Case: 20-1570 Document: 37 Filed: 05/07/2021 Pages: 110

Case: 20-1570 Document: 37 Filed: 05/07/2021 Pages: 110
No. 20-1570
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 Honorable Pamela Pepper, Presiding
PLAINTIFF-APPELLANT’S BRIEF
Dated: May 7, 2021
BURKE, WARREN, MACKAY & SERRITELLA, P.C.
Nicholas A. Gowen (ngowen@burkelaw.com)

Geneva Ramirez (gramirez@burkelaw.com)
330 N. Wabash Avenue
Suite 2100
Chicago, IL 60611-3607
Tel: (312) 840-7000 / Fax: (312) 840-7900
Counsel for Plaintiff-Appellant Rufus West
ORAL ARGUMENT REQUESTED

DISCLOSURE STATEMENT UNDER SEVENTH CIRCUIT RULE 26.1

As required by Seventh Circuit Rule 26.1, Plaintiff-Appellant Rufus
West provides the following disclosures:
1. The full name of the only party represented by undersigned counsel in

this matter is Plaintiff-Appellant Rufus West.
2. Plaintiff-Appellant Rufus West was not represented by counsel in the

United States District Court for the Eastern District of Wisconsin.
Burke, Warren, MacKay & Serritella, P.C. is the only law firm whose
partners or associates will appear for Plaintiff-Appellant Rufus West in
this Court.
3. No party to this litigation is a corporation.
Dated: May 7, 2021 Respectfully submitted,
/s/ Nicholas A. Gowen
BURKE, WARREN, MACKAY & SERRITELLA, P.C.

Suite 2100
Tel: (312) 840-7000 / Fax: (312) 840-7900
i
Case:20-1570
Case: 20-1570 Document:37
Document: 31 Filed:05/07/2021
Filed: 05/07/2021 Pages:110
Pages: 1
ii
STATEMENT ON ORAL ARGUMENT

UNDER SEVENTH CIRCUIT RULE 34(f)
Pursuant to Seventh Circuit Rule 34(f), Plaintiff-Appellant Rufus West
respectfully requests oral argument in this matter. Oral argument will assist
the Court to better understand the legal questions raised by this appeal and
will further enable the Court to appreciate why the order issued by the United
States District Court for the Eastern District of Wisconsin should be reversed.
iii
TABLE OF CONTENTS
Disclosure Statement of Nicholas A. Gowen Under Seventh Circuit Rule 26.1 i
Disclosure Statement of Geneva Ramirez Under Seventh Circuit Rule 26.1...ii
Statement On Oral Argument Under Seventh Circuit Rule 34(f) .................... ii
Table of Contents ................................................................................................ iii
Table of Authorities ............................................................................................ vi
Jurisdictional Statement ..................................................................................... 1
Note On Terminology As Used In This Brief ..................................................... 2
Statement of The Issues ...................................................................................... 4
Statement of The Case ........................................................................................ 5
I. Factual Background................................................................................... 5
A. West’s Understanding of Islam’s Nudity Taboo ................................. 5
B. The Prison’s Strip-Search Policy .......................................................... 6
C. West Objects to Being Searched by Buhle........................................... 9
II. West’s Administrative Complaints ......................................................... 10
III. Procedural History ................................................................................. 11
Summary of the Argument ................................................................................ 14
Standard of Review ............................................................................................ 18
Argument............................................................................................................ 19
I. The Court should reverse the district court’s order granting Defendants
summary judgment and remand because the district court misapplied
RLUIPA to West’s claim. .............................................................................. 19
A. West’s desire to observe Islam’s nudity taboos prohibiting exposing
his nakedness to someone of the opposite sex is religious exercise within
RLUIPA’s meaning. ................................................................................. 21
B. The district court erred in holding the Prison’s policy requiring West
to submit to strip searches by a corrections officer of the opposite sex did
not substantially burdened West’s religious exercise. ........................... 23
1. Defendants’ policy substantially burdened West’s religious
exercise by forcing him to choose between violating Islam’s nudity
taboo and facing disciplinary action. ................................................. 23
iv
2. The district court’s novel definition of “substantial burden” is

unsupported by precedent and violates congressional mandate that
RLUIPA be broadly construed. .......................................................... 26
3. The district court violated the First Amendment by attempting to
objectively assess the validity of West’s beliefs and factoring its
assessment into its determination whether Defendants’ policy
substantially burdened West’s religious exercise. ............................ 30
C. The district court erred by holding that Defendants satisfied their
“demanding” burden of establishing the Prison’s policy is the least
restrictive means to achieve a compelling governmental interest........ 32
1. Defendants made no showing that the Prison’s unofficial
scheduling policy was the least restrictive means of achieving efficient
prison administration. ........................................................................ 33
2. Prohibitions on cross-sex strip searches do not violate the Equal
Protection Clause. ............................................................................... 33
II. The district court erred by screening out West’s Fourth Amendment
claim because the Fourth Amendment protects an inmate’s right to be free
from unreasonable strip searches. ............................................................... 41
Conclusion .......................................................................................................... 44
Certificate of Compliance with Federal Rule of Appellate Procedure 32 and
Seventh Circuit Rule 32 .................................................................................... 45
Certificate of Service .......................................................................................... 46
Certificate of Compliance with Seventh Circuit Rule 30(b) ............................ 47
v
TABLE OF AUTHORITIES
Cases
Aiello v. West, 207 F. Supp. 3d 886 (W.D. Wis. 2016) ..................................... 27
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................... 18
Baird v. Ford, 720 F. Supp. 2d 170 (D. Conn. 2010) ........................................ 26
Bauer v. Lynch, 812 F.3d 340 (4th Cir. 2016) .................................................... 2
Borzych v. Frank, 439 F.3d 388 (7th Cir. 2006) ............................................... 20
Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) ................................................. 2
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) .............................. 32
Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994) ...................................passim
Canedy v. Boardman, 91 F.3d 30 (7th Cir. 1996) ............................................ 26
City of Boerne v. Flores, 521 U.S. 507 (1997) .................................................. 32
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)....................... 38
Cutter v. Wilkinson, 544 U.S. 709 (2005) ......................................................... 20
Douglas v. Reeves, 964 F.3d 643 (7th Cir. 2020) ............................................. 18
Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S.
872 (1990) ....................................................................................................... 30
Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992) .................................................. 41
Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003) ................................................ 30
Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545 (7th Cir. 2017) ................. 18
Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc) ..........................passim
Hernandez v. Comm’r, 490 U.S. 680 (1989) ..................................................... 30
Holt v. Hobbs, 574 U.S. 352 (2015) ............................................................passim
Hudson v. Palmer, 468 U.S. 517 (1984) ............................................................ 19
Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) ................................... 36, 37, 40
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) ................................................... 28
Jova v. Smith, 582 F.3d 410 (2d Cir. 2009) ...................................................... 34
King v. McCarty, 781 F.3d 889 (7th Cir. 2015) .......................................... 41, 43
Kroger v. Bryan, 523 F.3d 789 (7th Cir. 2008) ................................................. 30
vi
Lindh v. Warden, Fed. Corr. Inst., No. 14-cv-142-JMS-DKL, 2016 U.S. Dist.
LEXIS 116243 (S.D. Ind. Aug. 30, 2016) ................................................ 22, 26
Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983) .................... 14
Njie v. Dorethy, 766 F App’x 387 (7th Cir. 2019) ............................................. 20
Perez v. Frank, No. 06-C-248-C, 2007 U.S. Dist. LEXIS 27441 (W.D. Wis.
Apr. 11, 2007) ................................................................................................. 30
Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015) ......................................... 27, 37
Tanksley v. Litscher, No. 15-cv-126-jdp, 2017 U.S. Dist. LEXIS 130340 (W.D.
Wis. Aug. 15, 2017)............................................................................. 23, 24, 27
Tipler v. Douglas Cty., 482 F.3d 1023 (8th Cir. 2007) ..................................... 40
U.S. v. Virginia, 518 U.S. 515 (1996) ................................................................ 38
Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) .................................... 35
Statutes
28 U.S.C. § 1291 ................................................................................................... 1
28 U.S.C. § 1331 ................................................................................................... 1
28 U.S.C. § 1915A ........................................................................................ 12, 41
42 U.S.C. § 1983 ............................................................................................. 1, 11
42 U.S.C. § 2000cc. ....................................................................................... 11, 16
42 U.S.C. § 2000cc-1 ..................................................................................... 19, 20
42 U.S.C. § 2000cc-3 ......................................................................... 20, 27, 36, 39
42 U.S.C. § 2000cc-5 ............................................................................... 21, 25, 30
Prison Rape Elimination Act, 34 U.S.C. § 30301 ............................. 6, 14, 29, 37
Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§ 2000-cc et seq. ............................................................................................ 1, 4
Other Authorities
1 Benjamin J. Sadock et al., Comprehensive Textbook of Psychiatry (9th ed.
2009) .................................................................................................................. 3
A Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32
(2018), https://www.apa.org/monitor/2018/09/ce-corner-glossary) ................ 3
FAQ, National PREA Resource Center, https://www.prearesourcecenter.org/
frequently-asked-questions/what-gender-should-transgender-staff-be-consi
dered-purposes-complying ............................................................................... 8
vii
Guidelines for Psychological Practice with Lesbian, Gay, and Bisexual

Clients, 67 Am. Psych. Assoc. 10 (2012), https://www.apa.org/pi/lgbt/reso
urces/sexuality-definitions.pdf. ....................................................................... 2
National Standards to Prevent, Detect, and Respond to Prison Rape, 76 Fed.
Reg. 6248 (Feb. 3, 2011) ........................................................................... 14, 37
National Standards to Prevent, Detect, and Respond to Prison Rape, 77 Fed.
Reg. 37106 (June 20, 2012) ............................................................................ 15
Rules
Fed. R. Civ. P. 56 ............................................................................................... 18
Regulations
28 C.F.R. § 115.5 .............................................................................................. 6, 8
28 C.F.R. § 115.15 .......................................................................................passim
DAI Policy 306.17.02........................................................................ 6, 7, 8, 28, 29
Constitutional Provisions
U.S. Const. amend. IV ......................................................................................... 1
viii
JURISDICTIONAL STATEMENT
The district court had federal-question jurisdiction over this case
because West filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging violation
of his rights pursuant to the Religious Land Use and Institutionalized Persons
Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000-cc et seq., and the Fourth
Amendment of the United States Constitution, U.S. Const. amend. IV.; 28
U.S.C. § 1331.
This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291
because this is the appeal of the final judgment that disposes of all of West’s
claims in the underlying case. The district court entered its final judgment on
March 9, 2020 (Appellant’s Appendix (“App.”) at 52), and West filed his notice
of appeal on April 8, 2020. (Dkt. 71.)

NOTE ON TERMINOLOGY AS USED IN THIS BRIEF

Over the years, courts have used the terms “gender” and “sex”
interchangeably. See, e.g., Bauer v. Lynch, 812 F.3d 340, 342 n.9 (4th Cir.
2016) (“Although it may be useful to disaggregate the definition of ‘gender’ from
‘sex’ for some purposes . . . courts have frequently used the term ‘sex’ and
‘gender’ interchangeably to refer simply to the fact that an employee is male or
female.”) But the terms have distinct meanings. Sex refers to “a person’s
biological status and is typically categorized as male, female or intersex. There
are a number of indicators of biological sex, including sex chromosomes,
gonads, internal reproductive organs and external genitalia.” Guidelines for
Psychological Practice with Lesbian, Gay, and Bisexual Clients, 67 Am. Psych.
Assoc. 10, 11 (2012), https://www.apa.org/pi/lgbt/resources/sexuality-defini
tions.pdf. Whereas, “gender” refers to the attitudes, feelings and behaviors that
a given culture associates with a person’s biological sex. Behavior that is
compatible with cultural expectations is referred to as gender‐normative;
behaviors that are viewed as incompatible with these expectations constitute
gender non‐ conformity.” Id.
A person’s “gender identity” is defined as “[a]n internal sense of being
male, female or something else, which may or may not correspond to an
individual’s sex assigned at birth or sex characteristics.” Bostock v. Clayton
Cty., 140 S. Ct. 1731, 1756 n.6 (2020) (Alito, J., dissenting) (citing A Glossary:
2
Defining Transgender Terms, 49 Monitor on Psychology 32 (2018),
https://www.apa.org/monitor/2018/09/ce-corner-glossary). And a “transgender”
person refers to “any individual who identifies with and adopts the gender role
of a member of the other biological sex”. Id. at 1758 n.9 (citing 1 Benjamin J.
Sadock et al., Comprehensive Textbook of Psychiatry 2063 (9th ed. 2009)).
These terms will be used accordingly throughout this brief.
3
STATEMENT OF THE ISSUES

1. Whether, under the Religious Land Use and Institutionalized Persons
Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000-cc et seq., Defendants’ refusal
to grant West, a male Muslim inmate, an accommodation by which he
would not be strip searched by corrections officers of the opposite sex
substantially burdened West’s religious exercise by making it impossible
for him to comply with Islam’s cross-sex nudity taboo.
2. Whether, under RLUIPA, forcing West to submit to cross-sex strip

searches on the four or five occasions per year when such searches were
necessary was the least restrictive means of achieving efficient prison
administration when allowing West to observe Islam’s nudity taboos
would only have required officers of the opposite sex to trade places with
already-present officers of the same sex.
3. Whether a corrections officer’s right to equal employment opportunity

under the Equal Protection Clause, regardless of his sex, automatically
supersedes an inmate’s right to exercise his religion under RLUIPA,
when the impingement on the officer’s purported rights are
comparatively de minimus.
4. Whether an inmate’s claim that a cross-sex strip search violated his

Fourth Amendment right to privacy is frivolous based on recent Seventh
Circuit precedent established in Henry v. Hulett, 969 F.3d 769 (7th Cir.
2020) (en banc).
4
STATEMENT OF THE CASE

I. FACTUAL BACKGROUND
A. West’s Understanding of Islam’s Nudity Taboo
Plaintiff/Appellant Rufus West (a/k/a Muslim Mansa Lutalo Iyapo)
converted to Sunni Islam in 1995. (Dkt. 27 at 3–4 (11:24–25; 13:20).)1 The
tenets of Sunni Islam are derived from the Quran and from Sunnah, the
traditions and practices of the prophet Muhammad from which Sunni Muslims
model their conduct. (Id. at 4 (13:24–25; 14:1–8).) West reasonably believes
that the Quran and Sunnah prohibit Muslims from exposing their nakedness—
for men, the area between naval and knees—to anyone but their spouses. (Id.
at 8 (31:11–15).) West further believes that violating this taboo is punishable
by “hell fire in the hereafter” for varying periods of time depending on the
severity of the infraction. (Id. at 8 (32:18–21).) For example, if West
unknowingly violates these taboos, his conduct is not punishable. (Id. at 9
(36:11–12).) But if he knowingly exposes himself to someone of the opposite sex
as defined by one’s birth anatomy, West believes that his punishment will be
more severe than if he exposed himself to someone of the same sex. (Id. at 10
1 All ECF docket references in this brief refer to the underlying proceeding in
the Eastern District of Wisconsin that gave rise to this appeal. See 3:17-CV-
482-PP. Where references to the docket are required, Appellant uses the
abbreviation “Dkt. __” to refer to the previous District Court action.
References to this Court’s docket will use the abbreviation “7th Cir. Dkt. __.”
5
(39:12–15).) There is no evidence in the record to suggest that West’s beliefs
are insincere.
B. The Prison’s Strip-Search Policy

