The question in this case is the extent to which plaintiff Mustafa-El K.A. Ajala, a Muslim prisoner at the Wisconsin Secure Program Facility, has the right to wear a kufi, which is a head covering worn by some Muslims. The policy at the facility is that a prisoner may not wear religious headgear unless he is in his cell or participating in congregate services. DAI Policy # 309.61.02, dkt. # 14. Plaintiff contends that the policy violates his rights under the Religious Land Use and Institutionalized Persons Act, the free exercise clause, the establishment clause and the equal protection clause. Defendants Kelli West, Rick Raemisch, Todd Overbo, Peter Huibregtse and Gary Boughton (all of whom are prison officials in the Wisconsin Department of Corrections) have filed a motion for summary judgment, dkt. # 11, and the parties have filed supplemental materials, as requested by the court, so defendants’ summary judgment motion is now ready for review.
Having reviewed the parties’ materials, I conclude that defendants have not shown as a matter of law that banning plaintiff from wearing a kufi outside his cell and group worship is the least restrictive means of furthering a compelling government interest, which is the standard under RLUIPA. However, because the Court of Appeals for the Seventh Circuit has rejected constitutional challenges to similar restrictions in the past, plaintiff cannot show that defendants violated clearly established law, which means that plaintiff is not entitled to money damages. The case will proceed to a court trial to determine whether plaintiff is entitled to injunctive and declaratory relief.
OPINION
A. Plaintiff’s Motion for an Extension of Time
In an order dated March 3, 2015, I discussed plaintiffs practice of seeking extensions of time on the majority of deadlines he has faced in this case as well as other cases that he has filed in this court. Dkt. #43. Plaintiff had filed so many requests for extensions that they were becoming a burden on Magistrate Judge Stephen Crocker, the clerk of court and defendants. As a result, I instructed plaintiff that the court would no longer grant an extension of time in the absence of a persuasive showing of good cause and that good cause would not include issues that plaintiff could have avoided with better time management. In addition, I instructed plaintiff that he could not wait until the last minute to seеk more time. Rather, if plaintiff had not received a decision from the court by the day his materials were due, then he should assume that his motion would not been granted and he should submit what he has completed as of that date rather than filing nothing on the assumption that the court will grant his request on some later date.
Despite these instructions, on the very next deadline that plaintiff received (a response to defendants’ supplemental summary judgment materials), plaintiff filed another last-minute request for an extension of time, which the court did not receive until after the deadline already had passed. Dkt. # 47. Although plaintiff had almost a month to file his response, he says he needed additional time because the law library was closed for “аlmost ten days.” Id. However, plaintiff does not explain why he did not seek an extension earlier and he does not explain why he needed additional library time to prepare his response. Although he cited a number of cases in his response, most of them
Accordingly, I conclude that plaintiff has not shown good cause for filing a late response and I decline to consider his late filings. However, this decision does not prejudice plaintiff because I conclude that plaintiffs’ claim survives defendants’ motion for summary judgment in most respects even withоut considering plaintiffs untimely filing.
B. Scope of Review
Although the parties argue generally about whether defendants may ban all prisoners from wearing any kind of religious headgear throughout the prison, the question raised by plaintiffs claim is narrower than that. A kufi is the only type of religious headgear that plaintiff has requested to wear, so the only question in this case is whether plaintiff is entitled to wear a kufi when he is outside his cell. (Prisoners are allowed to wear religious headgear during group religious services as well as in their cell, but plaintiff is not allowed to attend group services because he is housed in segregation. Dfts.’ PFOF ¶ 36, dkt. #27; Dfts.’ Add. PFOF ¶ 84, dkt. # 33.) Because this case is not proceeding as a class action, plaintiff does not have standing to challenge defendants’ policies as they might apply to a different prisoner who wishes to wear different headgear.
