West v. Kind Appellee's Brief 08182020

Case: 20-1570 Document: 16 Filed: 08/17/2020 Pages: 35
No. 20-1570
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
RUFUS WEST,
Plaintiff-Appellant,
v.
JOHN KIND, et al.,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WISCONSIN, NO. 3:17-CV-482-PP,
THE HONORARY PAMELA PEPPER, PRESIDING
RESPONSE BRIEF OF DEFENDANTS-APPELLEES
JOSHUA L. KAUL
Attorney General of Wisconsin
BRIAN P. KEENAN
Assistant Attorney General
State Bar #1056525
Attorneys for Defendants-Appellees
Wisconsin Department of Justice

Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-0020
(608) 294-2907 (Fax)
keenanbp@doj.state.wi.us
TABLE OF CONTENTS
Page
JURISDICTIONAL STATEMENT ......................................................................1
INTRODUCTION .................................................................................................1
STATEMENT OF THE ISSUES ..........................................................................2
STATEMENT OF THE CASE..............................................................................3
I. Factual background ..........................................................................3
A. Parties .....................................................................................3
B. Relevant facts ..........................................................................4
1. West’s religious beliefs .................................................4
2. Buhle’s hiring at Green Bay .........................................5
3. DOC’s policy governing strip searches

and staffing at Green Bay ............................................5
4. The strip search at issue ..............................................6
5. West’s administrative complaints ................................7
II. Procedural history.............................................................................8
A. Complaint and screening order ..............................................8
B. Summary judgment ................................................................9
SUMMARY OF THE ARGUMENT ...................................................................12
STANDARD OF REVIEW ..................................................................................13
ARGUMENT .......................................................................................................14
I. West’s RLUIPA claim fails as a matter of law. .............................14
A. West was not substantially burdened in the

exercise of his religion. .........................................................14
-i-
Page
B. DOC has two compelling governmental

interests pursued in the least restrictive
means. ....................................................................................18
1. DOC has a compelling governmental

interest in complying with federal law
that it is pursuing in the least restrictive
means. ..........................................................................19
2. DOC has a compelling governmental

interest in prison administration
pursued in the least restrictive means. .....................21
II. West’s First Amendment claims fails as a matter of

law....................................................................................................22
A. West’s First Amendment claim necessarily

fails if his RLUIPA claim fails. ............................................23
B. West’s free exercise claim fails because he is

challenging a neutral rule of general
application. ............................................................................23
C. Allowing transgender men to perform strip

searches of male prisoners meets the
reasonableness test applied to prison
regulations that burden constitutional rights.....................24
III. The failure to intervene claims fails as a matter of

law....................................................................................................26
CONCLUSION ....................................................................................................28
ii
Page
TABLE OF AUTHORITIES
Cases
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ........................................................................................ 13
Borzych v. Frank,
439 F.3d 388 (7th Cir. 2006) .......................................................................... 23
Bostock v. Clayton Cty., Georgia,
140 S. Ct. 1731 (2020) .............................................................................. 19–20
Boyden v. Conlin,
341 F. Supp. 3d 979 (W.D. Wis. 2018) ..................................................... 20–21
Brown v. Godinez,
No. 15-cv-115-JPG, 2015 WL 1042537 (S.D. Ill. Mar. 5, 2015) ................... 20
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ........................................................................................ 15
Chavez v. Illinois State Police,
251 F.3d 612 (7th Cir. 2001) .......................................................................... 27
Crowder v. Lash,
687 F.2d 996 (7th Cir. 1982) .......................................................................... 27
Cutter v. Wilkinson,
544 U.S. 709 (2005) ........................................................................................ 23
Douglas v. Reeves,
964 F.3d 643 (7th Cir. 2020) .......................................................................... 13
Emp’t Div., Dep’t of Human Res. of Oregon v. Smith,
494 U.S. 872 (1990) ........................................................................................ 23
Fillmore v. Page,
358 F.3d 496 (7th Cir. 2004) .................................................................... 26–27
Flack v. Wis. Dep’t of Health Servs.,
395 F. Supp. 3d 1001 (W.D. Wis. 2019) ......................................................... 21
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington,
566 U.S. 318 (2012) ........................................................................................ 16
iii
Page
Frakes v. Peoria Sch. Dist. No. 150,

