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Howard v. Ministries

United States District Court, E.D. Wisconsin

December 18, 2017

JOYCE MEYER MINISTRIES, et al., Defendant.


          William C. Griesbach, Chief Judge United States District Court

         On November 20, 2014, plaintiff Joshua Howard filed an action under 42 U.S.C. § 1983, alleging that his civil rights were violated. A previously assigned judge screened the original complaint on June 1, 2015 and allowed Howard to proceed on claims under the First and Fourteenth Amendments. ECF No. 12 at 4-5. The case was reassigned to Magistrate Judge Joseph on consent of the parties to magistrate judge jurisdiction. On January 28, 2016, Judge Joseph denied Joyce Meyer Ministries' motion to dismiss. ECF No. 31.

         Howard filed a second amended complaint on May 18, 2016, which is the operative complaint in this action. ECF No. 37. The complaint identified the Doe defendants named in the original complaint and added new claims. The second amended complaint alleges that the defendants displayed a religious drawing in the library, instituted a religious-based gift bag giveaway, and programmed a television channel to a Christian-based radio station, all in violation of the Establishment Clause of the First Amendment. ECF No. 37 at 2-5, 8-9. It also alleges that the defendants did not allow the plaintiff to possess a Buddha emblem necklace, in violation of the First Amendment's Free Exercise Clause, the Fourteenth Amendment's Equal Protection Clause, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Id. at 6-8. On June 14, 2016, the case was reassigned to the previous judge because the new defendants did not consent to magistrate judge jurisdiction. This case was subsequently reassigned to me. This matter is now before the court to address the defendants' motions for summary judgment. For the following reasons, the motion for summary judgment will be granted as to each of the defendants on all of Howard's claims.


         Before turning to the merits of the case, the court will address various motions filed by the defendants. On September 29, 2016, defendants Joyce Meyer Ministries (JMM) and JMM employees Kathleen Lormis, Roy Lormis, and Adolph Rodriguez (collectively, the JMM Defendants) filed two separate motions for summary judgment. ECF Nos. 51, 54. On October 21, 2016, defendants Eric George, Michael Meisner, Francis Paliekara, William Pollard, Donald Strahota, Nevin Webster, and Daniel Westfield (the State Defendants) filed a motion for summary judgment. ECF No. 59. Howard filed two motions for an extension of time to respond to the defendants' motions for summary judgment, which were both granted by the court. The latter order extended Howard's time to respond until February 17, 2017. ECF No. 80 at 3.

         On February 22, 2017, the JMM Defendants filed motions to deem their proposed undisputed statement of facts admitted and rule on their motions for summary judgment. ECF No. 83-84. These defendants base their motions on Howard's failure to respond to their summary judgment motions. To date, Howard has not filed a response to the JMM Defendants' motions for summary judgment. Howard's failure to respond renders the JMM Defendants' proposed facts undisputed for the purpose of summary judgment See Civil L.R. 56(b)(4) (E.D. Wis.). The court will therefore grant their motion to deem their proposed facts admitted and decide their unopposed motions for summary judgment.

         On February 22, 2017, the State Defendants filed a motion to dismiss for failure to prosecute. ECF No. 82. They contend that the court should dismiss this case with prejudice and enter judgment in their favor based on Howard's failure to timely respond to their motion for summary judgment. Id. at 2. The State Defendants cite to the fact that Howard had over ninety days to file his response, and that the Scheduling Order contains a warning that “failure to make a timely submission or otherwise comply with the court's orders may result in the dismissal of this action for failure to prosecute.” Id.

         Howard did not respond to the motion to dismiss. However, on February 28, 2017, he filed a brief in opposition to the State Defendants' motion for summary judgment, proposed findings of fact, and a declaration with attached exhibits. ECF Nos. 85-87. On March 6, 2017, Howard filed a response to the State Defendants' proposed findings of facts. ECF No. 88. The State Defendants subsequently filed a motion to strike Howard's untimely summary judgment response on March 14, 2017. ECF No. 89. They contend that the court should strike Howard's response because he did not move for a third extension of time to file his submissions prior to the court's deadline, they were submitted ten and fourteen days after they were due, and Howard has not established good cause or excusable neglect to justify the delay. Id. at 1.

         Howard filed an unsworn response to the State Defendants' motion to strike. ECF No. 96. He states that on February 17, 2017, the date his summary judgment response was due, he placed his response in the institution mailbox to be forwarded to the library for e-filing. Id. According to Howard, three days later, he came across his objections to the State Defendants' proposed findings of fact and, realizing he had not sent the objections in with his response on February 17, 2017, he placed it in the institutional mailbox along with a letter explaining why it was untimely. Id.

