# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 11, 2019 *

Decided February 11, 2019

Before

WILLIAM J. BAUER, Circuit Judge

AMY C. BARRETT, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 17

‐ 3110

DAVID SCHLEMM,

Plaintiff

‐ Appellant

,

v

.

KEVIN CARR,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Western District of Wisconsin.

No. 11

‐ cv

‐ 272

‐ wmc

William M. Conley,

J udge

.

O R D E R

David Schlemm, a Native American inmate, sued the Wisconsin Department of

Corrections and prison officials for interfering with his religious practices. The district

court entered summary judgment for the defendants, but we remanded his case for

trial. See Schlemm v. Wall

, 784 F.3d 362 (7th Cir. 2015). After a bench trial, the district

court entered an injunction requiring the Department to honor several of Schlemm’s

* We have agreed to decide this case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). Additionally, Kevin Carr, who

became the secretary of the Wisconsin Department of Corrections after this appeal was

filed, has been substituted for Jon Litscher as the appellee. See F ED

. R. A PP

. P. 43(c)(2). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 3110 Page 2

requests. On appeal again, Schlemm primarily asserts that the injunction is insufficient;

specifically, it does not permit him to obtain fresh game meat to make “Indian Tacos”

for the traditional Ghost Feast. Because the record shows that this limitation does not

impose a substantial burden on Schlemm’s religious exercise and is the least restrictive

means of furthering the prison’s security interest, we affirm the judgment.

Schlemm contends that, before this litigation began, officials at the Green Bay

Correctional Institution and the Wisconsin Department of Corrections violated his

religious liberty in a number of ways, two of which are relevant to this appeal: they

forbade him from wearing a multicolored headband in his cell and while participating

in Native American spiritual activities, and they did not allow him to meaningfully

participate in a Native American harvest celebration called the Ghost Feast. In 2011

Schlemm sued Department of Corrections and prison officials under the Religious Land

Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to 2000cc–5, and under

42 U.S.C. § 1983 for violating the First and Fifth Amendments. The district court

dismissed Schlemm’s due

‐ process claim—which accused the Department of Corrections

of amending its policies without following the state’s administrative rulemaking

process and circumventing legislative oversight—and entered summary judgment on

Schlemm’s First Amendment claim, because the individual defendants were not

personally involved in any deprivation of Schlemm’s constitutional rights. It also

entered summary judgment on his RLUIPA claims because Schlemm failed to establish

that the challenged policies imposed a “substantial burden” on his religious practices.

We vacated the district court’s judgment on Schlemm’s claims under the Act.

Schlemm

, 784 F.3d at 367. (We bypassed Schlemm’s First Amendment arguments

because the Act provides greater protections. Id. at 363.) We noted that, although

“Schlemm would lose” under this circuit’s prior case law, two recent Supreme Court

decisions, Holt v. Hobbs

, 135 S. Ct. 853 (2015), and Burwell v. Hobby Lobby Stores, Inc.

,

134 S. Ct. 2751 (2014), instructed that the RLUIPA standard was “much easier to satisfy”

than this circuit previously held. Schlemm

, 784 F.3d at 364. We also recommended that

the district court recruit counsel to assist Schlemm and directed it to enter a preliminary

injunction. Id. at 366. (We affirmed the court’s judgment “to the extent it reject[ed] some

claims as unexhausted and entitles two of the defendants to dismissal because they

were not involved in the contested decisions.” Id. at 366–67.)

On remand, the district court entered a preliminary injunction and recruited

counsel for Schlemm. The court instructed Schlemm to work with his attorneys and

advised him that, if he did not want their assistance, the court was “unlikely” toNo. 17

‐ 3110 Page 3

appoint new representation. Schlemm later had differences with the attorneys; the

district court granted their motion to withdraw and then, as foreshadowed, denied

Schlemm’s motion for new counsel. Therefore, Schlemm had counsel through the

summary

‐ judgment stage, but not at trial.