Further, it is unnecessary to consider the validity of rules against wearing religious headgear in contexts that do not apply to plaintiff. For example, defendants do not allow prisoners to wear head coverings during contact visits, Dfts.’ PFOF ¶ 59, dkt. # 27, but plaintiff is in segregation, so he does not have contact visits. Plt.'s Aff. ¶ 10, dkt. # 25; Dfts.’ Rep. to Plt.’s Resp. to Dfts.’ PFOF ¶ 59, dkt. # 27. Defendants say that “it is likely that [plaintiff] will remain in administrative confinement ... for the foreseeable future,” Dfts.’ PFOF ¶ 166, dkt. # 33, and plaintiff does not cite any contrary evidence, so it would be premature to consider issues that will not arise until plaintiff is in general population. Clapper v. Amnesty International USA — U.S. -,
C. RLUIPA
Under RLUIPA,
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1.
In applying this statute, courts have placed the initial burden on the plaintiff to show that he has a sincere religious belief and that his religious exеrcise was substantially burdened. Holt v. Hobbs, — U.S. -,
For the purpose of their motion for summary judgment, defendants do not deny that plaintiffs religious beliefs are sincere or that the Wisconsin Secure Program Facility receives federal funding. Instead, they argue that plaintiff has not shown his religious exercise was substantially burdened and that they have shown that the rule against wearing religious headgear outside a prisoner’s cell or group services is the least restrictive means of furthering a compelling government interest.
1. Substantial burden
Defendants argue that plaintiffs religious exercise is not substantially burdened because plaintiff is permitted to wear his kufi while he is in his cell, which they say is “almost the entire time,” Dfts.’ Br., dkt. # 12, at 5, though they do not say how often plaintiff is out of his cell. In addition, defendants list a number of ways that plaintiff can practice his religion besides wearing his kufi, such as reading books and observing a religious diet.
Defendants are not entitled to summary judgment on this issue. Plaintiff says that part of his religious belief is to wear a kufi “at all times” as “a reminder” of “a spiritual state” and his “Islamic identity.” Plt.’s Aff. ¶¶ 4-5, dkt. #25. Although it is not clear how much time plaintiff spends in his cell, defendants admit that it is not all the time. Dfts.’ Add. PFOF ¶ 101, dkt. # 33 (prisoners in segregation “get[ ] out of their cells for various reasons, including recreation, medical/clinical consults, visitation and court appearances”). If plaintiffs religious beliefs require him to wear his kufi “at all times,” then a rule that allows plaintiff to wear his kufi “most of the time” imposes a substantial burden on his religious exercise because the rule requires him to “engage in conduct that seriously violates his religious beliefs.” Holt,
2. Least restrictive means to further a compelling interest
Defendants identify three reasons for prohibiting plaintiff and other prisoners from wearing religious headgear outside their cells and at group religious services: (1) religious headgear could be used as a gang identifier; (2) prisoners could hide contraband in religious headgear; and (3) wearing religious headgear around other
Answering this question is complicated by the fact that plaintiffs claim arises in the prison context. Generally, courts are required to defer to the reasoned judgment of prison officials. E.g., Beard v. Banks,
a. Kufis as potential gang identifier
Defendants say that kufis and any religious headgear give prisoners a way to “uniquely identify themselves” and “any uniqueness that occurs in the facility attracts attention on the part of gang members.” Dfts.’ Br., dkt. # 12, at 7. In other words, defendants are concerned that plaintiff could use a kufi as a gang symbol. Caruso,
Plaintiff challenges defendants’ asserted interest on multiple fronts. First, he says that any concerns defendants have about headgear being used as a gang symbol are undermined by defendants’ allowing prisoners to wear secular headgear such as baseball caps outside their cells and group religious services, even when the prisoner is housed in segregation. Plt.’s Aff. ¶¶ 6, 14 dkt. #25; Plt.’s Aff. ¶8, dkt. #42. Because the secular caps can be worn in various ways and they are available in three colors, plaintiff says that the caps are more susceptible to be used as gang symbols. Second, plaintiff says that a kufi could not be used as a gang symbol because prison rules require kufis to be solid black and unadorned with symbols, Plt.’s Aff. ¶ 16, dkt. # 25, so the only message a kufi could communicate to аnother prisoner is that plaintiff is a Muslim.
