Kaufman, James v. McCaughtry, Gary ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1914
JAMES J. KAUFMAN,
Plaintiff-Appellant,
v.
GARY R. MCCAUGHTRY, et al.,
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.
____________
SUBMITTED OCTOBER 26, 2004Œ—DECIDED AUGUST 19, 2005
____________
Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Wisconsin inmate James Kaufman
filed this suit under 42 U.S.C. § 1983, claiming as relevant
here that prison officials violated his First Amendment
rights. He raises three unrelated issues. Of the three, the
one that has prompted the issuance of this opinion is his
claim that the defendants infringed on his right to practice
his religion when they refused to allow him to create an
Œ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
2 No. 04-1914
inmate group to study and discuss atheism. Kaufman also
argues that the defendants used an overly broad definition
of “pornography” when they prevented him from receiving
several publications containing sexual content and photo-
graphs of nude men and that they improperly opened
outside of his presence several letters that he claimed were
“legal” mail. The district court dismissed the pornography
claim at screening, see 28 U.S.C. § 1915A, and granted
summary judgment in favor of the defendants on the other
two. On appeal, Kaufman contests the merits of those
decisions, argues that he should have been allowed to
amend his complaint to add another claim, and claims that
he should have been permitted to conduct additional
discovery. We affirm in part and vacate and remand in part.
I
We begin with the main event: Kaufman’s argument
that the prison officials violated his constitutional rights
when they refused to give him permission to start a study
group for atheist inmates at the prison. The events underly-
ing Kaufman’s lawsuit occurred while he was an inmate at
Wisconsin’s Waupun Correctional Institution. Kaufman
sued the then-warden of Waupun, Gary R. McCaughtry, in
part in his individual capacity for damages, and so he
remains a party despite the fact that Waupun now has a
different warden and Kaufman is now at a different
institution, the Jackson Correctional Institution. While at
Waupun, Kaufman submitted an official form titled “Re-
quest for New Religious Practice,” in which he asked to
form an inmate group interested in humanism, atheism,
and free speaking. The group would work “[t]o stimulate
and promote Freedom of Thought and inquiry concerning
religious beliefs, creeds, dogmas, tenets, rituals and prac-
tices[, and to] educate and provide information concerning
religious beliefs, creeds, dogmas, tenets, rituals, and prac-
No. 04-1914 3
tices.” See Kaufman v. McCaughtry, No. 03-C-027-C, 2004
WL 257133, *4 (W.D. Wis. Feb. 9, 2004). Kaufman also
submitted a list of atheist groups and literature. The
officials concluded that Kaufman’s request was not moti-
vated by “religious” beliefs. Accordingly, rather than
evaluating the proposal under the state’s relatively more
flexible policy for new religious groups, see Wis. Admin.
Code § DOC 309.61, they considered it under the procedure
for forming a new inmate activity group, see Wis. Admin.
Code § DOC 309.365. Applying the latter standard, they
denied the request, stating that they were not forming new
activity groups at that time.
Kaufman argues that the defendants’ refusal to allow him
to create the study group violated his rights under both the
Free Exercise Clause and the Establishment Clause of the
First Amendment. We note that Kaufman relies only on the
First Amendment and at this stage of the litigation has not
tried to take advantage of the added protections of the
Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. § 2000cc et seq.
We address his claim under the Free Exercise Clause
first. An inmate retains the right to exercise his religious
beliefs in prison. Tarpley v. Allen County, 312 F.3d 895, 898
(7th Cir. 2002). The problem here was that the prison
officials did not treat atheism as a “religion,” perhaps in
keeping with Kaufman’s own insistence that it is the
antithesis of religion. But whether atheism is a “religion”
for First Amendment purposes is a somewhat differ-
ent question than whether its adherents believe in a
supreme being, or attend regular devotional services, or
have a sacred Scripture. The Supreme Court has said that a
religion, for purposes of the First Amendment, is distinct
from a “way of life,” even if that way of life is inspired by
philosophical beliefs or other secular concerns. See Wiscon-
sin v. Yoder, 406 U.S. 205, 215-16 (1972). A religion need
not be based on a belief in the existence of a supreme being
4 No. 04-1914
(or beings, for polytheistic faiths), see Torcaso v. Watkins,
367 U.S. 488, 495 & n.11 (1961); Malnak v. Yogi, 592 F.2d
197, 200-15 (3d Cir. 1979) (Adams, J., concurring);
Theriault v. Silber, 547 F.2d 1279, 1281 (5th Cir. 1977) (per
curiam), nor must it be a mainstream faith, see Thomas v.
