Titus Henderson v. Cathy Jess

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2022*
Decided June 3, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1585
TITUS HENDERSON,
Plaintiff-Appellant,
v.
CATHY JESS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 18-cv-680-jdp
James D. Peterson,
Chief Judge.
O R D E R
Titus Henderson, a Wisconsin inmate, sued prison officials under a variety of
legal theories, claiming they denied him prayer oil, religious meals, and religious books.
The district court entered summary judgment for the defendants, rejecting the claims as
unexhausted, moot, untimely, or barred by qualified immunity. We affirm.
* We have agreed to decide the 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).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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I. Background
Henderson, who is Black and Muslim, was held at the Wisconsin Secure Program
Facility from 2003 to 2015. Because of assaults on guards and other misconduct, he was
often housed in segregation. During bouts of segregation from 2010 to 2014, Henderson
contends, he was denied three kinds of religious accommodations.
First, he says the prison denied him prayer oil during the moveable holy month
of Ramadan each year from 2010 through 2014. The prison’s policies generally allow
inmates one ounce of oil at a time but also permit staff to deny oil for security reasons.
At summary judgment the defendants could produce no record or recollection of
anyone denying Henderson oil but posited that—considering his history of assaults—
any denial would have been based on the danger that he would use oil to slip out of
handcuffs, make the floor slick, or otherwise impede staff tasked with restraining him.
Second, Henderson says the prison refused him a Ramadan meal schedule—two
meals, delivered before and after sunrise, to accommodate daytime fasting—each
Ramadan from 2010 to 2014. Though the defendants acknowledged a 2010 grievance
alleging similar conduct, their only detailed records of a complete Ramadan-schedule
denial concerned 2012. Over three days that year, they say, Henderson assaulted an
officer, refused to return a meal tray, and threw his milk. The prison security director,
Jerome Sweeney (who is not a defendant), then ordered two defendants—Todd Overbo
(a prison chaplain) and Anthony Broadbent (a food-services administrator)—to take
Henderson off that year’s Ramadan-meal list and place him on the default schedule.
Third, Henderson says the prison would not let him have adequate Islamic
reading materials while he was in segregation.
In 2018, Henderson sued Cathy Jess (a statewide administrator for the Wisconsin
Department of Corrections), Overbo, and Broadbent, plus other officials: two wardens,
another chaplain, a food-services supervisor, a program supervisor, and a correctional
officer. Henderson cited the First, Fourteenth, and Eighth Amendments, as well as the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc.
The defendants pursued two motions for judgment without trial. First, they
moved for partial summary judgment on the ground that Henderson failed to exhaust
administrative remedies for all claims except the Ramadan-meal theories from 2010 and

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No. 21-1585 Page 3
2012. See 42 U.S.C. § 1997e(a). The defendants’ second motion sought summary
judgment on various other grounds for any exhausted claims.
Henderson, for his part, requested an evidentiary hearing under Pavey v. Conley,
544 F.3d 739, 742 (7th Cir. 2008) (en banc), to resolve any disputes about exhaustion. Yet
he identified no particular dispute of fact, asserting only generally that the parties’
affidavits could not be reconciled with one another.
Henderson’s response brief opposing the defendants’ first motion also accused
them of overlooking certain grievances, copies of which the defendants then attached to
a reply brief. Henderson’s response brief further asserted that the reason he failed to
administratively appeal the denial of many of his initial grievances was that he lacked
access to postage. The defendants’ reply brief, however, included a copy of a Wisconsin
Administrative Code provision showing that postage was available to Henderson.
In three orders, the district court dismissed or denied all claims. The first order
concluded that Henderson had not exhausted his Ramadan-meal claims for 2011, 2013,
and 2014: postage had been available if Henderson sought it, so he was responsible for
failing to administratively appeal the denials of his grievances for those years. As for
religious texts, the court opined, Henderson had objected only wholesale to the prison’s
default limit on the number of books inmates in segregation could possess: one
religious text, a dictionary, two puzzle books, and two library books. Because he did not
alert prison staff that the basis for this objection was religious, the court reasoned, his
religious-books claim was not exhausted.
Henderson then asked the district court to reconsider these rulings. But in a
second order, the court denied this motion. The court rejected Henderson’s new
argument that grievances he filed in 2010 and 2012 about the meal schedule sufficed to
preserve any Ramadan-meal claims from 2011, 2013, and 2014. The grievances he filed
in 2011, 2013, and 2014 alleged that his Ramadan meals were incomplete or lacking in
calories, not that he been taken off the Ramadan schedule. In the court’s view, because
Henderson’s difficulties during Ramadan each of those years did not stem from the
same prison decision or policy as the issues covered by the 2010 and 2012 grievances,
the alleged denials were not all part of one continuing violation.
In a third order, the court entered judgment for the defendants on Henderson’s
remaining claims. To start, the court concluded that Henderson’s claims under the
Religious Land Use and Institutionalized Persons Act were not actionable here because

