                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



               United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                 Submitted April 21, 2015 *
                                  Decided April 22, 2015

                                          Before

                           WILLIAM J. BAUER, Circuit Judge

                           DIANE S. SYKES, Circuit Judge

                           JOHN DANIEL TINDER, Circuit Judge

No. 14-3623

RUFUS WEST,                                      Appeal from the United States District
    Plaintiff-Appellant,                         Court for the Western District of Wisconsin.

      v.                                         No. 11-cv-687-slc

GREGORY GRAMS, et al.,                           Stephen L. Crocker,
    Defendants-Appellees.                        Magistrate Judge.


                                        ORDER

       Rufus West is a Wisconsin inmate formerly incarcerated at Columbia Correctional
Institution, a maximum-security prison, and currently incarcerated at Green Bay
Correctional Institution. West, who is Muslim and uses the religious name
Mansa Lutalo Iyapo, sued members of Columbia’s staff and the Secretary of the
Wisconsin Department of Corrections, seeking damages and injunctive relief for
perceived violations of the First Amendment, see 42 U.S.C. § 1983, and the Religious


      *
        After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-3623                                                                       Page 2

Land Use and Institutionalized Persons Act, see 42 U.S.C. § 2000cc–1. First, he alleged,
over a multi-year period staff impeded his free exercise of religion by canceling Islamic
services at Columbia when Muslim staff or outside volunteers were unavailable to lead
the services, rather than allowing services to proceed with inmate leaders. Second, West
asserted, after he complained that his evening meal was being delivered too late for him
to break his Ramadan fast right at sunset, Columbia staff retaliated by scheduling meal
delivery during Ramadan at the latest possible hour. A magistrate judge, presiding by
consent, granted the defendants’ motion for summary judgment. Because a finder of fact
could not reasonably conclude from West’s evidence that the defendants burdened his
religious exercise under the First Amendment or retaliated against him because of
protected speech, we affirm the dismissal of his constitutional claims. But we disagree
with the magistrate judge’s conclusion that West’s transfer to Green Bay mooted his
RLUIPA claim, and on that claim we remand for further proceedings.

        Since we are reviewing a grant of summary judgment, we construe the evidence
and draw all reasonable inferences in favor of West, the opposing party. See Williams v.
City of Chicago, 733 F.3d 749, 752 (7th Cir. 2013). Wisconsin’s Department of Corrections
requires that “[c]ongregate religious services” and religious study groups held in
Wisconsin prisons “be led by an approved spiritual leader/clergy, volunteer, or
Chaplain.” This policy, which dates to 2001, states expressly that no inmate may “lead”
or “conduct” religious services or groups. The Columbia Security Director explained the
policy’s rationale: Allowing inmates to lead religious activities could create “a
perception of authority over other inmates,” “allow an inmate to influence other
inmates’ actions,” obscure the “necessary distinction between staff and inmates,” and
permit inmates to use religious services as a cover for gang activity.

       Columbia uses outside volunteers to lead some Islamic services. Although the
Department of Corrections employs two Muslim religious leaders, they are not assigned
to Columbia and are unable to lead services regularly at that prison. Instead, Columbia’s
chaplain, who is Protestant, recruits Muslim volunteers from the community to lead
Islamic services. Those services include Jumu’ah, a group prayer service held on Fridays;
Talim (or Taleem, but we adopt West’s spelling), a religious study period generally held
weekly; and Eid al-Fitr, the services and feast that mark the conclusion of Ramadan the
month during which Muslims fast from sunrise to sunset.

       According to West, attending Jumu’ah every Friday is a mandatory tenet of Islam,
and participating in Talim, though not “obligatory,” is necessary. At Columbia, though,
a shortage of volunteers resulted in one or both of these services being cancelled during
No. 14-3623                                                                          Page 3

more than 150 weeks of the 6-year period ending with West’s transfer to Green Bay. In
contrast, the defendants do not dispute that Christian services rarely were cancelled in
the same period. West also says that at Columbia the Eid al-Fitr celebration was
scheduled late in 2007, 2008, 2009, and 2012—in his view, stripping the celebration of its
religious significance—because an outside volunteer was unavailable to lead the
celebration.