The Wisconsin Department of Corrections (“WDOC”) Division of Adult
Institutions (“DAI”) Policy 306.17.02 (see Dkt. 34-1) and the United States
Department of Justice’s (“DOJ”) regulations enacted pursuant to the Prison
Rape Elimination Act (“PREA”), 34 U.S.C. § 30301 et seq., govern how and
when Wisconsin inmates may be strip searched. The DOJ’s PREA regulations
define “strip search” as “a search that requires a person to remove or arrange
some or all clothing so as to permit a visual inspection of the person’s breasts,
buttocks, or genitalia.” 28 C.F.R. § 115.5. The DAI’s policy definition tracks the
DOJ’s definition. (See Dkt. 34-1 at 2 (DAI Policy 306.17.02) (a strip search
“includes the examination of [an] inmate’s clothing and body and a visual
inspection of his or her body, so as to permit a visual inspection of the person’s
breasts, buttocks or genitalia”)).
DAI Policy 306.17.02 authorizes inmates to be strip searched under six
circumstances:
(1) Before an inmate leaves or enters the secure perimeter of a

maximum . . . security facility [ ].
(2) When returning to a facility, a strip search may be conducted

prior to the inmate entering the transport vehicle.
6
(3) Before an inmate enters or leaves the segregation unit or status

changes within the segregation unit.
(4) Before or after a visit and during a visit, if observation indicates

a reason to conduct the search.
(5) As part of a periodic search and lockdown of an institution

under Wisconsin Administrative Code Ch. DOC 306.
(6) At the direction of a supervisor.
(Id. at 4 (DAI Policy 306.17.02(III)(D)(1)–(6)).)
At the Green Bay Correctional Institution (the “Prison”)—where West is
currently housed and has been housed on and off since he was incarcerated in
1994—strip searches are conducted in a room abutting the visitation room.
(Dkt. 27 at 5 (18:18–21).) The room has four or five three-sided stalls that
provide inmates a modicum of privacy during strip searches. (Id. at 5 (18:14–
15; 19:1–15).) Anyone standing directly in front of the open side of a stall or
several feet to either side of the stall can see the inmate inside. (Id. at 5 (19:21–
23).) If someone stands a sufficient distance to one side of the stall, his or her
view of the inmate would be obscured. (Id. at 8 (29:6–25; 30:1–5).)
The Prison requires that strip searches be performed by two corrections
officers. (Dkt. 34-1 at 4 (DAI Policy 306.17.02(III)(A), (III)(C)(2), (III)(E)).) One
of the two officers stands directly facing the stall in which the disrobed inmate
stands and instructs the inmate to expose various parts of his body for visual
inspection. (Id. at 4–5 (DAI Policy 306.17.02(III)(E)(1)–(5)). The second officer
7
observes the process to assure proper strip search procedures are followed. (Id.)
Both officers must be “in close proximity to the inmate” throughout the search.
(Id. at 5 (DAI Policy 306.17.02(III)(E)(1)(b)).) If an inmate refuses to
voluntarily disrobe, he will be forcibly strip searched. (Dkt. 27 at 7 (26:12–14).)
Both DAI Policy 306.17.02 and PREA prohibit “cross-gender” strip
searches. 28 C.F.R. 115.15(a) (“The facility shall not conduct cross-gender strip
searches or cross-gender visual body cavity searches [ ].”); (Dkt. 34-1 at 4 (DAI
Policy 306.17.02(III)(A) (“Cross gender strip searches of inmates are
prohibited . . . .”)).) These authorities do not define whether gender refers to
biological sex or to behavioral, cultural, or psychological traits typically
associated with one sex. This ambiguity is exacerbated by the use of both terms
interchangeably throughout DAI Policy 306.17.02. (See id. at (DAI Policy
306.17.02(I)(C), (III)(A), (III)(E)(6)).)
This confusion prompted prison officials to request guidance from the
DOJ regarding how transgender corrections officers should be considered for
the purposes of complying with PREA’s “cross-gender” viewing and search
prohibitions. See FAQ, National PREA Resource Center, https://www.
prearesourcecenter.org/frequently-asked-questions/what-gender-should-trans
gender-staff-be-considered-purposes-complying. The DOJ has provided no
clear answer, instead stating that the determination should be made on an
8
individualized basis based not only on biological sex but also on the officer’s
gender identity. Id.
The Prison first confronted this issue in 2016 when it hired Isaac Buhle
as a corrections officer. (Dkt. 32 at 2.) At the time, it was “apparent” to Warden
Eckstein that Buhle “was a transgender man.” (Id. at 2; Dkt. 27 at 6 (24:18–
20).) Warden Eckstein sought guidance from the Prison’s human resources
department regarding how to assign Buhle’s work assignments. (Dkt. 32 at 2.)
The Prison’s human resources department instructed Eckstein that “if an
employee identifies as a certain sex, [the Prison] should respect it and assign
duties accordingly.” (Id.) Therefore, Buhle was assigned to strip search male
inmates, despite his biological sex being female.
C. West Objects to Being Searched by Buhle

West was incarcerated at the Prison from 2014 to 2019 and was strip
searched approximately 25 times during that period. (Dkt. 27 at 18 (20:14–23).)
Though strip searches violate Islam’s nudity taboos, West understands that
strip searches are necessary to prison safety and security. (Id. at 9 (34:9–20).)
West also believes that Islam obligates him to avoid unnecessary conflict. (Id.
at 7 (33:9–11).) For these reasons, West never challenged an officer’s authority
to strip search him until July 2, 2016. (Id. at 9 (34:9–20).)
On that date, West entered the strip-search room after receiving a visit
from a friend. (Dkt. 27 at 6 (21:15–28).) Officer Buhle, a transgender man who
9
retained obvious female physical characteristics, approached West and ordered
him to disrobe. (Id. at 6 (22:17–19; 24:18–20); Dkt. 32 at 1.) West froze. (Dkt. 27
at 6 (23:5–15).) West believed that submitting to a strip search by someone of
the opposite biological sex would expose him to particularly harsh punishment
in the afterlife. (Id. at 7 (26:1–25).) West also knew from experience that if he
refused the strip search, he would be searched by force. (Id. at 7 (26:1–25; 27:1–
11).) At least three other male officers—none of whom were transgender—were
also in the room, and West asked that one of them conduct the strip search.
(Id. at 7 (26:12–15).) One of the other officers obliged, but Buhle continued to
look on. (Id. at 7 (28:2–8).)
II. WEST’S ADMINISTRATIVE COMPLAINTS

Five days after Buhle observed West naked, West submitted an
Interview/Information Request to the Prison’s Warden, Scott Eckstein, seeking
an accommodation under which he not be required to expose his nakedness to
someone of the opposite sex. (Dkt. 31-1 at 17.) The Warden categorically denied
the request, stating:
I have reviewed your correspondence and have also discussed your

concerns with our Security Director. I have reviewed the situation
and the officer in question is a male and is qualified to complete
these duties. If in the future you are directed to submit to a strip
search by this individual or any other male staff member it is my
expectation that you will comply.
10
I trust that this correspondence addresses your concerns, if you do

not agree with my decision please feel free to contact the inmate
complaint examiner.
(Dkt. 31-1 at 16.) West appealed Eckstein’s decision by filing an Inmate
Complaint with the Institution Complaint Examiner on July 18, 2016. (Dkt. 32
at 3; Dkt. 31-1 at 11–14.) The Institution Complaint Examiner recommended
that West’s accommodation request be denied, and Eckstein dismissed the
complaint on July 29, 2016. (Dkt. 32 at 3; Dkt. 31-1 at 8.) West then filed an
Offender Complaint Appeal with the Office of the Secretary. (Dkt. 31 at 2;
Dkt. 31-1 at 6.)  Bradley Hompe, a Corrections Complaint Examiner, reviewed
the appeal and recommended dismissal. (Dkt. 31 at 11; Dkt. 31-1 at 6.) Cindy
O’Donnell, the Policy Initiatives Advisor at the WDOC’s Central Office, agreed
with Hompe’s recommendation and dismissed West’s appeal on September 29,
2016. (Dkt. 33 at 2; Dkt. 31-1 at 7.)
III. PROCEDURAL HISTORY

West filed his Complaint on April 4, 2017, and an Amended Complaint
on April 24, 2017. (Dkts. 1, 15.) The Amended Complaint, filed pursuant to
42 U.S.C. § 1983, alleges violations of RLUIPA, 42 U.S.C. § 2000cc et seq., and
the First, Fourth, Eighth, Ninth, and Fourteenth Amendments of the United
11
States Constitution by Warden Scott Eckstein, Security Director John Kind,
Officer Isaac Buhle, Cindy O’Donnell, and Bradley Hompe.2 (Dkt. 15 at 1, 5.)
The district court screened the Amended Complaint pursuant to
28 U.S.C. § 1915A. It found that West had colorable claims under RLUIPA and
the First Amendment against Eckstein, Kind, and Buhle. The district court,
however, screened out West’s claims brought pursuant to the Fourth, Eighth,
Ninth, and Fourteenth Amendments to the United States Constitution.
(App. at 6–10.) The district court also found that West had colorable claims
against Hompe and O’Donnell for failure to intervene in the alleged violation
of West’s rights. (App. at 10–11.) In the same order, the district court denied
West’s motion for appointment of counsel. (App. at 11–12.)
On May 6, 2019, Defendants filed a motion for summary judgment on all
of West’s claims. (Dkts. 28–29.) West filed a cross-motion for summary
judgment on May 13, 2019. (Dkt. 42.) The district court granted Defendants
motion and dismissed West’s cross-motion on March 9, 2020. (App. at 14.)
West timely filed a Notice of Appeal on April 8, 2020. (Dkt. 72.) The
parties briefed their arguments—West proceeding pro se —and the American
Civil Liberties Union filed an Amicus Brief in support of Defendants-Appellees.
2 The Amended Complaint also named Pete Ericksen and John and Jane Doe.
(Dkt. 15 at 1.) But, as the district court explained in its screening order,
West did not identify these individuals or what they did to violate his rights,
leading the court to dismiss them from the lawsuit. (App. at 11.)
12
(7th Cir. Dkts. 14, 16, 19, 23, 26.) After reviewing the briefs, the Court
determined that it would benefit from “additional, counseled briefing and oral
argument.” (7th Cir. Dkt. 27.) The Court sua sponte recruited counsel for West
and ordered the briefs previously filed in this appeal stricken. (Id.)
13
SUMMARY OF THE ARGUMENT

This case is not about the rights of transgendered individuals in the
workplace, despite the district court’s contrary contentions and the assertions
levied by the American Civil Liberties Union in its now-stricken amicus brief.
Instead, this case concerns whether an inmate has the right under RLUIPA
and the Fourth Amendment to be free of cross-sex strip searches that violate
his religious exercise and privacy. This case is not salacious nor controversial
because this Court has already held that inmates deserve such protections.
The Seventh Circuit has observed that all strip searches are “demeaning,
dehumanizing, undignified, humiliating, terrifying, unpleasant,
embarrassing, repulsive, signifying degradation, and submission . . . .” Mary
Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). But “it is
generally considered a greater invasion to have one’s naked body viewed by a
member of the opposite sex.” Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir.
1994). With this backdrop, this Court has held that inmates have a Fourth
Amendment privacy interest in avoiding cross-sex strip searches. Id. at 187–
88; Henry v. Hulett, 969 F.3d 769, 779 (7th Cir. 2020) (en banc). The DOJ
concurred by enacting regulations prohibiting cross-sex strip searches under
its rulemaking authority pursuant to PREA, 34 U.S.C. § 30301 et seq.; 28
C.F.R. 115.15(a); see also National Standards to Prevent, Detect, and Respond
to Prison Rape, 76 Fed. Reg. 6248, 6253 (Feb. 3, 2011) (explaining prohibition
14
on “cross-gender” strip searches is to “protect the privacy and dignity of
inmates”).
This Court and the DOJ have acknowledged that prohibiting cross-sex
strip searches will inevitably burden prison administration and the rights of
corrections officers to be free of sex-based disparate treatment in the
workplace. See Canedy, 16 F.3d at 187; National Standards to Prevent, Detect,
and Respond to Prison Rape, 77 Fed. Reg. 37106, 37132–33 (June 20, 2012).
But on balance, they have determined that a small imposition on prisons and
the rights of their employees is justified to prevent an enormous imposition on
the rights of inmates. Henry, 969 F.3d at 778 (“The privacy interest in one’s
body is clearly a heightened and fundamental one. And while prison security
requires officials to constantly monitor prisoners’ cells, the same is not true of
their unclothed persons.”); Canedy, 16 F.3d at 185 (“One of the clearest forms
of degradation in Western Society is to strip a person of his clothes.”); 77 Fed.
Reg. 37106, 37132–33 (June 20, 2012) (noting that de minimus disparate
treatment of employees based on sex in the context of pat-down searches and
strip searches is acceptable). The slight impingement on rights of corrections
officers is more justifiable still when the inmate being searched holds a sincere
religious belief that he will be severely punished in the afterlife for exposing
his nakedness to the opposite sex.
15
That is precisely the situation here. On July 2, 2016, West was ordered
to disrobe for a routine strip search by Officer Buhle, a transgender male
corrections officer whose biological sex was clearly female at the time. West, a
Muslim man, believes that complying violates Islam’s most seriously punished
nudity taboo, which prohibits displays of nudity in front of members of the
opposite sex. In an effort to avoid violating this taboo, West requested that one
of the other officers conducting strip searches at the time take Buhle’s place.
Another officer did so, but Buhle looked on. When West later requested that
the Prison grant him an accommodation by which the only persons who strip
search him are biologically male, the Prison and the WDOC denied the request
out of hand. The Prison and WDOC implied that an officer’s sex is irrelevant
in the context of a strip search if his or her gender identity is the same as that
of the inmate.
West filed suit asserting that the Prison’s failure to grant him an
accommodation violated his rights under the RLUIPA, 42 U.S.C. § 2000cc et
seq. and the Fourth Amendment. The district court, in contravention of
Canedy, 16 F.3d at 187–88, screened out West’s Fourth Amendment claim as
frivolous. The district court further mischaracterized this case as one involving
transgender rights. The court essentially held that regardless of competing
rights, a transgender person’s sex can never be a valid basis for an employer
to treat that person differently from other members of his or her gender. In
16
doing so, the district court subordinated West’s rights privacy and religious
exercise to Buhle’s right, as a transgender person, to avoid disparate treatment
(no matter how minor) in the work place based on his transgender status.
But this case is not about the rights of transgendered people. The fact
that Buhle is transgender is only relevant to the extent that the Prison would
never have scheduled Buhle to conduct routine strip searches of male inmates
if he was cisgender (i.e., if he identified as female, the gender corresponding
with his biological sex at birth). See 28 C.F.R. 115.15(a). Instead, this case is
about whether an inmate’s right to religious exercise, privacy, and protection
from a cross-sex strip search, on balance, should be grounds for a slight
modification of a corrections officer’s work responsibilities.
This Court has already decided this issue. It is reasonable to prohibit
corrections officers from conducting cross-sex strip searches to protect the
inmate’s rights, and where it is reasonable to accommodate an inmate’s rights,
“doing so is not just a palliative to be doled out at the state’s indulgence. It is
a constitutional mandate.” Canedy, 16 F.3d at 187–88.
17
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)).
18
ARGUMENT
There is “no iron curtain drawn between the Constitution and the
prisons of this country.” Hudson v. Palmer, 468 U.S. 517, 555 (1984). In
furtherance of that premise, Congress has mandated that “no Government
shall impose a substantial burden on the religious exercise of a person residing
in or confined to an institution . . . even if the burden results from a rule of
general applicability . . . .” RLUIPA, 42 U.S.C. 2000cc-1(a). So too, this Court
has recognized that “the Fourth Amendment protects a right to bodily privacy
for convicted prisoners, albeit in a significantly limited way, including during
visual inspections.” Henry, 969 F.3d at 774. Yet, the district court held that
Rufus West’s right to religious exercise granted to him by RLUIPA and his
Fourth Amendment right to privacy in the context of a strip search must be
subordinated to avoid de minimus impositions on prison administration and
the right of a corrections officer to avoid equal employment opportunity
regardless of the individual’s sex. In doing so, the court erred and should be
reversed.
I. The Court Should Reverse the District Court’s Order Granting

Defendants Summary Judgment and Remand Because the District
Court Misapplied RLUIPA to West’s Claim.
Congress enacted RLUIPA to provide expansive protection for the
religious exercise of institutionalized persons “who are unable freely to attend
to their religious needs and are therefore dependent on the government’s
19
permission and accommodation for exercise of their religion.” Cutter v.
Wilkinson, 544 U.S. 709, 720–21 (2005); 42 U.S.C. § 2000cc-3(g) (“This Act
shall be construed in favor of broad protection of religious exercise, to the
maximum extent to permitted by the terms of this Act and the Constitution.”);
see also Holt v. Hobbs, 574 U.S. 352, 358 (2015) (RLUIPA’s terms “underscore
its expansive protection for religious liberty”); Njie v. Dorethy, 766 F App’x 387,
391 (7th Cir. 2019) (noting RLUIPA “robustly supports inmate religious
practice”). RLUIPA applies to prisons—like those within the WDOC—that
receive federal funding. Borzych v. Frank, 439 F.3d 388, 390 (7th Cir. 2006).
To establish a RLUIPA violation, a plaintiff must show that the
defendants imposed a substantial burden on his religious exercise.
42 U.S.C. § 2000cc-1(a). If the plaintiff does so, the defendants may only avoid
liability by showing that the imposition of the burden is the least restrictive
means of furthering a compelling governmental interest. Id. at § 2000cc-
1(a)(1)–(2). The district court misapplied this standard in two major respects
when it granted Defendants’ Motion for Summary Judgment. (App. at 14.)
First, the district court held that West’s religious exercise—the
observance of Islam’s cross-sex nudity taboo prohibiting Muslims from
exposing their nakedness in the presence of a member of the opposite sex—was
not substantially burdened by Defendants’ refusal to make an exception to the
Prison’s unwritten policy that a transgender male corrections officer be
20
assigned to the same tasks as cisgender male officers, even in the context of a
strip search. (Id.) Second, the district court held that the Prison’s refusal to
make any exception to the unofficial scheduling policy, even to allow West to
avoid cross-sex strip searches, was narrowly tailored to achieve the compelling
interests of maintaining efficient prison administration and avoiding Equal
Protection violations. (Id.) The district court was wrong on both accounts.
Therefore, this Court should reverse the district court’s order granting
Defendants summary judgment on West’s RLUIPA claim and remand the case
for further proceedings.
A. West’s Desire to Observe Islam’s Nudity Taboos Prohibiting