872 F.3d 545 (7th Cir. 2017) .......................................................................... 13
Harper v. Albert,
400 F.3d 1052 (7th Cir. 2005) ........................................................................ 27
Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp.,
743 F.3d 569 (7th Cir. 2014) .......................................................................... 20
Holt v. Hobbs,
574 U.S. 352 (2015) .................................................................................. 15, 17
Johnson v. Phelan,
69 F.3d 144 (7th Cir. 1995) ...................................................................... 22, 25
Johnson v. Robinson,
No. 15-cv-298-SMY, 2015 WL 1726965 (S.D. Ill. Apr. 13, 2015) ................. 20
Jones v. Carter,
915 F.3d 1147 (7th Cir. 2019) ........................................................................ 17
O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987) .................................................................................. 24–25
Overton v. Bazzetta,
539 U.S. 126 (2003) .................................................................................. 24–26
Schlemm v. Wall,
784 F.3d 362 (7th Cir. 2015) .............................................................. 15–16, 18
Turner v. Safley,
482 U.S. 78 (1987) .................................................................................... 11, 24
Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,
858 F.3d 1034 (7th Cir. 2017) .................................................................. 20–21
Yang v. Hardin,
37 F.3d 282 (7th Cir. 1994) ............................................................................ 27
iv
Page
Statutes
28 U.S.C. § 1291 ................................................................................................... 1
28 U.S.C. § 1331 ................................................................................................... 1
42 U.S.C. § 1983 ................................................................................................... 1
42 U.S.C. § 2000-cc .................................................................................... 1–2, 14
Rules
Fed. R. Civ. P. 56(a) ........................................................................................... 13
v
JURISDICTIONAL STATEMENT
Appellant Rufus West’s jurisdictional statement is not complete and correct.
The district court had federal question jurisdiction over this case because
West brought this lawsuit under 42 U.S.C. § 1983 alleging a violation of his
rights under the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 42 U.S.C. § 2000-cc et seq., and the First Amendment to the United
States Constitution. 28 U.S.C. § 1331.
This Court has jurisdiction over the appeal under 28 U.S.C. § 1291 because
this is the appeal of a final judgment that disposes of all of West’s claims in
this case. The district court entered its final judgment on March 9, 2020,
(Dkt. 68), and West filed his notice of appeal on April 8, 2020. (Dkt. 71.)
INTRODUCTION
On one occasion, Rufus West was strip-searched while a guard, who is a
transgender man, observed another guard perform the search. West was also
told that he would be expected to comply in the future if a transgender man
were to perform a strip search. West claims this one search, and the potential
that he might be strip searched by a transgender man in the future,
substantially burdens his Islamic faith. West, however, admits that it is
against his faith to be seen naked by anyone other than his wife—male or
female. Given the limited burden on his religious exercise, West has no valid
claim under RLUIPA. Because his RLUIPA claim fails, his First Amendment
free exercise claim fails as well. And because his First Amendment claim fails,
his failure to intervene claim against two defendants who did not participate
in the strip search fails as well. This Court should affirm.
STATEMENT OF THE ISSUES
1. To establish a RLUIPA claim, a plaintiff must show that the
defendants “impose[d] a substantial burden” on his religious exercise.
42 U.S.C. § 2000-cc1(a). West claims that it is against his faith to be seen naked
by anyone other than his wife—male or female. West alleges that he has been
substantially burdened because a guard who is transgender man once observed
him being strip searched and he might be subject to a strip search by a
transgender man in the future. Has West been substantially burdened in his
religious exercise?
2. Under RLUIPA, the government can impose a substantial burden on
religious exercise if it “is in furtherance of a compelling governmental interest”
and employs the “least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000-cc1(a)(1)–(2). Here, Title VII of the
Civil Rights Act of 1964 prohibits discriminating against transgender
individuals in employment, and courts have held that such discrimination also
violates the equal protection issues clause. Is the Wisconsin Department of
Corrections’s decision that transgender men have the same job duties as all
2
male guards, which allows them to strip search male prisoners, in furtherance
of a compelling governmental interest pursued in the least restrictive means?
3. If a plaintiff’s RLUIPA claim fails, then his First Amendment free
exercise claim fails as well. In addition, neutral rules of general application are
permitted under the First Amendment, and prisons can permissibly burden
constitutional rights if the burden is reasonably related to a legitimate
penological interest. Has West shown a violation of his right to free exercise of
religion under the First Amendment?
4. A failure to intervene claim requires an underlying constitutional
violation. In addition, the claim requires that the defendant deliberately or
with reckless disregard failed to intervene to stop a violation of constitutional
rights, and such a claim requires an underlying constitutional violation. Here,
the relevant defendants were not even present at the strip search. They merely
ruled against West on an inmate complaint. Has West established a failure to
intervene claim?
STATEMENT OF THE CASE
I. Factual background
A. Parties
At the time of the strip search at issue in this case, Plaintiff-Appellant
Rufus West was an inmate at Green Bay Correctional Institution
(“Green Bay”). (Dkt. 30:1 ¶1; 43:1 ¶7.) West, who is a male, embraced Islam in
3
1995. (Dkt. No. 43:1 ¶¶ 9, 11.) West was transferred from Green Bay to
Redgranite Correctional Institution in February 2019. (Dkt. 38:2 ¶ 5.)
The Defendants-Respondents are all Wisconsin Department of Corrections
(DOC) employees at Green Bay. Isaac Buhle was a correctional officer,
(Dkt. 30:1 ¶ 2; 43:1 ¶ 4), John Kind was the security director, (Dkt. 30:2 ¶ 3;
43:1 ¶ 2), Scott Eckstein was the warden, (Dkt. 30:2 ¶ 4; Dkt. 43:1 ¶ 3), Bradley
Hompe was a corrections complaint examiner for offender complaints filed by
inmates under the inmate complaint review system (ICRS), (Dkt. 30:2 ¶ 5;
43:1 ¶ 5), and Cindy O’Donnell was the policy initiatives advisor and the
secretary’s designee for making final agency decisions on inmate complaints,
(Dkt. 30:2 ¶ 6; 43:1 ¶ 6.)
B. Relevant facts
This case concerns a strip search of West that occurred on July 2, 2016,
which West contends violated his religious beliefs.
1. West’s religious beliefs
West asserts that Islamic Law commands him to “demonstrate modesty by
not exposing his nakedness when alone, except when there is a need to
undress, or to anyone except his wife.” (Dkt. 43:1–2 ¶ 12.) This includes being
seen by either males or females. West says that Islamic law prohibits Muslims
“from exposing their nakedness to the opposite male or female counterpart,
unless that person is their spouse.” (Dkt. 43:2 ¶ 13.) West says that under
4
Islamic Law, males and females are determined by their sex at birth.
(Dkt. 43:2 ¶ 14.) According to West, “the nakedness of the male consists of the
area between the navel and the knees and his buttocks.” (Dkt. 43:2 ¶ 15.) West
claims that although he has been imprisoned since 1994, he never had been
strip searched by a female DOC staff member. (Dkt. No. 43 ¶ 16.)
2. Buhle’s hiring at Green Bay
Buhle is a transgender man, that is, he was assigned female at birth and
now identifies as a man. (Dkt. No. 35:2 ¶¶ 6–7.) Green Bay hired Buhle as a
male officer in January 2016. (Dkt. 34:2 ¶ 6; 35:2 ¶ 7.) Kind and Eckstein
consulted with human resources when Buhle was hired and were told that he
should be treated based on the gender by which he identified and assigned
duties accordingly. (Dkt. 32:2 ¶ 5; 34:2 ¶ 6.) When he was hired, Buhle was told
his duties would include all the duties of a male officer, including performing
routine strip searches of male inmates as needed. (Dkt. 35:2 ¶ 8.)
3. DOC’s policy governing strip searches and staffing at