In response, defendants acknowledge that some prisoners are allowed to wear secular headgear outside their cells and
I have accepted similar arguments in the past. Levy v. Holinka, No. 09-cv-279-vis,
The court did not go so far as to say that the state could not have a compelling interest in imposing religious headgеar restrictions under any under circumstances. And Schlemm is not on all fours with this case because the issue in Schlemm was whether a prisoner could wear multicolored religious headband during group worship, not throughout the prison. However, Schlemm suggests that district courts must view restrictions on religious headgear with more skepticism. In this case, I am not persuaded that defendants have shown as a matter of law that prohibiting plaintiff from wearing a kufi is the least restrictive means of furthering an interest in suppressing gang activity.
The only “subgroup” associated with wearing a kufi is Islam, which of course is not a gang. Although defendants argue generally that there is much overlap between gangs and religious groups, Dfts.’ PFOF ¶ 44, dkt. # 27; Dfts.’ Add. PFOF ¶ 134, dkt. # 33, defendants do not identify any gang in Wisconsin or the country that includes Muslims only and defendants do not identify any gang that uses a kufi as a symbol or hаs ever done so. As plaintiff points out, a prisoner’s ability to communicate any message with a kufi, other than “I am a Muslim,” is limited because all kufis in the prison are solid black and cannot be adorned in any way. Defendants do not argue that black is a color used by gangs. In Schlemm, the court stated that, if religious headgear “is free of any gang significations!,] it is hard to see a ‘compelling’ need to prohibit its use.” Id. at 366. See also Aziyz v. Tremble,
Alternatively, defendants argue that there is a risk in the future that a gang could adopt the kufi as a gang symbol, Dfts.’ PFOF ¶ 40, dkt. # 27, but defendants identify no reason why prisoners
Defendants argue that religious headgear worn by Muslims is potentially more problematic than headgear in other religions because some Muslims wear turbans rather than kufis, presenting another way that a prisoner could identify himself uniquely. Again, defеndants do not identify any reason to believe that a prisoner could use a turban effectively as a gang symbol. Further, as discussed above, the sole issue in this case is whether plaintiff is entitled to wear a kufi. There may be other reasons for restricting turbans (assuming that any prisoners wish to wear one). Cf. Benjamin v. Coughlin,
In their supplemental materials, defendants say that there is a heightened risk with respect to plaintiff because he is housed in segregation and has a history of gang involvement. In addition, he received a conduct report in 1999 for attempting to disguise gang literature as a religious document, Dfts.’ Add. PFOF ¶¶ 153-174, dkt. # 33, so defendants say that plaintiff has shown that he is willing to use religion as a cloak for gang activity.
With respect to plaintiffs segregation status, this would seem to limit plaintiffs ability to use a kufi as a gang symbol because he comes into contact with fewer prisoners than someone in general population. Further, plaintiff has cited evidence that even prisoners in segregation are allowed to wear secular headgear such as a baseball cap outside their cells, e.g., Plt.’s Aff. ¶ 8, dkt. # 42, so that raises a genuine issue whether defendants arе treating religious headgear the same way as secular headgear and, more important for plaintiffs RLUIPA claim, whether a segregation prisoner’s wish to wear religious headgear outside his cell cannot be accommodated without jeopardizing security.
