United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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. ¶ 8. Webster immediately