Jeremy T. Greene v. Mark Teslik

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2022*
Decided March 2, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-2154
JEREMY T. GREENE,
Plaintiff-Appellant,
v.
MARK TESLIK, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 18-cv-116
William M. Conley,
Judge.
O R D E R
Jeremy Greene, a Protestant prisoner in Wisconsin, contends that his warden and
other staff violated federal law and his First Amendment rights by denying his requests
for prayer oil, while providing the same oil to Muslim and Pagan prisoners. The district
court entered summary judgment for the defendants, relying on the doctrine of
* 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NONPRECEDENTIAL DISPOSITION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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qualified immunity and concluding that the law did not clearly establish at the time
Greene requested the oil that this differential treatment was unconstitutional. We agree
with most but not all of the district court’s reasoning and thus affirm in part and vacate
in part.
I
A
Relaying the facts in the light most favorable to Greene, the nonmovant at
summary judgment, see Thomas v. Martija, 991 F.3d 763, 767 (7th Cir. 2021), we begin
with the religious-item policies of the Wisconsin Department of Corrections. The
Department allows prisoners to possess certain items for religious use based on the
prisoner’s self-designated religious group. The policy in effect at the time identified
seven groups: Catholic, Eastern Religion, Islamic, Jewish, Native American, Pagan, and
Protestant. When staff at the Columbia Correctional Institution denied Greene’s request
for prayer oil in 2013, the Department maintained a chart listing those items
preapproved for members of each group to possess for personal religious use. The
policy allowed Muslim and Pagan prisoners to possess scented oils but did not afford
the same accommodation to prisoners of any other religious groups, including
Protestants. Department policy also created a process for evaluating requests from
prisoners for religious items not preapproved for their religious group.
Greene tried in 2013 to buy some frankincense-scented oil from the Columbia
commissary. He wanted it “for use as prayer oil/anointing oil, because it’s something
that I use as a Christian.” A commissary officer refused to sell the oil to Greene because
the Department’s policy did not allow Protestants to possess scented oils for personal
religious use. Greene responded by informally seeking approval from the prison’s
chaplain, Mark Teslik, supporting his request with citations to passages in the Bible.
Chaplain Teslik likewise pointed to the policy and denied the request. A supervisor
agreed with Chaplain Teslik’s decision.
Greene then filed a formal grievance. A complaint examiner recommended
dismissing the grievance based on the Department’s policy. Warden Michael Meisner
reviewed and dismissed the grievance, and upon appeal, another examiner urged
dismissal for a different reason—Greene had not exhausted his administrative
remedies. The examiner noted that, to request approval to obtain property for personal
religious use that is not on the Department’s preapproved list, Greene had to submit a
specific form for that purpose. Because Greene had failed to use the proper paperwork,
a Department administrator dismissed his administrative appeal.

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Greene reacted by submitting the proper form and asking Chaplain Teslik that
“all Christians [] be allowed to purchase the same ‘religious oils’ that Muslim/Pagan
inmates [we]re allowed to purchase.” Greene stated that Christians use these oils “to
heal from sickness, consecrate items/areas/oneself before God,” and fast. Chaplain
Teslik recommended denying the request because, in his view, Protestants use the oils
for “hygienic practice not a ritualistic practice.” His supervisor, Melissa Schueler,
agreed.
Greene’s request then went to the religious-practices committee, which reviews
supervisors’ recommendations for prisoners’ religious-items requests. The committee’s
coordinator, Kelli Willard-West, also recommended denial based on the Department’s
policy. West observed not only that the Department developed the policy “with
consultation from Protestant [] spiritual advisors,” but also that Greene gave “no
indication that fragranced oil is required or holds spiritual properties for his personal
beliefs and practices.” She suggested that, instead of using fragranced oil, Greene
consider using baby oil as a substitute, if consistent with prison security considerations.
Warden Meisner, as final decision maker, accepted the recommendation and denied
Greene’s request. Greene appealed Warden Meisner’s decision, and after another round
of reviews, a Department administrator upheld the warden’s decision, ending the
appeals in late 2013.
Three years later, the Department changed its policy. Any prisoner may now use
prayer oil with frankincense (among other scents). But all indications are that Greene
has not sought to buy prayer oil since then. Indeed, he states that he never learned of
the new policy until summary judgment.
B
Greene then turned to federal court for relief. He sued the Department’s staff
involved in rejecting his requests for access to scented oils, contending that, by rejecting
him and other Christians the prayer oils allowed to Muslims and Pagans, the
defendants violated the Religious Land Use and Institutionalized Persons Act
(RLUIPA), see 42 U.S.C. § 2000cc-1, and his rights under the First Amendment, see id.
§§ 1983, 1985, 1986.
The district court dismissed the claims under § 1985 and § 1986 because the
named defendants were part of the same agency and could not have unlawfully
conspired. The court also denied Greene’s request for recruited counsel, reasoning that
his filings showed that he understood the facts and applicable law, demonstrated
diligence, and therefore was capable of litigating the case.