        West also accuses the prison chaplain, a shift captain, and the food service
administrator of retaliating after he complained about the timing of meal service during
Ramadan. He explains that he alerted the chaplain that meals were being delivered to
Muslim inmates well after sunset during Ramadan, and he asked the chaplain for
assistance in getting an earlier delivery time, such as at 7:30 p.m. After this conversation
the chaplain issued a memo announcing that evening meals during Ramadan would be
served at 8:30 p.m. West concluded that the decision to serve supper at 8:30 p.m.—the
latest possible time to serve meals to inmates—had been selected to retaliate for his
complaint about meal timing.

        The defendants moved for summary judgment on each of West’s claims. First,
they argued that the policy precluding inmates from leading religious services does not
substantially burden West’s rights under RLUIPA. Although the defendants conceded
that Jumu’ah was not offered each week at Columbia, they explained that in the past the
service typically was held twice monthly and that the Columbia chaplain regularly
arranged a Talim study group through an electronic medium during weeks that a
volunteer was unavailable to lead Jumu’ah. And when the usual volunteers could not
conduct Jumu’ah for several weeks in a row, the chaplain explained, he had contacted
multiple Muslim groups or leaders seeking more volunteers, but without success. More
recently, the Columbia chaplain had found a volunteer to lead Jumu’ah services and a
Talim group every other Friday, as well as a Talim group and Zuhr prayer on Tuesdays
of the intermediate weeks. In addition, the defendants noted another policy of the
Department of Corrections that enables West to practice his religion in a variety of ways,
including through special diet, individual study, personal meditation, religious books,
pastoral visits, and abstention from work on religious days of observance. Further, the
Eid al-Fitr feast was always held within the timeframe established by the Department of
Corrections Religious Practices Advisory Committee. In any event, the defendants
contended, the volunteer policy is the least restrictive means to achieve a compelling
interest of maintaining security.
No. 14-3623                                                                         Page 4

        Second, the defendants contended that West’s right to free exercise under the
First Amendment had not been violated because the challenged policy was applied to all
religious groups, and was reasonably related to prison security. The defendants also
asserted that they were entitled to judgment as a matter of law on West’s retaliation
claim because he had not engaged in a constitutionally protected activity, nor had he
shown that the scheduling of the meal time at 8:30 p.m. would deter future protected
activity. Finally, the defendants contended that they were entitled to qualified immunity
on all of West’s claims, including his RLUIPA claim.

         West countered with his own motion for summary judgment. He argued that the
challenged policy, although facially neutral, is discriminatory in practice because
Muslim inmates are affected disproportionately. West noted that all maximum-security
facilities in Wisconsin have Christian chaplains and are located in communities with a
plethora of available Christian volunteers, so Christian services rarely are cancelled.
Moreover, he argued, the defendants had not offered convincing evidence that
forbidding inmates to lead religious services is necessary to promote prison security.
Any safety concern is minimal, West asserted, because prayer services are held in an area
with large windows and cameras allowing guards to monitor the activities. In addition,
West produced affidavits from two prisoners at Columbia who aver that from 2004 until
2008 they attended Jumu’ah services led by an inmate. As for his retaliation claim, West
explained that the decision to set the meal time at 8:30 p.m. had “haunted” him and
deterred him from filing future complaints.

       In reply the Columbia chaplain conceded that the former program supervisor at
Columbia had acknowledged that “she did, on occasion, allow the inmates to lead the
Jumah prayer” and that “they had to rotate the leader of the prayer among the group.”
The chaplain recalled that the practice was ended because “the inmates refused to
cooperate with the rotation,” leaving the same inmate to lead the service each time and,
according to the chaplain, leaving one inmate in an unacceptable “position of authority
and power over the other inmates.” The defendants also included an affidavit from the
DOC Administrative Policy Advisor who justified the policy, in part, by stating that
there had been “much negative feedback from facilities across the United States that
have allowed inmate-led religious services.” He cited instances of security breaches
related to inmate-led services in Pennsylvania, Michigan, and Nebraska.

