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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AKIDA BERRY,
Plaintiff,
v.                                                                                          Case No. 08-CV-398
LT. PETERMAN,
Defendant.
ORDER
The plaintiff, Akida Berry, is proceeding in forma pauperis on claims under 42
U.S.C. § 1983.  The plaintiff was allowed to proceed on claims against Lt. Peterman
individually regarding the plaintiff’s religious items and Halal diet.   He was also
allowed to proceed on official capacity claims against Lt. Peterman for: (1) failure to
provide the plaintiff with a Halal diet while Kosher meals were available; (2) refusal
to let the plaintiff order his religious items; (3) denying Muslims group worship; and
(4) forcing the plaintiff to purchase a Q’uran while Bibles were given out for free.
Now before the court is the defendant’s motion for summary judgment.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show . . . no genuine issue as to any material fact
. . . and that the movant is entitled to judgment as a matter of law.”   Fed. R. Civ. P.
56                                                                                          (c).   The mere existence of some factual dispute does not defeat a summary
judgment motion.   Instead, “the requirement is that there be no genuine issue of




material fact.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986) (emphasis
in  original).    For  a  dispute  to  be  genuine  the  evidence  must  be  such  that  a
“reasonable jury could return a verdict for the nonmoving party.”   Id.
In  evaluating  a  motion  for  summary  judgment,  the  court  must  draw  all
inferences in a light most favorable to the nonmovant.  Matsushita Electric Industrial
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986),   Bethlehem Steel Corp
v.   Bush, 918 F.2d 1323, 1326 (7th Cir.   1990).   However, a court is “not required to
draw every conceivable inference from the record - only those inferences that are
reasonable.”   Bank Leumi Le-Isreal, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991)
(citing Spring v. Sheboygan Area School Dist., 865 F.2d 883, 886 (7th Cir. 1989)).
The moving party bears the initial burden of showing that there are no material
facts in dispute and that he is entitled to judgment as a matter of law.  Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).   A defendant moving for summary judgment
may  satisfy  this  initial  burden  by  pointing  to  the  plaintiff’s  failure  to  introduce
evidence sufficient to support the cause of action alleged.   Id. at 325.   Once the
moving party meets its initial burden, the nonmoving party must “go beyond the
pleadings” and designate specific facts to support its cause of action, showing a
genuine issue for trial.   Id. at 322-25.
When the moving party does not bear the burden of proof at trial, he can
prevail on a motion for summary judgment by showing that there is an absence of
evidence to support any essential element of the non-moving party’s case.  Celotex
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Corp., 477 U.S. at 322-23.   However, where the moving party bears the burden of
proof at trial, he can prevail only by proving every element of his case with evidence
so compelling that no reasonable jury could return a verdict for the non-moving party.
See Anderson, 477 U.S. at 248; Select Creations, Inc. v. Paliafito America, Inc., 911
F. Supp. 1130, 1149 (E.D. Wis. 1995).
BACKGROUND
The plaintiff is a Wisconsin state prisoner who was housed at the Waushara
County Jail (the “Jail”) from March 28, 2008, through June 6, 2008, pursuant to a
contract between Waushara County and the Wisconsin Department of Corrections.
1.                                                                                         Halal Diet
On March 29, 2008, the plaintiff submitted a request that said:
I am a practicing muslim and I don’t eat Pork or any Pork biproducts
due to my religion.   Could you please send me a list of pork items that
you serve, and the biproducts, what is the alternative diet that you have
for muslims.
(Declaration of Akida Berry, Exhibit 2, hereinafter “Berry Dec, Ex. __”).  This was the
first request the Jail had ever received for a Halal diet.   A corrections corporal
responded to the request and provided the plaintiff with a list of food items containing
pork that were served at the Jail.   On March 30, 2008, the plaintiff submitted the
following request:
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I am a practicing muslim and I don’t eat pork or any pork biproducts due
to my religion.  I am not a vegetarian.  I eat meat.  I don’t eat pork.  The
diet is called a Halal diet which is a diet that requires all meat that is to
be eaten, to be slauhtered in an Islamic fashion pronouncing “Bismilah
= In the name of Allah and Allsha Akbar = God is the Greatest.”   I am
not allowed  to  eat Pork  or any  biproducts  with  pork.    This  diet is
consistent with my heart felt sincere, belief as I practice my religion this
is a Necessity, there is no substitute for an Halal diet, but an Halal diet.
(Berry Dec., Ex. 4).   On March 31, 2008, a correctional officer responded, “You can
choose to have vegetarian meals or do self-select which means you choose not to
each what’s on the tray.   Kitchen will do only one or the other.”   Id.