Green Bay
DOC has a policy governing strip searches under which two officers are
required for each strip search. (Dkt. 34:4 ¶ 16.) One officer conducts the search
by directly observing the inmate and the other observes the search from a side
position. (Dkt. 34:4 ¶ 16.) The officer conducting the strip search is required to
be of the same gender as the inmate. (Dkt. 34-1:4 § 3.A.) The officer observing
5
the strip search from the side typically handles the clothing and searches
through it while the main officer conducts the strip search. (Dkt. 34:4 ¶ 16.)
The observing office also observes the staff member doing the strip search to
make sure the proper procedures are being followed. (Dkt. 34:5 ¶ 20.) Under
the policy, the officer who observes the strip search from the side can be a
female or male staff member. (Dkt. 34:5 ¶ 20.) Under the policy, inmates are
required to be strip searched after contact visits with people from outside the
institution. (Dkt. 34-1:4; 43:2 ¶ 19.)
Green Bay has approximately 69 uniform staff posts, and second shift has
approximately 56 uniform staff posts. (Dkt. 34:3 ¶ 12.) These staff members
are located throughout the institution with different areas of responsibility and
supervision. (Dkt. 34:3 ¶ 12.) To ensure consistent strip searches are performed
and completed in a timely manner, there are identified positions that are
assigned to complete this job task. (Dkt. 34:3 ¶ 12.) DOC does not allow inmates
to dictate which guards are allowed to strip search them. (Dkt. 34:3 ¶¶ 12–13.)
4. The strip search at issue
On July 2, 2016, West had a visit with a friend. (Dkt. 43:2 ¶ 19.) Afterward,
he went to the strip search area for a routine strip search under the policy.
(Dkt. 34-1:4; 43:2 ¶ 19.) The strip search room at Green Bay contained several
stalls to protect inmates’ privacy, and each stall had a courtesy curtain in the
front to obscure inmates’ private areas from view by people other than the
6
officer performing the strip search. (Dkt. 34:5 ¶ 19.) The observer cannot see
the inmate’s private areas, due to the courtesy curtain. (Dkt. 34:5 ¶ 20.)
West alleges that when it was his turn to be searched, Buhle approached
him to perform the strip search. (Dkt. 43:2 ¶ 20.) West says he asked Buhle
how that was possible, and Buhle responded “I’m a dude.” (Dkt. 43:2–3 ¶ 20.)
West says “he knew Buhle was a female because of her female features
(breasts, face, voice and demeanor . . . ) and that exposing his nakedness to her
would be in violation of his Islamic beliefs.” (Dkt. 43:3 ¶ 20.) He says he asked
Buhle again, who responded in the same way. (Dkt. 43:3 ¶ 20.) He then asked
some male officers “would one of them please strip search him, which one of
them did while [Buhle] looked on and observed.” (Dkt. 43:3 ¶ 20.)
5. West’s administrative complaints
After the search, West submitted an interview/information request to
Security Director Kind and Warden Eckstein that he be exempted from
exposing his nakedness to females. (Dkt. 32-1; 43:2 ¶ 23.) Eckstein responded
that “the officer in question is a male and is qualified to complete these duties.”
(Dkt. 32-2:1.) The warden continued that “[i]f in the future you are directed to
submit to a strip search by this individual or any other male staff member is
my expectation that you will comply.” (Dkt. 32-2:1.)
West also filed an inmate complaint with the ICRS requesting an exemption
from exposing his nakedness to the opposite sex. (Dkt. 43-1:7–10.) The
7
institution complaint examiner recommended denying the request because the
“Wisconsin Department of Corrections has determined that the Officer is able
to conduct strip searches as supported by the Department of Justice National
PREA standards for adult prisons and jails (§115.5).” (Dkt. 43-1:11.) Warden
Eckstein dismissed the complaint on July 19, 2016. (Dkt. 43-1:12.)
West appealed to the corrections complaint examiner, Defendant-
Respondent Hompe. (Dkt. 43-1:7.) Hompe recommended dismissing the
complaint because the institution “reasonably and appropriately addressed the
issue” and was conducting strip searches in accordance with DOC Policy.
(Dkt. 43-1:14.) Defendant-Respondent O’Donnell, on behalf of the Secretary of
DOC, dismissed the complaint because “[p]er the Warden’s memo to the
complainant, the officer involved is a male and qualified to conduct these
duties.” (Dkt. 43-1:15.)
II. Procedural history
A. Complaint and screening order
West filed a complaint alleging violations of many state and federal
constitutional provisions, as well as RLUIPA. (Dkt. 1.) West then filed what he
called a supplemental complaint adding some parties and claims. (Dkt. 11.)
The district court ordered West to file an amended complaint containing all of
the claims he wished to bring. (Dkt. 14.) West then filed an amended complaint.
(Dkt. 15.)
8
The district court screened the amended complaint and allowed West to
proceed on First Amendment free exercise and RLUIPA claims against Buhle,
Kind and Eckstein. (Dkt. 16:7.) The court also allowed him to proceed on a
claim that Hompe and O’Donnell, in reviewing West’s inmate complaints,
failed to intervene to stop the violation of West’s constitutional rights.
(Dkt. 16:10–11.)
B. Summary judgment
Both parties moved for summary judgment. (Dkt. 28–45, 48–52, 56–57,
60–62.) The district court granted the defendants’ motion and denied the
plaintiff’s motion. (Dkt. 67.)
On the RLUIPA claim, the district court first rejected an argument that the
claim was moot because West had been transferred and was not likely
to encounter a prison guard who is transgender man in the future.
(Dkt. 67:12–19.)
On the merits, the court first held that neither the July 2, 2016, search nor
the practice of allowing transgender men to strip search male inmates imposed
a substantial burden on West’s exercise of religion. (Dkt. 67:19–24.) The court
contrasted the single incident West complained of with the “repeated and
on-going” burdens that had been recognized in the case law as constituting a
substantial burden. (Dkt. 67:23.) Further, West admitted that it was against
his Islamic faith to be seen naked by either a man or a woman, thus he could
9
not show that being “seen naked by a transgender person imposes more of a
burden on the plaintiff’s religious exercise than being seen naked by a person