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No. 21-1585 Page 4
the Act provides only for prospective relief against government officials, see Grayson v.
Schuler, 666 F.3d 450, 451 (7th Cir. 2012), and there was no substantial reason to expect
the defendants would similarly injure Henderson in the future (in large part because he
was transferred to another prison in 2015 and claimed no misconduct after that).
Regarding prayer oil, the court granted the defendants qualified immunity on
Henderson’s free-exercise theory under the First and Fourteenth Amendments.
(Because of gaps in the defendants’ records, the court assumed that this claim had been
exhausted.) Citing the reasonableness test of Turner v. Safley, 482 U.S. 78, 89–91 (1987),
the court questioned whether allowing Henderson a small quantity of oil would pose
an appreciable security risk; even so, no precedent clearly established that the denial of
prayer oil on these grounds would be unreasonable, and so the court ruled that the
defendants were entitled to qualified immunity.
Similarly, although Henderson argued that denying him prayer oil was so
irrational it violated his right to equal protection, the court concluded that qualified
immunity barred that theory as well because Supreme Court and Seventh Circuit
precedents did not clearly establish that a prisoner could bring a class-of-one claim of
this sort. Henderson also contended that the prison denied him oil because he was
Black and Muslim, but the court determined that the summary judgment record
contained no evidence from which a juror could infer intentional discrimination.
That left Henderson’s Ramadan-meal claims from 2010 and 2012. The court held
that Henderson’s claims about the 2010 meals—raised in 2018—were barred by
Wisconsin’s limitation period, which in 2010 was six years. See WIS . S TAT. § 893.53
(amended to three years in 2018). As for the 2012 meals, the court ruled that Henderson
had sued the wrong people: none of the named defendants had made the decision to
remove him from the Ramadan-meal list. For that reason, a juror could not infer from
the summary judgment record that any named defendant had violated his free-exercise
rights or his right against cruel and unusual punishment. As an alternative ground for
denying the free-exercise claim, the court cited qualified immunity.
II. Analysis
On appeal, Henderson makes four narrow arguments: (1) he was entitled to have
his claims resolved by a three-judge panel of the district court under a statute that was
repealed in the 1970s; (2) he deserved a Pavey hearing; (3) all his claims were exhausted;
and (4) the defendants were not entitled to qualified immunity. He says nothing further

