Opinion
WOCV2015-00275
06-14-2016
Nathan LeBaron et al. [1] v. Carol Higgins O'Brien, Commissioner, Department of Correction et al. [2] No. 134810
Hon. Shannon Frison, Justice
June 15, 2016, Filed
OMNIBUS MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT ET AL.
Hon. Shannon Frison, Justice
INTRODUCTION
The Court is here tasked with demarcating the scope of the freedom of free exercise of religion within the confines of the Massachusetts prison system. The plaintiffs, all inmates incarcerated at the Massachusetts Correctional Institution at Norfolk (" MCI-Norfolk") and members of the Church of the Firstborn Kahal Hab'Cor (the " CFB"), petition the Court, pro se, for several forms of relief from perceived violations of their rights under the First Amendment to the United States Constitution, the Religious Land Use and Institutionalized Persons Act (" RLUIPA"), codified at 42 U.S.C. § 2000cc-1(a), and 42 U.S.C. § 1983 by the defendants, officials of the Massachusetts Department of Corrections (the " DOC").
Plaintiff Serrano and others are housed at the Souza-Baranowski Corrections Center (" SBCC"). The Court will refer only to MCI-Norfolk, but for the purposes of its decision, the conditions at SBCC are substantially similar.
Foremost among the plaintiffs' motions is a motion for summary judgment on all counts of the First Amended Complaint (the " complaint"). Also before the Court are several motions for temporary restraining orders (" TROs") and a host of other miscellaneous motions. The defendants have filed a motion to dismiss the complaint and a cross motion for summary judgment. The Court's disposition on these motions is listed in its omnibus ORDER, infra .
The facts are taken, in part, from the Defendants' Statement of Undisputed Material Facts and the plaintiffs' Motion for Summary Judgment, which includes a section listing what the plaintiffs allege are undisputed material facts. The plaintiffs have not submitted a separate statement of material facts in compliance with Superior Court Rule 9A(b)(5)(i). The defendants filed a cross motion for summary judgment on the plaintiffs' claims and have submitted a Rule 9A(b)(5)(i) statement. This statement included a certificate of service, signed by the defendants' attorney, certifying that a copy of the statement was sent to the plaintiffs on October 23, 2015. The plaintiffs have not submitted responses to these facts in compliance with Superior Court Rule 9A(b)(5)(ii). The plaintiffs did not dispute the defendants' statement of material facts; accordingly, they will be deemed admitted. See Superior Court Rule 9A(b)(5)(ii). The same is true of the alleged undisputed facts contained in the plaintiffs' summary judgment motion.As a general matter, the Court holds the plaintiffs' submissions, written from prison, " to a less stringent standard than pleadings drafted by an attorney, " and construes them liberally. See Lamoureux v. Superintendent, Mass. Correctional Inst., 390 Mass. 409, 410 n.4, 456 N.E.2d 1117 (1983). The plaintiffs were not required to comply with the requirements of Rule 9A. Superior Court Rule 9A(e)(2).
I. Procedural History
Plaintiff Nathan Marquis LeBaron (" Plaintiff LeBaron") filed an action in the U.S. District Court for the District of Massachusetts, seeking several forms of relief for alleged violations of his free exercise of religion. See LeBaron v. Spencer, 527 Fed.Appx. 25, 27 (1st Cir. 2013). The district court granted summary judgment to the prison defendants, mistakenly believing that the parties had settled Plaintiff LeBaron's claims. Id. The case was heard by the First Circuit Court of Appeals, which, on July 22, 2013, ruled that Plaintiff LeBaron's retaliation, equal protection, and conspiracy claims were nevertheless without merit. However, the First Circuit remanded summary judgment for Plaintiff LeBaron's claims under RLUIPA and the First Amendment because questions of fact remained unanswered. Id. These claims concerned the defendants' refusal to provide a synagogue for daily prayer, the ability to engage in group prayer, access to a kosher diet, and certain religious materials. Id. at 29. Following the First Circuit's decision, Plaintiff LeBaron opted to file a new lawsuit in this Court. Paper #100, Ex. 2, p. 2. Other inmates, alleging the same violations, expressed interest in joining the renewed claim.
Many of the defendants in the federal case are also defendants in this action. Some positions in the prison have been filled by other individuals.
Several developments materialized in the time between the First Circuit's decision and the instant action, filed on February 27, 2015. The significant events included: Carol Higgins O'Brien replaced Luis Spencer as the commissioner of the DOC; Plaintiff LeBaron formed the CFB, and filed Articles of Organization with the Secretary of the Commonwealth pursuant to G.L.c. 180; and the CFB was certified and recognized as an official religious organization in the Commonwealth on November 7, 2013. As time passed, a growing number of inmates joined the CFB. Plaintiff LeBaron appointed himself the CFB president, as well as " Chief Judge" of the church's " Beit Din" (religious court). Similarly, he appointed other inmates to act as church officers.
Initially, five plaintiffs filed the first complaint. See Paper #1. Ultimately, many additional inmates joined, and the Court allowed a motion to list all current CFB members on the docket. See Paper #66. There are now forty-five plaintiffs.
II. Basis of the Complaint
The CFB adheres, in large part, to the precepts of Messianic Judaism, which " is a hybrid religion that includes both Christian and Jewish culture and laws and [differs from] Orthodox Judaism . . . on a few technical points[.]" Paper #140.1, Ex. 1, Attachment 1. Its mission includes administering the ministry of " Yeshua" to the imprisoned. Religious practices include: daily attendance to a Messianic synagogue; liturgical prayer; study of Scripture and the Hebrew language; observance of the Shabbat (Sabbath day) and other holy days; adherence to a special religious diet (the " Holy Diet"), and obedience to local " halacha" (religious law).
An inmate seeking a religious accommodation must submit a " religious services request" to the DOC Religious Service Review Committee (the " RSRC"). The RSRC is comprised of the Assistant Deputy Commissioner, the Deputy Commissioner of Classification, and the Director of Program Services, and makes global assessments of security concerns that might arise at the prisons if the DOC permits a new religious practice, use of a religious item, or participation in a religious feast. The RSRC reviews religious service requests and then makes a formal recommendation to the Commissioner of Correction (" Commissioner"). The plaintiffs submitted numerous religious services requests, primarily concerning access to a Messianic Judaism synagogue, the Holy Diet, and observance of holy days. The Commissioner approved many of the plaintiffs' requests for access to a kosher diet, but denied their Holy Diet requests. The Commissioner also denied the plaintiffs' request for synagogue space and certain religious items pending location of a Messianic Jewish volunteer to lead the inmates in corporate worship.
Plaintiff LeBaron submitted another religious services request seeking appointment of the Catholic chaplain of the Souza-Baranowski Correctional Center (" SBCC") as the chaplain for the Messianic Jewish inmates at MCI-Norfolk. The Commissioner denied this request because the chaplain could not assume additional responsibilities on top of his full-time schedule.
Plaintiff LeBaron submitted an additional religious services request for forty-four religious items and books necessary for a Messianic synagogue, creation of a ritual bath known as a mikva, over one hundred different types of food items, and construction of a garden for Messianic Jewish inmates to grow fresh fruits and vegetables. The Commissioner also denied these requests.
On December 18, 2015, the Court heard arguments on the plaintiffs' motion for summary judgment and the defendants' motions to dismiss and for summary judgment. The Court took these motions under advisement. While these motions and several of the plaintiffs' motions for TROs remained pending, the plaintiffs submitted several other motions. These motions are discussed throughout the Court's discussion. Additional relevant facts are set out in the discussion below, as needed.
STANDARDS OF REVIEW
This case is before the Court on the defendants' motion to dismiss under Mass.R.Civ.P. 12(b)(6), see Paper ##93, and 107, and, in the alternative, the parties' cross motions for summary judgment on all counts of the complaint under Mass.R.Civ.P. 56(c). See Paper ##115 and 140. In evaluating the defendants' motion to dismiss, the Court considered several documents outside the pleadings, including affidavits, DOC regulations, and religious material, among other documents. See e.g., Paper ##95, 100, 107.1, 108, and 111. The Court therefore construes the defendants' motion to dismiss as one for summary judgment. See Mass.R.Civ.P. 12(b). As such, each party is entitled to be " given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id. When the defendants submitted an exhibit with their motion to dismiss (see Paper #107.1, Ex. 1), they affirmed their understanding that the Court would be considering materials outside the pleadings and that the case would be decided under a summary judgment standard. See White v. Peabody Constr. Co., 386 Mass. 121, 127, 434 N.E.2d 1015 (1982). Moreover, the opportunity to present all relevant material was afforded to each party after they each filed formal summary judgment motions and compiled a summary judgment record. Each of the arguments presented in the defendants' motion to dismiss is also reasserted in their cross motion for summary judgment.The Court therefore converts the defendants' motion to dismiss to one for summary judgment and considers it together with the parties' formal cross motions for summary judgment. See Ajemian v. Yahoo!, Inc., 83 Mass.App.Ct. 565, 566, 987 N.E.2d 604 (2013) (converting motion to dismiss to summary judgment motion because parties had " briefed and argued the motion to dismiss as though it were a motion for summary judgment, submitting multiple documents and affidavits in support of their respective positions and liberally referring to information outside the four corners of the complaint"). Accordingly, the Court considers the parties' arguments under the familiar summary judgment standard and will not employ the standard used in evaluating the face of a complaint under Rule 12(b).