On March 31, 2008, the plaintiff submitted a request “to be put on a vegetarian
diet, since there is no other alternative diet for muslims.”   (Berry Dec., Ex. 5).  Nurse
Dave Reich approved the plaintiff’s request on April 1, 2008.
Defendant Lieutenant Peterman first learned about the plaintiff’s request for
a Halal diet when he received the plaintiff’s appeal on April 14, 2008.  The plaintiff’s
appeal, dated April 13, 2008, stated:
I am requesting a Halal diet, the vegetarian diet which I was put on is
still forbidden because the vegetarian meals is being prepared with the
same pots, pans, stove, counter top, knifes, spoons, forks etc. of that
which pork  or pork  products was prepared with, including pork  bi-
products.   I ask that we come to some resolve about this situation
please.
(Berry Dec., Ex. 7).   Lt. Peterman contacted the Department of Corrections (DOC)
to learn more about the Halal diet and found out that the DOC was working on
making a Halal diet available but that it had not yet done so.  Lt. Peterman provided
the plaintiff with the following response: “We do not offer a Halal diet at this time.   I
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contacted DOC and they advised that the state facilities also do not have a Halal diet
option.”   Id.
The plaintiff filed an appeal on April 21, 2008, that stated:
I’m still giving pork, but not in the meat form but in other forms such as
Jello, macoronne and cheese, crackers, pudding, cake with animal oil
based icing.  The vega diet is not an alternative, because it still have all
the  biproducts  of  pork.    I am  being  forced  to  modify  my  religious
behavior.  In which the modification is not consistent with the teachings
of the Quran.
(Berry Dec., Ex. 8).   Lt. Peterman’s April 22, 2008, response indicated:
I am aware of your concerns, as is DOC.   What we offer for alternate
meals has been approved by DOC via the jail inspection process.  Also,
after reviewing your canteen orders, are you certain the items you are
purchasing are Halal compliant?   Are you sure the 15 bags of hot fries
you purchased last week were not processed by the same machine,
utensils, or facility that processes pork rinds?   Or that Now & Laters or
Skittles do not contain some sort of Gelatin?
Id.
Lt. Peterman also investigated the possibility of providing a Halal diet option
at the Jail.    He consulted with his kitchen manager and the Jail’s food service
provider and learned that special food preparation procedures and facilities are
necessary to provide a Halal diet.   He also learned that providing a Halal diet is
costly and the food choices are limited.   Lt. Peterman issued a memo on May 14,
2008, announcing that the Jail would offer a Halal diet option beginning June 1,
2008.  1On June 1, 2008, the plaintiff used an inmate communication form to request
a Halal diet, and his request was forwarded to the kitchen on June 2, 2008.
1
The complaint in this action was filed on May 8, 2008.
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2.                                                                                         Religious Items
On March 30, 2008, the plaintiff submitted a request for “Islamic prayer beads,
Islamic prayer rug, Islamic kufi-cap, and Islamic prayer oil.”                             (Berry Dec., Ex. 14).
On April 1, 2008, Lt. Peterman received a copy of the request on April 1, 2008, and
asked the plaintiff for clarification: “Are you able to provide these items or are you
asking us to provide them?   I take from the language in your request that you have
the items you are just requesting the ability to retain them in your cell.   Is this
correct?”   Id.
The plaintiff submitted an appeal on April 1, 2008, which stated: “I would like
to know if I can have the following Islamic religious items in my cell.   Islamic prayer
beads, Islamic prayer rug, Islamic kufi-cap and Islamic prayer oil.”   (Berry Dec., Ex.
15).   Lt. Peterman responded:
I have contacted DOC.   They have stated all the items you list are
allowable and available for purchase through DOC Chaplain/Canteen
or direct from a designated vendor/retailer.   Please let me know which
avenue you wish to use.  Per DAI policy 309.61.01 Chapter 309(IV)(C)
“Religious  property  received  directly  from  family  or  visitors  is  not
authorized.”
Id.    Lt.  Peterman  e-mailed  DOC  employee  Barbara  Zink,  as  well  as  jail  staff
members, regarding the plaintiff’s requests for religious items on April 1, 2, and 7,
2008.
The plaintiff submitted a complaint on April 14, 2008, regarding the religious
items:
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I have no one to go buy me new Islamic religious items, prayer beads,
Islamic prayer rug, Islamic kufi-cap and Islamic prayer oil.   I will need
to order these items myself direct from a designated vendor/retailer,
and the money would need to come off my inmate acct.