With respect to plaintiffs alleged gang involvement, I agree with defendants that plaintiffs disciplinary history provides support for a view that plaintiff presents a greater risk than many other prisoners of using religion as a disguise for gang activity. For this reason, in another case, I upheld a restriction preventing plaintiff from participating in group worship. Ajala v. Boughton, No. 13-cv-545-bbc,
b. Kufis as a way to smuggle contraband
Defendants’ second argument is that prisoners could use a kufi to hide contraband, an argument that at least one court has found to be persuasive under RLUIPA. Garner v. Livingston, No. CA-C-06-218,
Defendants do not respond to plaintiffs argument that kufis would not be an effective means for smuggling contraband, so that is reason enough to deny defendants’ summary judgment motion on this issue. With respect to the disparate treatment of secular and religious headgear, defendants say that it is justified because “some inmates become sensitive about staff touching and/or searching their religious property items, which would also create tension with staff and increase the risk of disturbance.” Dfts.’ PFOF ¶ 56, dkt. # 27. See also Perez v. Frank, No. 04-C-1181,
In any event, defendants have not shown as a matter of law that searching the kufi is hot a feasible way to address their concerns about contraband. Ali,
Defendants also argue that searching kufis and other religious headgear “would be burdensome for prison staff,” Dfts.’ PFOF ¶ 51, dkt. # 27, but they do not explain why it is more burdensome for religious headgear than it is for secular headgear and they do not respond to plaintiffs argument that he is already searched every time he leaves his cell. More generally, defendants have not made any effort to quantify the burden they believe the additional searches would impose, so I cannot say that have proven that they have a compelling interest in avoiding those searches. Cf. 42 U.S.C. § 2000cc-3 (RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise”); Schlemm,
Finally, defendants argue that, if prisoners are allowed to wear religious headgear around prisoners of other faiths, those other prisoners might be offended by the expression of religion, which could lead to harassment or even a physical altercation. Dfts.’ Br., dkt. # 12, at 9. It seems unlikely that dеfendants have a compelling interest in preventing other prisoners from being offended. Even in the prison context, courts have been skeptical of the idea of a “heckler’s veto.” O’Bryan v. Bureau of Prisons,
Of course, prison officials have a compelling interest in preventing prison violence. However, by defendants’ own assertion, plaintiff has little contact with other prisoners, so this justification seems weak with respect to someone like plaintiff who is in segregation. Further, O’Bryan,
Plaintiff says that prisoners already know each other’s religious affiliation and that each prisoner’s religion is listed on the outside of his cell. Plt.’s Resp. to Dfts.’ PFOF ¶ 57, dkt. # 27. Defendants do not cite contrary evidence, but they say that plaintiff does not have foundation to make these allegations. I am overruling that objection. As a prisoner at the Wisconsin Secure Program Facility since 2007 (and a prisoner in the Wisconsin Department of Corrections even longer), plaintiff has foundation to testify regarding information that is common knowledge among prisoners. Certainly, plaintiff is competent to testify about what he has observed on the outside of his own and other prisoners’ cells.
Alternatively, defendants argue in their supplemental materials that an awareness of a prisoner’s religion “does not pose the same security risks as ... outward identifiers of those religions,” Dfts.’ Br., dkt. # 46, at 2, but defendants do not cite any evidence to support that statement. In their supplemental facts, defendants say that “open displays of religious headgear” may be “associated” with “[ajcts of retaliation or intimidation,” Dfts. Add. PFOF ¶ 113, dkt. # 33, but they do not provide the basis for that opinion or even explain what thеy mean by “retaliation” and “intimidation.”