When reviewing cross motions for summary judgment, the Court must assess each motion on its own merits. See Federal Ins. C. v. Hartford Steam Boiler Inspection & Ins. Group, 415 F.3d 487, 493 (6th Cir. 2005). The fact that both parties have filed motions for summary judgment " does not necessarily mean that an award of summary judgment is appropriate." Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004).
Under Mass.R.Civ.P. 56(c), either the plaintiffs or the defendants will be entitled to summary judgment if they can show that no dispute exists as to any material fact and they are entitled to judgment as a matter of law. Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). Either party may satisfy its burden of demonstrating the absence of triable issues by submitting affirmative evidence demonstrating entitlement to relief (or the opposing party's lack of entitlement), or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of their case. Flesner v. Tech. Comm. Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991). If one party establishes the absence of a triable issue, the other party must demonstrate, through admissible evidence, an issue of material fact to defeat summary judgment. Godbout v. Cousens, 396 Mass. 254, 261, 485 N.E.2d 940 (1985). Neither party may rest on conclusory statements or bare assertions in opposing a motion for summary judgment. LaBrecque v. Parsons, 74 Mass.App.Ct. 766, 768, 910 N.E.2d 947 (2009). The Court's function is to peer beyond the formal allegations and determine whether further exploration of the facts is necessary. Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 87, 469 N.E.2d 797 (1984).
II. Temporary Restraining Order
The Court considers, simultaneously with the cross motions for summary judgment, several motions for TROs. In order for the plaintiffs to succeed on these motions, they must show " (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that in light of the plaintiffs' likelihood of success on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant[s] in granting the injunction." Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219, 741 N.E.2d 37 (2001). " When, as here, a party seeks to enjoin governmental action, the [C]ourt also considers whether the relief sought will adversely affect the public." Id., citing Commonwealth v. Massachusetts CRINC, 392 Mass. 79, 89, 466 N.E.2d 792 (1984). The Court will not grant this " significant remedy . . . unless the plaintiffs have made a clear showing of entitlement thereto." Student No. 9 v. Board of Educ., 440 Mass. 752, 762, 802 N.E.2d 105 (2004).
DISCUSSION
I. Exhaustion of Administrative Remedies
Before it reaches the merits of the plaintiffs' claims, the Court considers the defendants' argument that Plaintiffs Costa, Eisenman, and Serrano are barred from seeking relief in this Court under the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e(a), and G.L.c. 127, § 38F, which require an inmate to exhaust all administrative remedies before filing an action in state or federal court. Maraglia v. Maloney, 365 F.Supp.2d 76, 80-82 & n.5 (D.Mass. 2005). See also Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002) (rejecting argument that PLRA allows proceedings to continue while prisoner completes exhaustion).
The PLRA provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.General Laws, c. 127, § 38F provides:
An inmate shall not file any claim that may be the subject of a grievance under section 38E unless the inmate has exhausted the administrative remedy established pursuant to said section 38E; but the court may consider such claim if a final administrative resolution of a grievance filed pursuant to said section 38E has not been decided within 180 days from the date of filing such grievance, or if the inmate can demonstrate to the court that exigent circumstances exist which, if delayed pursuant to the requirements of this section, would jeopardize the life or seriously impair the health of the inmate, or for actions seeking equitable relief.
The Court is in receipt of a motion by the plaintiffs to deem that all members of the CFB have exhausted their administrative remedies. The Court denies this motion. In support of this motion, the plaintiffs submit a supporting affidavit which states that " all CFB Members, respectively, hereby depose" that " almost every CFB Member has submitted an Inmate Services Request Form . . ." Id. (emphasis added). The Court cannot approve the plaintiffs' motion to declare that all plaintiffs have exhausted their administrative remedies where the plaintiffs readily admit that some have not. See Ford v. Clarke, 2011 WL 3816798, *17 (D.Mass. 2011). Moreover, the affidavit is only signed by Plaintiff LeBaron.
However, the PLRA's exhaustion requirement is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Thus, the burden of establishing non-exhaustion is borne by the defendants. See id. ; Casanova v. Dubois, 304 F.3d 75, 77-78 n.3 (1st Cir. 2002). None of the plaintiffs were required to specifically plead or demonstrate exhaustion in the complaint. Jones, 549 U.S. at 216. The only evidence of non-exhaustion cited by the defendants is the May 21, 2015 affidavit of Defendant Christopher Mitchell, Director of Program Services for the DOC (" Defendant Mitchell"), which states that Plaintiffs Marco Costa, Brad Eisenman, and Peter Serrano did not submit any religious service requests to RSRC. The defendants did not present documentary evidence that these plaintiffs, or any other plaintiffs, failed to pursue their administrative remedies by the date the amended complaint was filed on June 9, 2015. The defendants' reliance on the Mitchell affidavit, without documentation of the named plaintiffs' failure to exhaust administrative remedies, is determinative. See Caldwell v. Folino, (W.D.Penn. 2011) (reliance on affidavit of prison official broadly stating that plaintiff never filed a timely grievance insufficient to meet burden of demonstrating failure to exhaust administrative remedies). The Court is therefore entitled to proceed with an analysis of the merits of this case. See e.g., Ford, 2011 WL 3816798 at *17. The defendants' cross motion for summary judgment as against Plaintiffs Costa, Eisenman, and Serano on this basis is denied.
The Court notes that, as a practical matter, whether some plaintiffs have failed to exhaust their administrative remedies before the complaint was filed does not alter the effect of the Court's decision on the merits on the right of CFB members to certain religious accommodations. Any plaintiff who is ultimately found sincere in their belief in the tenants of the CFB faith will be afforded the same accommodations as the plaintiffs who have proceeded through this action to a final adjudication on the merits.
In conducting its analysis of the plaintiffs' claims under RLUIPA, the Court liberally cites persuasive federal case law interpreting that statute. Our Supreme Judicial Court has only infrequently interpreted RLUIPA in the prison context. See Ahmad v. Department of Corr., 446 Mass. 479, 845 N.E.2d 289 (2006); Trapp v. Roden, 473 Mass. 210, 41 N.E.3d 1 (2015). Ahmad does not contain an in-depth analysis of RLUIPA. The plaintiff in that case brought claims under both RLUIPA and the Massachusetts Constitution. The court granted summary judgment to the defendants because the prison policies at issue in that case satisfied the requirements of the Massachusetts Constitution, which the Court held was consistent with the standard under RLUIPA. Here, the plaintiffs have not asserted a claim under the Massachusetts Constitution, and the Court will not infer such a claim where one is not clear on the face of the complaint.Trapp, by contrast, does analyze RLUIPA, but only addresses the statute's application to one religious accommodation. Here, the plaintiffs petition the Court for relief from asserted violations of several religious practices. The abundant treatment of RLUIPA's application to numerous religious practices in federal district and appeals court cases, while not binding, is instructive and persuasive.
" RLUIPA protects institutionalized persons who are unable to freely attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion, " McGee v. O'Brien, 160 F.Supp.3d 407, (D.Mass. 2016), quoting Cutter v. Wilkinson, 544 U.S. 709, 721, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), and provides, in pertinent part:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. [§ ]1997), even if the burden results from a rule of general applicability, unless the government demonstrates that the 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). To prevail on their RLUIPA claims, the plaintiffs must first establish that the defendants burdened their religious exercise and that the burden was " substantial." See Spratt v. Rhode Island Dept. of Corrs., 482 F.3d 33, 38 (1st Cir. 2007). If the plaintiffs meet their burden, the burden will shift to the defendants to demonstrate that the burden imposed on the plaintiffs furthers a " compelling governmental interest" and that it is the " least restrictive means" of doing so. Id. The Court, in employing this burden-shifting standard, affords due deference to the defendants' experience as prison administrators in their role establishing regulations and procedures aimed at fostering order, security, and discipline. Further, the Court remains mindful of the defendants' limited resources. See Cutter, 544 U.S. at 723.
RLUIPA does not define the term " substantial burden." The United States Supreme Court has said that a burden is " substantial" if it puts " substantial pressure on an adherent to modify his behavior and to violate his beliefs, " Thomas v. Review Bd. of Indiana Empl. Sec. Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), or " coerce[s] him into acting contrary to his religious beliefs." Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). When assessing whether a burden on a particular religious exercise is substantial, the Court does not consider whether a RLUIPA claimant is able to engage in alternative forms of religious exercise; its focus remains on whether the burden on the specific exercise at issue is substantial. Trapp v. Roden, 473 Mass. 210, 215, 41 N.E.3d 1 (2015), quoting Holt v. Hobbs, 135 S.Ct. 853, 862, 190 L.Ed.2d 747 (2015).