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Following discovery, the defendants moved for summary judgment. They
contended that Greene’s RLUIPA claims were moot because the statute permitted only
injunctive relief and the Department’s new policy affords Greene access to the oils he
seeks for personal religious use. For the constitutional claims, the defendants primarily
argued that they limited the use of prayer oils for security reasons: the proliferation of
the scented oils could mask contraband, spark a fire, and cause slips or medical
problems. And, the defendants added, based on the general absence of the ritualistic
use of prayer oils among most Christians, denying them the oils did not substantially
burden their religious practices.
The district court determined that the RLUIPA claims were indeed moot and
therefore proceeded to assess Greene’s constitutional claims under § 1983 and qualified
immunity. It acknowledged that Greene raised a triable question on whether his
religious practices were substantially burdened by the denial of scented oil. But the
defendants’ security rationales, the district court reasoned, outweighed his rights. The
security concerns justified the ban because the high number of Christians in the
Department’s custody could provide a permissible secular justification for favoring
some religions over others. Because, in the district court’s view, no case had resolved
that question, the doctrine of qualified immunity shielded the defendants from liability.
II
A
On appeal Greene first argues that his RLUIPA claim is not moot because he
seeks injunctive relief to receive natural (not scented) oil, which is still not available at
his prison. RLUIPA authorizes only injunctive relief against state officials, see Sossamon
v. Texas, 563 U.S. 277, 288 (2011); Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012), and
the only request for such relief that Greene made in the district court (and exhausted
administratively, as 42 U.S.C. § 1997e(a) requires) was for the same scented prayer oils
that other prisoners received. Greene does not deny that he now has access to those oils
(and has had access since 2016 though he never ordered them). Nor does he argue that
the defendants are likely to rescind access. See EEOC v. Flambeau, Inc., 846 F.3d 941, 949
(7th Cir. 2017). On these facts, his request for an injunction is moot.
B
Greene next contends that, by denying his request in 2013 for the same prayer oil
allowed to Muslims and Pagans, the defendants violated his rights under the Free
Exercise Clause of the First Amendment. This constitutional provision protects

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prisoners from substantial burdens to their religious practices that are not rationally
justified by a legitimate penological interest. Thompson v. Holm, 809 F.3d 376, 379 (7th
Cir. 2016). But we need not answer whether Greene was substantially or unjustifiably
burdened when the defendants denied him prayer oil because we agree with the district
court that the doctrine of qualified immunity prevents liability on the Free Exercise
Clause claim.
To counter the defense of qualified immunity, a plaintiff must show that the
constitutional right at issue was “clearly established” at the time of the alleged
violation. Kemp v. Liebel, 877 F.3d 346, 351 (7th Cir. 2017). In 2013, a “substantial burden”
under the Free Exercise Clause was a particular one that made practicing faith
“effectively impracticable.” Eagle Cove Camp & Conference Ctr., Inc. v. Woodboro, 734 F.3d
673, 680, 682 (7th Cir. 2013), abrogated by Schlemm v. Wall, 784 F.3d 362, 364 (7th Cir.
2015). Greene cites no case (nor can we find one) clearly establishing that denying
access to a prayer accessory akin to a scented oil makes the practice of religion
effectively impracticable. Qualified immunity was therefore appropriate. See Kemp, 877
F.3d at 353 (ruling that qualified immunity was proper because plaintiffs cited no cases
holding that denying a person access to “congregate worship or study” violates the Free
Exercise Clause).
C
Greene also claims that the defendants violated the Establishment Clause of the
First Amendment. The Establishment Clause “prohibits the government from favoring
one religion over another without a legitimate secular reason.” Kaufman v. McCaughtry
(Kaufman I), 419 F.3d 678, 683 (7th Cir. 2005). “Prisons cannot discriminate against a
particular religion ‘except to the extent required by the exigencies of prison
administration.’” Maddox v. Love, 655 F.3d 709, 719–20 (7th Cir. 2011) (citation omitted).
The defendants do not dispute that their rules regarding prayer oils favored the
faiths of Muslim and Pagan prisoners over others, but they argue that the
discrimination was lawful because they feared that if Christians, with their sizable
adherents, were allowed prayer oils, this might have created security concerns that
would not arise when only Muslims and Pagans, with fewer numbers, use them. But
this defense requires a factual inquiry into how many Christians wanted to use prayer
oils then. See Schlemm, 784 F.3d at 365–66. In another case of religious liberty in
Wisconsin’s prisons, we rejected as unsubstantiated at summary judgment a similar fear
that, in granting one prisoner access to a desired religious item, the prison would
receive similar demands from other prisoners, yielding “crippling” results. Id. at 365. As