         As an initial matter, the court will not dismiss this case for failure to prosecute. Dismissal is a harsh sanction and would have required an explicit warning prior to the dismissal. See Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993). The court did not give Howard an explicit warning and, therefore, dismissal as a sanction is not warranted. In addition, the court has discretion to extend the time permitted for responding, whether the extension is sought before or after the actual termination of the allotted time. See Fed. R. Civ. P. 6(b)(1); see also 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1165 (4th Ed. 2015). “When an act may or must be done within a specified time, the court may, for good cause, extend the time: . . . on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). Presumably, Howard did not file a motion for the court to accept his February 28, 2017 response because he thought it was timely based on his statement that he placed it in the prison mailbox on February 17, 2017. And Howard knew that his objections were untimely and filed a cover letter explaining the tardiness.

         The court prefers to address the parties' claims on the merits and allowing Howard's response will not prejudice the State Defendants. Accordingly, the court will deny the State Defendants' motions to dismiss for failure to prosecute and to strike Howard's summary judgment response. The court will now turn to the merits of the defendants' motions for summary judgment.


         Howard is incarcerated at the Waupun Correctional Institution. Howard's claims against the defendants can be summarized as follows: (1) First Amendment Establishment Clause claim against Librarian Webster related to a religious drawing by Webster's child that was posted on the bulletin board in the library; (2) First Amendment Establishment Clause and conspiracy claims against Westfield, Meisner, Strahota, JMM, Rodriquez, R. Lormis, and K. Lormis based on the gift bag giveaway; (3) First Amendment Establishment Clause claim against Strahota and Pollard for programming the institution's informational television channel to play Christian-based radio broadcasts in the background; (4) First Amendment Free Exercise Clause, Fourteenth Amendment Equal Protection Clause, and RLUIPA claims against Chaplains George and Paliekara for not permitting Howard to possess a Buddha emblem necklace; and (5) an official capacity claim against Warden Pollard for implementing a custom and practice of promoting Christianity.

         A. Religious Drawing

         Defendant Webster is a librarian at Waupun. State Defs.' Proposed Findings of Fact (DPFOF) ¶ 8, ECF No. 61. His workspace is located in the main library, with a pillar abutting the right side of his desk. Id. ¶¶ 10-11. Webster's desk has a main platform where he can work from a seated position, with a high shelf-type platform at about eye level when he is sitting. Id. ¶ 10. If an inmate approaches Webster's desk when he is sitting, the inmate must look over the higher platform. Id. On the pillar to Webster's right is a small bulletin board with documents for Webster's use, such as a calendar and a notary policy. Id. ¶ 12. The documents on the small bulletin board are posted there primarily for Webster's reference and are not meant for inmates' use. Id. On two other sides of the pillar facing away from the desk are documents and memoranda for inmates' use. Id. ¶ 13.

         On the small bulletin board, Webster had a colored picture of a nativity scene drawn by one of his apparently school-aged children. Id. ¶ 16. Webster did not display the drawing for inmates' use, and he did not intend to promote any religion by displaying it. Id. ¶ 17. The drawing had been posted on the pillar next to Webster's desk for at least two years before it was brought to his attention that it needed to be removed. Id. ¶ 14.

         The parties dispute the level of visibility inmates had of items placed on the small bulletin board, and specifically the religious drawing. According to the State Defendants, inmates cannot easily view the documents posted there. Id. ¶ 12. They assert that Webster hung the drawing below the bulletin board on the side of the pillar directly facing his desk, and that the drawing was below the line of sight of the shelf platform which sits along the front of the desk. Id. ¶ 15. The defendants acknowledge that an inmate could have seen the drawing if he tried to look over the shelf unit to see the papers on or near Webster's desk. Id. ¶ 17. Howard, on the other hand, avers that anyone standing in the public area surrounding the pillar and desk could plainly view the religious drawing. Pl.'s Proposed Findings of Fact (PPFOF) ¶ 5, ECF No. 86.

         Howard has been incarcerated at Waupun since 2002. Id. ¶ 1. He is a frequent visitor to the library but he only saw the drawing on one occasion in 2009. DPFOF ¶¶ 18-20. Upon seeing the drawing, Howard filed an inmate complaint. PPFOF ¶ 6. The institution complaint examiner instructed Howard to raise the issue with Webster's supervisor, and Howard replied that he wished to maintain the confidentiality of the inmate complaint review system. Id. ¶ 7. The examiner recommended dismissal of the complaint because Howard did not contact the supervisor, and Deputy Warden Meisner dismissed the complaint. Id. After dismissing the complaint, Meisner approached Webster privately, informed him that an inmate had complained about the religious drawing, and instructed him to remove it. Id. ΒΆ 8. Webster immediately ...

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