With respect to what government interests are " compelling, " courts make such determinations on a case-by-case basis. In the prison context, " [a] prison's interest in order and security is always compelling." Blake v. Howard, n.16, 26 Mass.L.Rptr. 335 (2009), citing Spratt, 482 F.3d at 39 (" [D]eference is due to institutional officials' expertise in this area"). See also Hudson v. Dennehy, 538 F.Supp.2d 400, 409 (D.Mass. 2008) (" RLUIPA should be applied with particular sensitivity when security concerns are legitimately at issue"). However, " merely stating that there is a compelling interest does not fully satisfy the government's burden on this element of RLUIPA." Blake, Id. n.16, 26 Mass.L.Rptr. 335, quoting Spratt, 482 F.3d at 39.
To prove that they employed the " least restrictive means" of burdening the plaintiffs' religious exercise in each instance, the defendants must show that they " lack[ ] other means of achieving [their] desired goal without [placing] a substantial burden" on the religious exercise. Cruz v. Collins, 46 N.E.3d 114, 89 Mass.App.Ct. 1108 (2016) (Rule 1:28). " A prison cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice." Trapp, 473 Mass. at 218, quoting Spratt, 482 F.3d at 41. The defendants cannot rely on conclusory statements that they employed the least restrictive means of achieving their interests " among available, effective alternatives." Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). " The least-restrictive-means standard is exceptionally demanding[.]" Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2780, 189 L.Ed.2d 675 (2014). In fact, " [r]equiring a State to demonstrate . . . that it has adopted the least restrictive means of achieving [a compelling] interest is the most demanding test known to constitutional law." City of Boerne v. Flores, 521 U.S. 507, 534, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
The Court's analysis, guided by this well-developed burden-shifting standard, will proceed as to each religious exercise. The plaintiffs' claims are predicated on the DOC's prohibition of the following religious exercises: (1) worship in a Messianic synagogue; (2) participation in inmate-led group worship; (3) access to the Holy Diet; (4) observance of several holy days; and (5) access to books and other religious materials appurtenant to Messianic worship.
A. Messianic Synagogue
The plaintiffs aver that the lack of access to a designated space to pray and congregate substantially burdens the practice of the CFB faith. Conversely, the defendants posit that the burden is not substantial because inmates are allowed to engage in prayer, religious study, and read Scripture in their cells. The complaint claims that prayer and study in the cells is plagued by distractions, making such religious practice impractical. The plaintiffs profess that daily " Messianic Synagogue attendance is essential to meet CFB religious discipleship requirements of central significance to the religious exercise of CFB Members."
" Since [the plaintiffs are] completely barred from praying in a Messianic Synagogue, an exercise that [they] sincerely believe[ ] is necessary for the practice of [their] religion, it is arguable that [they] ha[ve] been forced to 'modify [their] behavior and to violate [their] beliefs.'" LeBaron v. Spencer, 527 Fed.Appx. 25, 29 (1st Cir. 2013), quoting Spratt, 482 F.3d at 38. See also Farrow v. Stanley, (D.N.H. 2004) (finding that prison's refusal to provide a sweat lodge imposed a substantial burden on the plaintiff's religion where use of such a lodge was established as a widely practiced Native American religious exercise). The defendants cite each inmate's ability to pray and study in their respective cells as proof that their religious exercise is not substantially burdened. They do so without addressing the plaintiffs' contention that gathering for prayer in a Messianic synagogue is a central tenant of the CFB faith. The plaintiffs have met their burden of showing that the defendants' denial of a Messianic synagogue substantially burdens their religious exercise.
Claiming a compelling governmental interest, the defendants maintain that the other religious and secular programs available to inmates make it impossible to accommodate the plaintiffs' requests without infringing on the space available to other inmate groups. The prison also lacks the financial resources to construct a Messianic synagogue on the grounds of the prison. See Paper #140.1, Ex. 6, ¶ 13.
A host of cases repeatedly emphasize that prison officials' interests in effective and cost-efficient administration of their facilities are compelling. See e.g., Cutter, 544 U.S. at 723 (" due deference [must be afforded] to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources"; Sossamon v. Lone Star State of Tex., 560 F.3d 316, 332 (5th Cir. 2009) (" Effective and affordable prison security at the chapel is a compelling governmental interest"); Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007) (holding that policy " related to maintaining good order and controlling costs" serves compelling governmental interest). However, " cost alone is [not] an absolute defense to an otherwise meritorious RLUIPA claim." Holt, 135 S.Ct. at 867 (Sotomayor, J., concurring). See 42 U.S.C. § 2000cc-3(c). Nevertheless, the logistical and practical administrative concerns cited by the defendants related to affording the plaintiffs a designated Messianic synagogue are significant. The Court, affording the requisite deference to the defendants, finds that the defendants have a compelling interest in an effective resource allocation. See Cutter, 544 U.S. at 723.
The defendants bear the burden of demonstrating that they considered less restrictive alternatives. Washington v. Klein, 497 F.3d 272, 284 (3rd Cir. 2007); Willis v. Commissioner, Ind. Dept. of Corr., 753 F.Supp.2d 768, 779-80 (S.D.Ind. 2010). To support their position, the defendants only produced the affidavit of Sean Medeiros, Superintendent of MCI-Norfolk, which states that MCI-Norfolk cannot designate a room in one of its program buildings for the sole purpose of housing a Messianic synagogue. It claims that the DOC is left with only one less restrictive alternative to a complete ban on group religious practice--a policy permitting group worship only when a Messianic Judaism volunteer is available.
" Although it is not their burden, [the plaintiffs] have provided a . . . less restrictive alternative[ ] that DOC could . . . exercise[ ], or attempt[ ] to exercise." Willis, 753 F.Supp.2d at 779-80. Specifically, the plaintiffs counter that there are empty classrooms in two program buildings that could be designated as synagogue space. They also claim that an empty and unused room in the " CSD building" previously used for urine testing would accommodate a synagogue. See First Amended Complaint, ¶ ¶ 80-81. These averments contradict the defendants' assertions and create a dispute of material fact whether the defendants have employed the least restrictive means in denying the plaintiffs a designated worship space. Although the defendants have presented an affidavit that states that the prison does not have the space to accommodate a designated synagogue, in the absence of supporting evidence, the affidavit is conclusory and does not suffice to dissolve the question of fact the plaintiffs' assertions create. See Beerheide v. Suthers, 286 F.3d 1179, 1189 (10th Cir. 2002) ([W]hile [courts must] defer to the expertise of prison officials, that deference is not absolute. In order to warrant deference, prison officials must present credible evidence to support their stated penological goals") (emphasis in original); Lovelace v. Lee, 472 F.3d 174, 192 (4th Cir. 2006) (" There is no basis in this case for a court to . . . declare the least restrictive means test satisfied without any substantive explanation from prison officials"). " Where a prisoner challenges the prison's justification, prison officials must set forth detailed evidence, tailored to the situation before the court, that identifies the failings in the alternatives advanced by the prisoner." Warsoldier v. Woodford, 418 F.3d 989, 1000 (9th Cir. 2005), quoting May v. Baldwin, 109 F.3d 557 564-65 (9th Cir. 1997) (emphasis in original). The defendants have not satisfied this evidentiary showing. Summary judgment for the defendants is therefore denied.
This does not entitle the plaintiffs to summary judgment on this claim, however. There exists a question of fact as to whether there are means available to the defendants less restrictive than the total preclusion of group worship for CFB members. The plaintiffs have not presented unrebutted evidence that there are less restrictive means available to the defendants to protect their compelling interests. In the absence of such evidence, a factfinder is entitled to disbelieve the plaintiffs' rebuttal of the defendants' argument that their existing policies are the least restrictive means of serving a compelling government interest. See LaPlante v. Massachusetts Dept. of Corr., 89 F.Supp.3d 235, 247 (D.Mass. 2015). " Thus, both [the plaintiffs'] and the [d]efendants' motions for summary judgment are denied . . ." Id. See also Murphy v. Missouri Dept. of Corr., 372 F.3d 979, 989 (8th Cir. 2004).
Finally, as to this issue, the plaintiffs petition the Court for a TRO to require the defendants to provide space for use as a Messianic synagogue while this action proceeds. See Paper #141 and 142. Entitlement to such an order requires the plaintiffs to demonstrate the elements for a restraining order set out above (i.e., a substantial likelihood of success on the merits, a risk of irreparable harm, demonstration that the balance of each party's respective hardships tips in their favor, and some showing that the order will not adversely affect the public). Tri-Nel, 433 Mass. at 219.