Exposing His Nakedness to Someone of the Opposite Sex Is
Religious Exercise Within RLUIPA’s Meaning.
RLUIPA protects “any exercise of religion, whether or not compelled by,
or central to, a system of religious belief,” 42 U.S.C. § 2000cc-5(7)(A), as long
as an inmate’s “request for an accommodation [is] sincerely based on religious
belief and not some other motivation . . . .” Holt, 574 U.S. at 360–61. A belief
need not be shared by all members of a religious sect to fall within RLUIPA’s
protection. Id. at 361.
West testified that he believes that Islam’s nudity taboos prohibit him
from exposing his nakedness—the area between his naval and knees—to
anyone but his wife. (Dkt. 27 at 8–10 (31:11–15; 32:18–25; 33:1; 39:12–15;
40:20–23).) If he violates these taboos, he believes Allah will punish him with
21
“hell fire in the hereafter.” (Id. at 8 (32:18–23).) And this punishment will be
more severe if he exposes his nakedness to a member of the opposite sex, which
he understands Islam to define by genitalia at birth. (Id. at 8, 10 (32:18–23,
39:12-15; 40:20–23).) Allah will not, however, punish him for unknowing
violations of this taboo. (Id. at 9–10 (36:23–25; 37:1).) West understands and
acknowledges that strip searches are necessary to prison safety and security
and therefore, does not challenge the prison’s authority to conduct same-sex
strip searches. (Id. at 9 (34:14–20).) But he wishes to observe the most seriously
punished of these taboos: the prohibition of exposing his nakedness in front of
someone he knows to be of the opposite sex, regardless of whether that person’s
gender identity corresponds with his or her sex at birth.
Neither Defendants nor the district court have questioned the sincerity
of West’s beliefs. Therefore, West has met his burden of showing observance of
Islam’s nudity taboo is religious exercise within the meaning of RLUIPA. See
Lindh v. Warden, Fed. Corr. Inst., No. 14-cv-142-JMS-DKL, 2016 U.S. Dist.
LEXIS 116243, at *20 (S.D. Ind. Aug. 30, 2016) (holding defendant’s
observance of Islam’s nudity taboos was religious exercise);3 Tanksley v.
Litscher, No. 15-cv-126-jdp, 2017 U.S. Dist. LEXIS 130340, at *2 (W.D. Wis.
3 Appended hereto, App. at 52.
22
Aug. 15, 2017) (holding inmate’s use of an “erotic tarot card deck” was religious
exercise).4
B. The District Court Erred in Holding the Prison’s Policy Requiring

West to Submit to Strip Searches by a Corrections Officer of the
Opposite Sex Did Not Substantially Burdened West’s Religious
Exercise.
The district court erred in holding that the Prison’s unofficial scheduling
policy, under which West must submit to strip searches conducted by a
transgender male corrections officer whose sex is observably female,
substantially burdened West’s religious exercise for three reasons. First, the
district court misapplied the Supreme Court’s test for determining whether a
“substantial burden” exists. Second, the district court created and applied its
own novel “substantial burden” test that runs contrary to the mandates of
RLUIPA and established Supreme Court precedent. Third, the district court
violated the First Amendment by attempting to objectively assess the
reasonableness of West’s beliefs and factoring that assessment into its
determination regarding whether the burden was substantial.
1. Defendants’ Policy Substantially Burdened West’s Religious

Exercise by Forcing Him to Choose Between Violating Islam’s
Nudity Taboos and Facing Disciplinary Action.
RLUIPA is silent on what constitutes a “substantial burden” on religious
exercise. But the Supreme Court has held that religious exercise is
23
substantially burdened when a policy forces an inmate to choose between
“engag[ing] in conduct that seriously violates his religious beliefs” and “fac[ing]
serious disciplinary action.” Holt, 574 U.S. at 358. District courts within the
Seventh Circuit have observed that “[u]nder Holt, RLUIPA protects every
religious preference, no matter how idiosyncratic or how minor to the inmate’s
professed religion.” Tanksley, 2017 U.S. Dist. LEXIS 130340, at *16–17.
The district court did not apply this test. Rather, the court misread Holt
to provide only that a substantial burden exists when an inmate must “engage
in conduct that seriously violates [his] religious beliefs.” (App. at 33.) Finding
that this definition was too vague to guide its analysis, the district court
instead invented and applied its own restrictive definition of what constitutes
a substantial burden and held that West’s religious exercise had not been
substantially burdened. (App. at 32–37.) The court committed reversable error.
Had the court properly applied Supreme Court precedent, it could not have
reached the same conclusion.
In Holt, the Supreme Court considered whether a prison’s policy
prohibiting inmates from growing beards substantially burdened the religious
exercise of a Muslim who believed growing a beard was a “dictate of his
religious faith.” 574 U.S. at 361. The Court determined that the inmate “easily
satisfied” his burden of establishing that his religious exercise was
substantially burdened because the grooming policy required the inmate to
24
shave his beard—conduct that seriously violated his religious beliefs—and
facing “serious disciplinary action.” Id. (emphasis added). The fact that Islam
would credit the inmate for growing a beard but did not compel him to do so
was irrelevant to the substantial-burden determination. Id. at 362 (quoting 42
U.S.C. § 2000cc-5(7)(A)).
Here, West believes that Islam compels him to shield his nakedness from
the sight of individuals whose sex is female, excepting his wife. If he does not,
Allah will punish him in the afterlife. (Dkt. 27 at 8, 10 (32:18–22; 39:12–15).) The
Prison maintains an unwritten policy that assigns transgender male
corrections officers, including those like Officer Buhle whose sex is observably
female, to strip search male inmates. (Dkt. 32 at 2.) West requested that only
officers whose sex is male strip search him or observe him being strip searched
to accommodate his religious exercise. (Dkt. 31-1 at 1–18.) The Warden
Eckstein and the WDOC’s Corrections Complaint Examiner’s Office
categorically denied West’s request without explanation. (Id.) West knows,
based on past experience, that if he refuses to submit to a strip search, he will
be “forcibly strip searched.” (Dkt. 27 at 7 (26:11–14).)
As in Holt, West was given a Hobson’s choice. He could either (a) engage
in conduct that seriously violates Islam’s most serious nudity taboo, or (b) be
forcibly strip searched and face additional administrative punishments. The
district court’s conclusion that forcing West to submit to a strip search in
25
violation of this taboo is somehow less burdensome than the prohibition on
growing a beard in Holt (which was not religiously compelled) is absurd and
unsupported by precedent. Holt, 574 U.S. at 353, 358; see Canedy v. Boardman,
91 F.3d 30, 34 (7th Cir. 1996) (hereinafter “Canedy II”) (acknowledging inmate
had “constitutional interest in observing Islam’s nudity taboos”); Lindh, 2016
U.S. Dist. LEXIS 116243, *26–27 (holding a Muslim inmate’s religious exercise
was substantially burdened by a policy requiring the inmate to submit to a
strip search after every no-contact visit); Baird v. Ford, 720 F. Supp. 2d 170,
177 (D. Conn. 2010) (holding Muslim inmate’s religious exercise was
substantially burdened by policy requiring her to submit to pat-down searches
performed by a member of the opposite sex). West has satisfied his burden of
establishing that the Prison’s policy substantially burdened his religious
exercise.
2. The District Court’s Novel Definition of “Substantial Burden” Is

Unsupported by Precedent and Violates Congressional Mandate
that RLUIPA be Broadly Construed.
Rather than apply the Holt test, the district court summarily concluded
that Holt’s definition of “substantial burden” was too vague to guide the court’s
analysis and instead invented and applied its own novel and extremely limited
definition of “substantial burden.” (App. at 32–37.) Under the district court’s
created rule, a prison’s policy must “consistently and repeatedly prevent the
inmate from exercising his religion” to impose a substantial burden. (App. at
26
36.) Furthermore, even if the policy has prevented the religious exercise of the
inmate on one occasion and is capable of repetition, the inmate must wait until
his or her religious exercise has actually been burdened on (at least) more than
one occasion before his or her religious exercise can be deemed to have been
substantially burdened. (App. at 36.) Such a rule is contrary to Congress’s
mandate that RLUIPA “be construed in favor of broad protection for religious
exercise, to the maximum extent permitted by [RLUIPA’s terms] and the
Constitution.” 42 U.S.C. § 2000cc-3(g) (emphasis added).
In support of its rule, the district court cited a handful of cherry-picked
cases in which a prison policy imposed a burden on an inmate’s religious
practice on multiple occasions that occurred at regular intervals. (App. at 34–
35.) See, e.g., Schlemm v. Wall, 784 F.3d 362, 365–66 (7th Cir. 2015) (holding
prison’s refusal to provide an inmate with traditional foods for a yearly
religious feast from 1999—when the inmate was originally incarcerated—to
2015—when the case was decided—substantially burden the inmate’s free
exercise of religion); Aiello v. West, 207 F. Supp. 3d 886 (W.D. Wis. 2016)
(holding defendants imposed a substantial burden on Jewish plaintiff’s
exercise of his religion when it stopped holding in-person, group Shabbat
services, which it had not held for over a year); Tanksley, 2017 U.S. Dist.
LEXIS 130340, at *18 (prohibiting an inmate who practiced the Hermetic
27
Order of the Golden Dawn from using his preferred tarot card deck imposed a
substantial burden on his religious practice).
Nothing in these cases or in RLUIPA requires an inmate to sit back and
wait for his rights to be violated multiple times before filing a RLUIPA claim.
Nor did the repeated/ongoing nature of the burdening activity play into the
courts’ determinations that a substantial burden existed. (App. at 36.) To the
contrary, other courts have held that a single burdening incident can be
substantial. See Jolly v. Coughlin, 76 F.3d 468, 471–72 (2d Cir. 1996) (“The
choice . . . presented by the state—either to submit[] to the [tuberculosis] test
or adher[e] to one’s beliefs and endur[e] medical keeplock—constitutes a
substantial burden.”).
Even if the district court is correct that a burden on religious exercise
must be repeated and ongoing, West easily satisfies such a burden. DAI Policy
Number 306.17.02 provides that inmates may be strip searched under any of
the following circumstances:
(1) Before an inmate leaves or enters the secure perimeter of a

maximum or medium security facility or the grounds of a
minimum security facility.
(2) When returning to a facility, a strip search may be conducted

prior to the inmate entering the transport vehicle.
(3) Before an inmate enters or leaves the segregation unit or status

changes within the segregation unit.
28
(4) Before or after a visit and during a visit, if observation indicates

a reason to conduct the search.
(5) As part of a periodic search and lockdown of an institution

under Wisconsin Administrative Code Ch. DOC 306.
(6) At the direction of a supervisor.
(Dkt. 34-1 at 4 (DAI Policy 306.17.02(III)(D)(1)–(6)).) West testified that he was
strip searched approximately 25 times while incarcerated at the Prison
between 2014 and 2019. (Dkt. 27 at 5 (20:10–23).) The only reason he had not
been searched before by someone of the opposite sex was because PREA
prohibits cross-sex strip searches. 34 U.S.C. § 30301 et seq. Officer Buhle was
the only transgender male corrections officer working at the prison, making it
statistically unlikely, but not impossible, for West to be strip searched by
someone of the opposite sex. (Dkt. 32 at 2.) The district court even
acknowledged that West’s claim was not moot because the occurrence of such
a cross-sex strip search is capable of repetition. (App. at 28–31.)
Therefore, even if the district court correctly stated that the burden on
West must be repeated before it is actionable, West has established that the
burden is ongoing. West is almost certain to be strip searched again and there
is a “reasonable possibility” that a transgender officer whose sex is female will
conduct the search. (App. at 31.)
29
3. The District Court Violated the First Amendment by Attempting

to Objectively Assess the Validity of West’s Beliefs and Factoring
Its Assessment Into Its Determination Whether Defendants’
Policy Substantially Burdened West’s Religious Exercise.
The Supreme Court has observed that “[i]t is not within the judicial ken
to question the centrality of particular beliefs or practices to a faith, or the
validity of particular litigants’ interpretations of those creeds.” Hernandez v.
Comm’r, 490 U.S. 680, 699 (1989). The Court elaborated that “[j]udging the
centrality of different religious practices is akin to the unacceptable business
of evaluating the relative merits of differing religious claims.” Employment
Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 887 (1990)
(internal quotations omitted); Kroger v. Bryan, 523 F.3d 789 (7th Cir. 2008)
(quoting 42 U.S.C. § 2000cc-5(7)(A)) (“To have his request accommodated, the
prison officials would have required him to establish exactly what RLUIPA
does not require—that his requested diet was ‘compelled by’ or ‘central to’ his
faith.”); see also Ford v. McGinnis, 352 F.3d 582, 590 (2d Cir. 2003)
(“assess[ing] the objective validity” of an inmate’s belief requires a court to
“impermissibly confront[] what is, in essence, the ‘ecclesiastical question’” of
the significance and legitimacy of certain religious practices); Perez v. Frank,
No. 06-C-248-C, 2007 U.S. Dist. LEXIS 27441, *27–28 (W.D. Wis. Apr. 11,
2007) (“Courts are poorly positioned to decide which religious practices are
‘central’ to any given faith tradition or any given believer; therefore,
30
increasingly free exercise jurisprudence has emphasized deference to
individuals’ professed beliefs, so long as there is no reason to doubt their
sincerity.”).5 Courts recognize that it is improper to tread into the religious
morass areas to doubt one’s devout beliefs.
Despite this prohibition, the district court held that because West
testified that “it violates his religious beliefs for him to be seen naked by people
of any sex if those people are not his wife, he cannot establish that a single
incident of a transgender man seeing him naked imposed a substantial burden
on the exercise of his religion.” (App. at 37.) The district court cannot make
such a factual determination. The district court ignored West’s testimony that
being seen naked by someone of the opposite sex is a more serious violation of
Islam’s nudity taboos. (Dkt. 27 at 9–10 (33:4–11).) The district court also took
for granted West’s testimony that he has not challenged being strip searched
by men because he understands it to be necessary to the prison system and
Islam imposes on him a duty to avoid unnecessary conflict. (Id. at Dkt. 27 at
9–10 (39:12–15).)
The trial court improperly confronted the question of the relative
severity of violating Islam’s nudity taboos prohibiting the exposure of one’s
nakedness before members of the same sex and members of the opposite sex,
31
determining that they are equal violations under Islamic law. The district
court erred again by factoring its presumption into its analysis of whether
West’s religious exercise was substantially burdened.
C. The Drial Court Erred by Holding that Defendants Satisfied Their

“Demanding” Burden of Establishing the Prison’s Policy is the
Least Restrictive Means to Achieve a Compelling Governmental
Interest.
RLUIPA cannot be clearer. Once the inmate has established that a
prison policy substantially burdened his religious exercise, the burden shifts
to the defendants to prove that the policy is the least restrictive means to
achieve a compelling governmental interest. 42 U.S.C. § 2000cc-1(a)(1)–(2).
The Supreme Court has stressed that “[r]equiring a State to demonstrate a
compelling interest and show that it has adopted the least restrictive means of
achieving that interest is the most demanding test known to constitutional
law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Furthermore, “RLUIPA
requires [courts] ‘to scrutinize[e] the asserted harm of granting specific
exemptions to particular religious claimants’ and ‘to look to the marginal
interest in enforcing’ the challenged government action in that particular
context.” Holt, 574 U.S. at 363 (quoting Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682, 726–27 (2014)). Here, this means Defendants must demonstrate
that forcing West to submit to cross-sex strip searches—violating Islam’s
nudity taboos—on the four to five occasions per year when he must be strip
32
searched is the least restrictive means to ensure: (1) efficient prison
administration and (2) avoiding liability under the Equal Protection Clause for
treating employees differently based on sex. See Holt, 574 U.S. at 363.
The district court failed by refusing to undertake this analysis. Instead,
the court noted generally that efficient prison administration and avoiding
Equal Protection violations based on disparate treatment because of
transgender status—which is not the relevant issue here—are compelling state
interests. (App. at 40, 43.) The court then summarily concluded that it must
defer to prison administrators regarding matters of prison administration and
that any disparate treatment of an employee based on their transgender status
is a per se violation of the Equal Protection Clause. (Id.) The district court erred
in both respects.
1. Defendants Made No Showing that the Prison’s Unofficial

