Cryer v. Spencer et al

Filing 22

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered: 1. Plaintiff's Motion for Leave to File an Amended Complaint (contained in the Opposition to the Motion to Dismiss)(Docket No. 12) is ALLOWED. The amended complaint (Docket No. 13) is t he operative pleading in this action; 2.Defendant Spencer and Mitchell's Motion to Dismiss the Complaint (Docket No. 10) is DENIED in view of the amended complaint; 3.Plaintiff's Motion to Waive Service and to Order Defendants to Answer the Amended Complaint (Docket NO. 15) is DENIED; 4. Plaintiff's Ex Parte Motion to Answer Amended Complaint (Docket No. 19) is DENIED; 5.Defendants' Motion to Dismiss the Amended Complaint (Docket No. 17) is ALLOWED in part and DENIED in par t, as follows: A.With respect to plaintiff's RLUIPA claims, the motion to dismiss is ALLOWED as to plaintiff's claims for monetary damages against all of the defendants in their official capacities but otherwise is DENIED as to claims for declaratory and/or injunctive relief; B.With respect to plaintiff's RLUIPA claims, the motion to dismiss is ALLOWED as to plaintiff's claims for monetary damages against all of the defendants in their personal capacities;C.With respect to plaintiff's § 1983 claims for monetary damages against the defendants in their official capacities, the motion to dismiss is ALLOWED, but otherwise is DENIED as to claims for declaratory and/or injunctive relief;D.With respect to plaintiff& #039;s § 1983 claims against the defendants in their personal capacities, the motion to dismiss is ALLOWED; E.With respect to plaintiff's claims raised under the Massachusetts Constitution, the defendants motion to dismiss is ALLOWED; F. With respect to plaintiff's claims raised under Mass. Gen. Laws ch. 127, § 88, the motion to dismiss is ALLOWED as to any claims for monetary damages against defendants Spencer, Mitchell, and Dickhaut in their official and personal capacit ies, but otherwise is DENIED with respect to claims for declaratory and/or injunctive relief; and 6. Within 21 days of the date of this Memorandum and Order, the parties shall submit a Joint Discovery Plan with respect to the conduct of discovery, the filing of dispositive motions, and the remaining issues in this case. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DEREK SINCERE BLACK WOLF CRYER,
Plaintiff
v.
LUIS SPENCER, ET AL.,
Defendants.

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)
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) CIVIL ACTION NO. 11-11953-PBS
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)

MEMORANDUM AND ORDER
March 21, 2013
SARIS, C.J.
I.

Introduction

On October 31, 2011, plaintiff Derek Sincere Black Wolf
Cryer (“Cryer”), a state prisoner at the Souza-Baranowski
Correctional Center (“SBCC”),1 filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 alleging first amendment violations
in connection with his free exercise of religion, and violations
of the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc.

Additionally, Cryer asserted

supplemental jurisdiction over his claims raised under Articles 2
and 18 of the Massachusetts Constitution, and over his claims
asserted under Massachusetts General Law ch. 127, § 88.
Cryer originally identified two defendants in this action:
Luis Spencer (“Spencer”), the Commissioner of the Department of

1

On August 17, 2012, Cryer filed a Notice of Change of
Address (Docket No. 20) indicating that he had been transferred
to Old Colony Correctional Center (“OCCC”) in Bridgewater,
Massachusetts. Subsequently, Cryer was transferred back to SBCC.
See Notice of Change of Address (Docket No. 21).

Correction, and Christopher Mitchell (“Mitchell”), the Director
of the Religious Services Review Committee.
In his original complaint, Cryer claimed to be partially of
Native American descent.

He described certain aspects of the

Native American cultural and spiritual tradition, with a large
part of the complaint focused on the alleged importance of
language and oral tradition in Native American culture.

He

further alleged that SBCC did not have any clergy members who
could teach the Abenaki, Blackfoot, or Mohican languages and that
he had very limited access to Native American services through
weekly “Talking Circle Ceremonies,” Compl. at ¶ 9.