In the context of claims made under RLUIPA, a plaintiff need only establish that the defendant substantially burdened their religious exercise in order to satisfy the " likelihood of success" requirement. Kikumura v. Hurley, 242 F.3d 950, 961 (10th Cir. 2001). The plaintiff has done so with respect to the claim for a synagogue. The implication of constitutional rights in the plaintiffs' claims is sufficient to fulfill the irreparable harm requirement. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (" The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitute irreparable injury"); Jolly v. Coughlin, 76 F.3d 468, 482 (2nd Cir. 1996) (irreparable harm requirement satisfied when constitutional rights are implied in the analysis).
Ultimately, however, the Court does not believe that a TRO is appropriate where the balance of equities tips in the defendants' favor in light of the " wide ranging deference" afforded to prison officials in the administration of their facilities. Wetzel v. Edwards, 635 F.2d 283, 288 (4th Cir. 1980); Cryer v. Clarke, 2012 WL 6800791, *16 (D.Mass. 2012). At trial, the defendants will have the burden of showing that their denial of designated synagogue space was the least restrictive means of accomplishing their compelling interests, but at this juncture, deference to the defendants' resource concerns tip the balance of hardships in the defendants' favor. See id. Moreover, with respect to the fourth element, the public interest is better served when prisons are run efficiently and run by prison officials, not courts. See Turner v. Safley, 482 U.S. 78, 85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The plaintiffs' motion for a TRO establishing such a synagogue at MCI-Norfolk, Paper #141, is denied.
B. Group Prayer
The plaintiffs allege two substantial burdens on the plaintiffs' religious exercise with respect to group prayer. First, the defendants prohibit inmates from proselytizing religion to other inmates. Second, the defendants have failed to locate a Messianic Jewish volunteer to lead members of the CFB in worship.
1. Inmate-Led Worship
The Court believes that the plaintiffs have demonstrated that these burdens on their religious exercise are substantial. The practice of teaching and leading in prayer is central to the exercise of faith in the CFB. First Amended Complaint, ¶ 85. Members are required to attend synagogue and " partake of daily ritual communion[.]" Id., ¶ 86. The Court reemphasizes its holding that the plaintiffs' ability to conduct individual, in-cell prayer and study does not render the prohibition on group prayer insubstantial where assembly of all religious members to one place for worship is a central tenant of the faith. See Crawford v. Clarke, 578 F.3d 39, 43-44 (1st Cir. 2009) (finding bar on weekly " Jum'ah" group prayer substantial where such practice was obligatory for Muslims) with Cryer, 2012 WL 6800791 at *26 (no substantial burden found where plaintiff failed to show daily smudging ceremony was central to practice of Native American religion).
Turning to the defendants' ability to demonstrate a compelling interest in prohibiting group prayer, the Court cannot say that the prison's proffered interests in order and security are outweighed by the burden on the plaintiffs. Plaintiff LeBaron is the self-appointed president of the CFB and has appointed other inmates as officers of the church. The defendants have a compelling interest in assuring that Plaintiff LeBaron's role as " Chief Judge" and the church officers' roles as authority figures in the church do not pose a risk that one group of inmates will control another group. Such an arrangement violates inmate management regulations promulgated by the Department of Corrections. See 103 DOC § 400.06. Superintendent Medeiros deposed that " it is frequently the case that when inmates are able to gain authority and control over other inmates in unapproved or unsupervised groups or activities, the inmates will attempt to challenge the authority of prison administrators." The defendants' interest in preventing individual inmates' control over others is compelling. See McGee, 160 F.Supp.3d 407, Id. -28.
The plaintiffs are not permitted to meet as a group for religious instruction without a leading Department chaplain, a Department-approved volunteer, or a staff member. See 103 Code Mass. Regs. § 485.00 et seq. However, if a volunteer acceptable to the DOC is available, then the plaintiffs will be allowed to congregate so long as the volunteer remains available on the days prescribed for group worship. Furthermore, the plaintiffs are not constrained from engaging in personal study and prayer in their cells, and are permitted to have up to ten religious books in their cells, and may borrow more from the prison library. This represents, in the Court's estimation, the use of the least restrictive means available to accomplish the defendants' interests in maintaining equity of authority among all inmates. This is evident where the plaintiffs have rejected the defendants' proposed alternative and demand to lead their own worship services, or else be guaranteed a volunteer for all of their religious services. See McGee, 160 F.Supp.3d 407, Id. (" By requiring the presence of [a] volunteer when conducting corporate worship so as to aid adherents in properly interpreting . . . texts and tenants in order to avoid inciting violence, Defendants have tailored the least restrictive means of furthering that interest[.] The option of allowing . . . adherents to meet solely under the supervision of two correctional officers simply would not address the DOC's specific security concerns"). See also Fowler v. Crawford, 534 F.3d 931, 940 (8th Cir. 2008) (" It would be a herculean burden to require prison administrators to refute every conceivable option in order to satisfy the least restrictive means [requirement]") (quotation omitted).
Where the alternatives to inmate-led prayer are unacceptable to the plaintiffs, it is their burden to prove that the prison failed to consider other acceptable alternatives and that also address the defendants' compelling interests. See id. (" [T]he burden of production shifted to [the plaintiff] once [prison] officials had come forth with evidence that other means by which [the plaintiff] might practice his Native American faith were unacceptable to him"). Because the plaintiffs have not presented an acceptable less restrictive alternative to allowing group prayer in the presence of a volunteer, the defendants are entitled to summary judgment on this claim.
In contrast, the federal district court in Hudson v. Spencer, (D.Mass. 2015), allowed summary judgment on a Muslim inmate group's motion for summary judgment where the prison defendants could not explain why they could not provide requested televised recordings of Jum'ah services on days when a Nation of Islam volunteer was not available.
2. Failure to Locate Messianic Volunteer
With respect to the defendants' inability, to date, to locate a volunteer to facilitate the plaintiffs' services, such a failure may substantially burden the plaintiffs' religious exercise. The defendants, however, have engaged in sustained efforts to locate a Messianic Judaism volunteer. They are therefore in compliance with the applicable Department regulations and RLUIPA, which require only reasonable effort in locating volunteers from the community to assist with inmate religious programs. 103 Code Mass. Regs. § 471.09; Bader v. Wrenn, 675 F.3d 95, 98 (1st Cir. 2012) (affirming lower court's finding that the " failure of volunteers to appear . . . does not give rise to a RLUIPA claim . . . as long as their visits are not prohibited by an action of the government").
The defendants represent that they have located a Messianic Judaism volunteer who has expressed an interest in coming to MCI-Norfolk to provide services to the plaintiffs. This volunteer must comply with all of the requirements of the DOC. Mere location of a volunteer does not entitle the plaintiffs to be led by the volunteer absent satisfaction of all security procedures.
For the foregoing reasons, the defendants are entitled to summary judgment on the plaintiff's RLUIPA claim with respect to the policies requiring a volunteer to lead religious services of the CFB and prohibiting inmate-led worship of any kind. For these same reasons, the Court also denies the plaintiffs' motion for a TRO requiring the defendants to adopt a new policy on inmate religious groups. See Paper #111.
3. DOC Chaplain Assistance
Relatedly, the plaintiffs filed a motion for a TRO requiring a DOC chaplain to assist with Messianic worship and dance. See Paper ##139, 169 and 180. This motion requests the Court to order the MCI-Norfolk Chaplain, Reverend Don Horseman, to provide hymns and form a committee of paid workers to assemble, transcribe, and translate a hymnbook for CFB member use. The effect of this motion is to require the DOC to provide the paid services of a chaplain in the absence of a volunteer. Neither the First Amendment nor RLUIPA require such expenditure on the defendants' behalf. See Cruz, 405 U.S. at 322 n.2 (" We do not suggest . . . that every religious sect or group within a prison--however few in number--must have identical facilities or personnel . . . [A] chaplain, priest, or minister [need not] be provided without regard to the extent of the demand"); Chance v. Texas Dept. of Crim. Justice, 730 F.3d 404, 416 (5th Cir. 2013), quoting Cutter, 544 U.S. at 726 (" When 'inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility is free to resist the imposition'").
Currently, Reverend Horseman works with hundreds of inmates and religious groups on a weekly basis. Bruce Pires, Director of Treatment for MCI-Norfolk, deposed that requiring Reverend Horseman to assist Plaintiff LeBaron with the hymnbook project would " likely cause him to neglect some of his other responsibilities as a chaplain." Paper 169, Ex. 2, ¶ 10. The defendants also point out that nothing prevents Plaintiff LeBaron from seeking access to sheet music, songs, and CDs for the hymnbook through his own efforts. Where the defendants did not deny Plaintiff LeBaron access to religious material or the time and resources to assemble them for his religious exercise, his rights under the First Amendment and RLUIPA have not been violated, and he cannot show a likelihood of success on the merits of this claim. See Smith v. Kyler, 295 Fed.Appx. 479, 483 (3rd Cir. 2005) (lack of volunteers does not impose substantial burden on religious exercise where volunteer policy applied uniformly). The motion to require Reverend Horseman to assist in compilation of a hymnbook and other services is therefore denied.