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about the Religious Land Use and Institutionalized Persons Act, and so neither do we.
The same goes for Henderson’s claim of intentional racial and religious discrimination
and for the untimeliness of his 2010 meal claim.
To start, Henderson was not entitled to a three-judge district court. Although the
statute he cites, 28 U.S.C. § 2281, once required three district judges for some actions
challenging the constitutionality of state regulations, the statute was repealed in 1976.
See Shapiro v. McManus, 577 U.S. 39, 40–41 (2015). Today a three-judge panel is required
only for certain election-law actions. See 28 U.S.C. § 2284.
Next, Henderson was not entitled to a Pavey hearing. The purpose of an
evidentiary hearing under Pavey is to resolve factual disputes bearing on exhaustion.
Wagoner v. Lemmon, 778 F.3d 586, 591 (7th Cir. 2015). When two affidavits conflict, a
hearing allows the district judge to resolve the conflict by evaluating each witness’s
credibility. Here, though, Henderson did not dispute any specific facts in the
defendants’ summary judgment materials; he made only a blanket assertion that the
affidavits conflicted. Henderson’s appellate briefs offer no clarity on this point. And the
district court appears to have accepted all of Henderson’s specific statements about his
prison grievances but also credited the defendants’ specific statements that he did not
contradict. The district court therefore did not need to hold an evidentiary hearing.
Henderson also argues that he exhausted administrative remedies concerning
religious books and problems with the 2011, 2013, and 2014 Ramadan meals. At the
outset, he objects to the district court’s consideration of materials (grievances and
Wisconsin regulations) attached to the defendants’ reply brief rather than submitted
with their initial motion. But Henderson himself made these materials relevant by
mentioning the grievances and raising his postage argument in response to the
defendants’ first motion for summary judgment. His argument opened the door for
defendants to submit these materials. See Balderston v. Fairbanks Morse Engine Div. of
Coltec Indus., 328 F.3d 309, 318 (7th Cir. 2003).
Henderson further contends that the denials of books and meals were part of a
continuing violation, meaning he need not have filed more than one grievance for the
duration of the violation. See Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). But, for
the continuous-violation doctrine to apply, the grievances on file must afford the prison
notice of the precise claim at issue in the later lawsuit. Id. And Henderson did not
submit any grievances about a religious need for books. Instead, his grievances objected
only on general grounds to the limits on “personal” books (one religious text, a

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dictionary, two puzzle books, and two library books). Though religious texts were
included in those limits, a claim based on religious rights was not apparent.
Henderson’s Ramadan-meal claims from 2011, 2013, and 2014 have a similar
problem. In 2010 and 2012, Henderson objected to being taken off the Ramadan
schedule altogether. But in 2011, 2013, and 2014, his grievances alleged issues with
particular Ramadan meals he was given (for example, missing items and low-calorie
counts). These grievances concerned different decisions and decision-makers than his
alleged Ramadan-meal list denials in 2010 and 2012. See id. For that reason, he needed to
administratively appeal the denial of the 2011, 2013, and 2014 grievances if he wished to
pursue related claims in federal court; appealing the 2010 and 2012 denials did not
cover these claims.
Finally, Henderson argues that the defendants were not entitled to qualified
immunity—neither on his class-of-one equal-protection claims nor on his free-exercise
claims. But even assuming his class-of-one claims may be cognizable in the abstract, the
relevant law is not “clearly established” for purposes of qualified immunity. City of
Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (“[T]he clearly established right must be
defined with specificity.”). Henderson does not cite any class-of-one precedent on
religious accommodations for inmates. Meanwhile, the Supreme Court has said that
government employees may not use class-of-one claims to challenge employment
decisions because of the “vast array of subjective, individualized assessments”
involved. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 603–04 (2008). It is far from
clear that an inmate of the state can bring a class-of-one claim when an employee of the
state cannot.
As for prayer oil, Henderson cites two cases, but neither clearly establishes a
right to possess religious items that prison officials believe will create a security risk. In
the first case, Charles v. Verhagen, the district court determined that a blanket ban on
prayer oil did not violate the Free Exercise Clause but did violate the Religious Land
Use and Institutionalized Persons Act. 220 F. Supp. 2d 937, 938 (W.D. Wis. 2002). On
appeal we rejected the defendants’ claim that the Act exceeded Congress’s authority,
but we had no occasion to review the district court’s First Amendment ruling. Charles v.
Verhagen, 348 F.3d 601, 604–05 (7th Cir. 2003). In the second case, O’Lone v. Estate of
Shabazz, the Supreme Court held that prison officials did not violate the Free Exercise
Clause by preventing Muslim inmates from attending weekly religious services on
Fridays. 482 U.S. 342, 352 (1987). In sum, these cases do not help Henderson overcome
qualified immunity.

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As for Henderson’s 2012 meal claim, we need not resolve whether qualified
immunity would protect the security director who ordered Henderson removed from
the Ramadan-meal list because that person was not among the defendants. Henderson
does not tell us why the district court’s ruling that he sued the wrong defendant is
incorrect. In a civil-rights action under 42 U.S.C. § 1983, plaintiffs must sue the people
personally responsible for the violation. See Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir.
2018). Henderson did not.
AFFIRMED

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