(Berry Dec., Ex. 16).   Lt. Peterman responded the same day:
Per DOC you are not allowed to send money out from your acct. while
you are staffed in a county jail.  If you wish I could ask about getting the
items through DOC chaplain/commissary and having them sent here.
I assume that there would be a charge for this service from DOC.
Id.   The plaintiff confirmed, “Yes, Mr. Peterman could you please ask about getting
my religious items through D.O.C. chaplain/commissary following items: prayer
beads, Islamic prayer rug, Islamic Kufi-cap and Islamic prayer oil.”   (Berry Dec., Ex.
17).  Lt. Peterman forwarded the plaintiff’s request to the DOC and received e-mails
from Barbara Zink on April 28, 2008, and May 5, 2008, regarding the plaintiff’s order.
The plaintiff submitted no further requests regarding the religious items.
3.                                                                                         Quran
On April 14, 2008, the plaintiff asked, “When Bible Bob comes to visit the jail
on  Tuesdays  and  Thursdays  do  he  passes  out  Bibles.”                                (Affidavit  or  George
Peterman, Exhibit  18, hereafter  “Peterman Aff., Ex.  __”).   A correctional officer
confirmed the same day that Bible Bob, a local volunteer, distributes Bibles.   On
April 16, 2008, the plaintiff made another request, “Do Waushara County jail provide
a copy of the Quran, or do I have to buy it off the canteen.”   (Peterman Aff., Ex. 19).
The same day, a correctional officer confirmed that the plaintiff could purchase a
Q’uran from the canteen.  An April 18, 2008, request from the plaintiff asked: “Does
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Waushara County Jail provides a copy of the Bible?”                                        (Peterman Aff., Ex. 20).   A
corrections corporal responded on April 19, 2008: “The County does not purchase
or provide Bibles.  They are available on canteen or they can be obtained from Bible
Bob, from the library where Gideons place them or a family member can purchase
one and have it shipped directly from the retailer.”    Id.    Ultimately, the plaintiff
purchased a Quran from the Canteen.
4.                                                                                         Group Worship
On March 30, 2008, the plaintiff asked in a request, “Do the county jail provide
any religious services, what are the religious services and what are the days and
time these services are offered.”                                                          (Peterman Aff., Ex. 22).   A correctional officer
responded on April 1, 2008, by listing dates and times of all Bible studies and dates
when “Bible Bob” volunteered at the Jail.
The plaintiff submitted an appeal on May 12, 2008, after he filed this action,
which asked: “Mr. Peterman there are no Qurans available in the library only Bibles.
Also  when  will there  be  Islamic  services  held?”                                      (Peterman  Aff.,  Ex.  21).    Lt.
Peterman responded:
Our library is stocked w/  100% donated materials.    If there are no
Quran’s it is because no one has donated any.   Quran’s are available
for purchase on canteen.  As I stated before to your request for Islamic,
We do not have a local resource to provide the services, however if you
know of someone who is qualified to provide such services, and would
be willing to do so, forward me the name & number I will initiate the
contact with the individual.
Id.   The plaintiff submitted no further communication regarding group worship.
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DISCUSSION
The defendants argue that they are entitled to summary judgment because:
(1) the plaintiff failed to properly exhaust his administrative remedies before bringing
his lawsuit; (2) Lt. Peterman was not personally involved in any deprivation of the
plaintiff’s constitutional rights; (3) Lt. Peterman cannot be held liable in his official
capacity  because  there  was  no  municipal  policy  or  custom  that  resulted  in  a
constitutional deprivation; (4) the plaintiff’s religious exercise was not substantially
burdened by any jail regulation or policy and, it if was, any burden was justified by
a legitimate and/or compelling governmental interest; and (5) Lt. Peterman is entitled
to qualified immunity.
In response, the plaintiff submits that he properly exhausted his administrative
remedies,  consistent  with  the  information  he  was  given  by  employees  at  the
Waushara County Jail.  He also contends that Lt. Peterman was personally involved
in  the  constitutional  deprivation,  that  his  religious  exercise  was  substantially
burdened by practices that were not the least restrictive means of protecting a
compelling governmental interest, and that the deprivation of his constitutional rights
resulted from a municipal policy or custom.   Finally, the plaintiff argues that Lt.
Peterman is not entitled to qualified immunity.
I.                                                                                          EXHAUSTION
Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be brought
with respect to prison conditions under Section 1983 of this title or any other Federal
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law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”                                     42 U.S.C. § 1997e(e).