C. Holy Diet
As members of the CFB, the plaintiffs sincerely believe adherence to the CFB requires strict adherence to the Holy Diet. They assert that the kosher diet provided to other Jewish inmates is insufficient and unhealthy, and that the defendants' deprivation of the Holy Diet substantially burdens their religious exercise in violation of RLUIPA. See First Amended Complaint, ¶ 50.
The centrality of the Holy Diet to the plaintiffs' faith is abundantly apparent from the record. As Plaintiff LeBaron explained in support of his various religious service requests to the defendants:
Messianic Believers are adopted as literal Children of God . . . and believe that their physical bodies are the literal temple of God and must be treated as such (2 Corinthians 6:14-18; John 2:21; 1 Corinthians 3:16-17, 1 Corinthians 6; 19-20). As such, Messianic Believers reject processed foods with man-made substances and require natural organic food, fresh vegetables, and aesthetically pleasing food. Eating food is a spiritual ritual and requires honor for a Child of God.Paper #140.1, Ex. 1, Att. 1. An Orthodox Jewish rabbi may certify certain foods as kosher, but such certification carries no weight for adherents of the CFB. Id. The Holy Diet is not precisely defined in the record, but, consistent with the excerpted language above, emphasizes freshness, and aesthetics. See e.g., id. (" soggy breaded processed pieces, " " processed chicken, " " food in packages with no date of expiration, " meals that are " too small, " " packages of powder, " " microwaved" meals, " rotten" fruits, and meals that " leave[ ] the inmate hungry" are not kosher under CFB standards). The plaintiffs believe that the current kosher diet, which contains some processed foods, does not suffice as a diet " God defines as legitimate food items [as] defined in Scripture[.]" Id.
The defendants first opine that " the vagueness of the requested food items would make it extremely difficult to create a diet that meets [DOC's] nutrition and dietary requirements[.]" The Court disagrees that the Holy Diet is problematically vague. Although the record does not contain a specific diet calendar or a list of proscribed foods to consume, the descriptions provided do offer the defendants a wide range of food products that would fit within the prescriptions of the Holy Diet. Thus, the Holy Diet instructs adherents what not to consume rather than prescribing precise meals to consume at given times. For example, the complaint states that members of the CFB must adhere to a diet which includes: " (1) fresh vegetables of all available varieties; (2) fresh fruits of all available varieties; (3) juice made from real fruits and vegetables with no sugar added; (4) unprocessed kosher meats; (5) whole grain foods such as breads, beans, lentils, etc.; (6) dairy food products such as whole milk, yogurt, cheese, cream, butter, etc.; (7) honey [(instead of sugar)]; and (8) olive oil." First Amended Complaint, ¶ 39. So long as the diet provided consists of food within these categories, it satisfies the requirements of the Holy Diet.
The defendants frequently burden the plaintiffs' religious exercise by offering only food that falls outside the category of foods permitted in the Holy Diet. See Hudson, 538 F.Supp.2d at 411 (finding DOC's refusal to provide Muslim inmate with daily Halal menu substantially burdened his religious exercise). The fact that the Holy Diet differs from the kosher diet of Orthodox Judaism is of no moment. See Gordon v. Pepe, 2004 WL 1895134, *7 (D.Mass. 2004), quoting Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir. 1992) (" [P]laintiff has a right to meals that are 'consistent with his religious scruples . . .' The fact that plaintiff's beliefs may differ from other Rastafarians is of little consequence").
Arguing that the burden on the plaintiffs is not substantial, the defendants claim that the Holy Diet is merely a " vague and generalized description of an assortment of food preferences such as fresh fruit, fresh vegetables, whole grains, dairy and kosher meats, " Paper #140.1, p. 7, and does not represent a central tenant of the CFB faith. The Court will not query whether the Holy Diet is a sincere reflection of the plaintiffs' interpretation of texts or the product of sincere religious belief. The Holy Diet's differences with the diet of the Orthodox Jewish faith say nothing about the sincerity of the plaintiffs' belief in the centrality of the Holy Diet in the practice of their faith. " The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect." Thomas, 450 U.S. at 715-16. Prisoners must be given " a reasonable opportunity of pursuing [their] faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts." Gordon, 2004 WL 1895134 at *9, quoting Cruz, 405 U.S. at 322.
The defendants argue that compelling penological interests justify refusing the plaintiff's access to the Holy Diet. Christopher Gendreau, DOC's Director of Food Services (" Director Gendreau"), deposed that procuring fresh fruit and vegetables, juice with no added sugar, unprocessed kosher meats, whole grain foods, whole milk, yogurt, cheese, cream, butter, honey, and olive oil would be very difficult for the DOC to accomplish and place significant burdens on kitchen staff, and pose a great expense. The defendant argues, " it is often very difficult and expensive to obtain fresh fruit and vegetables in small amounts where the preparation of inmate meals involves large quantities of food and frozen vegetables are often utilized due to convenience and cost." " [T]o the extent [the plaintiffs] require fresh kosher meats, the DOC's prison kitchen do not have the space or capability to create kosher kitchens." " [T]he DOC's prison kitchens lack the additional storage space necessary to store the fresh vegetables and fruit and other items sought by [the plaintiffs]." Paper #140.1.
Director Gendreau also deposed that despite the plaintiffs' beliefs about the health-related risks associated with the kosher diet, those diets are nutritionally adequate. Id., Ex. 7, ¶ 8. The defendants' interests in operating an efficient food program and minimizing costs and administrative burdens are compelling. See Denson v. Marshall, 59 F.Supp.2d 156, 158-59 (D.Mass. 1999).
Security is also a concern. Conflicts between inmates often arise where one group feels another group is receiving preferential treatment. Director Gendreau further deposed that " this is especially true for food issues since food plays an important role in the daily lives of inmates and inmates in the chow hall can easily observe who is receiving special meals." Paper #140.1, Ex. 7, ¶ 9. Moreover, some " inmates join a religion merely to obtain a different diet, without intending to follow the religion's practices, which creates conflicts with other inmates who have a sincere belief in the religion." Id. Preventing such conflict and inmate animosity is a compelling governmental interest. See Johnson v. California, 543 U.S. 499, 512, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (recognizing " necessities of prison security and discipline").
Whether restricting the inmates to the kosher diet is the least restrictive means of protecting those interests is a closer question. If a less restrictive alternative to placing the plaintiffs on the standard kosher prison diet is available and still allows the defendants to achieve their compelling interests in cost and security, " RLUIPA commands that [the defendants] adopt it." Moussazedeh v. Texas Dept. of Crim. Justice, 703 F.3d 781, 796 (5th Cir. 2012).
" Although RLUIPA does not require prison administrators to refute every conceivable option to satisfy the least restrictive means prong[, ] their rejection of competing alternatives should generally be accompanied by some measure of explanation." Hudson, 538 F.3d at 410 (citation omitted). As they did with respect to the requested Messianic synagogue, the defendants rely on the affidavits of prison officials that state that providing the plaintiffs the Holy Diet is prohibitively expensive and onerous on prison staff. These affidavits summarily state that provision of the standard kosher diet is the least restrictive alternative to providing the Holy Diet. Unlike their argument with respect to the synagogue, however, the defendants have failed to present any evidence that they considered any other alternative except the standard kosher diet. To repeat, it is the defendants' burden to demonstrate that they considered such less restrictive alternatives. See Willis, 753 F.Supp.2d at 779. Contrary to the defendants' assertion, the standard kosher diet is not a less restrictive alternative to providing the holy diet. Consumption of the kosher diet forces the plaintiffs to violate sincerely held religious beliefs, and thus does not constitute an alternative at all. See Muhammad v. McNeil, (N.D.Fla. 2009) (" Either Plaintiff is provided the full diet he seeks, without cross contamination of non-Halal foods, or he is not").
Recall that with respect to the Messianic synagogue, the defendants raised concerns about space for a designated synagogue, but offered to provide space during times when a Messianic volunteer was available to lead the plaintiffs in prayer and worship.
Director Gendreau's affidavit merely explains why provision of the Holy Diet would be burdensome; it does not constitute evidence of the prison's consideration and reasoned rejection of other means of satisfying the plaintiffs' dietary requests. Contr. Kuperman v. Wrenn, 645 F.3d 69, 80 (1st Cir. 2011) (unrebutted affidavit specifically considered and rejected alternative to strict prison " no-beard" policy plaintiff claimed violated his free exercise rights). Compare Baranowski, 486 F.3d at 125-26 (prison had compelling interests in maintaining good order and controlling costs that could not be achieved by different means and outweighed plaintiff's desired access to a kosher diet) with Shakur v. Schriro, 514 F.3d 878, 890-91 (9th Cir. 2008) (vacating summary judgment for prison defendants where less restrictive alternative method of meeting plaintiff's religious dietary needs was not considered). In the absence of any evidence that the defendants' seriously considered alternatives to the Holy Diet other than the standard kosher diet, summary judgment for the defendants must be denied.