Schlemm elected a bench trial and proceeded pro se. The prison agreed before

trial to allow Schlemm to wear the desired multicolored headband in his cell and

during religious ceremonies, so the trial focused on Schlemm’s claim regarding his

inability to obtain fresh game meat and frybread for the Ghost Feast. At trial, Schlemm

testified that “processed” meats treated with chemical preservatives were inadequate

because he did not view those products as “traditional” and because he “can’t cook it.”

The district judge asked if “there [is] something that you [can] point to in the materials

provided by your expert or in the literature that suggests that it’s not an adequate Ghost

Feast if the food, particularly the game meat, is not fresh and able to be cooked or that it

needs to be cooked at the time.” Schlemm answered that he could not.

After trial, the judge concluded that the Department was violating Schlemm’s

rights under the Act and entered an injunction. First, the district court “had no trouble

concluding” that Schlemm’s request for game meat and frybread at the Ghost Feast was

motivated by a sincerely held religious belief and that each is a necessary component of

the Feast. Second, the court concluded that the Department’s current policies—they had

been revised several times while this case proceeded—still imposed a substantial

burden on Schlemm’s religious exercise for three reasons. First, they arbitrarily limited

to 16 ounces the amount of each food at a religious meal no matter how many

participants there were. (Food for religious ceremonies is brought into the prison by

spiritual advisors or other volunteers.) Second, they prohibited inmates from ordering

more than one food item, even though several types of food are required for a Ghost

Feast. Finally, by allowing inmates to use only shelf

‐ stable foods for religious

observances, they effectively prohibited the use of frybread.

The district court, however, rejected Schlemm’s argument that barring outside

vendors, such as restaurants or caterers, from delivering fresh game meat into the prison

imposes a substantial burden on Schlemm’s religious exercise. For support, the court

pointed to testimony from Schlemm’s witnesses suggesting that dried or preserved

meat would be less preferable but not entirely unacceptable and that foods approved

under the prison’s amended policy (which allow dried game meat sealed by a

manufacturer in a clear pouch) would be acceptable. The court also cited the testimony

of Schlemm’s expert witness that Native Americans have historically preserved gameNo. 17

‐ 3110 Page 4

meat, called pemmican, which is “traditional [N]ative American food.” Comparatively,

the court found Schlemm’s testimony insisting that the meat must be fresh vague,

unpersuasive, and unsupported. The court briefly observed in a footnote that Schlemm

offered no evidence that obtaining fresh meat from a restaurant or a caterer was even

feasible.

The court then explained that it was not persuaded that the Department’s

policies limiting Schlemm’s access to game meat and frybread reflected the least

‐

restrictive means of furthering a compelling government interest in security and order.

However, the court also stated that the Department offered compelling arguments why

it prohibited inmates from receiving fresh outside food and that “real security and

administrative challenges” would arise if inmates were permitted to order meals from

restaurants or caterers.

The court then announced the terms of the injunction it would enter to protect

Schlemm’s religious exercise. First, the court ordered that Schlemm be permitted to

possess and wear a particular headband in his cell and during religious services. It also

ordered the Department to allow approved spiritual advisors or volunteers to bring

“traditional foods for the annual Native American Ghost Feast

... in sufficient quantity

such that plaintiff and every other attending inmate is able to partake of a meaningful

amount of traditional foods.” The court specified that the “traditional foods” should

include the “spirit foods” already approved under the existing policy, as well as

frybread, which need not be shelf

‐ stable.

In other words, the injunction carved out two exceptions to the existing policy:

first, it eliminated the arbitrary 16

‐ ounce limit on the amount of food a spiritual advisor

may bring to the Ghost Feast, and second, it permitted Schlemm and others to obtain

frybread, even though it is not shelf

‐ stable. But it allowed the prison to continue

refusing fresh meat from outside restaurants and caterers. Finally, if no volunteers were

available, Schlemm and others could order their own meal “consistent with the new

Religious Diets Program,” which permits inmates to request “individual

accommodation[s] to purchase an individual portion of a shelf

‐ stable ceremonial food

item for personal consumption” from a commercial vendor.