Exhaustion of administrative remedies is a condition precedent to suit.   Dixon v.
Page, 291 F.3d 485, 488 (7th Cir. 2002) (citing Perez v. Wis. Dep’t of Corrs., 182
F.3d 532, 535 (7th Cir. 1999)).   Section 1997e applies to “all inmate suits, whether
they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.”  Porter v. Nussle, 534 U.S. 516, 532 (2002).
The PLRA exhaustion requirement requires “proper exhaustion,” meaning that
a prisoner must complete the administrative review process in accordance with the
applicable procedural rules, including deadlines.  Woodford v. Ngo, 126 S.Ct. 2378,
2384, 2387 (2006); see also Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir.
2002) (“To exhaust remedies, a prisoner must file complaints and appeals in the
place, and at the time, the prison’s administrative rules require”).   Exhaustion is an
affirmative defense, and the burden of proof is on the defendants.  Dole v. Chandler,
438 F.3d 804, 809 (7th Cir. 2006) (citing Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.
2004)).
The defendant sets forth the Waushara County Jail’s grievance procedure,
effective in 2008, which was printed in the inmate rule book.  The defendant submits
that the plaintiff received a copy of the inmate rule book when he arrived at the Jail.
The defendant correctly points out that the plaintiff’s affidavit does not contain an
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averment that he did not receive the inmate rule book.   However, in his sworn brief
in opposition to the defendant’s motion for summary judgment, the plaintiff avers:
Mr.  Berry  was  not  aware  of  or  given  a  copy  of  any  specific
grievance process in place in  2008 for inmates who wished to
challenge a decision with which an inmate disagreed.  On April 12,
2008, Mr. Berry inquired about the grievance system on an inmate
communication form, 15 days after he arrived at the Jail.   Mr. Berry
asked on an inmate communication form, “Does Waushara County Jail
has a grievance system, if so how does it works.”    Staff member,
Corporal Michael Timm, responded to Mr. Berry request stating. “To file
a grievance, use an inmate communication form  and address it to
whoever you want at the top of the form.”   See Exhibit 6 Affidavit of
Akida Berry.
(Plaintiff’s Brief, pp. 14-15) (emphasis added).  Because this statement is part of the
plaintiff’s sworn brief, it constitutes admissible evidence.   See 28 U.S.C. § 1746.
At the very least, there is a material question of fact regarding whether the
plaintiff ever received the Waushara County Jail inmate rule book.   Thus, the court
cannot at this stage hold the plaintiff to the requirements set forth therein.
II.                                                                                          OFFICIAL CAPACITY POLICY CLAIMS
“An official capacity suit is tantamount to a claim against the government entity
itself.”  Klebanowski v. Sheahan, 540 F3d 633, 637 (7th Cir. 2008) (internal quotation
omitted).  The plaintiff must, therefore, establish that the constitutional violation came
about as a result of a custom or policy established by the officials.   See Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978); see also
Frake v. City of Chicago, 210 F.3d 779, 781 (7th Cir. 2000) (“A plaintiff must show
that municipal policy makers made a deliberate choice among various alternatives
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and that the injury was caused by the policy.”) (quotation omitted).   Three forms of
unconstitutional policies or customs are recognized in this context:
(1)  an express policy that, when enforced, causes a  constitutional
deprivation; (2) a widespread practice that, although not authorized by
written  law  or express  municipal policy, is  so  permanent and  well
settled as to constitute a custom or usage with the force of law; or (3)
an allegation that the constitutional injury was caused by a person with
final policy-making authority.
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (quotation and citation
omitted).
To survive summary judgment on a § 1983 official capacity claim, the plaintiff
must present evidence demonstrating the existence of an “official policy, widespread
custom,  or  deliberate  act  of  a  county  decision-maker  of  the  municipality  or
department.”   Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008) (quoting
Wagner v. Washington County, 493 F.3d 833, 836 (7th Cir. 2007)).                           “Further, the
plaintiff must show that the official policy or custom was the cause of the alleged
constitutional violation - the moving force behind it.”   Grieveson, 538 F.3d at 771
(emphasis in original) (internal quotation and citation omitted).
In Grieveson, the Seventh Circuit found that the plaintiff had not put forth
adequate evidence showing that the alleged practice was widespread and reflective
of a policy choice, “which is the pivotal requirement of a § 1983 official capacity
claim.”   Id. at 774.   The same is true here.   The plaintiff has set forth no evidence
that Lt. Peterman or anyone in Waushara County made a policy choice to deny the
plaintiff a  Halal diet, his  requested  religious  items, a  Q’uran, or  Muslim  group
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worship.   Rather, the record reflects that county officials carefully considered each
request and did what they could to grant it.
