghost Feast food cannot contain salt.

         Rather, plaintiff's only testimony on this topic consisted of the following exchange:

Court: The game meat as I understand it, it could be a dried venison as long as it's not -- there are no preservatives involved. Would you agree?
Plaintiff: I disagree.
Court: And what is that based [on]?
Plaintiff: Well, I mean, I guess what I'm saying Your Honor, is are you talking about like a vendor sealed without the preservatives?
Court: Yes.
Plaintiff: Well, I mean, the reason I disagree is because once I have it, I can't cook it. I can't do anything with ...

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