Scheduling Policy Was the Least Restrictive Means of Achieving
Efficient Prison Administration.
The district court erred in holding that “assigning Buhle to the same
duties as cisgender male officers was the least restrictive means of serving the
prison’s need for effective management.” The court unquestioningly deferred
to Defendants’ assertion that “if inmates were able to decline a search based
on their perception of the searching staff member’s gender, it would be
‘logistically impossible’ for them to post assignments.” (App. at 42–43
(emphasis added).)
33
The Supreme Court has acknowledged, “Prison officials are experts in
running prisons and evaluating the likely effects of altering prison rules, and
courts should respect that expertise.” Holt, 574 U.S. at 364. Nevertheless, the
Supreme Court has stressed that “respect does not justify the abdication of the
responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard.”
Id. Courts may not unquestioningly accept the assertions of prison officials
regarding what is and is not necessary to maintain efficient prison
administration. Id.
Defendants allege that “[i]t would be logistically impossible to manage
post assignments [of corrections officers] if an inmate were allowed to dictate
who was allowed to strip search him based on whether the person does not
conform to binary definitions of gender.” (Dkt. 29 at 14 (emphasis added).) The
only evidence the Prison provided in support of this argument is that:
First shift at [the Prison] has approximately 69 uniformed staff

posts, and second shift has approximately 56 uniform staff posts.
These staff members are located throughout the institution with
different areas of responsibility and supervision. 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. 29 at 14.)
Defendants’ conclusory and self-serving statement is insufficient. To
establish that a practice “is the least restrictive means, [Defendants] must
show that [they] ‘actually considered and rejected the efficacy of less restrictive
34
measures before adopting the challenged practice.’” Jova v. Smith, 582 F.3d
410, 416 (2d Cir. 2009) (quoting Warsoldier v. Woodford, 418 F.3d 989, 999 (9th
Cir. 2005)). Defendants have made no such showing. Nevertheless, the district
court held that:
The only way for the defendants to avoid the possibility of Buhle
strip searching an inmate whose religious beliefs might be
offended, or acting as the observing officer when someone else strip
searches an inmate whose religious beliefs might be offended,
would be to assign Buhle to a position where he never would be
required to participate in strip searches, or to assign him to an
area of the prison where there were no inmates whose religious
beliefs might be offended.
(App. at 42.) This finding is contradicted by the record and common sense.
Accommodating West’s religious exercise is not only possible, but simple.
The evidence in the record establishes at least two other means of
accommodating West’s observance of Islam’s nudity taboos without burdening
prison administration. First, the record establishes that the strip-search room
at the Prison has four or five three-sided stalls that provide inmates a modicum
of privacy during strip searches. (Dkt. 27 at 5 (18:14–15; 19:1–15).) Anyone
standing directly in front of the open side of a stall or several feet to either side
of the stall can see the inmate inside. (Id. at 5 (19:21–23).) But if someone
stands a sufficient distance to one side of the stall, his or her view of the inmate
would be obstructed. (Id. at 8 (29:6–25; 30:1–5).) West testified that Buhle has
conducted strip searches of other inmates while West was being strip searched
35
by other officers and could not be seen by Buhle during that search—thereby
avoiding a nudity-taboo violation. (Id.)
Furthermore, there were at least two other officers whose sex is male
who were conducting strip searches when West objected to being searched by
Buhle. (Dkt. 27 at 7, 10 (25:22–25; 26:1; 27:12–15; 38:18–20).) And there is no
evidence that there are not always at least two other officers simultaneously
strip searching inmates who could have strip searched West. This would allow
Buhle to strip search another inmate out of sight of West. There is no evidence
that efficient prison administration necessitated Buhle’s participation in
West’s strip search.
Second, the DOJ’s PREA regulations prohibit prisons from assigning
female corrections officers to strip search male inmates absent exigent
circumstances. 28 C.F.R. § 115.15(a). Therefore, the Prison must already have
established procedures to avoid scheduling cross-sex strip searches that could
be easily applied in Buhle’s case. Even if applying this scheduling policy to
Buhle would be minimally burdensome to the Prison, RLUIPA acknowledges
and accepts that compliance with its terms “may require a government to incur
expenses in its own operations to avoid imposing a substantial burden on
religious exercise.” 42 U.S.C. § 2000cc-3(c). (See Dkt. 27 at 5 (20:10–23).)
Moreover, Defendants’ argument regarding their inability to schedule
Buhle differently from other male officers to accommodate West’s religious
36
exercise also fails as it relies on Johnson v. Phelan, 69 F.3d 144, 146–47 (7th
Cir. 1995). Johnson held that prisoners do not retain any right of privacy under
the Fourth Amendment, and as such, prisoners have no privacy interest on
which to base an objection to being viewed naked by a member of the opposite
sex. Id. In 2020, however, this Court expressly overruled Johnson’s holding
that prisoners forfeit all Fourth Amendment privacy rights with respect to
visual inspections by virtue of their incarceration. Henry, 969 F.3d at 781.
Besides, in 2008, the DOJ enacted regulations under PREA prohibiting cross-
sex strip searches to address a scourge of prison rapes and to maintain the
privacy and dignity of prisoners. 34 U.S.C. § 30301 et seq.; National Standards
to Prevent, Detect, and Respond to Prison Rape, 76 Fed. Reg. 6248, 6253 (Feb.
3, 2011). These events bely Defendants’ reliance on Johnson. See 28 C.F.R.
§ 115.15(a).
So “without a degree of deference that is tantamount to unquestioning
acceptance, it is hard to swallow the argument that” denying West an
accommodation for his religious exercise would render it “logistically
impossible” to manage post assignments of corrections officers. See Schlemm
v. Wall, 784 F.3d 362, 365 (7th Cir. 2015) (“Saving a few dollars is not a
compelling interest, nor is a bureaucratic desire to follow the prison system’s
rules.”) The district court erred in holding that the prison’s policy is the least
restrictive means of achieving effective prison management.
37
2. Prohibitions On Cross-Sex Strip Searches Do Not Violate the

Equal Protection Clause.
The district court also erred in holding that Defendants satisfied their
burden of proving that forcing West to violate Islam’s nudity taboo by
submitting to strip searches conducted by corrections officers whose sex is
female is the least restrictive means of avoiding Equal Protection violations.
The court and Defendants incorrectly assume that disparate treatment is
never permissible under the Equal Protection Clause, which is incorrect.
The Equal Protection Clause requires that “all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). The Supreme Court has held that when a policy is based on a
sex-based classification, the defender of the classification must show that “the
classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement
of those objectives.” U.S. v. Virginia, 518 U.S. 515, 524 (1996).
Here, West is asking the Prison to grant him an accommodation, as
described above at 34–35, based on the sex of the corrections officer strip
searching him. This Court has already held that such a sex-based
accommodation designed to preserve the rights of inmates does not violate an
employee’s right to equal employment opportunity. See Canedy, 16 F.3d at 188.
As this Court explained, when there is tension between the rights of corrections
38
officers and inmates, courts must consider the respective imposition to those
rights and make a reasonableness determination. Id. at 187–88. One does not
simply trump the other.
In Canedy, this Court considered whether prohibiting cross-sex strip
searches should be prohibited to preserve the privacy rights of inmates when
such a prohibition would impinge upon the right of corrections officers to equal
employment opportunities regardless of their sex. Id. at 168. Balancing those
interests, the Court determined that in the context of a strip search—“one of
the clearest forms of degradation in Western Society”—a slight disparity in the
tasks assigned to male and female corrections officers was reasonable. Id. at
187–88.
West’s right to exercise his religion is guaranteed by RLUIPA to the
“maximum extent permitted by [RLUIPA’s terms] and the Constitution.” 42
U.S.C. § 2000cc-3(g). Without the accommodation West requests, he will be
unable to avoid violating Islam’s cross-sex nudity taboo and consequently
severe punishment in the hereafter. (Dkt. 27 at 8, 10 (32:18–21; 39:12–15).)
The burden on Buhle’s rights to be free of disparate treatment based on sex is
comparatively small. One possible accommodation would require no change to
Buhle’s schedule. It would only require Buhle to switch responsibilities to
searching another inmate—who would presumably be only a few feet away.
See supra, at 34. Even if accommodating West’s religious exercise by imposing
39
a sex-based classification required modifying Buhle’s schedule on the four to
five times per year West is strip searched, such an accommodation would be
reasonable in light of enormous imposition that not providing such an
accommodation would impose on West. (Dkt. 27 at 5 (20:10–23).) See Tipler v.
Douglas Cty., 482 F.3d 1023, 1028 (8th Cir. 2007) (holding policy of assigning
a certain number of female corrections officers to each shift at a prison did not
violate the Equal Protection Clause).
Since the DOJ enacted regulations under PREA, the undersigned
counsel has found no case where a court has held that sex-based restrictions
on strip searches violate the Equal Protection Clause.6 The Court erred in
holding that Defendants satisfied their burden of proving that strict
enforcement of the unofficial scheduling policy was the least restrictive means
to avoid violating the Equal Protection Clause. This Court should reverse and
remand for further proceedings.
6 Defendants relied exclusively on Johnson, 69 F.3d at 146, which states

“cross-sex monitoring reduces the need for prisons to make sex a criterion
of employment, and therefore reduces the potential for conflict with Title
VII and the equal protection clause” in support of its holding that cross-sex
observation of naked prisoners does not violate the Eighth Amendment.
This case is no longer good law. Supra, at 35–36.
40
II. The District Court Erred by Screening Out West’s Fourth Amendment
Claim Because the Fourth Amendment Protects an Inmate’s Right to Be
Free from Unreasonable Strip Searches.
The district court erred in screening out West’s Fourth Amendment
claim as frivolous because the Seventh Circuit has held that the “Fourth
Amendment protects a right to bodily privacy for convicted prisoners, . . .
including during visual inspections.” Henry, 969 F.3d at 779; see also Forbes
v. Trigg, 976 F.2d 308, 312 (7th Cir. 1992) (noting “prison inmates retain
protected privacy rights in their bodies, although these rights do not extend to
their surroundings”). (App. at 8–9.)
In Henry, this Court noted that the Seventh Circuit has not always been
clear regarding the scope of Fourth Amendment protection as it applies to
inmates. 969 F.3d at 782. And due to that uncertainty, the district court
screened out West’s Fourth Amendment claim as frivolous under 28 U.S.C.
§ 1915A(b). (App. at 8–9.) In reaching this conclusion, the court cited King v.
McCarty, 781 F.3d 889, 900 (7th Cir. 2015), which held that the Fourth
Amendment protects prisoners only from “unreasonable intrusions into their
bodies.” (App. at 8–9.) This Court has expressly overruled King in the
intervening time since the district court screened West’s Amended Complaint.
Henry, 969 F.3d at 782. The Court noted that limiting the Fourth
Amendment’s protection to prevent unreasonable body cavity searches and not
unreasonable strip searches “promotes a distinction without a difference . . . .”
41
Instead, the Fourth Amendment protects . . . an inmate’s right to bodily privacy
during visual inspections, subject to reasonable intrusions that the realities of
incarceration often demand.” Id. at 779.
The district court erred in screening out West’s Fourth Amendment
claim as frivolous. It should instead have “assess[ed] th[e] search for its
reasonableness, considering the scope of the particular intrusion, the manner
in which it is conducted, the justification for initiating it, and the place in which
it is conducted.” Henry, 969 F.3d at 779 (internal citations and quotations
omitted). In conducting this analysis, “courts must afford prison
administrators”:
wide-ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security. Thus, in the absence of substantial evidence in the record
to indicate that the officials have exaggerated their response to
these considerations, courts should ordinarily defer to their expert
judgment in such matters.
Henry, 969 F.3d at 783.
West alleges that the Prison’s unofficial scheduling policy violates his
Fourth Amendment right to be free of unreasonable strip searches because it
permits cross-sex strip searches. This Court has already held that the
Constitution protects inmates “against invasion of their privacy by members
of the opposite sex.” Canedy, 16 F.3d at 186. The King court determined that
the privacy interests in Canedy were based on an inmate’s privacy interests
42
under the Eighth Amendment. 781 F.3d at 900. But the Henry court found also
that the King court’s interpretation of Canedy was wrong and that Canedy did
indeed concern the Fourth Amendment privacy rights of prisoners. Henry, 969
F.3d at 782–83.
The only justifications Defendants have proffered for the Prison’s
unofficial strip search policy, which permits cross-sex strip searches, are: (1)
efficient prison administration and (2) avoiding violating the right of
transgender guards to equal employment opportunities under Title VII and the
Equal Protection Clause. (App. at 38.) As discussed above, there is substantial
evidence in the record to establish that Defendants have exaggerated their
response to these considerations by refusing to make any modifications to the
schedules of transgender guards whose sex does not correspond with his or her
gender identity. See supra, at 32–39.
First, Defendants’ position that “[i]t would be logistically impossible to
manage post assignments [of corrections officers] if an inmate were allowed to
dictate who was allowed to strip search him based on whether the person does
not conform to binary definitions of gender” (Dkt. 29 at 14 (emphasis added)),
is belied by the fact that the Prison modifies the schedules of female corrections
officers on a daily basis to comply with PREA’s prohibition on cross-sex strip
searches. Second, this Court has already determined that a corrections officer’s
right to equal employment opportunities is not violated by a scheduling policy
43
that prohibits cross-sex strip searches because an officer’s right to equal
opportunity (whether protected by Title VII or the Equal Protection Clause)
must bend to protect an inmate’s constitutional privacy interest in avoiding
cross-sex strip searches. Canedy, 16 F.3d at 187–188 (“[W]here it is reasonable
to respect an inmate’s constitutional privacy interests, doing so is not just a
palliative to be doled out at the state’s indulgence. It is a constitutional
mandate.”) Therefore, the Court should reverse and remand the district court’s
order screening out West’s Fourth Amendment privacy claim.
CONCLUSION
For the above reasons, the Court should (i) reverse the district court’s
order granting summary judgment to Defendants on West’s RLUPIA claim,
and (ii) reverse the district court’s screening order to the extent it struck West’s
Fourth Amendment privacy claim. The Court should remand the case to the
district court for further proceedings and grant West any other necessary relief
as is just and proper.
Dated: May 7, 2021. Respectfully submitted,
/s/ Nicholas A. Gowen

Counsel for Plaintiff-Appellant

Burke, Warren, MacKay & Serritella, P.C.
330 N. Wabash Avenue, Suite 2100
Tel: (312) 840-7000 / Fax: (312) 840-7900
44
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF

APPELLATE PROCEDURE 32 AND SEVENTH CIRCUIT RULE 32
This brief complies with the type-volume limit of Fed. R. App.
P. 32(a)(7)(B) and Cir. R. 32(c) because, excluding the parts of the brief
exempted by Fed. R. App. P. 32(f), this brief contains 9,811 words.
This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) and Cir.
R. 32(c) because this brief has been prepared in a proportionally spaced type
face using Microsoft Word for Office 365 in 13-point Century font.
Dated: May 7, 2021. /s/ Nicholas A. Gowen

Nicholas A. Gowen
45
CERTIFICATE OF SERVICE
I certify that on May 7th, 2021, I electronically filed the foregoing Brief
of Plaintiff-Appellant 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.

Nicholas A. Gowen
46
CERTIFICATE OF COMPLIANCE WITH SEVENTH CIRCUIT RULE 30(B)

I certify that the appendix complies with Cir. Rule 30(a)–(b). Because
the appendix is longer than fifty (50) pages, this document is separately filed
and served in accordance with Circuit Rule 30(b)(7).

Nicholas A. Gowen
47
No. 20-1570
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 Honorable Pamela Pepper, Presiding
APPELLANT’S APPENDIX
Dated: May 7, 2021 BURKE, WARREN, MACKAY & SERRITELLA, P.C.

Suite 2100
Tel: (312) 840-7000 / Fax: (312) 840-7900

TABLE OF CONTENTS FOR APPELLANT’S APPENDIX
Order Screening Amended Complaint

Case No. 3:17-CV-482-PP, ECF Dkt. 16 (filed July 31, 2018)……….....….App. 1
Order Granting Defendants’ Motion for Summary Judgment, Denying

Plaintiff’s Motion for Summary Judgment, and Dismissing Case
Case No. 3:17-CV-482-PP, ECF Dkt. 67 (filed March 9, 2020)…..…….…App. 14
Judgment in a Civil Case

Case No. 3:17-CV-482-PP, ECF Dkt. 68 (filed March 9, 2020)…….…..…App. 52
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RUFUS WEST,
Plaintiff,
v. Case No. 17-cv-482-pp
JOHN KIND, WARDEN SCOTT ECKSTEIN,

PETE ERICKSEN, BRAD HOMPE,
CINDY O’DONNELL, JOHN AND JANE DOE,
and CO BUHLE,
Defendants.
______________________________________________________________________________
ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 15)

______________________________________________________________________________
Plaintiff Rufus West is a prisoner representing himself. He filed a
complaint alleging that the defendants violated his constitutional rights. Dkt.
No. 1. The court screened the complaint, found that it violated federal
procedural rules because it tried to bring unrelated claims in a single case, and
directed the plaintiff to file an amended complaint if he wanted to proceed. Dkt.
No. 14 at 7-9. The plaintiff has filed an amended complaint, which this order
screens under 28 U.S.C. §1915A.
I. Screening the Plaintiff’s Amended Complaint
A. Federal Screening Standard
The law requires the court to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or employee of a
governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint
Case 2:17-cv-00482-PP Filed 07/31/18 Page 1 of 13 Document 16 App. 1

if the plaintiff raises claims that are legally “frivolous or malicious,” that fail to
state a claim upon which the court can grant relief, or that seek monetary relief
from a defendant who is immune that relief. 28 U.S.C. §1915A(b).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim under 42 U.S.C. §1983, a plaintiff must allege that 1)
someone deprived him of a right secured by the Constitution or laws of the
United States; and 2) that person was acting under color of state law.
Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004));
see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court gives a pro se
plaintiff’s allegations, “however inartfully pleaded,” a liberal construction. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
B. The Plaintiff’s Allegations
The plaintiff in custody at the Green Bay Correctional Institution (GBCI).
Dkt. No. 15 at 1. He has sued GBCI Security Director John Kind, GBCI Warden
Scott Eckstein, Pete Ericksen, Corrections Complaint Examiner Brad Hompe,
Case 2:17-cv-00482-PP Filed 07/31/18 Page 2 of 13 Document 16App. 2