Review Bd., 450 U.S. 707, 714 (1981); Lindell v. McCallum,
352 F.3d 1107, 1110 (7th Cir. 2003).
Without venturing too far into the realm of the
philosophical, we have suggested in the past that when a
person sincerely holds beliefs dealing with issues of “ulti-
mate concern” that for her occupy a “place parallel to that
filled by . . . God in traditionally religious persons,” those
beliefs represent her religion. Fleischfresser v. Dirs. of Sch.
Dist. 200, 15 F.3d 680, 688 n.5 (7th Cir. 1994) (internal
citation and quotation omitted); see also Welsh v. United
States, 398 U.S. 333, 340 (1970); United States v. Seeger,
380 U.S. 163, 184-88 (1965). We have already indicated that
atheism may be considered, in this specialized sense, a
religion. See Reed v. Great Lakes Cos., 330 F.3d 931, 934
(7th Cir. 2003) (“If we think of religion as taking a posi-
tion on divinity, then atheism is indeed a form of religion.”).
Kaufman claims that his atheist beliefs play a central role
in his life, and the defendants do not dispute that his beliefs
are deeply and sincerely held.
The Supreme Court has recognized atheism as equivalent
to a “religion” for purposes of the First Amendment on
numerous occasions, most recently in McCreary County, Ky.
v. American Civil Liberties Union of Ky., 125 S.Ct. 2722(2005). The Establishment Clause itself says only that
“Congress shall make no law respecting an establishment
of religion,” but the Court understands the reference to
religion to include what it often calls “nonreligion.” In
McCreary County, it described the touchstone of
Establishment Clause analysis as “the principle that the
First Amendment mandates government neutrality between
religion and religion, and between religion and nonreligion.”
No. 04-1914 5
Id. at *10 (internal quotations omitted). As the Court put it
in Wallace v. Jaffree, 472 U.S. 38 (1985):
At one time it was thought that this right [referring to
the right to choose one’s own creed] merely proscribed
the preference of one Christian sect over another, but
would not require equal respect for the conscience of the
infidel, the atheist, or the adherent of a non-Christian
faith such as Islam or Judaism. But when the
underlying principle has been examined in the crucible
of litigation, the Court has unambiguously concluded
that the individual freedom of conscience protected by
the First Amendment embraces the right to select any
religious faith or none at all.
Id. at 52-53. In keeping with this idea, the Court has
adopted a broad definition of “religion” that includes non-
theistic and atheistic beliefs, as well as theistic ones. Thus,
in Torcaso v. Watkins, 367 U.S. 488, it said that a state
cannot “pass laws or impose requirements which aid all
religions as against non-believers, and neither can [it] aid
those religions based on a belief in the existence of God as
against those religions founded on different beliefs.” Id. at
495. Indeed, Torcaso specifically included “Secular
Humanism” as an example of a religion. Id. at 495 n.11.
It is also noteworthy that the administrative code
governing Wisconsin prisons states that one factor the
warden is prohibited from considering in deciding whether
an inmate’s request to form a new religious group should be
granted is “the absence from the beliefs of a concept
of a supreme being.” See Wis. Admin. Code § DOC
309.61(d)(3), cited in Kaufman v. McCaughtry, 2004 WL
257133, at *9. Atheism is, among other things, a school of
thought that takes a position on religion, the existence and
importance of a supreme being, and a code of ethics. As
such, we are satisfied that it qualifies as Kaufman’s religion
for purposes of the First Amendment claims he is
6 No. 04-1914
attempting to raise.