Schlemm moved to amend the judgment to allow him access to fresh meat.

See F ED

. R. C IV

. P. 59(e). When the court denied his motion, he appealed. He also filed

several more motions, including multiple motions to hold prison officials in contempt

and a motion for relief from the judgment.No. 17

‐ 3110 Page 5

Schlemm makes many arguments on appeal, but his primary and strongest

argument is that the injunction does not satisfactorily protect his rights under the Act,

so we begin there. As a threshold matter, we note that Schlemm mostly frames his

argument in terms of the denial of his Rule 59(e) motion. His notice of appeal mentions

parenthetically “the final judgment” of the district court but identifies the orders

appealed from as “the denial of [his] [m]otion to alter or amend the judgment,” and

others, but not the injunction order. But, given the timing of Schlemm’s Rule 59(e)

motion, the ruling, and the notice of appeal, his notice is sufficient to bring up the

judgment itself, and we will assume in his favor that he challenges both the partial

denial of his request for a permanent injunction and the post

‐ judgment motion as well.

We review a district court’s grant or denial of a permanent injunction for abuse of

discretion, reviewing factual findings for clear error and legal conclusions de novo. 3M

v. Pribyl

, 259 F.3d 587, 597 (7th Cir. 2001). We review the denial of a Rule 59(e) motion

for abuse of discretion. See Obriecht v. Raemisch

, 517 F.3d 489, 492, 494 (7th Cir. 2008).

Even construing Schlemm’s argument broadly, see Parker v. Four Seasons Hotels,

Ltd.

, 845 F.3d 807, 811 (7th Cir. 2017), we do not believe the district court erred legally or

factually in analyzing Schlemm’s RLUIPA claims. (We therefore find no abuse of

discretion in the denial of Schlemm’s Rule 59(e) motion, either.) RLUIPA prohibits the

government from imposing “a substantial burden on the religious exercise of a person

residing in or confined to an institution,” unless “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(a). The district court determined that the Department’s policies presented a

substantial burden to his religious exercise by requiring him to “engage in conduct that

seriously violates [his] religious beliefs.” Hobby Lobby

, 134 S. Ct. at 2775. That conduct

included arbitrarily limiting the amount of food and barring frybread simply because it

is not shelf

‐ stable. But the court also concluded that Schlemm, though entitled to game

meat, failed to show that providing fresh, as opposed to preserved or dried, meat is the

only way to avoid violating his religious beliefs.

The district judge based this conclusion on his determination of the credibility of

Schlemm’s testimony and his weighing of the other testimony and evidence. We review

such conclusions with deference and ask only whether the judge clearly erred. See Furry

v. United States

, 712 F.3d 988, 992 (7th Cir. 2013); see also Ali v. Stephens

, 822 F.3d 776,

783–84 (5th Cir. 2016) (invoking clear

‐ error standard in RLUIPA context). We find clear

error when we are “left with the definite and firm conviction that a mistake has beenNo. 17

‐ 3110 Page 6

committed,” Anderson v. City of Bessemer City

, 470 U.S. 564, 573 (1985), such as when

“the trial judge ʹ s interpretation of the facts is implausible, illogical, internally

inconsistent or contradicted by documentary or other extrinsic evidence.” Furry

, 712

F.3d at 992 (internal quotation marks and citation omitted).

The district court did not clearly err when it found that Schlemm’s own

testimony on the need for fresh meat was vague, unpersuasive, and contradicted at

times by Schlemm’s other evidence. Schlemm had the burden to show that a denial of

fresh game meat substantially burdens his religious exercise. Holt

, 135 S. Ct. at 862.

When asked if he could point to evidence showing that a Ghost Feast is “inadequate”

without game meat that is fresh and able to be cooked, Schlemm said that he could not.

Unlike other cases concerning religious diets, e.g. Williams v. Annucci

, 895 F.3d 180, 185

(2d Cir. 2018), the district court’s injunction does not permit the Department to refuse to

accommodate Schlemm, and it does not require Schlemm to forgo participation in the

Ghost Feast. See id. In light of the district court’s view of the evidence presented at trial,

the injunction does not require Schlemm to “engage in conduct that seriously violates

[his] religious beliefs.” Hobby Lobby

, 134 S. Ct. at 2775.