who was born with male physiology.” (Dkt. 67:24.)
The court also held that, even assuming West’s religious practice was
substantially burdened, that DOC had compelling state interests, advanced in
the least restrictive means, in treating Buhle as a male officer with all of the
duties of a male officer in order to avoid a potential equal protection violation.
(Dkt. 67:25–28.) In addition, DOC had a compelling state interest in effective
prison management based on the difficulty of placing transgender guards in
positions where they would not have to strip search inmates that might object
on religious grounds. (Dkt. 67:28–29.) Further, allowing inmates to object to
certain guard’s participation in a strip search based on an alleged feminine
appearance or some similar opinion of an inmate would allow inmates to object
to any guard and thus make it impossible for guards to do their jobs.
(Dkt. 67:29–30.)
On the First Amendment claim, the district court held that West’s “free
exercise claim fails for the same reasons that his RLUIPA claim failed.”
(Dkt. 67:33.) As with the RLUIPA claim, “the plaintiff has not submitted
evidence from which a jury could reasonably find that the defendants
personally and unjustifiably placed a substantial burden on his religious
practices.” (Dkt. 67:34.) West had not shown a substantial burden because he
10
only “alleges a single incident in which someone he claims was a woman saw
him naked,” and, in any event, “Buhle acceded to his request that Buhle not
search the plaintiff, Buhle never participated in another search of the plaintiff
and the plaintiff himself says that having anyone other than his wife see him
naked violates the tenets of Islam.” (Dkt. 67:34.)
Further, “the defendants’ assigning Buhle the same duties as any other
male correctional officer was reasonably related to a legitimate penological
interest—prison management and administration.” (Dkt. 67:34.) Specifically,
“[t]here is a valid, rational connection between the policy of assigning
transgender male corrections officers the same duties as other male corrections
officers, and a legitimate government interest behind doing so.” (Dkt. 67:34.)
Under the balancing test in Turner v. Safley, 482 U.S. 78, 89–91 (1987), “most
of the factors weigh in the defendants’ favor.” Summary judgment was
appropriate because “[a] reasonable factfinder could not conclude that
assigning Buhle to conduct and observe strip searches like other male officers,
or Buhle’s observation of the plaintiff’s July 2, 2016 strip search, violated the
plaintiffs’ right to freely exercise his religion.” (Dkt. 67:36.)
Lastly, the court held that West’s failure to intervene claim against Hompe
and O’Donnell failed because there was no underlying constitutional violation.
(Dkt. 67:36.)
11
The district court entered a judgment in favor of the defendants, (Dkt. 68),
and West appealed to this Court, (Dkt. 71).
SUMMARY OF THE ARGUMENT
The district court correctly granted summary judgment to the defendants
on all of West’s claim.
On the RLUIPA claim, West did not establish that his religious exercise had
been substantially burdened. West has been incarcerated for 25 years and was
subjected to one strip search involving a guard who is a transgender man, in
which that officer did not even perform the strip search. And, in any event, his
professed religious beliefs prohibit him from showing his nakedness to both
males and females. West simply has not been substantially burdened in his
exercise of religion. But even assuming he had, DOC has a compelling interest
to comply with Title VII of the Civil Rights Act of 1964, as recently decided by
the Supreme Court, and the Equal Protection Clause by treating transgender
guards according to their identified gender. It also has an interest in prison
administration for the efficient and orderly use of its staff. DOC employs the
lease restrictive means in furthering those interests.
Because West’s RLUIPA claim fails, his First Amendment free exercise
claim fails as well because RLUIPA provides more protection than the First
Amendment. The free exercise claim fails even if this Court were to reinstate
his RLUIPA claim. DOC practice of allowing transgender men to strip search
12
male inmates is a neutral rule of general application, which is allowed under
the First Amendment. And in the prison context, prison regulations can burden
constitutional rights so long as they are reasonably related to a legitimate
penological purpose. DOC’s policy of allowing transgender men to perform strip
searches of male inmates is such a policy.
Lastly, West’s failure to intervene claim fails because his First Amendment
claim fails. A failure to intervene claim requires an underlying constitutional
violation. In any event, Hompe and O’Donnell were not present at the search,
so they could not have intervened, and did not act in reckless disregard of
West’s rights because it was not clear there was a constitutional violation.
STANDARD OF REVIEW
This Court reviews “the district court’s grant of summary judgment de novo,
applying the same standards as the district court and construing all facts and
reasonable inferences in the light most favorable to” the non-moving party.
Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550 (7th Cir. 2017). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “Whether a factual dispute is genuine turns on
whether ‘the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Douglas v. Reeves, 964 F.3d 643 (7th Cir. 2020) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
13
ARGUMENT
I. West’s RLUIPA claim fails as a matter of law.
The district court properly granted summary judgment on West’s RLUIPA
claim because DOC did not “impose[ ] a substantial burden” on his religious
exercise. 42 U.S.C. § 2000-cc1(a). West was strip searched one time while a
guard who is a transgender man observed the search, but his religious beliefs
forbid him from being seen naked by both males and females. And even if one
assumes that DOC did impose a substantial burden, DOC had compelling
governmental interests in complying with the law—both Title VII and the
Equal Protection Clause—as well as prison administration, which it advanced
in the least restrictive means.
A. West was not substantially burdened in the exercise of his