Kaufman argues that the defendants’ refusal to permit
him to meet with other atheist inmates to study and discuss
their beliefs violates the Free Exercise Clause. “ ‘[W]hen a
prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests.’ ” O’Lone v. Shabazz, 482
U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78,
89 (1987)); see also Sasnett v. Litscher, 197 F.3d 290, 292
(7th Cir. 1999). In the context of the Free Exercise Clause,
Kaufman must first establish that his right to practice
atheism was burdened in a significant way. See Hernandez
v. Comm’n of Internal Revenue, 490 U.S. 680, 699 (1989)
(plaintiff must show a “substantial burden” on a “central
religious belief or practice” to prevail under the Free
Exercise Clause); Civil Liberties for Urban Believers v. City
of Chicago, 342 F.3d 752, 760 (7th Cir. 2003) (collecting
cases). He failed utterly to do so. Kaufman introduced no
evidence showing that he would be unable to practice
atheism effectively without the benefit of a weekly study
group. The defendants apparently allow him to study
atheist literature on his own, consult informally with other
atheist inmates, and correspond with members of the
atheist groups he identified, and Kaufman offered nothing
to suggest that these alternatives are inadequate.
Moreover, an inmate is not entitled to follow every aspect
of his religion; the prison may restrict the inmate’s practices
if its legitimate penological interests outweigh the pris-
oner’s religious interests. Tarpley, 312 F.3d at 898; Canedy
v. Boardman, 91 F.3d 30, 33 (7th Cir. 1996). The defendants
submitted an affidavit stating that allowing any group of
inmates to congregate for a meeting raises security concerns
and requires staff members to supervise the group. Prison
officials unquestionably have a legitimate interest in
maintaining institutional security, see, e.g., Lindell v.
Frank, 377 F.3d 655, 658-59 (7th Cir. 2004), and we cannot
No. 04-1914 7
say that their denial of Kaufman’s request for a study group
was not rationally related to that interest. Accordingly, the
district court properly granted summary judgment on
Kaufman’s claim insofar as it arises under the Free Exer-
cise Clause.
The same is not true with respect to Kaufman’s Establish-
ment Clause claim. The Supreme Court reaffirmed
the utility of the test set forth in Lemon v. Kurtzman,
403 U.S. 602 (1971), in McCreary, 125 S.Ct. at 2732-35.
Compare Van Orden v. Perry, 125 S.Ct. 2854, 2860-61
(2005) (plurality questions continuing utility of Lemon test).
A government policy or practice violates the Establishment
Clause if (1) it has no secular purpose, (2) its primary effect
advances or inhibits religion, or (3) it fosters an excessive
entanglement with religion. Lemon, 403 U.S. at 612-13;
Books v. City of Elkhart, 235 F.3d 292, 301 (7th Cir. 2000).
The Establishment Clause also prohibits the govern-
ment from favoring one religion over another without
a legitimate secular reason. See Linnemeir v. Bd. of
Trustees of Purdue Univ., 260 F.3d 757, 759 (7th Cir. 2001);
Metzl v. Leininger, 57 F.3d 618, 621 (7th Cir. 1995) (“[T]he
First Amendment does not allow a state to make it easier
for adherents of one faith to practice their religion than for
adherents of another faith to practice their religion, unless
there is a secular justification for the difference in
treatment.”); Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d
1160, 1168-69 (7th Cir. 1993) (“Under the Establishment
Clause, the government may not aid one religion, aid all
religions or favor one religion over another.”).
The district court went astray when it evaluated
Kaufman’s claim on the assumption that he wanted to form
a nonreligious group. Based on that premise, it held that
the defendants were entitled to assess Kaufman’s proposal
under the more restrictive set of regulations that applies to
normal social groups. Had the premise been correct, the
conclusion would have followed: no one says that a person
who wants to form a chess club at the prison is entitled
8 No. 04-1914
under the Establishment Clause to have the application
evaluated as if chess were a religion, no matter how devoted
he is to the game. In addition, the district court correctly
noted that in certain circumstances the government may
make special accommodations for religious practices that
are not extended to nonreligious practices without violating
the Establishment Clause. See Corp. of the Presiding
Bishop of the Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327, 334 (1987); Charles v. Verhagen, 348
F.3d 601, 610 (7th Cir. 2003). Indeed, RLUIPA requires
prisons to do just that, and the Supreme Court has recently
upheld its constitutionality. Cutter v. Wilkinson, 125 S.Ct.