Even if denying Schlemm fresh game meat were a substantial burden on his

religious exercise, we are satisfied that the injunction imposes the least restrictive means

of furthering compelling government interests. Prison security is a compelling interest.

Cutter v. Wilkinson

, 544 U.S. 709, 725 n.13 (2005). And “although RLUIPA provides

substantial protection for the religious exercise of institutionalized persons, it also

affords prison officials ample ability to maintain security.” Holt

, 135 S. Ct. at 866. Courts

are deferential to prison officials’ expertise in this area. Cutter

, 544 U.S. at 725 n.13. But

this deference is not “unquestioning.” Holt

, 135 S. Ct. at 864. The compelling

government interest invoked by the defendant should not be “broadly formulated,” but

must be “more focused” on the application of the challenged policy to the plaintiff. Id.

at 863 (quoting Hobby Lobby

, 134 S. Ct. at 2779).

Here, we agree with the district court that the Department’s policies arbitrarily

limiting the quantity of food and denying access to frybread at the Ghost Feast are not

the least

‐ restrictive means of furthering the Department’s compelling interests. But that

entitles Schlemm to an accommodation, not necessarily a complete exemption from the

Department’s policies. See Ali

, 822 F.3d at 789 n.10 (citing Knight v. Thompson

, 797 F.3d

934, 937 (11th Cir. 2015)); see also Williams

, 895 F.3d at 193 (remanding because prison

did not demonstrate why it could not provide Jewish prisoner “more of the acceptable

food it already prepares” or order him prepackaged kosher food).No. 17

‐ 3110 Page 7

Requiring the prison to allow outside restaurants and caterers to supply fresh

game meat could unduly frustrate the Department’s administrative, safety, and security

concerns. As the district court explained: “[I]ndividual food portions ordered from a

restaurant or caterer would require the prison to implement procedures for arranging

delivery or pick

‐ up and inspecting each food item for contraband, not to mention,

ensuring that the food is then consumed quickly enough (or otherwise stored safely) to

protect against food

‐ borne illness.” Moreover, the prison’s kitchen “lacks equipment

necessary to prepare individual meals.” For those reasons, the injunction in this case

conforms to RLUIPA’s demanding standard.

Schlemm raises several other issues on appeal. First, he challenges the district

court’s rejection of the other arguments he raised in his Rule 59(e) motion. He asked the

court to consider evidence that certain catering companies would be willing to supply

“fresh” meat, that game meat should not contain salt, and that one of his witnesses (a

spiritual advisor at the prison) was “threatened” that he would not be permitted back at

the prison if he testified at trial. But because there is no reason Schlemm could not have

presented his evidence about salt or fresh

‐ meat options, it was not “newly discovered.”

Obriecht

, 517 F.3d at 494. In any case, the lack of available caterers was not the district

court’s primary rationale for allowing the ban on fresh meat to persist. And the court

permissibly declined to reopen the case based on the alleged threat because Schlemm

offered only hearsay evidence (declarations by other inmates about what the spiritual

advisor told them), and an email from a Department of Corrections official explained to

the spiritual advisor that the Department could not prevent him from acting as an

expert witness. Moreover, Schlemm’s attorneys retained an expert, whom the district

court deemed “impressive,” to testify.

Schlemm next challenges the denial of two motions to hold prison officials in

contempt of court for violating the injunction, but the district court did not abuse its

discretion in deciding either. See Autotech Techs. LP v. Integral Research & Dev. Corp.