       In ruling for the defendants, the magistrate judge first reasoned that, because this
court had rejected identical free-exercise claims in the past, the defendants were entitled
to qualified immunity. The magistrate judge then rejected the RLUIPA claim on the
No. 14-3623                                                                            Page 5

belief that, for that claim too, the defendants were shielded by qualified immunity. The
judge expressed uncertainty whether the defendants had substantially burdened West’s
exercise of religion under the more protective RLUIPA standard, but reasoned that they
did not violate any clearly established right by enforcing the challenged policy. Finally,
the judge rejected West’s retaliation claim with the explanation that moving the meal
time to 8:30 p.m. could not have deterred an inmate of ordinary firmness from lodging
future grievances.

       Four days after this ruling, the defendants alerted the magistrate judge that
injunctive relief is the sole remedy for a RLUIPA claim, see Grayson v. Schuler, 666 F.3d
450, 451 (7th Cir. 2012), and, thus, qualified immunity cannot be a defense,
see Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 758 (7th Cir. 2012). Instead, they
argued, the judge should revise his decision to reject the statutory claim on the ground
that the challenged policy had not substantially burdened West’s exercise of his religion.
Meanwhile, almost six months after the defendants had raised this concern, West was
transferred to Green Bay. West notified the clerk of court about his transfer, and only
then did the magistrate judge act on the defendants’ request for a revision to the
RLUIPA analysis. But instead of addressing the claim on the merits, as the defendants
had asked, the judge concluded that the RLUIPA claim had been mooted by West’s
transfer. As far as we can tell from the record, that contention had never been made by
the defendants.

        On appeal West challenges the adverse decision on each of his claims, but two of
those claims require little discussion. It has never been clearly established that inmates
have a right to inmate-led group worship under the First Amendment. In fact, we have
rejected this argument on nearly identical facts, where non-inmate volunteers are
unavailable and prison administrators justify the restriction for security reasons.
See Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988); Hadi v. Horn, 830 F.2d 779,
784–85 (7th Cir. 1987); see also Baranowski v. Hart, 486 F.3d 112, 120–22 (5th Cir. 2007);
Spies v. Voinovich, 173 F.3d 398, 402, 405–06 (6th Cir. 1999). West cites no authority casting
doubt on this established precedent. As for West’s retaliation claim, his appeal is
patently frivolous. We can ignore that Ramadan falls at different times from year to year,
and that in some years the 7:30 p.m. meal time requested by West would fall before
sunset. In fact, in 2011 the 8:30 p.m. meal time ranged from slightly before sunset to 33
minutes after, and in 2012 it ranged from 8 to 49 minutes after sunset. More importantly,
we agree with the magistrate judge that setting the meal time an hour later than West
had requested would not have deterred an inmate in his position from engaging in
future protected speech. See Surita v. Hyde, 665 F.3d 860, 878–79 (7th Cir. 2011). As we
No. 14-3623                                                                            Page 6

said in Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982), we would “trivialize the First
Amendment” by holding that harassment for exercising a First Amendment right is
“always actionable no matter how unlikely to deter a person of ordinary firmness from
that exercise.” And the change in meal time surely did not deter West, who in the
following two years submitted no less than 100 grievances at Columbia.

        That brings us to the RLUIPA claim, which is more substantial. As a starting
point, West asserts that the magistrate judge erred in dismissing the claim as moot
because, West surmises, the defendants transferred him to Green Bay in retaliation for
filing this lawsuit and with the express purpose of rendering the RLUIPA claim moot.
According to West, administrators at Columbia had said he would remain there for
another year, yet soon after transferred him to Green Bay. But West’s suspicions rest
entirely on speculation, not evidence, and do not persuade us that corrections officials
moved him to Green Bay in order to moot his RLUIPA claim. The defendants, after all,
had raised a concern about the magistrate judge’s mistaken reliance on qualified
immunity five months before West was transferred, and even after the transfer it was the
judge, not the defendants, who brought up the question of mootness.