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we underscored in Schlemm, the prison must estimate “the costs of accommodating
other inmates’ requests (should any be made)” for the religious item. Id. at 366.
To this point in the litigation, the defendants have made only unsupported
assertions that the oil poses a safety risk as it relates to masked contraband, fires, slips,
and illnesses. The defendants do not estimate how many (if any) other Christians in
2013 might have requested scented oil for religious uses. The chaplain’s view—that
such use by Christian prisoners is atypical—suggests that the answer is very few, which
cuts against the institution’s safety concern.
Furthermore, if oil were truly dangerous, as the defendants renew on appeal, we
would expect to see a categorical ban of all forms of oil. Yet the defendants freely admit
that all prisoners have access to baby oil, which itself contains a distinct scent. Of
course, prisoners who abuse their ability to possess prayer oil could justifiably lose their
access to it. But on this record, the defendants have not demonstrated that small
amounts of oil pose a large risk that necessitated denying prayer oil to people of some
faiths and not others. Because the defendants did not come forward with anything more
than unsupported assertions that allowing Christian prisoners like Greene to possess
prayer oil posed a safety risk, the reality of that risk cannot be resolved at summary
judgment. See id. at 365–66.
The defendants’ other contentions lack merit. They posit that most Protestants
typically use scented oils for “hygiene,” not worship, and thus that the “[Department]
believed prayer oil was not essential for Greene.” That is not a valid defense against
Greene’s Establishment Clause claim. “Religious belief must be sincere to be protected
by the First Amendment, but it does not have to be orthodox.” Grayson, 666 F.3d at 454.
And the defendants do not contest that Greene sincerely wanted the scented oil, as he
says, “to heal from sickness” and “consecrate items … before God.” The defendants also
argue that “caselaw required [prayer oil] be made available to Muslim and Pagan
inmates.” That may be true, but the caselaw also holds that if an item is permissible for
Muslims and Pagans to use for religious purposes, it ought to be permissible for
Christians too. See id. at 455; Kaufman I, 419 F.3d at 683.
We come then to the defendants’ invocation of qualified immunity. As they did
in responding to the Free Exercise claim, the defendants contend that in 2013 it was not
clearly established that, by denying Greene prayer oil, they would substantially burden
his religion. See Mullenix v. Luna, 577 U.S. 7, 11 (2015). But that is not the right inquiry
under the Establishment Clause. It has long been clearly established that “the
Establishment Clause may be violated even without a substantial burden on religious
practice.” Kaufman v. Pugh, 733 F.3d 692, 696 (7th Cir. 2013) (citing Kaufman I, 419 F.3d at

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683). It thus “could not reasonably be thought constitutional,” Grayson, 666 F.3d at 455,
for prison staff to treat prisoners differently based on their religion—unless they present
evidence that Greene was insincere or a security threat. See id. (rejecting qualified-
immunity defense where that evidence was lacking). The defendants did not do so.
III
We close by resolving a few procedural matters.
Greene attempts to revive his conspiracy claims under § 1985 and § 1986. He
insists that the intra-corporate-conspiracy doctrine, which provides that no unlawful
conspiracy occurs when agents of the same legal entity make agreements in their official
capacities, does not apply here. Ziglar v. Abbasi, 137 S. Ct. 1843, 1867–68 (2017). Greene is
mistaken: The rule applies to claims against “large bureaucratic agencies” like the
Department, including in the § 1985 context. See Wright v. Ill. Dep’t of Child. & Fam.
Servs., 40 F.3d 1492, 1508 (7th Cir. 1994). The same applies to claims under § 1986, which
are derivative of claims under § 1985. See Ennin v. CNH Indus. Am., LLC, 878 F.3d 590,
597 (7th Cir. 2017).
Next, Greene argues that the district court abused its discretion by denying his
motions for the appointment of counsel. But in the pretrial phase of the case, the rulings
were reasonable because Greene competently litigated it, understood the applicable
legal standards, had sufficient access to legal resources, and could research and prepare
filings. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc).
Finally, we observe that the remand is narrow, despite the shortcomings of the
record we just described. First, the remand is limited to only the defendants responsible
for rejecting Greene’s request that, as a Protestant, he be allowed prayer oil on the same
terms as Muslims and Pagans. See Gonzalez v. McHenry County, 40 F.4th 824, 828 (7th
Cir. 2022). Those are Chaplain Teslik, his supervisor Melissa Schueler, the coordinator
of the religious-practices committee Kelli Willard-West, and Warden Meisner. They had
the authority to support or accept Greene’s request, and each of them refused his
request. But the defendants who handled Greene’s appeals and grievances cannot be
found liable because generally “[r]uling against a prisoner on an administrative
complaint does not cause or contribute to the violation.” George v. Smith, 507 F.3d 605,
609 (7th Cir. 2007).
Second, any potential recovery is limited to nominal damages only. Under 42
U.S.C. § 1997e(e), Greene may not recover compensatory damages for emotional or
mental injuries from a constitutional violation unless a physical injury also occurred,

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Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir. 2003), and none is even alleged. Also,
nothing in the record suggests that the defendants behaved with the state of mind that
would warrant punitive damages. See Thompson, 809 F.3d at 381. In addition, because
Greene already has access to the prayer oil that he was denied, injunctive relief is
unavailable, eliminating any other practical relevance of the proceedings going
forward. In these circumstances, the parties have every incentive to come together and
resolve this matter expeditiously by settlement.
We AFFIRM the district court’s judgment in all respects except that we VACATE
the judgment as to Teslik, Schueler, Willard-West, and Meisner on Greene’s § 1983
Establishment Clause claim and REMAND for further proceedings consistent with this
order.

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