2113 (2005); see also Charles, 348 F.3d at 610-11.
The problem with the district court’s analysis is that
the court failed to recognize that Kaufman was trying
to start a “religious” group, in the sense we discussed
earlier. Atheism is Kaufman’s religion, and the group
that he wanted to start was religious in nature even though
it expressly rejects a belief in a supreme being. As he
explained in his application, the group wanted to
study freedom of thought, religious beliefs, creeds, dogmas,
tenets, rituals, and practices, all presumably from an
atheistic perspective. It is undisputed that other religious
groups are permitted to meet at Kaufman’s prison, and
the defendants have advanced no secular reason why
the security concerns they cited as a reason to deny
his request for an atheist group do not apply equally to
gatherings of Christian, Muslim, Buddhist, or Wiccan
inmates. The defendants argue that all they are doing is
accommodating religious groups as a whole, as they
are required to do under RLUIPA. See Cutter, 125 S.Ct.
2113; Charles, 348 F.3d at 610-11. But the defendants have
not answered Kaufman’s argument that by accommodating
some religious views, but not his, they are promoting
the favored ones. Because the defendants failed even to
articulate—much less support with evidence—a secular
No. 04-1914 9
reason why a meeting of atheist inmates would pose a
greater security risk than meetings of inmates of other
faiths, their rejection of Kaufman’s request cannot sur-
vive the first part of the Lemon test. See Lemon, 403 U.S. at
612-13; Books, 235 F.3d at 301. We therefore vacate
the grant of summary judgment in the defendants’ favor
on Kaufman’s claim under the Establishment Clause
and remand for further proceedings.
Kaufman also argues that the district court should
have allowed him to amend his complaint to add a claim
that the defendants unconstitutionally have refused to
permit him to wear a religious medal or emblem. He made
this motion only after the defendants had filed their
answer, and so he no longer could amend as a matter
of right. FED. R. CIV. P. 15(a). We review a refusal to permit
an amendment for an abuse of discretion. Crestview Village
Apartments v. United States Dep’t of Hous. & Urban Dev.,
383 F.3d 552, 557 (7th Cir. 2004). We see no such problem
here. Kaufman never alleged that his religious beliefs
required him to wear any type of symbol, and never identi-
fied what emblem he wanted to wear. The district court did
not abuse its discretion by refusing to allow the amend-
ment.
10 No. 04-1914
II
We turn now to Kaufman’s claim that the defendants
withheld publications they wrongly deemed pornographic.
Prison officials in Wisconsin may not deliver mail that falls
into any of several prohibited categories, including pornog-
raphy. Wis. Admin. Code § DOC 309.04(4)(c)(8)(a). Kaufman
argues that the definition of “pornography” adopted by the
Department of Corrections is overly broad and restricts him
from receiving publications that he believes are permitted
under the terms of a settlement agreement reached in an
earlier class action in which he was a class member. See
Aiello v. Litscher, 104 F. Supp. 2d 1068 (W.D. Wis. 2000)
(discussing the class action). In fact, however, the definition
Kaufman complains about was established in the settle-
ment agreement. See Wis. Admin. Code § DOC 309.02(16).
It identifies as pornography several classes of prohibited
written and visual materials, among them depictions of
“[s]adomasochistic abuse, including but not limited to
flagellation, bondage, brutality to or mutilation or physical
torture of a human being,” id. § DOC 309.02(16)(a)(2).
Kaufman concedes that his undelivered publications fall
within this description, but he argues that he should have
been allowed to receive them anyway because in his opinion
they do not depict “sadomasochistic abuse” as that term is
defined for purposes of a criminal statute punishing sexual
abuse of a child, Wis. Stat. § 948.01(4). But Kaufman is
bound by the settlement agreement, see In re VMS Sec.
