United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 9, 2006

Decided September 7, 2006

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-2149

JAMES J. KAUFMAN,

Plaintiff-Appellant,

v.

GARY R. MCCAUGHTRY and JAMYI

J. WITCH,

Defendants-Appellees.

Appeal from the United States

District Court for the

Western District of Wisconsin.

No. 03-C-027-C

Barbara B. Crabb, Chief Judge.

O R D E R

James Kaufman is an inmate in Wisconsin’s prison system. The present appeal

relates to his claim under 42 U.S.C. § 1983 that various officials of Wisconsin’s

Waupun Correctional Institution, where he was incarcerated for a time, violated his

First Amendment rights by refusing to allow him to organize a group of atheists. The

district court initially dismissed the suit on the ground that atheism is not a “religion,”

and thus that the prison officials acted within their discretion when they treated his

request as one subject to the rules for secular organizations. This court reversed, see

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-2149 Page 2

Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005) (Kaufman I), finding that

Kaufman’s proposed group qualified as “religious” for Establishment Clause purposes,

and thus that it was entitled to be treated the same as other religious groups in the

prison. Id. at 684. On remand, the only two defendants remaining in the action were

Gary R. McCaughtry and Jamyi Witch, respectively the Warden and Chaplain of

Waupun. The defendants filed a second motion for summary judgment, this time

claiming that they were entitled to qualified immunity, because the plaintiff’s rights

were not clearly established at the time they acted. The district court agreed with this

position and entered judgment for the defendants. We affirm.

The history of Kaufman’s request is set forth in our earlier opinion; we assume

familiarity with it here. The only question we must resolve is whether the district court

correctly concluded that defendants enjoyed qualified immunity under the

circumstances of this case. The leading Supreme Court decision, as the district court

recognized, is Saucier v. Katz, 533 U.S. 194 (2001). There the Court set forth a

sequential test for claims of qualified immunity. First, the court must decide a

threshold question, namely, whether “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s conduct violated a

constitutional right?” Id. at 201. If the answer is no, then there is no need to explore

immunity any further. If it is yes, the court must then decide “whether the right was

clearly established.” Id. The latter inquiry, the Court emphasized, “must be

undertaken in light of the specific context of the case, not as a broad general

proposition.” Id. 

In Kaufman’s case, our earlier opinion established the first of the two Saucier

points: we held that his allegations were enough to assert the violation of a

constitutional right. Thus, the only issue before us now is whether the rule was clearly

established, such that the defendants should have known that they were violating it

under the particular circumstances they faced. At a high enough level of generality, the

rules have been clear for some time. As the Supreme Court put it in McCreary County,

Ky., v. American Civil Liberties Union of Ky., 545 U.S. 844, 125 S.Ct. 2722, 2733 (2005):

The touchstone for our analysis is the principle that the “First

Amendment mandates governmental neutrality between religion and

religion, and between religion and nonreligion.” Epperson v. Arkansas,

393 U.S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U.S. 1,

15-16 (1947); Wallace v. Jaffree, [472 U.S. 38,] 53 [1985].

But, as the district court rightly commented, the picture becomes murkier when we

factor in more of the specifics. In certain circumstances, as the Supreme Court

recognized in Cutter v. Wilkinson, 544 U.S. 709 (2005), the government is entitled to

make special accommodations for religious practices that are not extended to

nonreligious practices. The parties agree that no case prior to 2002 alerted the prison
No. 06-2149 Page 3

officials to the fact that they might need to draw the line between atheism, as “a school

of thought that takes a position on religion, the existence and importance of a supreme

being, and a code of ethics,” see Kaufman I, 419 F.3d at 682, and an entirely secular

school of thought. Nor did earlier law throw much light on how that line should be

drawn.

The defendants point out that even some judges have been uncertain about the

way atheism should be treated. See, e.g., Kilaab Al Ghashiyah v. Dept. of Corr. of State

of Wisconsin, 2003 WL 1089526 (E.D. Wis. 2003), disapproved by Charles v. Verhagen,

348 F.3d 601 (7th Cir. 2003). Kaufman himself, from time to time, claimed that he did

not regard atheism as a religion. He went so far as to cross out all references to the

term “religion” on the form he tendered to the officials. At no point has Kaufman

directed our attention to case law prior to the time the defendants acted that clearly

held that prison officials had to treat atheist groups just the same as Muslim groups,

or Christian groups, or Wiccan groups, for purposes of the formation of study groups

in the prison. Recalling the purpose of qualified immunity, which is to shield

government officials performing discretionary functions from damage liability when

their conduct does not violate clearly established rights, see Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982), we conclude that the officials here have shown that they are

entitled to qualified immunity. 

The judgment of the district court is AFFIRMED.