Judges: Per Curiam
Filed: Dec. 08, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 8, 2009* Decided December 8, 2009 Before FRANK H. EASTERBROOK, Chief Judge RICHARD D. CUDAHY, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 09-2541 CARL DESIMONE, Appeal from the United States District Plaintiff-Appellant, Court for the Eastern District of Wisconsin. v. No. 08-C-638 BRYAN BARTOW, et al., Def
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 8, 2009* Decided December 8, 2009 Before FRANK H. EASTERBROOK, Chief Judge RICHARD D. CUDAHY, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 09-2541 CARL DESIMONE, Appeal from the United States District Plaintiff-Appellant, Court for the Eastern District of Wisconsin. v. No. 08-C-638 BRYAN BARTOW, et al., Defe..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 8, 2009*
Decided December 8, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐2541
CARL DESIMONE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 08‐C‐638
BRYAN BARTOW, et al.,
Defendants‐Appellees. William C. Griesbach,
Judge.
O R D E R
Carl DeSimone, formerly a civilly committed patient at the Wisconsin Resource
Center, sued WRC employees under the Religious Land Use and Institutionalized Persons
Act of 2000, 42 U.S.C. § 2000cc‐1(a), and under 42 U.S.C. § 1983 for violations of the First
Amendment as incorporated by the Fourteenth Amendment. The district court granted
summary judgment against DeSimone, and we affirm.
*
After examining 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).
No. 09‐2541 Page 2
The facts underlying DeSimone’s lawsuit are largely undisputed. In early 2006, he
informed WRC that he had begun practicing a religion called Yahwism, which he
understands to require adherents to “separate” themselves from the world of sin, a feat
sometimes accomplished by living wholly apart from others. Living apart from others was
impossible in the care of WRC, but DeSimone believed he could maintain a separate realm
of thought by writing in journals through use of a code (to prevent fellow patients from
reading his entries and learning his secrets). The record shows that DeSimone had been
maintaining encoded journals as early as 1997, even before he had embraced Yahwism.
DeSimone obtained the codes relevant to this lawsuit from Internet printouts provided by a
teacher and a social worker who agreed to help him pursue his interest in the mythical city
of Atlantis. One code was an alphabet–“Atlantean”–designed to accompany a language
constructed for the Disney film Atlantis: The Lost Empire. Another was “Lingua Anquietas,”
an alphabet created for a fictional race of “Ancients” in the television shows Stargate SG‐1
and Stargate: Atlantis. DeSimone learned how to transliterate English words into the
fictitious alphabets.
In early 2008 a routine search of DeSimone’s cell revealed two journals, two
notepads, a letter, and seven loose sheets of paper, all containing writing in DeSimone’s
chosen codes. Staff confiscated the journals and loose paper, gave DeSimone a written
explanation that encoded writing was considered a security risk and therefore deemed
contraband, and forbade him from continuing to write in code. DeSimone unsuccessfully
filed internal grievances seeking the return of his papers and the lifting of the ban.
He then sued in federal court, seeking monetary damages and injunctive relief. First,
DeSimone claimed that WRC violated RLUIPA by banning code and thereby increasing the
likelihood that any patients who stole his journals could learn his thoughts and prayers–a
scenario that, he said, made it impossible to follow the religious commandment to live
separately from others. Second, DeSimone argued that the ban of code, for the same
reasons, violated his First Amendment right to the free exercise of his religion.
The district court granted summary judgment for WRC, ruling that DeSimone had
not produced evidence of a substantial burden on his religious exercise as required by
RLUIPA and, in the alternative, that WRC had demonstrated that it pursued the least
restrictive means of furthering its compelling interest in institutional security. The court
further ruled that, because “RLUIPA provides more generous protection than the First
Amendment,” DeSimone could not possibly succeed on his constitutional claim.
On appeal, DeSimone argues that the district court erred by granting summary
judgment on the RLUIPA claim because the rules preventing him from using his favored
No. 09‐2541 Page 3
codes substantially burdened his religious exercise. He also challenges the court’s
alternative rationale that the ban furthered a compelling government interest or constituted
the least restrictive means.
RLUIPA forbids institutions that receive federal funds from substantially burdening
patients’ exercise of religion—even by rules of general applicability—unless the burden is
the least restrictive means of furthering a compelling government interest. See 42 U.S.C.
§ 2000cc‐1(a); Cutter v. Wilkinson, 544 U.S. 709, 715 (2005); Ortiz v. Downey, 561 F.3d 664, 670
(7th Cir. 2009). A substantial burden exists only where a government action “bears direct,
primary, and fundamental responsibility for rendering religious exercise . . . effectively
impracticable.” Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009) (quoting Civil Liberties for
Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)). Only upon plaintiffs’
showing of a substantial burden on their religious exercise will the evidentiary burden shift
to the institution, which must then show that the challenged rule is the least restrictive
means of pursuing a compelling government interest. See Koger v. Bryan, 523 F.3d 789, 796
(7th Cir. 2008).
As the district court recognized, DeSimone’s RLUIPA claim fails because he
produced no evidence of a substantial burden on his religious exercise. DeSimone says that
WRC’s ban on encoded writing infringes upon his religious exercise—that of keeping his
thoughts “separate” from sinners—because other patients might obtain and read his
journals, but speculation of this sort does not constitute the sort of evidence necessary to
establish a substantial burden. See Borzych v. Frank, 439 F.3d 388, 390 (7th Cir. 2006) (noting
the insufficiency of a plaintiff’s “unreasoned say‐so” to create a triable issue). Thus, the
district court did not err in granting summary judgment on DeSimone’s RLUIPA claim.
Finally, DeSimone argues that the district court erred when it ruled against him on
his First Amendment claim, for essentially the same reasons he says it erred on the RLUIPA
claim. Although the First Amendment right to exercise one’s religion extends to
institutionalized persons, Ortiz, 561 F.3d at 669, a plaintiff must show a violation of that
right by demonstrating a substantial burden on religious exercise; indeed, RLUIPA’s
“substantial burden” test was imported from First Amendment jurisprudence. See Nelson,
570 F.3d at 878 n.5; Lovelace v. Lee, 472 F.3d 174, 198 n.8 (4th Cir. 2006). DeSimone’s failure
to establish a substantial burden on his religious exercise therefore dooms not only his
RLUIPA claim, but his First Amendment claim as well.
Accordingly, the judgment is AFFIRMED.