Because the plaintiffs have met their only burden under the RLUIPA scheme i.e., to show a substantial burden on their religious exercise and because the defendants have failed to meet their burdens to demonstrate both a compelling interest and the use of the least restrictive means, summary judgment in the plaintiffs' favor is appropriate on this point. See Willis, 753 F.Supp.2d 768 (granting summary judgment in inmate's favor where prison failed to show that it had considered and rejected " obvious alternatives"); Bilal v. Lehman, 2006 WL 3626781, *37-44 (W.D.Wash. 2006) (same); Johns v. Lemmon, 980 F.Supp.2d 1055, 1060 (N.D.Ind. 2013) (same).
D. Observance of Holy Days
The complaint lists several " high holy days, " that the plaintiffs claim they are unable to observe because they have been deleted from the 2011 edition of the Religious Services Handbook (" RSH"). These are: (1) Purim, (2) Hanukkah, (3) Shemini Atzeret, (4) fast day of Esther, (5) fast day of Tammuz, (6) fast day of the 9th of Av, (7) fast day of Gedaliah, and (8) fast day of Tevet. The complaint alleges that these holy days were all listed in prior editions of the RSH. The defendants list the following holy days that Messianic Jewish inmates are permitted to attend: Pseach (Passover), First Fruits, Shavuot (Pentecost), Rosh Hashanah (New Year's Day), Yom Kippur (Day of Atonement), Sukkot (Holy Day of Tabernacles), and Hanukkah. With the exception of Hanukkah, the plaintiffs' cited holy days do not appear on the approved list.
The defendants burden the plaintiffs' observance of certain holy days by prohibiting their observance entirely. This burden differs from the mere unavailability of a qualified outside volunteer. Contr. Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004) (Plaintiff's inability to congregate with other members of his religion resulted from " dearth of qualified outside volunteers"). It is the result of a prison policy. The defendants' failure to list the holy days enumerated in the complaint substantially burdens the plaintiffs' religious exercise. See Wilkinson v. Secretary, Fla. Dept. of Corr., 622 Fed.Appx. 805, 815 (11th Cir. 2015) (holding that an absolute denial of the opportunity to celebrate holy days " significantly hampered" plaintiff's religious practice and satisfied the substantial burden threshold); Rossi v. Fishcer, (S.D.N.Y. 2015) (denial of exemption from work, congregate worship service, and shared meal on holy days is a substantial burden on religious exercise); Buchanan v. Burbury, 2006 WL 2010773, *17-18 (N.D. Ohio 2006) (allowing preliminary injunction for observance of holy days where plaintiff could likely show his religious exercise had been substantially burdened by prison's policy of forcing him to work on the holy days).
The Court has already held that the defendants have a compelling interest in preventing one group of inmates from gaining too much influence over another. See Part III.B., supra . This same interest justifies the prohibition on the plaintiffs' collective observance of the holy days where the justification centers on the absence of a volunteer to lead those services . However, the defendants have not presented a compelling interest in failing to recognize the holy days when an outside volunteer is made available to assist the CFB inmates in celebrating or observing those holy days. They merely repeat their contention that a volunteer is required to maintain equity of authority among all inmates. In the absence of another compelling interest, the Court grants the plaintiff's summary judgment on this point and orders the defendants to revise its RSH calendar to include the religious holidays enumerated in the plaintiffs' complaint. See Rahman v. Goord, 2007 WL 1299408, *22 (W.D.N.Y. 2007) (ordering the state department of correction to revise its religious observance calendar to include observances unique to Shi'ite Muslims).
See First Amended Complaint, ¶ 111.
The plaintiffs' affirmative success on the merits of their RLUIPA claim with respect to observance of holy days entitles them to immediate relief on this accommodation while their other claims for religious accommodation proceed beyond the summary judgment stage.
E. Religious Materials
While the complaint contains no formal claim for specific religious tangibles, it does allege that Plaintiff LeBaron's religious books were stolen. First Amended Complaint, ¶ 168. The Court considers this allegation together with Plaintiff LeBaron's motion for a temporary restraining order to enjoin the defendants from enforcing the " ten-book limit" policy, Paper #125. The Court (Sullivan, J.) previously denied Plaintiff LeBaron's emergency motion for a temporary restraining order requiring the defendants to replace his religious books, Paper #69. These motions are related because the defendants admit to removing books from Plaintiff LeBaron's cell because he had in excess of ten books.
In LeBaron, Plaintiff LeBaron asked the DOC for a TV, a DVD player, a CD player, CDs, and religious books, but failed to address how any of those items had " any religious significance in and of themselves." 527 Fed.Appx. at 31. In granting summary judgment for the prison defendants in that case, the First Circuit Court of Appeals wrote:
[E]ven assuming that [LeBaron] intends to use such items for the study of his religion, he does not explain how not having them has forced him to violate any of his religious beliefs. See Spratt, 482 F.3d at 38. Thus, we do not think that [LeBaron] has raised a question of fact regarding the substantial burdening of his religious exercise. See Van Wyhe v. Reisch, 581 F.3d 639, 657 (8th Cir. 2009) (stating that " RLUIPA does not require the prison to permit an inmate to possess every tangible item of property that could aid the inmate's religious exercise or learning" and that " depriving the plaintiff of a tape player in his cell does not significantly inhibit his religious expression or meaningfully curtail his ability to adhere to his faith").Id. The court further opined that LeBaron had not specified what books he needed. Id.
Plaintiff LeBaron assures the Court that the confiscation of his surplus books and the ten-book limit policy substantially burden his religious practice because his duties as Chief Judge of the Biet Din regularly require him to read in excess of ten books per day. He cites Washington v. Klein, supra, where the Third Circuit Court of Appeals found that a prison's ten-book limit policy substantially burdened the plaintiff's religious exercise. The evidence in Washington was that adherence to the plaintiff's religion, the Children of the Sun Church, required a daily reading of four Afro-centric books and that prohibiting his retention of more than ten books severely inhibited his ability to practice that fundamental part of his religion. 497 F.3d at 282.
Plaintiff LeBaron did not present similar evidence that reading religious books is a requirement for adherence to the CFB or, more broadly, Messianic Judaism. The defendants do not dispute Plaintiff LeBaron's contention that he must read a large number of books as part of his responsibilities as the head of the CFB. Nevertheless, there is no evidence in the record that such reading is a central tenant of religious practice in the CFB. This is in stark contrast with the tenants of the faith in Washington, where the court found that the plaintiff's " books and his religion are one and the same; his religion is destroyed in the absence of his religious books." Id.
For these reasons, the Court agrees with the First Circuit Court of Appeals' finding in LeBaron that Plaintiff LeBaron has not demonstrated that the ten-book limit policy substantially burdens his religious practice. LeBaron, 527 Fed.Appx. at 31. The defendants' cross motion for summary judgment on this point is therefore allowed.
Without some demonstration of a substantial burden, Plaintiff LeBaron cannot satisfy the " likelihood of success" element required for issue of a TRO. See Kikumura, 242 F.3d at 961. Accordingly, the plaintiffs' motion for a TRO on this issue, Paper #125, is denied.
II. First Amendment Claims
Plaintiffs contend that the burdens on their religious exercise also violate the Free Exercise Clause of the First Amendment to the United States Constitution. Compared to the standard that the government is held to under RLUIPA, scrutiny of government conduct under the First Amendment is less strict. The United States Supreme Court, in Turner v. Safley, held that " when a prison regulation impinges on inmates' constitutional rights, the regulation is valid [under the First Amendment] if it is reasonably related to legitimate penological interests." 482 U.S. at 89. This " reasonableness" test is even less restrictive than ordinarily applied to the infringement of fundamental rights. Ahmad v. Department of Corr., 446 Mass. 479, 485, 845 N.E.2d 289 (2006). The following factors are considered in this test: " (1) whether there is a valid, rational connection between the regulation and the legitimate government interest put forward to justify it; (2) whether alternative means to exercise the right exist; (3) the impact that accommodating the right will have on prison resources; and (4) the absence of alternatives to the prison regulation." LeBaron, 527 Fed.Appx. at 31-32, quoting Kuperman v. Wrenn, 645 F.3d at 74.