religion.
West has not been substantially burdened in the exercise of his religion.
West complains of one strip search during which Buhle, a transgender man,
observed. This was the only time he has ever allegedly been seen naked by a
transgender man. (Dkt. 43:31 ¶ 22.) He also alleges that he might be searched
by a transgender man in the future because officials at Green Bay told him
they expect him to comply with such a guard’s request to strip search him.
(Dkt. 43:3–4 ¶¶ 23–27.) West claims this would violate his religious beliefs
because he may only be seen naked by his wife under Islamic law, but this
14
means he cannot be seen naked by both male and female guards, whether
transgender or not. No reasonable factfinder could find that this one incident,
which burdens his religious exercise the same as being searched by a male
guard, imposed a substantial burden on religious practice. Potential future
searches are not a substantial burden because they have not yet occurred, and
West has not shown it is likely that they will.
The United States Supreme Court held that a plaintiff established a
substantial burden under RLUIPA when he would have “to shave his beard
and thus to ‘engage in conduct that seriously violates [his] religious beliefs.’”
Holt v. Hobbs, 574 U.S. 352, 361 (2015) (quoting Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 720 (2014)). This Court has recognized that this
“formulation leaves a lot of uncertainty. How is a court to tell whether a given
restriction ‘seriously’ violates or contradicts religious beliefs? What, indeed,
does ‘seriously’ mean?—more than ‘modestly’ and less than ‘overwhelmingly,’
but there’s a lot of space in that range.” Schlemm v. Wall, 784 F.3d 362,
364–65 (7th Cir. 2015). While there is some uncertainty in what constitutes a
substantial burden, West does not meet it in this case.
As an initial matter, West’s allegation of a substantial burden does not line
up with his professed religious beliefs. West’s religious beliefs forbid him
from being seen naked by anyone other than his wife—male or female.
(Dkt. 43:1–2, ¶¶ 12–13.) This means his religion is burdened by the very fact
15
of being strip searched by any guard, regardless of the guard’s gender. West
therefore cannot establish a substantial burden based on one search by a
transgender man, whom he considers female, and potential future strip
searches conducted by a transgender man. Under his argument, the entire
practice of strip searches substantially violates his professed beliefs, yet he
does not challenge strip searches generally. West does not explain why he does
not challenge the strip searches by those he considers male.1
Further, at most West has suffered a limited burden on his exercise of
religion. West suffered one alleged burden: a strip search that Buhle observed. 2
This isolated burden is modest and thus do not rise to the level of serious. See
Schlemm, 784 F.3d at 364–65. Further, West’s religious beliefs were burdened
by the male guard who conducted the search and would also have been
burdened if a guard he considers male had observed the search.
While West alleged that he might suffer a burden in the future by being
strip searched by a transgender man, this burden is entirely hypothetical. West
is no longer housed at Green Bay, so he faces no immediate prospect of being
1 A RLUIPA challenge to all strip searches would likely fail, given that prisons
have a compelling interest in conducting strip searches, see Florence v. Bd. of Chosen
Freeholders of Cty. of Burlington, 566 U.S. 318, 327–29 (2012), and there is no way to
conduct them without requiring the inmate to remove his clothes.
2 Under the strip search practice at Green Bay, Buhle would not have seen West
naked. Because West alleges that Buhle did see him naked, Defendants realize a
court cannot decide such a factual issue on summary judgment. Defendants do not
concede, however, that West suffered any burden on his religious exercise.
16
strip searched by Buhle. Further, West would only be seen naked by the
transgender guard if the guard performed the search; under DOC policy the
observing officer should not see the inmate naked. (Dkt. 34:5 ¶ 20.) Thus, it is
entirely possible that, as in the July 2, 2016, search, a guard who is a
transgender man could agree to observe, rather than perform the search, to
address West’s concerns. West simply has not shown he is likely to suffer a
substantial burden in the future.
Moreover, the limited burden West actually suffered, and the hypothetical
burden he could conceivably face in the future, contrast sharply with the
burdens recognized as substantial by the Supreme Court and this Court. In
Holt, the inmate stated that his religion required him to grow a beard. 574 U.S.
at 361. The prison policy required him to shave that beard, thus seriously
violating his religious beliefs. Id. And given the nature of the policy, that
burden would continue indefinitely into the future unless a court provided
relief.
Similarly, this Court recognizes that “[w]hen the state forces a prisoner to
choose between adequate nutrition and religious practice, it is imposing a
substantial burden on his religious practice under the rules announced in
Hobby Lobby and Holt.” Jones v. Carter, 915 F.3d 1147, 1150 (7th Cir. 2019).
As in Holt, such a burden would be serious; it would occur every day into the
future. And in Schlemm, this Court recognized there was a genuine issue of
17
material fact as to whether “denying access to ‘traditional foods’ for a religious
celebration imposes a substantial burden on religion.” 784 F.3d at 365. Such a
policy prevented the inmate from properly celebrating a religious feast in the
past and, unless the court issued relief, would prevent the inmate from doing
so in the future.
The burdens recognized by the Supreme Court and this Court prevented
inmates from exercising their religion either every day—in the case of the
beard and diet—or for an important religious celebration. In addition, the
future burdens were not speculative; they would continue into the future
unless a court granted relief. This contrasts sharply with West’s isolated
incident which may not even recur in the future.
B. DOC has two compelling governmental interests pursued