Department of Corrections Secretary Cindy O’Donnell, Officer Buhle and John
and Jane Doe. Id.
The plaintiff alleges that in 1995 he embraced Islam. Id. at 2. He states
that Islamic law prohibits him from exposing his nakedness to anyone except
his wife. Id. The plaintiff also states that under Islamic law, “males and females
are identified and determined by the sex that Allah (i.e., the Creator) created
them with at birth.” Id. He alleges that he has been in prison since 1994, and
has never been strip searched by a female staff member. Id. at 3.
According to the plaintiff, prison staff will forcibly strip-search a prisoner
who refuses to voluntarily comply; they restrain the prisoner, cut off his
clothes, and examine his naked body by touching him everywhere—“including
under his penis, around his testicles, and in between his buttocks by
spreading them.” Id. On the other hand, a prisoner who complies with a strip
search receives instructions to remove his clothes and follow commands, such
as “[o]pen your mouth. Show me your armpits. Show me behind your ears. Lift
your penis. Now lift your sack (i.e., testicles). Alright turn around and bend
over at the waist and spread your butt cheeks. Now show me the bottoms of
your feet and wiggle your toes.” Id.
The plaintiff says that on July 2, 2016, after a visit with a friend, he went
to the strip search area to be strip searched under a policy that requires all
prisoners to submit to a strip-search after a contact visit. Id. Several officers
were conducting strip searches. Id. According to the plaintiff, when it was his
turn to be strip searched, defendant Buhle, a female correctional officer,

approached him and ordered him to strip. Id. The plaintiff states that he asked
defendant Buhle how she was able to do that and she responded, “I’m a dude.”
Id. The plaintiff says he looked at the other correctional officers, “to see if this
was a prank,” but that they avoided eye contact with him. Id. He alleges that at
this point, he “started to panic because he knew that Officer Buhle was a
female based on her female features (breasts, face, voice and demeanor) and
that exposing his nakedness to her would be in violation of his Islamic beliefs,
and also that if he refused to comply with the strip search he would be
subjected to the “abuse and humiliation” of a non-compliance strip-search. Id.
at 3-4. The plaintiff says that he repeated his question to defendant Buhle, that
she answered the same way and his “panic intensified.” Id. at 4. The plaintiff
alleges that he asked the nearby male officers if one of them would strip search
him, “which one of them did, while she looked on and observed.” Id.
The plaintiff indicates that “[i]t was later brought to [his] attention that
Officer Buhle is a female claiming to be a male and therefore is afforded all of
the duties that the male officers perform without discrimination.” Id. at 4.
The plaintiff alleges that in anticipation of another encounter with
defendant Buhle, he wrote defendants Kind and Eckstein and requested an
“[e]xemption from exposing my nakedness to the opposite sex [ . . . ] because it
is against Islam.” Id. On July 12, 2016, defendant Eckstein allegedly denied the
plaintiff’s request:
I have reviewed your correspondence and have also

discussed your concerns with our Security Director. I have
reviewed the situation and the officer in question is a male and is
qualified to complete these duties. If in the future you are directed
4

to submit to a strip search by this individual or any other male

staff member it is my expectation that you will comply.
Id. at 4-5. The plaintiff alleges that in his denial of the plaintiff’s request,
defendant Kind stated, “This person is a male and any further issues on this
will result in discipline for you.” Id. at 5.
The plaintiff states that on September 13, 2016, defendant Hompe
responded to the plaintiff’s complaint about the strip search incident by
approving the strip search and “further failed to intervene on the plaintiff’s
behalf.” Id. On September 29, 2016, defendant O’Donnell allegedly responded
to the plaintiff’s complaint about the strip search incident by approving the
strip search and “further failed to intervene on the plaintiff’s behalf.” Id.
The plaintiff claims that the defendants’ actions violated his right to be
free from the illegal strip search that was “demeaning, dehumanizing,
undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive,
signifying degradation and submission.” Id. He states that the strip search
“was conducted as part of a course of calculated harassment intended to
humiliate and inflict psychological pain unrelated to prison needs.” Id. The
plaintiff claims that “[t]he strip search violated [his] rights to practice Islam by
not being subjected to illegal strip searches, and violated the [Religious Land
Use and Institutionalized Persons Act] via failing to accommodate [the plaintiff]
by not imposing the illegal strip search on him.” Id. The plaintiff also claims
that the strip search violated [his] right to not have the female officer’s issue of
claiming to be a male trump [the plaintiff’s] right to practice Islam by not
having her strip search him.” Id. The plaintiff contends that the defendants’
5

actions violated the First, Fourth, Eighth, Ninth and Fourteenth Amendments
to the United States Constitution, the Wisconsin Constitution, the RLUIPA and
the Wisconsin Department of Corrections’ rules and policies. Id.
The plaintiff seeks injunctive relief prohibiting the defendants from
allowing female staff to strip search him, $1,000,000 from each defendant and
appointment of counsel. Id. at 6.
C. The Court’s Analysis
The plaintiff alleges that defendant Buhle is a biological female who
claims to be a male, and that GBCI treats Buhle as a male. The plaintiff alleges
that because GBCI treats Buhle as a male, Buhle observed his strip search,
violating the plaintiff’s religious right not to be seen naked by a member of the
opposite sex. The plaintiff does not allege that defendant Buhle conducted the
strip search; he says that when the plaintiff objected to Buhle conducting the
strip search, a male officer stepped in and conducted the search. The plaintiff’s
account of his correspondence with defendants Kind, Eckstein, Hompe and
O’Donnell, however, shows that it is possible that Buhle could demand to strip-
search the plaintiff in the future, and that GBCI would expect the plaintiff to
comply with the strip search.
Prisoners have a right freely to exercise their religious beliefs. Canedy v.
Boardman, 91 F.3d 30, 33 (7th Cir. 1996) (citing O’Lone v. Estate of Shabazz,
482 U.S. 342, 348 (1987)). To prove that prison staff violated his free-exercise
rights under the First Amendment, a defendant must show that the defendants
“personally and unjustifiably placed a substantial burden on his religious

practices.” Thompson v. Holm, 809 F.3d 376, 379 (7th Cir. 2016) (citations
omitted). A “substantial burden” is one that “put[s] substantial pressure on an
adherent to modify his behavior and to violate his beliefs.” Id. (quoting Thomas
v. Review Bd., 450 U.S. 707, 717-17 (1981)). “A burden is unjustified if it is not
reasonably related to a legitimate penological interest.” Id. at 380 (citing Turner
v. Safley, 482 U.S. 78, 89-91 (1987)).
At this early stage, the plaintiff has alleged sufficient facts to allow him to
proceed on a claim that Buhle, Kind and Eckstein violated his right freely to
exercise his religion, by subjecting him to pressure to violate his beliefs by
submitting to a strip-search in front of, or by, an allegedly female officer.
“RLUIPA prohibits prisons receiving federal funds from imposing a
substantial burden on an inmate’s religious exercise unless prison officials can
demonstrate ‘that imposition of the burden on that person (1) is in furtherance
of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.’” Koger v. Bryan, 523 F.3d
789, 796 (7th Cir. 2008) (quoting 42 U.S.C. §2000cc-1(a)(1)-(2)). Assuming that
GBCI receives federal funds, the plaintiff has alleged that Buhle, Kind and
Eckstein imposed a substantial burden on his First Amendment free exercise
rights. He has also alleged that there was no compelling government interest in
having Buhle search him, or observe the search; there were male officers
available in the strip search area. The plaintiff may proceed on his RLUIPA
claim against Buhle, Kind and Eckstein.

The plaintiff has not alleged facts to support an Eighth Amendment
cruel-and-unusual-punishment claim. “A strip-search in jail or prison can be
cruel and unusual punishment.” King v. McCarty, 781 F.3d 889, 897 (7th Cir.
2015). An inmate can prevail on an Eighth Amendment claim if the strip-
search was “motivated by a desire to harass or humiliate rather than by a
legitimate justification.” Id. (citations omitted). The plaintiff must show “that
the defendants acted without a legitimate correctional purpose and for the
purpose of humiliating him and/or subjecting him to gratuitous psychological
injury.” Id. at 899 (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)). Even if a
strip-search is justified, it still might violate the plaintiff’s Eighth Amendment
rights if it was “conducted in a harassing manner intended to humiliate and
cause psychological pain.” Mays v. Springborn, 575 F.3d 643, 649 (7th Cir.
2009). See also Fillmore v. Page, 358 F.3d 496, 505 (7th Cir. 2004); Calhoun v.
DeTella, 319 F.3d 936, 939 (7th Cir. 2003).
The plaintiff does not allege that Buhle threatened to search him—or
watched the search—to humiliate him. His own facts reveal that when he asked
if a male officer could search him instead of Buhle, Buhle stepped aside. The
plaintiff claims that the reason for his exposure in front of Buhle had to do with
the institution’s decision to treat Buhle as a male. These facts do not support a
claim under the Eighth Amendment.
Nor has the plaintiff alleged fact to support a Fourth Amendment claim.
“[T]he Fourth Amendment protects, to some degree, prisoners’ bodily integrity
against unreasonable intrusions into their bodies.” King, 781 F.3d at 900

(citations omitted). The plaintiff has not alleged that the defendants searched
the inside his body.
The Ninth Amendment states that “[t]he enumeration in the Constitution
of certain rights shall not be construed to deny or disparage others retained by
the people.” U.S. CONSTITUTION, AMENDMENT IX. The court does not know why
the plaintiff believes the defendants violated this amendment. “The Ninth
Amendment is a rule of interpretation rather than a source of rights.” Froehlich
v. State, Dep’t of Corr., 196 F.3d 800, 801 (7th Cir. 1999) (citing Quilici v. Vill.
of Morton Grove, 695 F.2d 261, 271 (7th Cir. 1982) and other cases). “Its
purpose is to make clear that the enumeration of specific rights in the Bill of
Rights is not intended . . . to deny the existence of unenumerated rights.” Id.
(citing Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991)). The plaintiff
has no Ninth Amendment claim.
The plaintiff has not explained how the facts he alleges violated the
Fourteenth Amendment, but it is possible that he believes that Buhle, Kind
and Eckstein discriminated against him because of his faith, denying him
equal protection of the laws. The plaintiff’s First Amendment claim covers this
allegation, and “gains nothing by attracting additional constitutional labels.”
Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (citing Graham v. Connor,
490 U.S. 386, 395 (1989) (“constitutional claims must be addressed under the
most applicable provision”)). The court will not allow the plaintiff to proceed on
a Fourteenth Amendment equal protection claim.

The plaintiff alleges that the defendants’ actions “are contrary to the 1st,
4th, 8th, 9th and 14th Amendments . . . to the Wisconsin Constitution.” Dkt.
No. 15 at 5. The Wisconsin Constitution does not have “amendments,” and the
plaintiff does not allege that the defendants violated any specific article or
section of that document. The court will not allow him to proceed on Wisconsin
constitutional claims. He also says that the defendants violated Department of
Corrections rules and policies, but does not say which ones. The court will not
allow him to proceed on that claim.
The plaintiff has sued Hompe, a complaint examiner who he says
“approved” the search, and O’Donnell, who he says “approved the search” two
weeks after Hompe. He also says that Hompe and O’Donnell failed to intervene
on his behalf. A plaintiff may hold a prison official liable for failing to intervene,
if he or she “fails to act with a deliberate or reckless disregard of the plaintiff’s
constitutional rights.” Fillmore v. Page, 358 F.3d 496, 506 (7th Cir. 2004)
(quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982)). A plaintiff
asserting that a defendant failed to intervene must show that “the defendant
knew about the [constitutional] violation and facilitated it, approved it,
condoned it or turned a blind eye for fear of what he or she might see.”
Koutnick v. Brown, 351 F. Supp. 2d 871, 876 (W.D. Wis. 2004) (citing Morfin v.
City of Chi., 349 F.3d 989, 1001 (7th Cir. 2003)). While it is a close call as to
the two complaint examiners, at this early stage, the court will allow the
plaintiff to proceed on a claim that Hompe and O’Donnell failed to intervene in
10

the alleged violation of his First Amendment free exercise rights and his rights
under RUILPA.
The plaintiff will not allow the plaintiff to proceed on any claims against
Pete Ericksen, John Doe or Jane Doe. He does not explain who these
defendants are—were they correctional officers? Prison administrators?—or
what they did to violate his rights.
D. The Plaintiff’s Request for Counsel
In the “Relief” section of his amended complaint, the plaintiff asks the
court to appoint a lawyer to represent him. Dkt. No. 15 at 6. In a civil case, the
court may decide whether to recruit an attorney for someone who cannot afford
one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C §1915(e)(1);
Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
First, however, the person must make a reasonable effort to hire private
counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). In this
district, a plaintiff must contact at least three attorneys trying to hire counsel
on his own. He must provide the court with the names of the attorneys he
contacted as well as the dates of contact and copies of any letters the plaintiff
received in response to the contact.
After the plaintiff makes that reasonable attempt to hire counsel, the
court decides “whether the difficulty of the case—factually and legally—exceeds
the particular plaintiff’s capacity as a layperson to coherently present it.”
Navejar, 718 F.3d at 696 (citing Pruitt, 503 F.3d at 655). To decide that, the
court looks not only at the plaintiff’s ability to try his case, but also at his
11

ability to perform other “tasks that normally attend litigation,” such as
“evidence gathering” and “preparing and responding to motions.” Id.
The plaintiff has not told the court why he needs a lawyer at this stage.
Previously, when it screened the original complaint, the court found that the
plaintiff had made a reasonable attempt to find an attorney on his own. Dkt.
No. 14 at 11. The plaintiff’s amended complaint, however, is clear and easy to
understand. He followed the instructions in the court’s screening order well. He
has extensive experience litigating in federal court. Given that, the court finds
that the plaintiff can represent himself right now.
II. Conclusion
The court DISMISSES defendants Ericksen, John Doe and Jane Doe.
The court DENIES WITHOUT PREJUDICE the plaintiff’s request to
appoint counsel.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court ORDERS the clerk’s office electronically to
send copies of the plaintiff’s amended complaint (Dkt. No. 15) and this order to
the Wisconsin Department of Justice for service on defendants Kind, Eckstein,
Hompe, O’Donnell and Buhle.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court ORDERS defendants Kind, Eckstein,
Hompe, O’Donnell and Buhle to file a responsive pleading to the amended
complaint within sixty days of receiving electronic notice of this order.
12

The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
Dated in Milwaukee, Wisconsin this 31st day of July, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
13


______________________________________________________________________________
RUFUS WEST,
Plaintiff,
v. Case No. 17-cv-482-pp
JOHN KIND, WARDEN SCOTT ECKSTEIN,

BRAD HOMPE, CINDY O’DONNELL,
and ISAAC BUHLE,
Defendants.
______________________________________________________________________________
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

(DKT. NO. 28), DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 42) AND DISMISSING CASE
______________________________________________________________________________
Plaintiff Rufus West is a prisoner representing himself. The court
screened his amended complaint and allowed him to proceed on a claim that
defendants Isaac Buhle, John Kind and Scott Eckstein violated his right to
freely exercise his religion, subjecting him to pressure to violate his beliefs by
submitting to a strip-search in front of, or by, an allegedly female officer. Dkt.
No. 16 at 7. The court also permitted the plaintiff to proceed on a Religious
Land Use and Institutionalized Persons Act claim based on allegations that
Buhle, Kind and Eckstein imposed a substantial burden on his First
Amendment free exercise rights and that there was no compelling interest in
having Officer Buhle search him or observe the search. Id. Finally, the court
allowed the plaintiff to proceed on claims against defendants Brad Hompe and
Cindy O’Donnell for allegedly failing to intervene in the violation of the
plaintiff’s rights. Id. at 10-11.

The parties have filed cross-motions for summary judgment. Dkt. Nos.
28, 42.
I. Facts
The plaintiff has been a prisoner at Redgranite Correctional Institution
since February 2019. Dkt. No. 30 at ¶1; Dkt. No. 43 at ¶¶1, 8. Before that, and
on July 2, 2016, the plaintiff was confined at Green Bay Correctional
Institution. Dkt. No. 30 at ¶1; Dkt. No. 43 at ¶7. Defendant Officer Isaac Buhle
is a correctional officer at Green Bay. Dkt. No. 30 at ¶2; Dkt. No. 43 at ¶4.
Defendant John Kind is the security director at Green Bay. Dkt. No. 30 at ¶3;
Dkt. No. 43 at ¶2. Defendant Scott Eckstein was the warden at Green Bay
during the events described in the complaint. Dkt. No. 30 at ¶4; Dkt. No. 43 at
¶3. Defendant Bradley Hompe is a corrections complaint examiner for the
Department of Corrections. Dkt. No. 30 at ¶5; Dkt. No. 43 at ¶5. Defendant
Cindy O’Donnell is the policy initiatives advisor and the secretary’s designee for
the purpose of making final agency decisions on offender complaints filed by
inmates under the inmate complaint review system. Dkt. No. 30 at ¶6; Dkt. No.
43 at ¶6.
The plaintiff, who is a male, embraced Islam in 1995. Dkt. No. 43 at
¶¶9,11. The plaintiff asserts that Islamic law prohibits the plaintiff from
exposing his nakedness to anybody, but especially to females, as defined by
genitalia at birth. Dkt. No. 30 at ¶7; Dkt. No. 43 at ¶12. The plaintiff says that
although he has been imprisoned since 1994, he never had been strip searched
by a female staff member. Dkt. No. 43 at ¶16.