In LeBaron, the First Circuit Court of Appeals denied the Commissioner of Correction's motion for summary judgment on Plaintiff LeBaron's First Amendment claim because the Commissioner relied only on conclusory assertions that Plaintiff LeBaron was allowed to practice his religion, and failed to cite legitimate government interests justifying impingement on various religious exercises. Id. at 32. Here, by contrast, the defendants cite several legitimate interests justifying impingement on the plaintiffs' religious exercise. With respect to their dietary requests, the defendants cite expense, uniformity of food service, and security. With respect to corporate worship, they cite to policies seeking to prevent uneven power dynamics between inmates. With respect to the request for a designated Messianic synagogue, they again cite expense and the policy requiring an outside volunteer to lead religious services. These are all legitimate penological interests. See Cutter, 544 U.S. at 722 (" order and safety"); Johnson v. California, 543 U.S. 499, 512, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (" security and discipline"); Massachusetts Prisoners Ass'n Political Action Committee v. Acting Governor, 435 Mass. 811, 821-22, 761 N.E.2d 952 (2002) (" coercion of inmates"); Cacicio v. Secretary of Public Safety, 422 Mass. 764, 770-71, 665 N.E.2d 85 (1996) (same); Kuperman, 645 F.3d at 76 (" strain on prison resources").
With respect to the religious books, the Court does not believe that deprivation of Plaintiff LeBaron's excess books impinges on his constitutional rights. The Court has already stated that the ten-book limit policy does not constitute a " substantial burden" on his religious practice. See Part III.E., supra .
The Court finds a valid connection between the conduct and regulations at play in this case and the legitimate government interests that justify them. Under the less strict " reasonableness" standard, the Court also considers the fact that the plaintiffs are able to exercise their religion in their cells and collectively when an outside volunteer is available. The plausible alternatives to some of the current regulations are outweighed by the fact that accommodation of the requested inmate diet, designated synagogue, and group worship changes would pose a substantial strain on prison resources. As a matter of course, policies that meet the RLUIPA standard also satisfy the less demanding reasonableness test of the First Amendment. See Charles v. Frank, 101 Fed.Appx. 634, 635 (7th Cir. 2004); Lovelace v. Lee, 472 F.3d 174, 199-200 (4th Cir. 2006).
The one exception is the defendants' prohibition on the plaintiffs' celebration of certain holy days, which does not satisfy the RLUIPA standard. The defendants do not assert a legitimate government interest justifying a prohibition on celebration in the presence of a volunteer. See LeBaron, 527 Fed.Appx. at 32. Allowing the plaintiffs to congregate and celebrate on these days if a volunteer is available would not, in the Court's view, impose a significant strain on prison resources. With the exception of the holy days celebration, summary judgment must enter for the defendants on all of the plaintiffs' First Amendment claims.
III. Claims Under Title 42 United States Code
The plaintiffs allege that, in addition to depriving them of the ability to exercise their religion freely, the defendants actively conspired to do so, and retaliated against them for asserting their rights. Allegations of such conduct may be brought under 42 U.S.C. § § 1983 and 1985.
A. Conspiracy
" Section 1985(3) prohibits two or more persons in any State or Territory from conspiring to deprive any person or class of persons of the equal protection of the laws." LeBaron, 527 Fed.Appx. at 32-33, quoting Perez-Sanchez v. Public Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008). A claim under § 1985(3) has four elements: (1) a conspiracy, (2) with a purpose of depriving a plaintiff of the equal protection of the laws, (3) an overt act, and (4) injury. Id. As was the case in LeBaron, the plaintiffs have " submitted insufficient evidence of a conspiracy." Id.
Although " conspiracy is a matter of inference, summary judgment may still be appropriate on a conspiracy claim where the nonmoving party rests merely on conclusory allegations." Id. at 33, quoting Estate of Bennett v. Wainwright, 548 F.3d 155, 178 (1st Cir. 2008). The complaint alleges that the defendants held RSRC meetings where " they specifically conspired and agreed . . . to deprive CFB Members of [religious] rights secured by RLUIPA and the First Amendment." First Amended Complaint, ¶ 149. It also alleges that prison employees were instructed not to process the plaintiffs' religious service requests. Id., ¶ ¶ 149-52. The Court agrees with the First Circuit Court of Appeals and finds that such conclusory allegations, absent evidence other than the denial of the plaintiffs' religious service requests, are insufficient to support a jury's reasonable inference of an agreement among the defendants to prevent the plaintiffs from practicing their religion. See LeBaron, 527 Fed.Appx. at 33. The plaintiffs proffer no other evidence and do not argue the point in their memoranda in support of their motion for summary judgment. See generally, Paper ##115 and 161. Summary judgment in the defendants' favor is therefore appropriate.
B. Retaliation
Retaliation against a prisoner's exercise of constitutional rights is also actionable under 42 U.S.C. § 1983. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). The plaintiffs assert that the defendants retaliated against them for asserting their religious rights when they: (i) delayed in getting their complaint docketed in the Superior Court, (ii) placed Plaintiff LeBaron in the " hole" (solitary confinement) on a false disciplinary report, (iii) confiscated Plaintiff LeBaron's typewriter on false pretenses, (iv) confiscated Plaintiff LeBaron's legal paperwork, and (v) instructed the prison law librarian not to permit Plaintiff LeBaron from making photocopies of legal documents.
On this claim, too, the plaintiffs have failed to present sufficient evidence. The LeBaron court recognized, as this Court does today, that " 'running a prison system is a difficult enterprise[, ]' and because prisoner claims of retaliation are 'easily fabricated and pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration, ' such claims must be based on facts, not on 'gossamer strands of speculation and surmise.'" LeBaron, 527 Fed.Appx. at 32, quoting Hannon, 645 F.3d at 48. The plaintiffs have not shown that they would not have received the sanctions but for the defendants' alleged retaliatory motives, see McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979), or that their alleged motives were the exclusive cause of any disciplinary action. See Jackson v. Fair, 846 F.2d 811, 820 (1st Cir. 1988); Puleio v. Commissioner of Corr., 52 Mass.App.Ct. 302, 310, 753 N.E.2d 814 (2001).
The allegations of a causal connection between assertion of the plaintiffs' free exercise rights and the adverse actions taken against them are essentially conclusory. The plaintiffs did not present evidence to establish a motive for the defendants' conduct, and the issue is not argued in the plaintiffs' memoranda. The defendants are therefore entitled to summary judgment on the retaliation claim. See Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80, 105 (D.Mass. 2005) (granting summary judgment to prison defendants on plaintiff's § 1983 retaliation claim for failure to establish causal connection under the " more defendant-friendly" standard found " in the prison context").
IV. Miscellaneous Motions
A. Motions for Fraud Upon the Court
The plaintiffs submitted several motions and supporting documentation asserting that the defendants and their counsel committed fraud upon this Court. See Paper ##144, 150, 151, 152, 157, 157.1, 157.2, 157.3, 158, 159, 161162, 182, and 196. See also Mass.R.Civ.P. 60. The crux of these submissions allege that " the defendants, their employees, and their attorney have conspired to deny CFB Members access to the Court through the repeated use of perjured affidavits, " Paper #157, p. 2, " false characterization[s], " Paper #183, ¶ 8, and " false statement[s], " Paper #196, ¶ 19. The defendants counter that the plaintiffs' claims are based on a misreading of the defendants' affidavits, and fall short of sanctionable conduct under Rule 60(b). Paper #164.
Fraud on the court implies corrupt conduct and embraces " only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication . . ." Pina v. McGill Dev. Corp., 388 Mass. 159, 165, 445 N.E.2d 1059 (1983) [citation omitted]. " Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute fraud on the court. Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court." United States v. International Tel. & Tel. Corp., 349 F.Supp. 22, 29 (D.Conn. 1972)[.]Winthrop Corp. v. Lowenthal, 29 Mass.App.Ct. 180, 184, 558 N.E.2d 1138 (1990). " Thus, not all fraud is fraud on the court." Id., quoting 11 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2870, at 253 (1973). The Court agrees that the cited conduct does not constitute an attempt on the part of the defendants to " defile" the Court.
The plaintiffs first state that the defendants failed to disclose the existence of several of the plaintiffs' religious service requests to the RSRC. The defendants did fail to acknowledge the fact that some plaintiffs had made formal requests, but only because those requests were made after the complaint was filed, a point pertinent to their argument that some plaintiffs had failed to exhaust their administrative remedies. This can hardly be considered part of " an unconscionable scheme calculated to interfere" with this Court's adjudication of this claim. This is especially true where the Court heard all of the plaintiffs' claims on the merits.
The plaintiffs also claim that the defendants misrepresented several of the plaintiffs' requests, thereby committing a fraud on the court. Specifically, defense counsel erroneously referred to Plaintiff LeBaron's request for a mikvah as an " outdoor pool." The Court disagrees that the aim or effect of this misrepresentation was to deprive the plaintiffs of fair adjudication by casting Plaintiff LeBaron's request as " outlandish and unreasonable." Paper #151, ¶ 8. Nor does the Court believe that defense counsel's failure to identify only five named plaintiffs in many pleadings had the aim or effect of depriving the plaintiffs fair adjudication. Id., ¶ 17. Moreover, the plaintiffs' claims concerning the feasibility and/or accessibility of less restrictive alternatives are differences in position that create a dispute of material fact, not fraudulent statements aimed at fundamentally subverting justice. See id., ¶ 15.