in the least restrictive means.
Even if one assumes West was substantially burdened in his exercise of
religion, DOC has compelling governmental interests in (1) complying with the
law by treating transgender men the same as male guards and (2) efficient and
effective prison administration. Further, it is pursuing those interests in the
least restrictive means.
18
1. DOC has a compelling governmental interest in

complying with federal law that it is pursuing in the
least restrictive means.
DOC has a compelling governmental interest in complying with the
constitution and federal law. Here, treating guards who are transgender men
differently than male guards would potentially violate Title VII of the Civil
Rights Act of 1964 and the Equal Protection Clause.
With regard to searches that might occur in the future, DOC clearly has an
interest in complying with Title VII. The Supreme Court recently made clear
that discrimination against transgender people is discrimination on the basis
of sex, prohibited by Title VII. Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731
(2020). As a result, DOC risks violating Title VII if it treats transgender guards
differently in terms of job duties and responsibilities. DOC therefore has a
compelling governmental interest in treating transgender guards consistent
with their identified gender, which means that transgender men should have
same job duties—including strip searches—as all male guards. This the least
restrictive means of advancing this interest because DOC could not assign
consistent job duties while carving out transgender men from certain duties.
The district court thought this interest did not support Buhle observing the
July 2, 2016 search of West because, as of that date, “there was no controlling
federal precedent holding that Title VII prohibits discrimination against
transgender people.” (Dkt. 67:26.) While there may not have been controlling
19
precedent, DOC still had an obligation to comply with Title VII to the best of
its understanding. A holding that discrimination against transgender people
was prohibited by Title VII was foreseeable in July 2016. In 2017, this Court
reached a similar result under Title IX—which involves identical language—
when evaluating the likelihood of success on the merits of a preliminary
injunction. Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of
Educ., 858 F.3d 1034, 1047 (7th Cir. 2017). Courts then began to apply the
same reasoning to Title VII. Boyden v. Conlin, 341 F. Supp. 3d 979, 995–97
(W.D. Wis. 2018).3 Had DOC not treated transgender employees as it did, it
could have been subject to liability under Title VII.
In addition, DOC also had a compelling interest in complying with the
Constitution. Under general equal protection principles, a gender-based
distinction is subject to heightened scrutiny under which “justification for a
gender-based classification thus must be exceedingly persuasive.” Hayden ex
rel. A.H. v. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 577 (7th Cir. 2014).
Even prior to July 2, 2016, courts within this Circuit had allowed equal
protection claims based on differential treatment of transgender inmates to
proceed. See, e.g., Brown v. Godinez, No. 15-cv-115-JPG, 2015 WL 1042537, at
3 Of course, DOC’s treatment of transgender guards consistent with their

identified gender was subsequently justified by the Supreme Court’s decision in
Bostock.
20
*2–3 (S.D. Ill. Mar. 5, 2015); Johnson v. Robinson, No. 15-cv-298-SMY,
2015 WL 1726965, at *3 (S.D. Ill. Apr. 13, 2015). And moving forward, courts
have begun to apply that heightened scrutiny to equal protection claims
brought by transgender plaintiffs. Whitaker by Whitaker, 858 F.3d at 1051–52;
Boyden, 341 F. Supp. at 999–1000; Flack v. Wis. Dep’t of Health Servs.,
395 F. Supp. 3d 1001, 1019–22 (W.D. Wis. 2019). As with Title VII, there is not
a way to comply with equal protection while treating transgender guards
differently with respect to job duties.
2. DOC has a compelling governmental interest in

prison administration pursued in the least restrictive
means.
DOC also has a compelling governmental interest in prison administration.
The first shift at Green Bay has approximately 69 uniform staff posts, and
second shift has approximately 56 uniform staff posts. (Dkt. 34:3 ¶ 12.) These
staff members are located throughout the institution with different areas of
responsibility and supervision. (Dkt. 34:3 ¶ 12.) To ensure consistent strip
searches are performed and completed in a timely manner, there are identified
positions that are assigned to complete this job task. (Dkt. 34:3 ¶ 12.) It would
be logistically impossible to manage post assignments if an inmate were
allowed to dictate who was allowed to strip search him based on whether the
person does not conform the inmate’s opinion of the guard’s gender. (Dkt. 34:3
¶ 12.)
21
This Court has recognized the difficulty in assigned guards to various duties
based on how inmates might respond to a guard’s characteristics. “There are
too many permutations to place guards and prisoners into multiple classes by
sex, sexual orientation, and perhaps other criteria, allowing each group to be
observed only by the corresponding groups that occasion the least
unhappiness.” Johnson v. Phelan, 69 F.3d 144, 147 (7th Cir. 1995). And with
regard to transgender guards, it may not even be apparent if someone is
transgender. Instead, inmates would be basing their requests on appearances
and supposition, as West did with Buhle. Prisons would not be able to assign
guard duties if prisoners could opt-out of searches by specific guards based on
the inmate’s opinion of the guard’s gender.
II. West’s First Amendment claims fails as a matter of law.
Should the Court affirm on West’s RLUIPA claim, then his First
Amendment free exercise claim necessarily fails as well, because RLUIPA
provides more protection than the First Amendment. In addition, West’s free
exercise claim fails because (1) DOC was merely imposing a neutral, generally
applicable rule; and (2) its actions were reasonably related to a legitimate
penological interest.
22
A. West’s First Amendment claim necessarily fails if his