Further, defendants do not respond to plaintiffs argument that defendants’ stated concern about conflicts between prisoners of different faiths is undermined by the fact that defendants allow prisoners to wear religious headgear in their cells even when the prisoner has a cell mate of a
In sum, defendants have not shown as a matter of law that prohibiting plaintiff from wearing a kufl outside his cell is the least restrictive means of furthering any of the interests they have identified. Accordingly, I am denying defendants’ motion for summary judgment on plaintiffs RLUIPA claim. Plaintiff did not file his own motion for summary judgment, so this claim must proceed to a trial before the court. Granfinanciera, S.A. v. Nordberg,
d. Relevance of practices at other prisons
Plaintiff raises an issue that is relevant to all of defendants’ asserted interests, which is that the Federal Bureau of Prisons allows its prisoners to wear religious headgear throughout the prison. Defendants object to the evidence plaintiff cites on the ground that it is outdated, but at least one court noted in a recent case that the bureau has not changed its rule on this issue. Ali,
The Supreme Court has stated that “the policies followed at other well-run institutions [are] relevant to a determination of the need for a particular type of restriction.” Holt,
Because I am denying defendants’ motion for summary judgment on other grounds, I need not decide in this order how much weight to give to the practices of other prisons. However, at trial, if plaintiff presents evidence that other prisons have more liberal policies regarding religious headgear and have not experienced problems, then defendants should be prepared to explain why they believe the situation would be different in Wisconsin.
e. Caruso v. Zenon
In the January 15, 2015 order asking for supplemental briefing, dkt. #29, I asked the parties to discuss Caruso v. Zenon,
For the sake of completeness, I note that defendants cited several cases in which a court rejected a challenge under RLUIPA (or the Religious Freedom Restoration Act, which applies the same standard) to a rule restricting the wearing of religious headgear. Jihad v. Fabian, No. CIV. 09-1604 SRN LIB,
D. Constitutional Claims
In addition to his claim under RLUIPA, plaintiff brought claims under the free exercise clause, the establishment clause and the equal protection clause. However, I have little difficulty in concluding that the law is not clearly established that plaintiff has a constitutional right to wear a kufi at all times, which means that defendants are entitled to qualified immunity. Carroll v. Carman, — U.S. -,
In Young v. Lane,
Although the plaintiff in Young did not bring a claim under the equal protection clause or the establishment clause, plaintiff does not cite any other authority showing that defendants should have known that they were violating his rights under either of those constitutional provisions. Plaintiff’s only argument in this case that was not raised in Young is that defendants are treating Native Americans more favorably than Muslims by allowing Native Americans to wear feathers on the recreation yard. However, plaintiff acknowledges that the Native Americans are wearing the feathers as part of their sweat lodge ceremony, Plt.’s Aff. ¶ 2, dkt. # 42, which takes place in the recreation yard because that is where the sweat lodge is located. Because it is undisputed that adherents of other faiths are permitted to wear religious garments during congregate services, Dfts.’ Add. PFOF ¶ 81, dkt. # 33, defendants’ treatment of the Native Americans does not show a preference for Native American beliefs over Islam, in violation of the establishment clause or the equal protection clause. Goodvine v. Swiekatowski, No. 08-cv-702-bbc,
Qualified immunity does not apply to claims for declaratory or injunctive relief. Volkman v. Ryker,
E. Proper Parties
Defendants argue that Kelli West (the Religious Practices Coordinator for the Wisconsin Department of Corrections) and Rick Raemisch (the former Secretary of the department) should be dismissed from the case because neither one of them has authority to grant plaintiff any injunctive or declaratory relief. Williams v. Doyle,
F. Assistance in Recruiting Counsel
In Schlemm,
ORDER
IT IS ORDERED that
1. The motion for an extension of time filed by plaintiff Mustafa-El K.A. Ajala, formerly known as Dennis Jones-El, dkt. # 47, is DENIED.
2. The motion for summary judgment filed by defendants Kelli West, Rick Raemisch, Todd Overbo, Peter Huibregtse and Gary Boughton, dkt. # 11, is GRANTED as to (1) plaintiffs claim against defendant Rick Raemisch; and (2) plaintiffs request for money damages. Plaintiffs complaint is DISMISSED as to Raemisch.
3. Defendants’ motion is DENIED in all other respects.
4.The case will be stayed pending recruitment of counsel for plaintiff. If I find counsel willing to represent plaintiff, I will advise the parties of that fact. Soon thereafter, a status conference will be held to establish a new schedule for the resolution of the case.