Upon receipt of the plaintiff’s request for a Halal diet, Lt. Peterman researched
the availability of a Halal diet within the Wisconsin Department of Corrections,
learned about its requirements, and investigated how to make a Halal diet available
at the Jail.  On May 14, 2008, Lt. Peterman announced via memo that the Jail would
offer Halal meals to Muslim inmates four days per week, effective June 1, 2008.  The
plaintiff requested and received the Halal meals when they became available, prior
to his transfer from the Jail.   When the plaintiff made his request, the Jail did not
have a policy regarding the provision of Halal meals.   Nor did a decision-maker act
to deny the plaintiff’s request.   In fact, as a result of the plaintiff’s request, the Jail
began offering Halal meals.
Regarding the plaintiff’s request for various religious items, Lt. Peterman first
confirmed that the items the plaintiff requested were allowed by the DOC.   Upon
receiving that confirmation, Lt. Peterman communicated with the plaintiff and the
DOC regarding the procedure for getting the plaintiff the items he requested.  There
is certainly no evidence that the Jail had a policy or custom forbidding the religious
items the plaintiff requested, or that a decision-maker deprived the plaintiff of the
items.
The plaintiff made various requests regarding the availability of the Bible and
the Q’uran at the Jail.   He implied a suspicion that the Jail provided free Bibles to
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inmates but required them to purchase Q’urans from the canteen.   The answers to
the plaintiff’s requests reveal no policy or custom of the Jail itself providing free
Bibles to Christian inmates while requiring Muslim inmates to purchase Q’urans from
the canteen.  Both Bibles and Q’urans were available for purchase from the canteen.
The free Bibles were donations to the library or inmates by the Gideons and/or “Bible
Bob.”   The responses to the plaintiff’s requests indicate that donations of Q’urans
would be welcome as well but, in the absence of donated items, inmates were
responsible for purchasing their own religious texts.
Finally, the plaintiff has presented no evidence of a denial of his request for
Muslim group worship.  Lt. Peterman’s response to the plaintiff’s request expressed
that the Jail did not have anyone locally to lead Islamic prayer services.   However,
Lt. Peterman asked the plaintiff to provide information regarding someone who could
lead the services and indicated he would gladly speak to them about having Muslim
group worship at the Jail.
The record contains only evidence of attempts to accommodate the plaintiff’s
requests.   As such, if the plaintiff’s requests were denied at all, it was not due to a
policy or custom of the Jail, or an act of a decision-maker.   Because the plaintiff is
unable to show the existence of an “official policy, widespread custom, or deliberate
act of a county decision-maker of the municipality or department,” the defendant is
entitled to summary judgment on the plaintiff’s official capacity claims against Lt.
Peterman.   Grieveson, 538 F.3d at 771.
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III.                                                                                           INDIVIDUAL CAPACITY CLAIMS
The defendant also argues that the plaintiff’s individual capacity claims should
be  dismissed  because  Lt.  Peterman  lacked  personal  involvement  in  any
constitutional  deprivation.                                                                   An  official  will  satisfy  the  personal  involvement
requirement of § 1983 if he deliberately disregards the plaintiff’s constitutional rights.
See Fillmore v. Page, 358 F.3d 496, 506 (7th Cir. 2004).
Lt. Peterman was personally involved in the events underlying the plaintiff’s
claims regarding the Halal diet and the religious items.   However, Lt. Peterman
never denied the plaintiff either the Halal diet or the religious items.  On the contrary,
he worked to satisfy the plaintiff’s requests.   Lt. Peterman announced on May 14,
2008, that the Jail would begin offering Halal meals four times a week, effective June
1, 2008, approximately two months from the plaintiff’s first request.  Additionally, Lt.
Peterman worked with the DOC to obtain the religious items the plaintiff requested.
He even followed up by e-mail to check on the status of the order without the plaintiff
asking  him  to  do  so.    Even  if  the  plaintiff  could  prove  some  violation  of  his
constitutional right, Lt. Peterman was not part of it.   Because he did not deny the
plaintiff’s requests for a Halal diet or religious items, Lt. Peterman is entitled to
summary judgment on the plaintiff’s individual capacity claims against him.
Accordingly,
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IT IS ORDERED that the defendant’s motion for summary judgment (Docket
#17) be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
dismissing this case.
Dated at Milwaukee, Wisconsin, this 26th day of February, 2010.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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