,

499 F.3d 737, 751 (7th Cir. 2007). In the first motion, Schlemm alleged that two

volunteers were not informed of the injunction before the 2016 Ghost Feast and that one

of them was not allowed to lead it. But the injunction did not require the Department to

disseminate the order or allow anyone in particular to lead the feast. In the second

motion, Schlemm alleged interference with his ability to wear the headband, both

before and after trial, in violation of the preliminary and permanent injunctions. The

court ruled that the pre

‐ trial interferences did not violate the preliminary injunction,

and the post

‐ trial incident was accidental, short, and followed by an apologetic returnNo. 17

‐ 3110 Page 8

of the headband. Schlemm does not convince us that the court abused its discretion

when it determined that he lacked clear and convincing evidence that prison officials

violated an express and unequivocal court order on either occasion. See id. at 751.

Next, Schlemm argues that the district court erred by not allowing him to

proceed to trial with a claim for damages under the First Amendment. During the

original proceedings, Schlemm sought First Amendment damages against only two

defendants. The district court dismissed the claim because the two defendants were not

involved in the contested decisions, and we affirmed that aspect of the judgment.

Schlemm

, 784 F.3d at 366–67. Therefore, no First Amendment claim remained on

remand. And the district court did not abuse its discretion by denying Schlemm leave to

amend the pleadings to add a First Amendment claim against the Department because

the amendment would have been be futile. See CogniTest Corp. v. Riverside Pub. Co.

, 107

F.3d 493, 499 (7th Cir. 1997). It was not clearly established in 2011 that a policy which

denied a Native American inmate fresh game meat and frybread from outside the

prison violated the inmate’s First Amendment rights. See Ashcroft v. al

‐ Kidd

, 563 U.S.

731, 735 (2011). That is evidenced by our prior determination that, before Holt and

Hobby Lobby

, Schlemm would have lost his claims even under RLUIPA, which is more

protective than the First Amendment. Moreover, the Secretary of the Department of

Corrections, in his official capacity, cannot be liable for damages under 42 U.S.C. § 1983.

See Will v. Mich. Dep ʹ t of State Police

, 491 U.S. 58, 71 (1989) (defining “person” under

§ 1983).

Schlemm also challenges the district court’s decision not to recruit counsel for

him again after his first lawyers withdrew. In reviewing this argument, we are

deferential to the district court’s decision and ask only whether it was a reasonable one.

Pruitt v. Mote

, 503 F.3d 647, 658–59 (7th Cir. 2007) (en banc). Schlemm had no right to

counsel as a civil litigant. Id. at 649. We have observed that “there are too many indigent

litigants and too few lawyers willing and able to volunteer for these cases” and that

“[d]istrict courts are thus placed in the unenviable position of identifying, among a sea

of people lacking counsel, those who need counsel the most.” Olson v. Morgan

, 750 F.3d

708, 711 (7th Cir. 2014). At our urging, the district court recruited attorneys for Schlemm

who secured him a trial, but he was displeased when they would not pursue class

certification status or seek to substitute the judge. The district court did not abuse its

discretion by refusing to recruit counsel a second time.

Lastly, some questions Schlemm raises are not properly before us. For instance,

he raises two issues that came up after he filed his notice of appeal: his Rule 60(b)No. 17

‐ 3110 Page 9

motion and another motion for contempt. The court denied the Rule 60(b) motion and

has not yet decided the contempt motion. Because Schlemm failed to file a new or

amended notice of appeal as required by Federal Rule of Appellate Procedure

4(a)(4)(B)(ii) after receiving the adverse Rule 60(b) ruling and because there is no district

court ruling on the contempt motion, we lack appellate jurisdiction to review the

district court’s denial of these motions. See Gonzalez v. Thaler

, 565 U.S. 134, 147 (2012).

Schlemm also alleges that defense counsel committed a discovery violation by

withholding a document and asks us to take judicial notice, but he did not raise the

argument before the district court. Thus, the argument is waived. See Puffer v. Allstate

Ins. Co.

, 675 F.3d 709, 718 (7th Cir. 2012). Finally, Schlemm argues that his due

‐ process

claim was improperly dismissed. But, on remand from his first appeal, Schlemm never

pursued the claim, so he waived it. Packer v. Trs. of Ind. Univ. Sch. of Med.

, 800 F.3d 843,

849 (7th Cir. 2015).

We AFFIRM the judgment of the district court.