RLUIPA claim fails.
If this Court affirms the district court on the RLUIPA claim, then it must
affirm on the free exercise claim because the First Amendment is less
protective of religious rights than RLUIPA, which was enacted “to accord
religious exercise heightened protection from government-imposed burdens.”
Cutter v. Wilkinson, 544 U.S. 709, 714 (2005). If the challenged action does not
violate RLUIPA’s higher level of protection, it also does not violate the First
Amendment. Borzych v. Frank, 439 F.3d 388, 390 (7th Cir. 2006). Thus, if
West’s RLUIPA claim fails, then his First Amendment claim fails as well.
B. West’s free exercise claim fails because he is challenging a

neutral rule of general application.
Even if the Court were to reverse the district court on the RLUIPA claim,
West’s First Amendment free exercise claim still fails. First, the First
Amendment “does not require the accommodation of religious practice: states
may enforce neutral rules.” Borzych, 439 F.3d at 390 (citing Emp’t Div., Dep’t
of Human Res. of Oregon v. Smith, 494 U.S. 872, 878–81 (1990)). DOC can
impose neutral rules of general application—here regarding whether
transgender prison guards can perform strip searches—without violating the
Free Exercise Clause of the First Amendment. See Smith, 494 U.S. at 878–81;
Borzych, 439 F.3d at 390. Allowing guards who are transgender men to strip
search male inmates is a general rule that applies to all male inmates. That
23
this neutral rule may burden West’s exercise of his religion does not make it
unconstitutional because the First Amendment does not require DOC to make
exceptions for inmates who might have religious objections.
C. Allowing transgender men to perform strip searches of

male prisoners meets the reasonableness test applied to
prison regulations that burden constitutional rights.
Further, DOC’s practice of allowing transgender men to perform strip
searches of male prisoners satisfies the low threshold that prison regulations
must meet to satisfy the First Amendment. See O’Lone v. Estate of Shabazz,
482 U.S. 342, 349 (1987); Turner, 482 U.S. at 89–90. The practice at issue here
meets the “‘reasonableness’ test” applied to such prison regulations, which is
“less restrictive than that ordinarily applied to alleged infringements of
fundamental constitutional rights.” O’Lone, 482 U.S. at 349. “The burden,
moreover, is not on the State to prove the validity of prison regulations but on
the prisoner to disprove it.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
Under this test, a challenged regulation must be upheld if it is “reasonably
related to legitimate penological interests.” O’Lone, 482 U.S. at 349. The
regulation is unconstitutional only if “the logical connection between the
regulation and the asserted goal is so remote as to render the policy arbitrary
or irrational.” Turner, 482 U.S. at 89–90. Courts consider four factors in
making this determination: “whether the regulation has a ‘valid, rational
connection’ to a legitimate governmental interest; whether alternative means
24
are open to inmates to exercise the asserted right; what impact an
accommodation of the right would have on guards and inmates and prison
resources; and whether there are ‘ready alternatives’ to the regulation.”
Overton, 539 U.S. at 132 (quotation marks omitted). In addition, courts must
not substitute their judgment for that of the prison officials with respect to the
“difficult and sensitive matters of institutional administration.” O’Lone,
482 U.S. at 353. Instead, courts “must accord substantial deference to the
professional judgment of prison administrators, who bear a significant
responsibility for defining the legitimate goals of a corrections system and for
determining the most appropriate means to accomplish them.” Overton,
539 U.S. at 132.
Here, DOC’s practice has a reasonable relationship to a legitimate
penological interest. As noted above, DOC has an interest in complying with
Title VII and the Equal Protection Clause. It also has an interest in prison
administration in the efficient use of its staff. Even if this Court would hold
that these interests are not “compelling” under RLUIPA, they are “legitimate”
for purposes of the First Amendment. In fact, this Court has held that
cross-sex monitoring is reasonably related to legitimate penological needs,
given the State’s interests in abiding by Title VII and the Equal Protection
Clause, as well as making good use of staff. Johnson, 69 F.3d at 146. Allowing
transgender men to strip search male inmates is therefore reasonably related
25
to legitimate penological interests. This same analysis shows that
accommodating West would have a negative impact on the prison and guards
because he would be able to veto a transgender guard from performing a
search, thus disrupting the administration of the prison.
The other two factors do not help West. He alleges a burden on one aspect
of his religion, but still retains the ability to practice Islam by reading the
Quran, praying, attending religious services, and other religious activities.
And as discussed above, there is no way for the prison to strip search West
without violating his religious beliefs given that the prohibition on nudity
applies to both males and females. Finally, West has not “pointed to some
obvious regulatory alternative that fully accommodates the asserted right
while not imposing more than a de minimis cost to the valid penological goal.”
Overton, 539 U.S. at 136. West simply cannot show that DOC’s actions are
unreasonable.
III. The failure to intervene claims fails as a matter of law.
If the court finds there was no underlying First Amendment violation, then
the failure to intervene claim against Hompe and O’Donnell fails as well. There
can be no constitutionally impermissible failure to intervene if there was no
violation that compelled intervention. Fillmore v. Page, 358 F.3d 496, 506
(7th Cir. 2004).
26
Even if this Court were to reverse the district court on West’s First
Amendment claim, it should affirm the dismissal of this claim on alternative
grounds. First, because Hompe and O’Donnell were not present at the July 2,
2016, search, they “would have been unable to intervene, rendering [them] not
liable.” Chavez v. Illinois State Police, 251 F.3d 612, 652 (7th Cir. 2001).
And the claim fails no better with respect to DOC’s practice of allowing
guards who are transgender men to strip search male inmates. A failure to
intervene claim is a “basis for a constitutional violation under the Eighth
Amendment.” Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). As a result,
to establish such a claim, the plaintiff must show that the defendant “fail[ed]
to act with a deliberate or reckless disregard of the plaintiff's constitutional
rights.” Fillmore, 358 F.3d at 506 (emphasis omitted) (quoting Crowder v.
Lash, 687 F.2d 996, 1005 (7th Cir. 1982)). Here, a reasonable jury could not
find that Hompe and O’Donnell, in denying West’s inmate complaint, acted in
reckless disregard of West’s constitutional rights. Whether West even has a
First Amendment right is not clearly established, meaning that Hompe and
O’Donnell did not have “reason to know . . . that any constitutional violation
has been committed by a law enforcement official.” Yang v. Hardin, 37 F.3d
282, 285 (7th Cir. 1994). West cannot satisfy the standard for an Eighth
Amendment failure to intervene claim.
27
CONCLUSION
For the foregoing reasons, the judgment of the district court should be
affirmed.
Dated this 17th day of August 2020.
Respectfully submitted,
JOSHUA L. KAUL
Attorney General of Wisconsin
Electronically signed by:
s/ Brian P. Keenan*
BRIAN P. KEENAN
State Bar #1056525
Attorneys for Defendants-Appellees
Wisconsin Department of Justice