In the absence of any evidence that the defendants engaged in a systematic scheme to commit a fraud upon this Court, the Court denies the plaintiffs' motion. Mount Ivy Press, LP v. Defonseca, 78 Mass.App.Ct. 340, 349, 937 N.E.2d 501 (2010).
B. Motions to Strike
The plaintiffs have submitted numerous motions to strike several of the defendants' pleadings pursuant to Mass.R.Civ.P. 11, which requires that all " pleadings be based on 'reasonable inquiry and an absence of bad faith.'" Doe v. Nutter, McClennen & Fish, 41 Mass.App.Ct. 137, 142, 668 N.E.2d 1329 (1996), quoting Bird v. Bird, 24 Mass.App.Ct. 362, 368, 509 N.E.2d 289 (1987). In each of its motions to strike, the plaintiffs claim that through its submissions, the defendants seek to " mislead" or " deceive" the Court. " Massachusetts [R]ule 11 retains the provision for striking pleadings that are signed with intent to . . . harass or to cause needless delay or expense[.]" United States Funding Inc. v. Bank of Boston Corp., 28 Mass.App.Ct. 404, 408, 551 N.E.2d 922 (1990). " For a willful violation of this rule, an attorney may be subjected to appropriate disciplinary action." Mass.R.Civ.P. 11(a).
Specifically, the defendants have moved to strike: the defendants' motion for dismiss, see Paper #112; the defendants' cross motion for summary judgment, see Paper #144; the defendants' statement of undisputed facts, see Paper #159; the exhibits listed in a letter by the defendants dated 2/9/16, see Paper #174, the defendants' opposition to Plaintiff LeBaron's motion for a temporary restraining order requiring replacement of religious books (not docketed), and " each and every opposition and supplementary exhibit of the defendants, " see Paper #194. The Court (Sullivan, J.) previously denied Paper #112, the plaintiffs' motion to strike the defendants' motion to dismiss.
This is in contrast with Rule 11 of the Federal Rules of Civil Procedure. " The provision in the original [federal] rule for striking pleadings and motions as sham and false has been deleted."
After a careful review of the pleading, the Court denies all of the plaintiffs' motions to strike. None of the defendants' submissions contains frivolous arguments of fact or law, or make representations to the Court that are clearly contraindicated by the record. The federal equivalent of Rule 11 no longer contains a provision for striking pleadings " as sham and false" because it was rarely utilized, and decisions under that provision " tended to confuse the issue of attorney honesty with the merits of the action." United States Funding, 28 Mass.App.Ct. at 408 n.3, quoting 2A MOORE, FEDERAL PRACTICE § 11.01[4] (2d ed. 1987). Conflation of the merits of this case and the honesty of the defendants' attorney defines the plaintiffs' motions to strike as well, and the Court will not employ the " potent weapon" that is Rule 11 where it is not remotely clear that it is reasonably necessary under the circumstances. U nited States v. Figueroa-Arenas, 292 F.3d 276, 279 (1st Cir. 2002) (describing the federal rule). " Motions under this provision generally present issues better dealt with under Rule[ ] . . . 56." United States Funding, 28 Mass.App.Ct. at 408 n.3 (quotation omitted). Appropriately, the Court has already addressed the substantive merits of the defendants' defenses on the parties' cross motions for summary judgment under Rule 56.
For example, the plaintiffs take issue with the defendants' characterization of the plaintiffs' beliefs. The defendants do indeed question the rationality of the plaintiffs' beliefs in the medical benefits of the Holy Diet as well as the religious foundation of the Holy Diet, for instance. However, such statements were made in furtherance of substantive arguments about the weight of the prison's interests in cost control and security, not bad faith attacks on the plaintiffs made for the sake of misleading the Court. The Court does not engage in an analysis of the sincerity of the plaintiffs' beliefs. In another motion to strike, the plaintiffs seemingly seek to strike the voluminous cross motion for summary judgment because some of the arguments made are " in bad taste" or " characterized by insolent rudeness."
C. Motion for Inmate-to-Inmate Correspondence
Plaintiff LeBaron submitted a motion for approval of inmate-to-inmate correspondence with Plaintiff Peter Serrano, who is housed at SBCC. Paper #146. The defendants oppose this motion, claiming that the motion is moot because inmate-to-inmate correspondence between Plaintiff LeBaron and Plaintiff Serrano has been approved. Paper #172. Plaintiff LeBaron asserts that the issue is not moot where only the MCI-Norfolk superintendent approved the request for correspondence and the signatures of each institution's superintendent are required. The defendants' exhibit in support of its opposition indeed indicates that only one superintendent, to date, has approved the correspondence. The Court, therefore, allows the motion.
OMNIBUS ORDER
For the foregoing reasons, it is hereby ORDERED that:
1. The defendants' motions to dismiss, Paper ##93 and 107 are DENIED .
2. The plaintiffs' motion for summary judgment, Paper #115, is ALLOWED in part and DENIED in part. Specifically,
ALLOWED with respect to the plaintiffs' RLUIPA claims for the right to observe holy days if an approved volunteer is available to lead the services and provision of the Holy Diet;
ALLOWED with respect to the plaintiff's First Amendment claim for the right to observe holy days if an approved volunteer is available to lead the services.
DENIED with respect to all other claims.
3. The defendants' cross motion for summary judgment, Paper #140, is ALLOWED in part and DENIED in part. Specifically,
ALLOWED with respect to the plaintiffs' RLUIPA claims for the right to conduct inmate-led prayer and access to religious books;
ALLOWED with respect to the plaintiffs' First Amendment claims for the right to a designated Messianic synagogue, inmate-led prayer, access to the Holy Diet, and access to religious books;
ALLOWED with respect to the plaintiffs' conspiracy and retaliation claims under 42 U.S.C. § 1983;
DENIED with respect to all other claims.
4. As a result of the Court's decision on the parties' cross motions for summary judgment, the plaintiffs' RLUIPA claims for a Messianic synagogue will proceed to trial.
5. The plaintiffs' motions for sincerity testing and processing of paperwork, Paper ##67 and 68, are ALLOWED .
6. The Court's motion to deem that all members of the CFB have exhausted their administrative remedies, Paper #106, is DENIED .
7. The plaintiffs' motion for a temporary restraining order requiring the defendants to adopt a new policy on inmate religious groups, Paper #111, is DENIED .
8. The plaintiffs' motion for a temporary restraining order to enjoin the defendants from enforcing the ten-book limits policy, Paper #125, is DENIED .
9. The plaintiffs' motion for a temporary restraining order requiring a DOC chaplain to assist with Messianic worship and dance, Paper #139, is DENIED .
10. The plaintiffs' motion for a temporary restraining order for establishment of a Messianic synagogue, Paper #141, is DENIED .
11. The plaintiffs' motions to strike various of the defendants' pleadings, Paper ##144, 159, 174, and 194, are DENIED .
12. Plaintiff LeBaron's motion for inmate-to-inmate correspondence with Plaintiff Peter Serrano, Paper #146 is ALLOWED .
13. The plaintiffs' motions for fraud upon the Court, Paper #157 et al., are DENIED .
14. The plaintiffs' motion for a temporary restraining order to observe holy days, Paper #129, is ALLOWED in part. Specifically, the following holy days will be added to the current version of the RSH under the heading MESSIANIC JUDAISM HOLY DAYS:
The plaintiff's motion for an immediate ruling without a hearing on Paper #123 is ALLOWED through the Court's decision.
https://www.hebcal.com/holidays/2016.
Holiday
Next Date of Observance
Purim
March 12, 2017
Shmini Atzeret
October 24, 2016
Ta'anit Esther
March 9, 2016
Tish'a B'Av
August 14, 2016
Tzom Tammuz
July 24, 2016
Tzom Gedaliah
October 5, 2016
Asara B'Tevet
January 8, 2017
The Court's endorsement of this motion shall not be construed to impose upon the defendants an obligation to provide a volunteer on these dates or impose any other obligation other than to allow the plaintiffs to worship collectively in the presence of an acceptable volunteer, if one is available. Further, this endorsement should not be construed as approval of any subsequent motion by the plaintiffs to add additional holy days to the existing list that appears in the RSH. The holidays that are presently included in the RSH (Pseach, First Fruits, Shavuot, Rosh Hashanah, Yom Kippur, Sukkot, and Chanukah) will remain. Any plaintiff who has passed sincerity testing and is approved to observe the holidays listed in the RSH will be allowed to observe those holidays, again, provided that a volunteer is available to lead the services.
15. The Court may hold a hearing on outstanding motions not made moot by these rulings. However, the plaintiffs shall cease from filing duplicative motions addressing issues that have already been decided by the rulings of this Court thus far. Duplicative and/or moot motions will not be acted upon by the Court.