Although Buhle was assigned female at birth, he identifies as a man.
Dkt. No. 30 at ¶12. Green Bay hired Buhle as a male officer in January 2016.
Id. at ¶35. 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.” Id. When he was hired, Buhle was told his duties would
include all the duties of a male officer, including performing routine strip
searches as needed. Id. at ¶36. The defendants assert that the plaintiff
assumed, when Buhle started at Green Bay, that Buhle was a woman based on
Buhle’s voice and appearance. Id. at ¶37.
On July 2, 2016, the plaintiff had a visit with a friend. Dkt. No. 30 at ¶8;
Dkt. No. 43 at ¶19. Afterward, he went to the strip search area for a routine
strip search under a policy requiring that all prisoners are strip searched after
contact visits with people from the street. Dkt. No. 43 at ¶19. Several officers
were conducting strip searches. Id. On July 2, 2016, he strip search room at
Green Bay contained several stalls to protect inmates’ privacy. Dkt. No. 30 at
¶16. Each stall had a curtain in the front to obscure inmates’ private areas
from view by people other than the officer performing the strip search. Id.
Buhle does not recall the July 2, 2016 strip search incident the plaintiff
described in his complaint. Dkt. No. 35 at ¶13. The plaintiff describes the
incident as follows:
When it was [the plaintiff’s] turn to be strip searched, he was the

last prisoner to be strip searched and the prisoners who were
present in the area were finishing getting dressed. It was during this
time that [the plaintiff] was approached by Buhle who attempted to
strip search him by ordering him to strip. [The plaintiff] asked her
how was she able to do that and she responded, “I’m a dude.” [The
3

plaintiff] looked at the male officers to see if this was a prank. They
looked at [the plaintiff] and then looked at the floor in order to avoid
eye contact with him. [The plaintiff] turned back to address Buhle,
realizing that it was not a prank and started to panic because he
knew that Buhle was a female based on her female features (breasts,
face, voice and demeanor, and addressing her in the past as “Ms.”
or “ma’am”) and that exposing his nakedness to her would be in
violation of his Islamic beliefs, and also that if he refused to comply
with the strip search he would be subjected to the abuse and
humiliation based on past experience that would result from staff
forcibly strip searching [the plaintiff] by cutting all of his clothes off;
physically examining his body by touching him everywhere-
including under his penis, around his testicles, and in between his
buttocks by spreading them; and then locking him up in punitive
segregation. [The plaintiff] repeated his question to Buhle and she
answered the same. [The plaintiff’s] panic intensified. He humiliated
himself by nervously asking the male officers, who had by this time
huddled close together adjacent to her, would one of them please
strip search him, which one of them did while she looked on and
observed.
Dkt. No. 43 at ¶20; Dkt. No. 30 at ¶¶9-10, 27-34. The defendants don’t dispute
much of this, but assert that the plaintiff hasn’t demonstrated that if he’d
refused, things would have happened as he says, and they dispute that Buhle
observed the strip search. Dkt. No. 52 at ¶20. The defendants also state that if
Buhle had observed, he would have been watching the officer who performed
the strip search, not the plaintiff. Id.
In the plaintiff’s additional proposed findings of fact, filed in response to
the defendants’ motion for summary judgment, the plaintiff adds to his
description of the strip search. Dkt. No. 48. He states that after the other
officer stepped in to strip search him, the officer asked the plaintiff, while
Buhle was standing right there, “What’s going on?” Dkt. No. 48 at ¶62. The

plaintiff states that he responded, “It’s against my religion for her to see me
naked.”1 Id.
On July 7, 2016, the plaintiff submitted an Interview/Information
Request to Kind and Eckstein to request an “Exemption from exposing
nakedness to the opposite sex [. . .] because it’s against Islam.” Dkt. No. 43 at
¶23. Several days later, Eckstein responded:
I am in receipt of your correspondence received 7-7-16 regarding

your concerns about a recent strip search.
I have reviewed your correspondence and have also discussed your

concerns with our Security Director. I have reviewed the situation
and the officer in question is a male and is qualified to complete
these duties. If in the future you are directed to submit to a strip
search by this individual or any other male staff member it is my
expectation that you will comply.
I trust that this correspondence has addressed your concerns, if you

do not agree with my decision please feel free to contact the inmate
complaint examiner.
Dkt. No. 43 at ¶24; Dkt. No. 43-1 at 3. Kind responded separately and denied
the plaintiff’s request, stating, “This person is a male and any further issues on
this will result in discipline for you.” Dkt. No. 43 at ¶25; Dkt. No. 43-1 at 5.
1 The defendants object to the proposed finding with respect to the plaintiff’s
assertion that he stated his religious objection during the strip search because
it relies on a declaration which contradicts prior sworn testimony (citing Kalis
v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir. 2000)). Dkt. No. 57 at
¶62. Specifically, the defendants argue that the plaintiff described the strip
search in detail at his deposition and never claimed to have asserted on that
day that it was against his religion for Buhle to see him naked. Id. Without
waiving that objection, the defendants dispute that the plaintiff stated a
religious objection during the strip search. Id. Buhle does not recall any inmate
ever explicitly stating an objection based on the inmate’s religious beliefs. Id.
5

The plaintiff filed an inmate complaint regarding the denial of his request
for an exemption from exposing his nakedness to the opposite sex. Dkt. No. 43-
1 at 7-10; Dkt. No. 31-1 at 11-14. The institution complaint examiner
recommended dismissal of the complaint because “[t]he Wisconsin Department
of Corrections has determined that the Officer is able to conduct strip searches
as supported by the Department of Justice National PREA [Prison Rape
Elimination Act of 2003] standards for adult prisoner and jails (§115.15).” Dkt.
No. 43-1 at 11; Dkt. No. 31-1 at 2. The plaintiff appealed, and on September
13, 2016, the corrections complaint examiner, Hompe, recommended dismissal
of the appeal, stating that
[t]he institution’s decision reasonably and appropriately addressed

the issue raised by this inmate. On appeal, the inmate presented no
information to warrant a recommendation overturning that decision.
GBCI completes strip searches in accordance with DOC 306 and DAI
Policy 306.17.02. It is also noted the Warden had previously
addressed the inmate’s concern via a correspondence to the inmate.
It is recommended this appeal be dismissed.
Dkt. No. 43-1 at 14; Dkt. No. 31-1 at 6. O’Donnell accepted Hompe’s
recommendation and dismissed the plaintiff’s appeal. Dkt. No. 43 at ¶47.
The plaintiff asserts that he was so distraught about being forced to
expose his nakedness to the opposite sex during the strip search and future
strip searches that on July 14, 2016 he sought psychological help from Green
Bay’s psychological services. Id. at ¶28.
The Wisconsin Department of Corrections (DOC) Division of Adult
Institution (DAI) Policy and Procedures permits strip searches under six
conditions, including before or after a visit. Dkt. No. 30 at ¶13. The DAI Policy

provides that during a strip search, an inmate undresses completely and
exposes all body orifices for visual inspection. Id. at ¶18. Each strip search
requires two officers: one to directly observe the inmate during the strip search
and one to observe the strip search from a side position, or an L position. Id.
The officer observing the strip search from the side is typically handed the
clothing and searches through it while the main officer maintains focus on the
inmate to ensure contraband is not dropped or swallowed during the search.
Id. DAI Policy provides that the officer performing the strip search visually
inspects the inmate’s hair, ears, mouth and the entire body (including armpits,
hands, pubic region, between toes, soles of the feet, anus and inner portion of
legs). Id. at ¶19. Inmates are asked to lift breasts and/or genitals, if
appropriate. Id.
DAI Policy 306.17.02 prohibits female officers from strip searching male
inmates, and male officers from strip searching female inmates, except in
exigent circumstances. Dkt. No. 30 at ¶¶11, 20. DAI policy mimics standards
promulgated by the U.S. Department of Justice on May 12, 2012, under the
PREA. Id. at ¶21. To comply with PREA, 28 U.S.C. §115.15(a), cross-gender
strip searches are prohibited “except in exigent circumstances or when
performed by medical practitioners.” Dkt. No. 30 at ¶21.
Neither DAI policy nor PREA regulations explicitly consider transgender
staff with respect to strip searches. Id. at ¶22. The defendants indicate,
however, that the U.S. Department of Justice has issued guidance on the
issue, responding to the question: “What gender should transgender staff be

considered for the purposes of complying with cross-gender viewing and
searching prohibitions established in standard 115.15?”2 Id. The DOJ
responded that individualized determinations should be made based on the
identified gender of the staff member:
Facilities should verify whether there are any specific legal

authorities, statutes, or personnel policies that may be relevant to
this determination. Absent any specific authorities, facilities should
make an individualized determination based on the identified gender
of the staff member, and not solely on the basis of the biological
gender. This decision should be made at the request of, and in
conjunction with, the transgender staff member. The determination
may also change during the course of employment, as part of an on-
going adjustment process, or as the staff member gains real-life
experience living as a person of the identified gender.3
Id. at ¶23.
Although DAI policy does not account for transgender staff, it does have
a provision for strip searching transgender inmates. Id. at ¶24. If a transgender
man is housed in a male facility, he can be strip searched only by male officers.
Id. Likewise, transgender women housed in female facilities can be strip
searched only by female officers. Id. A transgender man is a person who was
assigned female at birth and now identifies as male. Id. at ¶25. A transgender
woman is a person who was assigned male at birth and now identifies as
female. Id. Transgender and intersex inmates are placed in housing
2
The PREA defines “transgender” as “a person whose gender identity (i.e.,
internal sense of feeling male or female) is different from the person’s assigned
sex at birth.” 28 C.F.R. §115.5.
3
See https://www.prearesourcecenter.org/node/3261 (last visited March 3,
2020). The question and the DOJ’s guidance appear on the web site of the
National PREA Resource Center. The date above the question is April 23, 2014.

assignments on a case-by-case basis, considering the inmate’s health and
safety, programming, management and security concerns. Id.
The plaintiff’s maximum discharge date (the date by which he must be
released from prison) is September 10, 2024. Dkt. No. 30 at ¶42. The Human
Resources director at Redgranite testified that she knows of no transgender
staff currently working there. Id. at ¶44. While the plaintiff has been at
Redgranite for the past year, he has been imprisoned at Green Bay on three
separate occasions since 1998. Dkt. No. 48 at ¶76.
According to the defendants, the State has a compelling interest in
having a bright-line rule as to which staff can perform strip searches for the
sake of prison management. Dkt. No. 30 at ¶56. First shift at Green Bay has
about sixty-nine uniform staff posts, and second shift has about fifty-six
uniform staff posts. Id. These staff members are located throughout the
institution with different areas of responsibility and supervision. Id. To ensure
that consistent strip searches are performed and completed in a timely
manner, there are identified positions that are assigned to complete this job
task. Id. The defendants state that it would be logistically impossible to manage
post assignments if an inmate could dictate who could strip search him based
on whether the person conforms to binary definitions of gender. Id.
The defendants also state that if specific duties were dependent on a staff
member’s private medical information, inmates could determine personal
information about staff that should remain confidential. Id. at ¶57. If inmates
knew a staff member’s personal medical and mental health history, it would

put the staff member at risk of harassment and abuse, and make the staff
member vulnerable to manipulation by inmates who could threaten to
blackmail the staff member with the information. Id. The defendants also
assert that if transgender staff were not permitted to perform their duties based
on their gender identity, it could create liability for the State, violate the staff’s
rights, complicate post assignments, provide inmates with ways to circumvent
strip searches and reveal staff’s sensitive medical information. Id. at ¶58.
The defendants assert that the plaintiff possesses all the items he needs
to be able to pray. Id. at ¶61. He has four Qurans, other religious texts, a kurta
shirt, a kufi cap, a Mishquat, vicar beads, an Islamic ring, a shawl, prayer oil
and a prayer rug. Id. at ¶62. He is able to pray five times per day as required by
his religion. Id. at ¶63. The plaintiff also attends weekly Jum’ah services and
weekly study groups. Id. at ¶64.
II. Analysis
A. Summary Judgment Standard
“The court shall grant summary judgment 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); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
10

dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be, or is, genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
B. Discussion
1. RLUIPA Claim
RLUIPA prohibits the government from imposing “a substantial burden
on the religious exercise of a person residing in or confined to an institution,”
unless “that imposition of the burden on that person: (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C. § 2000cc–1(a).
RLUIPA protects “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief,” § 2000cc–5(7)(A), but “a prisoner's
request for an accommodation must be sincerely based on a religious belief and
11

not some other motivation.” Holt v. Hobbs, 574 U.S. 352, 135 S. Ct. 853, 862
(2015) (citing Burwell v. Hobby Lobby, ___ U.S. ___, 134 S. Ct. 2751, 2774,
n.28 (2014)).
a. Mootness
The defendants contend that the plaintiff’s RLUIPA claim is moot
because, given that he’s no longer housed at Green Bay, there is “virtually no
chance” that he ever will be strip searched by a “female.” Dkt. No. 29 at 8. They
claim that because he’s been transferred to another prison, the plaintiff “no
longer faces the possibility of being strip searched by Officer Buhle.” Id. They
also argue that the plaintiff “cannot show he is likely to be transferred back to
GBCI.” Id.
The plaintiff insists that his RLUIPA claim is not moot. Dkt. No. 49 at 4.
He asserts that the defendants “have shown a pattern of transferring him to a
different prison in order to circumvent judicial scrutiny.” Id. at 5. He describes
another case he brought in federal court, West v. Grams, 607 F. App’x 561,
566 (7th Cir. 2015), in which he alleged that his First Amendment rights were
being violated at Columbia Correctional Institution because the institution was
not holding Islamic services due to a dearth of outside volunteers. Id. The
plaintiff says that
[i]n the mist of that case being adjudicated, the defendants

transferred him to GBCI and then screamed “moot,” which the
district court granted. On appeal, however, the Seventh Circuit
addressed the defendants’ “moot” argument:
West’s lawsuit challenges under RLUIPA is a system-

wide Department of Corrections policy [. . . ] unless
modified-will apply wherever West is next sent until his
12

release. [W]e are given no reason to conclude that the

complaint-of-conduct won’t be resumed.
Rufus West a/k/a Mansa Lutalo Iyapo v. Grams, et al., 2015

U.S. Appx. 6690.
Id.
The plaintiff has not sued the State of Wisconsin, and even if he had,
“[RLUIPA] does not include suits for damages against a State.” Sossamon v.
Texas, 563 U.S. 277, 288 (2011). The plaintiff has asserted his RLUIPA claim
against five individual employees of the Department of Corrections, four of
whom are employed at Green Bay; he has asked the court to enjoin “the
Defendants”—these five individuals—“from allowing female staff to strip search
him.” Dkt. No. 16 at 6.
The Seventh Circuit has explained that a plaintiff seeking injunctive relief
must show that, without the injunction, the alleged wrongful conduct could
“reasonably be expected to occur.” Moore v. Thieret, 862 F.2d 148, 150 (7th
Cir. 1988) (quoting Vitek v. Jones, 445 U.S. 480, 487 (1980)). In explaining how
courts must consider whether the conduct can “reasonably” be expected to
occur in the future, the court explained that
[t]he doctrine of mootness seeks to preserve the historic conception

of the federal courts as agencies for the resolution of disputes on
which something tangible—money, freedom, personal safety,
reputation, etc.—something more than a desire, understandable as
it is, for authoritative legal advice or resolution of difficult and
important questions of law—turns. When the something tangible
depends on events in the future, the court must estimate the
likelihood that those events will occur. If the likelihood is small (it is
never zero), the case is moot.
Id. at 150.
13

The alleged misconduct that the plaintiff complains of took place at
Green Bay, from whence he has been transferred. “If a prisoner is transferred
to another prison, his request for injunctive relief against officials of the first
prison is moot unless he can demonstrate that he is likely to be retransferred.”
Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996). “Allegations of a likely
retransfer may not be based on mere speculation.” Id. A plaintiff who seeks
injunctive relief at one facility and then is transferred must show “a realistic
possibility that he will again be incarcerated in the same state facility and
therefore may be subject to the actions of which he complains [in the current
lawsuit].” Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011).
The plaintiff has provided the court with what he claims is one example
of the defendants transferring him to Green Bay in order to create a mootness
problem. He asserts that he was transferred to Green Bay in the middle of the
litigation in West v. Grams. The plaintiff filed that lawsuit in the Western
District of Wisconsin in mid-October, 2011. West v. Grams, 11-cv-687-slc at
Dkt. Nos. 1, 3. At the time he filed that suit, he was incarcerated at Columbia.
Id. at Dkt. No. 3, page 1. He alleged that various staff members at Columbia
deprived him of his First Amendment rights by prohibiting him from having
worship services (Jum’ah services) and study groups (Talim) and prohibiting
him from observing Eid al-Fitr. Id. at Dkt. No. 3, page 2. The docket shows that
on November 8, 2013, Judge Crocker granted summary judgment in favor of
the defendants, denied the plaintiff’s motion for summary judgment and
14

dismissed the case. Id. at Dkt. No. 102. The clerk entered judgment the same
day. Id. at Dkt. No. 103.
The plaintiff asked Judge Crocker to reconsider his decision. Id. at Dkt.
No. 105. At that time, the plaintiff still was at Columbia. Id. On May 7, 2014,
however—before Judge Crocker had ruled on the motion to reconsider—the
clerk received a notice from the plaintiff that he had been transferred to Green
Bay. Id. at Dkt. No. 108. Several weeks later, Judge Crocker granted the
plaintiff’s motion to reconsider Judge Crocker’s decision that qualified
immunity applied to the plaintiff’s RLUIPA claim but dismissed the claim upon
reconsideration “because [the plaintiff] has been transferred to a new prison.”
Id. at Dkt. No. 109, page 2. Judge Crocker found that because the plaintiff had
been transferred from Columbia to Green Bay, his RLUIPA claims against the
Columbia staff were moot. Id. at Dkt. No. 109, page 7.
On appeal, the Seventh Circuit found that the plaintiff had not presented
proof that the defendants moved him from Columbia to Green Bay for the
express purpose of mooting his RLUIPA claim. West v. Grams, 607 F. App’x
561, 566 (7th Cir. 2015). The appellate court found that the defendants had
expressed concerns about Judge Crocker’s qualified immunity decision months
before the plaintiff was transferred, and that it was Judge Crocker, not the
defendants, who “brought up the question of mootness.” Id. The court
disagreed, however, that the plaintiff’s transfer rendered his RLUIPA claim
moot. The court explained:
Under RLUIPA the remedy available to West was limited to

declaratory or injunctive relief. See Sossamon v. Texas, ___ U.S. ___,
15

131 S. Ct. 1651, 1660 . . . (2011); Vinning-El v. Evans, 657 F.3d 591,
592 (7th Cir. 2011); Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir.
2009). And though a prison transfer might moot a claim for
injunctive relief if the transfer means that the inmate no longer is
laboring under the allegedly unconstitutional policy or practice, see
Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011); Ortiz v. Downey,
561 F.3d 664, 668 (7th Cir. 2009), that is not the case here. West’s
lawsuit challenges under RLUIPA a system-wide Department of
Corrections policy that applied at Columbia, still applies at Green
Bay, and—unless modified—will apply wherever West is next sent
until his release. In fact, the defendants do not even assure us that
they have no present intention to transfer West back to Columbia in
the near future.
Id.
The fact that the plaintiff was transferred from Columbia—where the
defendants whom he had sued were employed—to Green Bay during the Grams
litigation does not prove that the defendants in this case ever have had him
transferred for the purpose of creating a mootness problem. The Seventh
Circuit found no evidence that the Grams defendants—most of whom worked
at Columbia and none of whom worked at Green Bay—had the plaintiff
transferred solely to create a mootness issue. The plaintiff has presented no
evidence that the defendants in this case were involved in his May 2014
transfer from Columbia to Green Bay. The plaintiff has not presented evidence
that the defendants in this case or the defendants in Grams have the authority
to transfer him from one facility to another.
The question the court must answer, however, is not whether the
plaintiff has shown that the defendants he has sued in this case are likely to
transfer him in order to avoid this or other lawsuits. The question is whether
the plaintiff has shown a realistic possibility that he will be re-incarcerated at
16