        That we see nothing untoward in the defendants’ conduct, however, does not
mean that we agree with the magistrate judge’s determination of mootness or with the
defendants’ support of that ruling on appeal. Under RLUIPA the remedy available to
West was limited to declaratory or injunctive relief. See Sossamon v. Texas, 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. Moreover, while Green Bay has seen more success in recruiting outside
volunteers to lead services for Muslim inmates, that good fortune is not guaranteed. The
defendants have admitted that securing Muslim volunteers to lead services has been a
significant challenge over the course of many years, and we are given no reason to
conclude that the complained-of conduct won’t be resumed. See Vincent v. City Coll. of
Chi., 485 F.3d 919, 925 (7th Cir. 2007); Kikumura v. Turner, 28 F.3d 592, 597 (7th Cir. 1994).
No. 14-3623                                                                            Page 7

        The magistrate judge thus erred in dismissing this statutory claim as moot. That
mistake, coupled with the judge’s initial mistake in thinking that qualified immunity
barred the RLUIPA claim, means that the claim has yet to be addressed on the merits.
Under RLUIPA, the plaintiff has the initial burden to demonstrate that a challenged
prison policy substantially burdens the exercise of his religious beliefs. See 42 U.S.C.
§ 2000cc-2(b); Holt v. Hobbs, 135 S. Ct. 853, 862 (2015). RLUIPA applies to “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). In the past we have described a “substantial burden” as “one
that necessarily bears direct, primary, and fundamental responsibility for rendering
religious exercise . . . effectively impracticable.” Eagle Cove Camp & Conference Ctr., Inc. v.
Wooboro, 734 F.3d 673, 680 (7th Cir. 2013). After this appeal was briefed, however, we
concluded that this definition is incompatible with Holt and Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014). The correct standard, we explained, is whether a
particular restriction “seriously” violates or contradicts an inmate’s religious beliefs.
Schlemm v. Wall, No. 14-2604, 2015 WL 1787400, at *2 (7th Cir. Apr. 21, 2015). Whether or
not West satisfied that initial burden is significant because, as far as the current record
shows, a jury could find that the defendants did not offer persuasive evidence that the
existing policy serves a compelling interest in prison security, or, if it does, that the
policy in its present form is the least restrictive means of serving that interest. See 42
U.S.C. § 2000cc–1; Koger v. Bryan, 523 F.3d 789, 798 (7th Cir. 2008).

        We do not doubt that a prison’s interest in order and security is compelling.
Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005). But to ensure that prison policies further
that compelling interest, a stated security concern must be “grounded on more than
mere speculation, exaggerated fears, or post-hoc rationalizations.” S. Rep. No. 103-111,
at 10 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1900. And here the defendants did little
to back up their assertion that the challenged policy is necessary, much less the
least-restrictive means of accomplishing their aim of preserving security while still
allowing Muslim adherents to worship on equal footing with other religions. In fact,
what little evidence the defendants offered was cut down by their admission that in the
past the volunteer policy had not been enforced and that Muslim inmates were allowed
to lead religious services on a rotating basis. The stated rationale for ending that practice
was, not that inmate leadership sparked hostility among inmates or toward prison staff,
but that not all inmates were willing to take a turn leading the group. This merely
demonstrates that the inmates could not agree on a leadership rotation that satisfied
prison officials. It does not show that prison security compelled a broad restriction on
inmate-led services.
No. 14-3623                                                                            Page 8

        So we come back to the question whether West met his burden of establishing that
the policy against inmates leading religious services substantially burdens the exercise
of his religious rights. The magistrate judge did not attempt to resolve that question even
under our previous standard, and the parties have not had an opportunity to file briefs
discussing the impact of Schlemm. So rather than decide the question now, we conclude
that the better course is to let the magistrate judge address the issue in the first instance.
At the same time, the court may exercise its discretion to receive additional evidence on
both this issue and the defendants’ security justification for the policy.

        Accordingly, the dismissal of West’s claim under RLUIPA is VACATED, and the
case is REMANDED for further proceedings on that claim. In all other respects, the
judgment is AFFIRMED. On remand the district court should substitute the current
director of the Department of Corrections as the named defendant on West’s claim for
injunctive relief under RLUIPA.
