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Lee v. Ewing

United States District Court, W.D. Wisconsin

September 27, 2019

KEITH LEE, Plaintiff,
v.
DAVID EWING, KELLI WILLARD WEST, GARY BOUGHTON, and JAMES SCHWOCHERT, [1]Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Plaintiff Keith Lee, appearing pro se, is currently an inmate at Columbia Correctional Institution. Lee is a practicing Muslim who fasts from sunrise to sunset during the month of Ramadan. Wisconsin prisons accommodate fasting prisoners by serving them high-calorie bagged meals after sunset. But a prisoner has to sign up for the Ramadan meals 60 days before the start of Ramadan. Lee says that he submitted a timely sign-up request last year while he was at the Wisconsin Secure Program Facility (WSPF). But he was not approved, even after he followed up when it became clear that he had not been not approved. Lee contends that depriving him of Ramadan meals violates his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a), the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment.

         The parties have filed cross-motions for summary judgment. I will deny Lee’s motion because he is not entitled to judgment as a matter of law on any of his claims. I will grant defendants’ motion in part. Lee says that defendant WSPF Chaplain David Ewing ignored his properly timed request to receive Ramadan meals, which if true would support a claim under the Free Exercise Clause. This issue must be resolved at trial. Trial is also necessary for Lee’s RLUIPA claim regarding the prison policy setting a 60-day deadline to sign up for Ramadan meals. There are factual disputes over whether the policy substantially burdened Lee, and whether the policy is the least restrictive means of furthering compelling state interests.

         UNDISPUTED FACTS

         The following facts are undisputed unless otherwise noted.

         A. Parties

         Plaintiff Keith Lee is a state of Wisconsin inmate who practices Islam. This case concerns his request to be placed on the list to be given special Ramadan meals in 2018. Lee was incarcerated at WSPF, in Boscobel, Wisconsin, during this time.

         Defendant David Ewing was the chaplain at WSPF and defendant Gary Boughton was the warden there. Defendant Kelli Willard West was the Division of Adult Institution (DAI) religious practices coordinator. Defendant James Schwochert was the DAI administrator.

         B. DOC and WSPF food services

         During Ramadan, practicing Muslims should not eat from sunrise to sunset. WSPF’s Food Services department prepares meal bags that are delivered to inmates to consume after sunset and before sunrise every day of Ramadan. Each meal bag contains a day’s allotment of calories and nutrition to be eaten during non-fasting hours. But inmates have to sign up for Ramadan meals. DAI Policy and Procedure 309.61.03 governs how facilities administer religious diets: inmates have to request an accommodation at least 60 days before the initial meal. This policy applies not only to Ramadan, but to any religious special meal or fasting.

         The two exceptions to the 60-day deadline are one for prisoners who have just been taken into custody, and second for those who have just been transferred to a new facility, if the inmate had properly requested accommodation at a previous facility. Defendant Ewing was not involved in drafting any version of this policy, and defendants say that he had no authority to depart from it.

         The Ramadan meal-bag program requires considerable advance planning and coordination between the food services administrators at each DOC facility and the department dieticians and budget staff. Food Services at WSPF starts planning for Ramadan approximately three months in advance.

         The content of the Ramadan meal bags is different than the regular meals because it is intended to be eaten without being warmed up and needs to last until the morning. They contain items like sandwiches, fresh fruit and vegetables, and high-calorie foods. Various types of meal bags are prepared, including the standard “general fare” bag, and bags that are Halal, plant-based, or dairy-free. There are also special bags adjusted to account for various medical needs, such as low-sodium or low-fat/cholesterol diets, or for inmates with peanut or soy allergies. The precise number of each bag depends on which inmates sign up to participate. Participation in Ramadan can vary significantly from year to year. From 2011 to 2018, WSPF had between 61 and 84 inmates participating in Ramadan.

         The DOC’s dietetic services director reviews each facility’s proposed Ramadan menus for budgeting purposes and to ensure caloric and nutritional requirements are met. The director considers whether changes are needed because of product availability, ingredients, packaging, or updates to nutritional standards or serving sizes. If a menu needs adjustments, there may be “significant back and forth” with the facility to hammer out an acceptable menu. Dkt. 40, at 10, ¶ 29. Once a menu is approved, the DOC tries to give its vendor the menus four to eight weeks in advance of the facilities’ orders to give the vendor time to acquire adequate stock.

         Once food is ordered, it can take up to four weeks for an institution to receive the orders, depending on order quantity and whether products are readily available. At WSPF, Ramadan food is thawed up to two weeks in advance. Meals are prepared three to four days before they are delivered to inmates.

         WSPF Food Services prepares Ramadan meals only for those inmates who signed up in advance to participate; it does not prepare extra Ramadan meals. In the event an inmate is transferred to WSPF who is participating in Ramadan, either during Ramadan or within 60 days before the start of Ramadan, Food Services will adjust the meals using the existing food supply to accommodate that inmate. But this puts a strain on Food Services’ resources; they are able to accommodate no more than a few exceptions.

         C. Lee’s 2018 request

         In 2017, Lee signed up for Ramadan meals in advance of the 60-day deadline and received the Ramadan meal bags. In 2018, Ramadan began on May 15. The deadline for inmates to sign up for the accommodation was thus March 17, 2018. WSPF staff gave notice of the deadline by posting the deadline on the institution’s television channel, on the units, and in the chapel. (In his brief in opposition to defendants’ summary judgment motion, Lee says that WSPF does not have a chapel. But he did not dispute defendants’ proposed finding about it so I won’t consider this fact to be disputed.)

         Lee says that on March 1, 2018, he sent an “interview request” form to defendant Chaplain Ewing asking to be placed on the list for Ramadan meals, but he received no answer from Ewing. Ewing says that he did not receive Lee’s request. Ewing says that if he had received the request, he would have responded within one business day with confirmation.

         On March 26, Lee noticed that other inmates received confirmation that they were on the Ramadan meal list. Lee wrote to Ewing asking if he was on the list; Ewing responded, “No the deadline was 3-17-18.” Dkt. 1-1. Two days later, Lee wrote another request. Ewing responded, “Sorry I didn’t get anything before the deadline.” Dkt. 1-2. Lee says that he followed up by writing letters to defendants Boughton, Willard West, and Schwochert. Each of those defendants say that they did not receive Lee’s letter.

         Lee also filed an inmate grievance about the denial. See Dkt. 1-3. The institution complaint examiner contacted Ewing, who said that he had not received a request form dated March 1 from Lee or otherwise contacted him before the deadline. The grievance and Lee’s appeal were dismissed.

         Lee says that because was not approved for Ramadan meals, he has to choose between participating in Ramadan fasts and having adequate meals. Defendants say that he could have bought food from the canteen to eat in place of the Ramadan meals. They provide receipts showing that Lee bought more than $100 of ...


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