Green Bay, where Buhle works. It is true that the plaintiff has been at
Redgranite for over a year—since February 15, 2019. Dkt. No. 30 at ¶1. But his
maximum discharge date is September 10, 2024. Id. at ¶42. As of the date the
court writes this order, the plaintiff has over five years left to serve on his
sentence (if he is not released prior to his MR date). The plaintiff asserts that
he has been sent to Green Bay three times since 1998. Dkt. No. 48 at ¶76. The
Wisconsin Department of Corrections Inmate Locator web site supports that
assertion. https://appsdoc.wi.gov/lop/detail.do.
The defendants have not stated that the Department of Corrections will
never transfer to the plaintiff back to Green Bay. They assert only that because
the plaintiff is not at Green Bay now, he is in no danger of being strip searched
by Buhle. That argument does not address the question of whether there is a
realistic possibility that the plaintiff could be transferred back to Green Bay in
the future. Given that the DOC has sent the plaintiff to Green Bay three times
in the past twenty-one years, this court cannot conclude that there is no
reasonable possibility that he might be transferred there again in the next five
years. The court does not agree that the plaintiff’s RLUIPA claim is moot.
The defendants also argue that the plaintiff is “not likely to be strip
searched by any alleged female at Redgranite.” Dkt. No. 29 at 8. In their reply
brief, the defendants emphasize that there are no transgender men working at
Redgranite. Dkt. No. 56 at 2 (citing Dkt. No. 30 at ¶44). They also argue that it
is “highly unlikely that [the plaintiff] will encounter another transgender officer
at the Department of Corrections even if he transfers again,” given how few
17

people in Wisconsin identify as transgender men (and, implicitly, the fact that
even fewer are likely to work for the DOC as prison staff). Id. The court agrees
with the defendants that there is a much lesser likelihood that the plaintiff
might be searched by a transgender male at facilities other than Green Bay.
But there is no dispute that, as of time the parties were filing their briefs, there
was a transgender staff member at Green Bay, and the court has found that
there is a reasonable possibility that the plaintiff could be transferred there.
The court notes one other thing before moving on. In their brief in
support of summary judgment, the defendants state that while “the policies in
place technically would allow for a future strip search by a transgender man,”
it is not reasonable to expect the plaintiff to be subject to such a search under
his circumstances. Dkt. No. 29 at 9. The court is not sure which “policies in
place” the defendants mean. The parties do not dispute that neither DAI policy
nor PREA regulations explicitly consider transgender staff with respect to strip
searches. The defendants have explained that the DOJ has “issued guidance”
on the issue of what gender transgender staff should be considered for the
purposes of complying with “cross-gender viewing and searching prohibitions”
under the PREA. Dkt. No. 30 at ¶¶22, 23. But the defendants have not
asserted that it is DOC policy to follow that guidance, or even that it is Green
Bay’s or Redgranite’s policy to follow that guidance. And even if the DOC
officially follows the DOJ’s guidance, that guidance provides only that in the
absence of a specific statute, rule or regulation, each individual facility should
make its own, individualized determinations about transgender staff. The court
18

assumes the defendants must mean that if the DOC follows the DOJ guidance,
it is possible that facilities other than Green Bay could, if they had transgender
male employees, decide to treat that employee as male for the purposes
conducting and viewing searches.
b. Substantial Burden
RLUIPA prohibits the government from imposing a substantial

burden on the religious exercise of a person residing in or confined
to an institution unless the burden furthers a compelling
governmental interest through the least restrictive means. Cutter v.
Wilkinson, 544 U.S. 709, 715 (2005). “[T]he plaintiff bears the initial
burden of showing (1) that he seeks to engage in an exercise of
religion, and (2) that the challenged practice substantially burdens
the exercise of that religion.” Koger v. Bryan, 523 F.3d 789, 796 (t7h
Cir. 2008). Once a plaintiff has established that prima facie case, the
burden shifts to the defendant, who must show that its practice is
the least restrictive way of furthering a compelling government
interest. Id.
Howard v. Ministries, No. 14-C-1464, 2017 WL 6507091, at *7 (E.D. Wis. Dec.
18, 2017). The plaintiff’s litigation history demonstrates that he seeks to
engage in the exercise of his Islamic faith, and the defendants do not dispute
that.
The defendants argue, however, that the plaintiff cannot show that the
July 2, 2016 search or the “policy” of treating staff based on the gender by
which they identify themselves substantially burdened his exercise of that
religion.4 Dkt. No. 29 at 9. RLUIPA itself does not define what it means by
“substantial burden.” The Supreme Court has held that conduct constitutes a
4
The court puts the word “policy” in quotes because, as it has discussed, the
defendants are not clear on whether there is a policy, and if so, whether it is an
institution-specific policy or a DOC policy.
19

substantial burden when it requires a person to “engage in conduct that
seriously violates [his] religious beliefs.” Holt v. Hobbs, 574 U.S. 352, 135 S. Ct.
853, 862 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682,
720 (2014)). The Seventh Circuit has observed, however, that this definition
“leaves a lot of uncertainty.” Schlemm v. Wall, 784 F.3d 362, 364 (7th Cir.
2015).
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.
Id. at 364-65. Even in the face of that uncertainty, however, the Seventh
Circuit has read the Supreme Court’s decisions in Holt (and the case the Holt
Court cited, Hobby Lobby) to mean that “RLUIPA’s substantial burden inquiry
robustly supports inmate religious practice—it specifically disapproved of the
practice of offsetting against the burden imposed by the rule any other religious
accommodations offered or the strength of the religious command.” Jones v.
Carter, 915 F.3d 1147, 1150 (7th Cir. 2019).
The defendants argue that the plaintiff cannot show that his religious
practice was substantially burdened by the July 2, 2016 search because Buhle
didn’t strip search the plaintiff. Dkt. No. 29 at 10. While Buhle attested in his
declaration that he didn’t remember the incident, the defendants assert that
Buhle “only observed the staff member who was doing the strip search.” Id.
They say that in that role, Buhle wouldn’t have been able to see the plaintiff’s
“private parts due to the curtain.” Id. The plaintiff agrees that Buhle didn’t
search him (at his request) but says that Buhle “looked on and observed.” Dkt.
20

no. 43 at ¶20. His supplemental proposed findings of fact assert that Buhle
“observed [his] nakedness” during the search. Dkt. No. 48 at ¶62. He reiterated
this assertion in his response to the defendants’ response to his proposed
findings (a pleading that this court doesn’t allow, but that’s another
discussion). Dkt. No. 61 at ¶20. The defendants concede in their reply brief
that the parties dispute this fact. Dkt. No. 56 at 2-3.
The defendants contend, however, that even if Buhle saw the plaintiff
naked on July 2, 2016, that single incident did not substantially burden the
plaintiff’s exercise of his religion. Id. at 3. The court agrees. The plaintiff was at
Green Bay from May 2014 through February 2019. Green Bay hired Buhle in
January 2016, dkt. no. 30 at ¶35; the incident at issue took place six months
later, in July 2016. The plaintiff has asserted that the July 2, 2016 search was
the first time in his history of imprisonment that he’d ever heard of such a
thing happening. Dkt. No. 43 at ¶22. He has asserted that though he has been
in custody since 1994, he never had been strip searched by “a female staff
member.” Id. at ¶13. The plaintiff signed his complaint on March 29, 2017, dkt.
no. 1 at 7, nine months after the July 2, 2016 incident, but made no reference
to any other search involving Buhle. There is no evidence that the plaintiff was
strip searched in Buhle’s presence on more than one occasion.
In this respect, the plaintiff’s claim differs from other claims in which
courts in this circuit have found that prison staff substantially burdened an
inmate’s free exercise of his religion. In Schlemm, the Seventh Circuit reversed
a district court’s grant of summary judgment in favor of the defendants on the
21

Native American plaintiff’s claim that the institution’s refusal to provide
traditional foods at the annual Ghost Feast violated RLUIPA. Schlemm, 784
F.3d at 365-66. The defendants in Schlemm had repeatedly refused to provide
traditional foods at a feast that took place every year to a defendant who had
been in custody since 1999. In Ajala v. West, 106 F. Supp. 3d 976 (W.D. Wis.
2015), Judge Barbara Crabb concluded that the prison’s prohibition against
prisoners wearing religious headgear outside their cells imposed a substantial
burden on the plaintiff under RLUIPA, because his beliefs required him to wear
a kufi cap at all times. This was an on-going, continuous practice by the
institution; every day, they required the plaintiff to remove the kufi cap when
he wasn’t in his cell. In Walker v. Scott, No. 13-3153, 2015 WL 5450497 (C.D.
Ill. Sept. 15, 2015), the court found that the prison’s refusal to grant the
Muslim plaintiff’s request for Halal or Kosher meals substantially burdened his
exercise of his religion—again, an on-going burden imposed at every meal. See
also, Jones, 915 F.3d at 1150 (institution’s refusal to provide Muslim inmate
with Halal diet that included meat imposed a substantial burden under
RLUIPA). In Aiello v. West, 207 F. Supp. 3d 886 (W.D. Wis. 2016), Judge
Conley found that the institution imposed a substantial burden on the Jewish
plaintiff’s exercise of his religion when it stopped holding in-person, group
Shabbat services (which it had not held for over a year). Judge Peterson found
in Tanksley v. Litscher, No. 15-cv-126-jdp, 2017 WL 3503377 (W.D. Wis. 2017)
that prohibiting an inmate who practiced the Hermetic Order of the Golden
22

Dawn from using a particular tarot card deck imposed a substantial burden on
his religious practice.
In each of these cases, the institution implemented a policy that
consistently and repeatedly prevented the inmate from exercising his religion.
Whether the institution burdened the inmate’s religious exercise every year
(Schlemm), every week (Aiello), every day (Ajala) or several times a day (Walker),
the burden was repeated and on-going. In contrast, the plaintiff has not
asserted that the policy of strip searching inmates after they have outside
visitors substantially burdens the exercise of his religion5. He has not asserted
that Green Bay’s hiring of a transgender staff member substantially burdened
his religious exercise. He has not alleged that Buhle was assigned to participate
in all strip searches. He has alleged that on a single occasion, the institution’s
policy of strip searching inmates after visits was implemented by staff which
included a transgender staff member, that he asked that the transgender staff
member not conduct the search, that the transgender staff member complied
and did not conduct the search and that the transgender staff member saw
him naked.
The court’s conclusion is bolstered by the plaintiff’s own assertions that
his religion forbids him from “exposing his nakedness . . . to anyone except his
wife.” Dkt. No. 43 at ¶12; Dkt. NO. 42 at 1. He indicates that in a hadith (a
saying of the Prophet), the Prophet stated that “[a] man should not see the
5
Though he does dispute the defendants’ contention that “strip searches are
generally necessary.” Dkt. No. 50 at ¶45.
23

private parts of another man, and a woman should not see the private parts of
another woman.” Id. at ¶37. In his opposition brief, the plaintiff asserted that
because he is Muslim, “it is obligatory for him to protect his nakedness from
men and women and that the only person whom he is allowed to expose
himself to is his wife.” Dkt. No. 49 at 6. He asserts that “[w]hether the person is
a male or female, Islam prohibits [the plaintiff] from exposing his nakedness to
anyone but his wife, so that is what [the plaintiff] believes.” Id. at 7.
Given the plaintiff’s own statements that it violates his religious beliefs
for him to be seen naked by people of any gender if those people are not his
wife, he cannot establish that a single incident of a transgender man seeing
him naked imposed a substantial burden on the exercise of his religion. The
plaintiff has not argued—as one might expect if he believes that being naked in
front of anyone but his wife violates his religious beliefs—that any strip search
conducted by anyone of any gender imposes a substantial burden on the
exercise of his religion. It is not clear why 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.
Even under the less stringent, post-Holt standard, the court cannot
conclude that this single incident constituted a “substantial burden” on the
plaintiff’s exercise of his religion, or that the plaintiff has stated a prima facie
case that the defendants violated his rights under RLUIPA.
24

c. Compelling Interest/Least Restrictive Means
In an abundance of caution, the court considers whether, if the plaintiff
had demonstrated that the incident constituted a substantial burden on the
exercise of his religion, the defendants would have met their burden of showing
that they had a compelling government interest in having Buhle participate in
the July 2, 2016 search and that having him do so was the least restrictive
means for serving that interest.
The defendants assert that they had several compelling interests in
Buhle’s participation in the July 2, 2016 search. They argue that the state has
a compelling interest in complying with Title VII of the Civil Rights Act of 1964
and in not violating an employee’s rights under the Equal Protection Clause.
Dkt. No. 29 at 12-13. They also argue that the state has a compelling interest
in efficient prison management. Id. at 14-15. Finally, they argue that the state
has a compelling interest in protecting the medical privacy of employees—
particularly prison staff. Id. at 15.
i. Compliance with the law
At present, the Supreme Court has not decided the question of whether
Title VII of the Civil Rights Act prohibits discrimination against transgender
people. On April 22, 2019, it accepted certiorari in that question in R.G. & G.R.
Harris Funeral Homes, Inc. v. E.E.O.C., ___ U.S. ___ 139 S. Ct. 1599 (Mem),
2019 WL 1756679 (2019). Nor has the Seventh Circuit decided this question,
despite the defendants’ assertion to the contrary. In Whitaker by Whitaker v.
Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034,
25

1049 (7th Cir. 2017), the Seventh Circuit noted that “[s]everal district courts
have . . . [found] that a transgender plaintiff can state a claim under Title VII
for sex discrimination on the basis of a sex-stereotyping theory.” (Citations
omitted.) But the court did not adopt that holding, because it was not
considering a Title VII claim. The Whitaker court was considering whether the
transgender plaintiff had demonstrated that he had a probability of success on
the merits of at Title IX claim. As far as the court can tell, as of the July 2,
2016 search incident, there was no controlling federal precedent holding that
Title VII prohibits discrimination against transgender people. The fact that the
defendants want to avoid violating Title VII is commendable, but it is not clear
that in July 2016, that desire would have provided them with a compelling
interest to have Buhle participate in cross-viewing and searches.
The defendants’ assertion that they had a compelling government
interest in avoiding violations of staff equal protection rights may have more
traction. Prior to July 2, 2016, there were federal courts within the Seventh
Circuit which had concluded that a transgender person who argued that he or
she was treated differently than others based on their transgender status had a
colorable equal protection claim. See, e.g., Brown v. Godinez, No. 15-cv-115-
JPG, 2015 WL 1042537 (S.D. Ill. Mar. 5, 2015); Johnson v. Robinson, No. 15-
cv-298-SMY, 2015 WL 1726965 (S.D. Ill. Apr. 13, 2015). The Department of
Corrections may have been aware in the summer of 2016 that treating
transgender staff differently than non-transgender staff could give rise to
claims under the equal protection clause.
26