Litigation, 21 F.3d 139, 141 (7th Cir. 1994), and he does not
allege that the intercepted publications were permitted
under its definition. (Kaufman claims that he objected to
the settlement agreement in Aiello, but he never opted out
of the class, and so he remains bound by the outcome of the
class action notwithstanding his objections.) Accordingly,
the district court properly dismissed this claim.
No. 04-1914 11
III
Next we turn to the claim that the defendants improperly
opened Kaufman’s mail outside of his presence. Kaufman
alleges that, over a period of six months, eight pieces of
allegedly legal mail were opened by DOC officials before
being delivered to him. Six of these letters were sent to
Kaufman, and two were letters that he had sent but that
were returned. Of the letters Kaufman received, two of the
envelopes were marked as being sent by the “U.S. Depart-
ment of Justice, OEO.” The remaining ones were marked as
being sent by the American Civil Liberties Union, Steele
Legal Services, the Eau Claire County Sheriff’s Office, and
“Langrock, Sperry, & Wool, LLP.” One of the returned items
was an envelope containing documents Kaufman wanted to
file in an unrelated case in the district court; the envelope
was returned for insufficient postage. Kaufman promptly
affixed sufficient postage and resent the documents, which
were accepted for filing. The other returned item was a
letter Kaufman mailed to a Wisconsin assistant attorney
general using the wrong zip code. It is undisputed that none
of these eight letters was marked with a stamp identifying
the sender as an attorney or stating that the mail was
confidential. It is also undisputed that no attorney from any
of these organizations ever represented Kaufman in any
capacity.
Inmates have a First Amendment right both to send
and receive mail, Rowe v. Shake, 196 F.3d 778, 782 (7th Cir.
1999), but that right does not preclude prison officials from
examining mail to ensure that it does not contain contra-
band, Wolff v. McDonnell, 418 U.S. 539, 576 (1974); Rowe,
196 F.3d at 782. An inmate’s legal mail, however, is entitled
to greater protections because of the potential for interfer-
ence with his right of access to the courts. Rowe, 196 F.3d
at 782. Thus, when a prison receives a letter for an inmate
that is marked with an attorney’s name and a warning that
the letter is legal mail, officials potentially violate the
12 No. 04-1914
inmate’s rights if they open the letter outside of the in-
mate’s presence. See Wolff, 418 U.S. at 577; Castillo v. Cook
County Mail Room Dep’t, 990 F.2d 304, 305-06 (7th Cir.
1993).
The question here, however, is whether the items in
question qualified as “legal” mail. Kaufman did not meet his
burden at summary judgment to show that a trier of fact
could so characterize any of the eight pieces of mail at issue.
Kaufman never offered the correspondence itself—even
under seal—or described the contents in any manner
sufficient to allow the district court to conclude that the
mail was privileged. Furthermore, he concedes that he was
neither represented nor seeking to be represented by an
attorney from any of the organizations with which he
exchanged correspondence. To the extent Kaufman claims
that the opening of his mail impeded his access to the
courts, he offered no evidence that his ability to litigate any
matter was affected by the defendants’ actions. See Walters
v. Edgar, 163 F.3d 430, 433-34 (7th Cir. 1998). The district
court correctly granted summary judgment to the defen-
dants on this claim.
Kaufman argues finally that the district court should
have granted his motion to compel the defendants to
provide unspecified new information in response to his
discovery requests. But Kaufman never explained what
additional information he believed was necessary, and
he never submitted an affidavit to the district court assert-
ing that he would be unable to oppose the defendants’
motion for summary judgment without additional discovery,
see FED. R. CIV. P. 56(f). Accordingly, we cannot say that the
district court abused its discretion when it denied
Kaufman’s motion. See Woods v. City of Chicago, 234 F.3d
979, 990 (7th Cir. 2000).
No. 04-1914 13
IV
We VACATE the grant of summary judgment in favor
of the defendants on Kaufman’s Establishment Clause
claim and REMAND this case to the district court for further
proceedings. On remand, the district judge should address
the question of which parties remain as proper defendants,
and which should no longer be in the case because of
Kaufman’s transfer. We AFFIRM the district court’s judg-
ment in all other respects.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-19-05