Madison, Wisconsin 53707-7857
(608) 266-0020
(608) 294-2907 (Fax)
keenanbp@doj.state.wi.us
*Counsel of Record
28
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS
This brief complies with the type-volume limitation of

Fed. R. App. P. 32(a)(7)(B), typeface requirements of Fed. R. App. P. 32(a)(5),
and type style requirements of Fed. R. App. P. 32(a)(6).
This brief contains 6426 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(f) and has been prepared in a
proportionally spaced typeface using Microsoft Word 2013 in
13 point Century Schoolbook.
s/ Brian P. Keenan
BRIAN P. KEENAN
CERTIFICATE OF SERVICE
I certify that on August 17, 2020, I electronically filed the foregoing

Response Brief of Defendants-Appellees with the clerk of court using the
CM/ECF system, which will accomplish electronic notice and service for all
participants who are registered CM/ECF users.
I further certify that a copy of the above document was mailed to:
Rufus West, #225213

Green Bay Correctional Institution
Green Bay, WI 54307-0000
s/ Brian P. Keenan
BRIAN P. KEENAN
29

West v. Kind Appellee's Brief 08182020

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West v. Kind Appellee's Brief 08182020

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Case: 20-1570 Document: 16 Filed: 08/17/2020 Pages: 35

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOHN KIND, et al.,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

RESPONSE BRIEF OF DEFENDANTS-APPELLEES

Attorneys for Defendants-Appellees

Wisconsin Department of Justice

JURISDICTIONAL STATEMENT ......................................................................1

STATEMENT OF THE ISSUES ..........................................................................2

STATEMENT OF THE CASE..............................................................................3

I. Factual background ..........................................................................3

B. Relevant facts ..........................................................................4

1. West’s religious beliefs .................................................4

2. Buhle’s hiring at Green Bay .........................................5

3. DOC’s policy governing strip searches

4. The strip search at issue ..............................................6

5. West’s administrative complaints ................................7

II. Procedural history.............................................................................8

A. Complaint and screening order ..............................................8

B. Summary judgment ................................................................9

SUMMARY OF THE ARGUMENT ...................................................................12

STANDARD OF REVIEW ..................................................................................13

I. West’s RLUIPA claim fails as a matter of law. .............................14

A. West was not substantially burdened in the

B. DOC has two compelling governmental

1. DOC has a compelling governmental

2. DOC has a compelling governmental

II. West’s First Amendment claims fails as a matter of

A. West’s First Amendment claim necessarily

B. West’s free exercise claim fails because he is

C. Allowing transgender men to perform strip

III. The failure to intervene claims fails as a matter of

Frakes v. Peoria Sch. Dist. No. 150,

Appellant Rufus West’s jurisdictional statement is not complete and correct.

States Constitution. 28 U.S.C. § 1331.

On one occasion, Rufus West was strip-searched while a guard, who is a

told that he would be expected to comply in the future if a transgender man

that he might be strip searched by a transgender man in the future,

substantially burdens his Islamic faith. West, however, admits that it is

in the strip search fails as well. This Court should affirm.

STATEMENT OF THE ISSUES

1. To establish a RLUIPA claim, a plaintiff must show that the

defendants “impose[d] a substantial burden” on his religious exercise.

substantially burdened because a guard who is transgender man once observed

him being strip searched and he might be subject to a strip search by a

2. Under RLUIPA, the government can impose a substantial burden on

religious exercise if it “is in furtherance of a compelling governmental interest”

and employs the “least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000-cc1(a)(1)–(2). Here, Title VII of the

Civil Rights Act of 1964 prohibits discriminating against transgender

violates the equal protection issues clause. Is the Wisconsin Department of

of a compelling governmental interest pursued in the least restrictive means?

3. If a plaintiff’s RLUIPA claim fails, then his First Amendment free

constitutional rights if the burden is reasonably related to a legitimate

religion under the First Amendment?

4. A failure to intervene claim requires an underlying constitutional

violation. In addition, the claim requires that the defendant deliberately or

with reckless disregard failed to intervene to stop a violation of constitutional

rights, and such a claim requires an underlying constitutional violation. Here,

ruled against West on an inmate complaint. Has West established a failure to

STATEMENT OF THE CASE

At the time of the strip search at issue in this case, Plaintiff-Appellant