It is very likely that by July 2, 2016, the defendants were aware of the
DOJ guidance on treatment of transgender staff in conducting cross-views and
searches in a way that would not violate PREA. The DOJ guidance is dated in
2014. When Buhle was hired in January 2016, Eckstein and others asked the
human resources department (presumably of the DOC) about the assignment
of gender-specific duties to Buhle. Dkt. No. 32 at ¶5. The human resources
department responded that if an employee identified as a certain gender,
institution management “should respect that and assign duties accordingly.”
Id.
In Holt, the Supreme Court stated that application of the compelling
interest test “contemplates a ‘“more focused”’ inquiry and ‘“required the
Government to demonstrate that the compelling interest test is satisfied
through application of the challenged law ‘to the person’—the particular
claimant whose sincere exercise of religion is being substantially burdened.”’”
Holt, 574 U.S. at 863 (quoting Hobby Lobby, 134 S. Ct. at 2779)). A court must
look at the harm that the defendants allege would be caused by giving an
exemption to the plaintiff and balance it against the interest in enforcing the
challenged government action—the defendants’ assignment of Buhle to conduct
searches—in the plaintiff’s context. Id.
The court concludes that the defendants could have met their burden of
showing that they had a compelling government interest in not violating
employees’ equal protection rights and in respecting employees’ gender
identification, even in the plaintiff’s specific context. Buhle was hired as a male
27

corrections officer and was told that he’d be performing the same duties as
other male corrections officers. He was told that his duties would include all
the duties of a male corrections officer, including performing strip searches.
Dkt. No. 30 at ¶36. For the defendants to then prohibit Buhle from performing
strip searches would have put the defendants at risk for a claim that they were
discriminating against Buhle based on his transgender status, even if requiring
Buhle to perform those duties ended up imposing a burden on the plaintiff’s
exercise of his religion on one occasion.
The plaintiff also implies that the defendants could avoid burdening his
religious exercise by refusing to hire transgender corrections officers or
refusing to allow transgender officers to participate in strip searches. He says
that for decades the DOC complied with their own rules that prohibit cross-
gender strip searches after visits. Dkt. No. 49 at 12. For the defendants to
refuse to hire transgender corrections officers would create the liability risks
the court has discussed, as would prohibiting such officers from engaging in
the routine tasks performed by non-transgender officers. More to the point, the
plaintiff assumes that in his twenty-seven years in custody, he has never been
strip searched or seen naked by a transgender person—an assumption which
may not be supportable.
The defendants could have met their burden on this compelling
government interest.
28

ii. Effective prison management
The defendants argue that depending on the time of day and the work
shift, Green Bay has between fifty-six and sixty-nine uniformed staff members
posted throughout the prison. Dkt. No. 29 at 14. They state that to make sure
that strip searches are conducted in a consistent and timely way, certain
“positions” are assigned to conduct the searches. Id. They argue that if inmates
were able to decline a search based on their perception of the searching staff
member’s gender, it would be “logistically impossible” for them to post
assignments. Id.
Buhle is a corrections officer. Corrections officers are required to perform
strip searches as needed. Presumably there are many occasions when strip
searches are needed—when officers suspect inmates have contraband on (or in)
their persons, when new inmates arrive at the institution, after inmates have
met with outside visitors. The only way for the defendants to avoid the
possibility of Buhle strip searching an inmate whose religious beliefs might be
offended, or acting as the observing officer when someone else strip searched
an inmate whose religious beliefs might be offended, would be to assign Buhle
to a position where he never would be required to participate in strip searches,
or to assign him to an area of the prison in which there were no inmates whose
religious beliefs might be offended. Even if either of these options were possible,
the logistics would constitute more than an effort to save a few dollars and
more than a “bureaucratic desire to follow the prison system’s rules.”
Schlemm, 784 F.3d at 365. The court acknowledges that RLUIPA “requires
29

prison to change their rules to accommodate religious practices,” and that the
existence of a rule, in and of itself, “is not a compelling obstacle to change.” Id.
But the degree of interference with the prison’s ability to assign its staff to
prevent the possibility that at some point, there might be a need to strip search
the plaintiff and Bruhle might be one of the assigned officers in that place at
that time, indicates to this court that assigning Bruhle to the same duties as
other male officers was the least restrictive means of serving the prison’s need
for effective management.
iii. Medical privacy of staff
Finally, the defendants argue that they have a compelling government
interest in protecting the privacy of employee medical information. They say
that “[i]f specific duties were dependent on the staff’s private medical
information, inmates are likely to be able to determine personal information
about staff that should remain confidential.” Dkt. No. 29 at 15. They say that if
inmates could learn about a staff member’s medical information, it could put
that staff member at risk for harassment and abuse, make staff vulnerable to
threats of blackmail and could create the potential that inmates could “try to
take advantage of a situation in which they can control which staff are
permitted to strip search them based on any nuance found in their stated
religious beliefs.” Id. In their reply brief, the defendants point out that even
though the plaintiff claims Buhle was candid with inmates about his transition,
the plaintiff had demanded discovery relating to whether Buhle was born with
a female physiology. Dkt. No. 56 at 4-5.
30

Most of this argument is unpersuasive. The defendants seem to believe
that the only way an inmate might find out about a staff member’s medical
situation is if staff members with certain medical histories were assigned to
certain tasks. Inmates can observe physical conditions. They likely can
conclude that a staff member with a hacking, persistent cough is a smoker, or
has lung cancer. They likely can conclude that a staff member with a black eye
has been in a fight, or has fallen. Inmates can look at a person who has
physical characteristics traditionally associated with someone of the female
gender and conclude—perhaps correctly, perhaps incorrectly—that that person
may not always have identified himself as male. They can make those
observations, and draw those conclusions, even without medical records, and
even if they are wrong. Inmates likely are capable of finding reasons to harass
or abuse or try to blackmail staff members even if they do not have access to
the staff members’ medical records.
This “medical privacy” argument is actually the defendants’ argument
that they have a compelling government interest in prison administration,
stated in a different way. Prison staff members come in all shapes and sizes,
like all humans. Some men may be short and slight and have little facial hair.
Some may have visible breasts. Some may seem—to the plaintiff—to behave in
what he considers to be “effeminate” ways. The plaintiff himself admits that he
objected to Buhle’s participation in the search, not because he knew Buhle was
transgender, but because having viewed Buhle’s physical appearance, the
plaintiff believed that Buhle was a woman. Taken to its logical conclusion, the
31

plaintiff could argue that being strip searched, or seen naked, by someone who
seems feminine to him substantially burdens his religious practice. He could
argue that being seen naked or strip searched by someone whom he perceives
to be homosexual imposes a substantial burden on his religious practice. He
could, as the court has indicated, argue that being seen naked or strip
searched by anyone who isn’t his wife could substantially burden his religious
practice. Such arguments would make it impossible for the defendants—or any
other prison officials in any facilities where the plaintiff may be incarcerated
between now and his release—to perform their jobs as members of a prison
staff.
d. Conclusion
While the plaintiff’s RLUIPA claim is not moot, he cannot show that the
incident on July 2, 2016 imposed a substantial burden on his exercise of
religion. Even if he had made such a showing, the defendants have met their
burden of proving a compelling government interest in assigning Buhle the
same duties as any other male correctional officer (prison administration and
management), and have shown that assigning Buhle those duties was the least
restrictive means of serving that interest. The court will grant summary
judgment in favor of the defendants on the RLUIPA claim.
2. First Amendment Free Exercise Claim
RLUIPA provides “expansive protection for religious liberty.” Holt, 574
U.S. at 860. It requires prisons that receive federal funding to accommodate
sincere religious exercise. Borzych v. Frank, 439 F.3d 388, 390 (7th Cir. 2006)
32

(citations omitted). In contrast, the First Amendment “does not require the
accommodation of religious practice: states may enforce neutral rules.” Id.
(citations omitted). In other words, “RLUIPA ‘confers greater religious rights on
prisoners than the free exercise clause has been interpreted to do’ . . . .” Neely-
Bey Tarik-El v. Conley, 912 F.3d 989, 1004 (7th Cir. 2019) (quoting Grayson v.
Schuler, 666 F.3d 450, 451 (7th Cir. 2012)). The Seventh Circuit has
concluded that when a plaintiff’s “best argument” is his RLUIPA argument, “it
is unnecessary to consider the Constitution further.” Borzych, 439 F.3d at 390.
Other district courts have declined to separately analyze a plaintiff’s First
Amendment free exercise claim if they determine that his RLUIPA claim did not
survive summary judgment. See, e.g., Dangerfield v. Ewing, No. 18-cv-737-jdp,
2020 WL 94758 (W.D. Wis. Jan. 8, 2020).
Here, the plaintiff’s First Amendment free exercise claim fails for the
same reasons that his RLUIPA claim failed. The defendants contend that the
plaintiff’s First Amendment claim fails because his ability to practice his
religion has not been substantially burdened and because allowing transgender
male officers to strip search male inmates is reasonably related to legitimate
penological interests. Dkt. No. 29 at 17-19.
Prisoners have a limited right to exercise their religion under the First
Amendment. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987);
Turner v. Safley, 482 U.S. 78, 89-91 (1987); Tarpley v. Allen Cty., 312 F.3d
895, 898 (7th Cir. 2002). The Seventh Circuit recently reiterated the standard
for a free exercise claim:
33

To establish a free exercise claim, [the plaintiff] “had to submit

evidence from which a jury could reasonably find that the
defendants personally and unjustifiably placed a substantial burden
on his religious practices.” Thompson v. Holm, 809 F.3d 376, 379
(7th Cir. 2016) (citing Hernandez v. C.I.R., 490 U.S. 680, 699, 109
S.Ct. 2136, 104 L.Ed.2d 766 (1989)). The Supreme Court has
explained that a substantial burden is one that “put[s] substantial
pressure on an adherent to modify his behavior and to violate his
beliefs.” Thomas v. Review Bd., 450 U.S. 707, 718, 101 S.Ct. 1425,
67 L.Ed.2d 624 (1981). In the prison context, such a burden is
justified if it is “reasonably related to a legitimate penological
interest.” Thompson, 809 F.3d at 380 (citing Turner v. Safley, 482
U.S. 78, 89–91, 107 S. Ct. 2254, 96 L.Ed.2d 64 (1987)).
Neely-Bey, 912 F.3d at 1003.
The court already has determined that 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. The plaintiff alleges a single incident in which someone he claims
was a woman saw him naked, and argues that this event burdened his exercise
of religion despite the fact that 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.
The court also has determined that 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. There
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. Accommodation of the
34

plaintiff’s alleged right to be free from being viewed by a transgender male
would have a negative impact on guards, other inmates and the allocation of
prison resources. There were no other obvious, easy alternatives to assigning
transgender male corrections officers the same tasks as other male corrections
officers.
The one factor the court did not consider in analyzing the plaintiff’s
RLUIPA claim was the question of whether there were alternative means
available to the plaintiff to exercise his religion. Turner, 482 U.S. at 89–91.
Where an inmate has “other avenues” to exercise the asserted right, the court
must “be particularly conscious of the ‘measure of judicial deference owed to
corrections officials . . . in gauging the validity of the regulation.’” Turner, 482
U.S. at 90 (citing Pell v. Procunier, 417 U.S. 817, 827 (1974)). It is undisputed
that the plaintiff had multiple alternative means of exercising his religious
rights at Green Bay. He had four Qurans, other religious texts, a kurta shirt, a
kufi cap, a Mishquat, vicar beads, an Islamic ring, a shawl, prayer oil and a
prayer rug. Dkt. No. 30 at ¶62. He was able to pray five times per day. Id. at
¶63. The plaintiff also attended weekly Jum’ah services and weekly study
groups. Id. at ¶64.
This factor is an awkward fit, however, in the circumstances the plaintiff
has alleged. He does not allege that the defendants prevented him from taking
some affirmative action, such as praying or fasting or attending services. He
alleges that the defendants forced him to do something that violates his beliefs.
His ability to pray or attend Jum’ah services or fast does not provide an
35

“alternative means” for him to avoid doing something that he claims violates
his religious beliefs.
That said, the Turner test is a balancing test, and most of the factors
weigh in the defendants’ favor. The defendants have demonstrated a rational
basis for allowing Buhle, a transgender male officer, to act as the observing
officer during the strip search on July 2, 2016. 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. The
defendants are entitled to summary judgment on the First Amendment claim.
3. Failure to Intervene Claim
The defendants also argue that the court should dismiss the First
Amendment claim as to defendants Hompe and O’Donnell because their only
involvement was in the grievance process and they committed no underlying
constitutional violation. Dkt. No. 29 at 21. The defendants also state that
Hompe and O’Donnell were not sufficiently personally involved in the events
surrounding the July 2, 2016 search such that they can be held personally
liable under §1983, given that their only involvement was in the grievance
process. Id. at 21-22.
Because the court has granted summary judgment in favor of the
defendants on the RLUIPA and First Amendment claims, there is no underlying
constitutional violation in which Hompe and O’Donnell could have intervened.
The court will grant summary judgment in favor of Hompe and O’Donnell.
36

III. Conclusion
The court ORDERS that the defendants’ motion for summary judgment
is GRANTED. Dkt. No. 28.
The court ORDERS that the plaintiff’s motion for summary judgment is
DENIED. Dkt. No. 42.
The court ORDERS that this case is DISMISSED and will enter judgment
accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under limited circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
37

The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 9th day of March, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge
38


______________________________________________________________________________
RUFUS WEST,
Plaintiff,
JUDGMENT IN A CIVIL CASE
v.
Case No. 17-cv-482-pp
JOHN KIND, SCOTT ECKSTEIN,
BRAD HOMPE, CINDY O'DONNELL,
ISAAC BUHLE, PETE ERICKSON,
BRIAN FOSTER, and SARAH COOPER,
Defendants.
 Jury Verdict. This case came before the court for a trial by jury. The
parties have tried the issues, and the jury has rendered its verdict.
 Decision by Court. This case came before the court, the court has
decided the issues, and the court has rendered a decision.
THE COURT ORDERS AND ADJUDGES that the plaintiff’s complaint

under 42 U.S.C. §1983, that the defendants violated his constitutional rights,
is DISMISSED.
THE COURT ORDERS that the defendants’ motion for summary

judgment is GRANTED, dkt. no. 28; the plaintiff’s motion for summary
judgment is DENIED, dkt. no. 42.
THE COURT ORDERS that this case is DISMISSED.
Approved and dated in Milwaukee, Wisconsin this 9th day of March,

2020.
STEPHEN C. DRIES BY THE COURT:

Clerk of Court
s/ Cary Biskupic
(by) Deputy Clerk HON. PAMELA PEPPER
Chief United States District Judge

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UNITED STATES COURT OF APPEALS

JOHN KIND, et al.,

Appeal from the United States District Court for the

Dated: May 7, 2021

BURKE, WARREN, MACKAY & SERRITELLA, P.C.

Nicholas A. Gowen (ngowen@burkelaw.com)

Counsel for Plaintiff-Appellant Rufus West

ORAL ARGUMENT REQUESTED

DISCLOSURE STATEMENT UNDER SEVENTH CIRCUIT RULE 26.1

West provides the following disclosures:

1. The full name of the only party represented by undersigned counsel in

2. Plaintiff-Appellant Rufus West was not represented by counsel in the

3. No party to this litigation is a corporation.

Dated: May 7, 2021 Respectfully submitted,

/s/ Nicholas A. Gowen

BURKE, WARREN, MACKAY & SERRITELLA, P.C.

Nicholas A. Gowen (ngowen@burkelaw.com)

Counsel for Plaintiff-Appellant Rufus West

STATEMENT ON ORAL ARGUMENT

Pursuant to Seventh Circuit Rule 34(f), Plaintiff-Appellant Rufus West

2. The district court’s novel definition of “substantial burden” is

Guidelines for Psychological Practice with Lesbian, Gay, and Bisexual

Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000-cc et seq., and the Fourth

Amendment of the United States Constitution, U.S. Const. amend. IV.; 28

of appeal on April 8, 2020. (Dkt. 71.)

NOTE ON TERMINOLOGY AS USED IN THIS BRIEF

2016) (“Although it may be useful to disaggregate the definition of ‘gender’ from

‘gender’ interchangeably to refer simply to the fact that an employee is male or

biological status and is typically categorized as male, female or intersex. There

are a number of indicators of biological sex, including sex chromosomes,

gonads, internal reproductive organs and external genitalia.” Guidelines for

Assoc. 10, 11 (2012), https://www.apa.org/pi/lgbt/resources/sexuality-defini

a given culture associates with a person’s biological sex. Behavior that is

compatible with cultural expectations is referred to as gender‐normative;

behaviors that are viewed as incompatible with these expectations constitute

gender non‐ conformity.” Id.

A person’s “gender identity” is defined as “[a]n internal sense of being

male, female or something else, which may or may not correspond to an

individual’s sex assigned at birth or sex characteristics.” Bostock v. Clayton

Defining Transgender Terms, 49 Monitor on Psychology 32 (2018),

https://www.apa.org/monitor/2018/09/ce-corner-glossary). And a “transgender”

Sadock et al., Comprehensive Textbook of Psychiatry 2063 (9th ed. 2009)).

These terms will be used accordingly throughout this brief.

STATEMENT OF THE ISSUES

2. Whether, under RLUIPA, forcing West to submit to cross-sex strip

3. Whether a corrections officer’s right to equal employment opportunity

4. Whether an inmate’s claim that a cross-sex strip search violated his

STATEMENT OF THE CASE

converted to Sunni Islam in 1995. (Dkt. 27 at 3–4 (11:24–25; 13:20).)1 The

model their conduct. (Id. at 4 (13:24–25; 14:1–8).) West reasonably believes

at 8 (31:11–15).) West further believes that violating this taboo is punishable

severity of the infraction. (Id. at 8 (32:18–21).) For example, if West

unknowingly violates these taboos, his conduct is not punishable. (Id. at 9

(36:11–12).) But if he knowingly exposes himself to someone of the opposite sex

(39:12–15).) There is no evidence in the record to suggest that West’s beliefs

B. The Prison’s Strip-Search Policy

Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000-cc et seq., and the Fourth

of appeal on April 8, 2020. (Dkt. 71.)

converted to Sunni Islam in 1995. (Dkt. 27 at 3–4 (11:24–25; 13:20).)1 The

officers. (Dkt. 34-1 at 4 (DAI Policy 306.17.02(III)(A), (III)(C)(2), (III)(E)).) One

voluntarily disrobe, he will be forcibly strip searched. (Dkt. 27 at 7 (26:12–14).)

prohibited . . . .”)).) These authorities do not define whether gender refers to

as a corrections officer. (Dkt. 32 at 2.) At the time, it was “apparent” to Warden

Eckstein that Buhle “was a transgender man.” (Id. at 2; Dkt. 27 at 6 (24:18–

searched approximately 25 times during that period. (Dkt. 27 at 18 (20:14–23).)

from a friend. (Dkt. 27 at 6 (21:15–28).) Officer Buhle, a transgender man who

(Dkt. 31-1 at 16.) West appealed Eckstein’s decision by filing an Inmate

at 3; Dkt. 31-1 at 11–14.) The Institution Complaint Examiner recommended

Offender Complaint Appeal with the Office of the Secretary. (Dkt. 31 at 2;

Dkt. 31-1 at 6.)  Bradley Hompe, a Corrections Complaint Examiner, reviewed

2016. (Dkt. 33 at 2; Dkt. 31-1 at 7.)

42 U.S.C. § 1983, alleges violations of RLUIPA, 42 U.S.C. § 2000cc et seq., and