Additionally,

Cryer alleged that, although the defendants allowed him to have a
cassette player and Native American audiotapes, he has been
denied the use of these items in the “cell and yard.”
¶ 12.

Id. at

Cryer claimed that the defendants’ actions “abridged and

prohibited” him from learning his cultural, spiritual, and
ceremonial languages, in violation of his right to free exercise
of religion.

Id. at ¶ 19.

On May 11, 2012, the defendants filed a Motion to Dismiss
the complaint (Docket No. 10) and a Memorandum in support (Docket
No. 11).

On May 23, 2012, Cryer filed a proposed amended

complaint with attached exhibits (Docket No. 13).

The amended

complaint included the two defendants named in the original
complaint (i.e., Spencer and Mitchell), and added as a third
defendant, Thomas Dickhaut (“Dickhaut”), the ex-Superintendent of

2

SBCC (and now the Acting Assistant Deputy Commissioner).

Am.

Compl. at ¶ 4.
Cryer’s claims are essentially twofold: (1) he has been
denied access to a cassette player and Native American audiotapes
for use in the cell and yard; and (2) he has been denied access
to a Native American clergy member or a Native American
volunteer.
A.

Claims Regarding Access to Cassette Player and Native
American Audiotapes

Cryer’s chief complaint is that he has been denied access to
a cassette player and Native American audiotapes for use in his
cell and in the yard.

He claims that his access to these

materials is unduly limited.

He alleges that (former)

Commissioner Clarke and Dickhaut initially had approved his
request to use a cassette player (and Native American
audiocassette tapes).

In support, he attaches a letter from

Dickhaut, dated April 24, 2009 indicating that, based on the
recommendation of the Religious Services Review Committee, his
request for a cassette player and cassette tapes featuring Native
American music had been approved.

Significantly, there were no

limitations to the approval included in the letter from Dickhaut.
See Exhibit B (Docket No. 13-2).
Thereafter, Cryer did not receive this property as he
expected, and he filed an administrative grievance.

On August

10, 2009, the Inmate Grievance Coordinator, Pamela O’Dell,
partially approved Cryer’s grievance, authorizing him to secure
3

the tape player that was held in the Native American storage
unit.

The cassette player would be brought to Cryer for use in

the Native American Circle.

See Exhibit C (Docket No. 13-3).

Cryer appealed that decision, and on September 29, 2009, Dickhaut
concurred with the decision which gave only “partial” approval to
Cryer’s request.

He was permitted to secure the tape player in

the Native American storage unit and bring it up with him to the
Native American Circle.

See Exhibit D (Docket No. 13-4).

Cryer claims that both Spencer and Mitchell denied his
request for access to the cassette player and audiotapes in the
cell and yard.

He alleges that by limiting his access to these

materials, the defendants are restricting his ability to learn
Native American languages by not providing him sufficient time
for study.

He further alleges that since 2009 (to the date of

filing of the amended complaint), he had used the cassette player
and audiotapes no more than 10 times because of the lack of
access of time and available space.

He contends that these

restrictions substantially limit the availability for his use
because he cannot use the cassette player and tapes except during
three ceremonies: the “Talking Ceremony,” the “Smudge Ceremony,”
and the “Pipe Ceremony.”

However, he asserts that he cannot use

the cassette player or audiotapes during the “Talking Ceremony”
because this would disturb other members who are conducting that
ceremony, and because this would mean he would not be able to
participate in the Talking Ceremony.

4

Similarly, Cryer claims

that he cannot use the cassette player or tapes on the first
Monday of each month outdoors, when the “Smudge and Pipe
Ceremonies” are scheduled, because he would disturb those
ceremonies, and would not be able to attend them.
Cryer’s amended complaint again stresses the importance of
Native American language and music, calling it “essential and
necessary.”

Am. Compl. at ¶¶ 25-30.

exhibits in support.

He attaches several

Among those is Exhibit E, a typed document

that describes various aspects of the Native American religious
tradition.

See Exh. E (Docket No. 13-5 at 1-4).2

Apparently,

Cryer claims that the existence of this document establishes
defendants’ knowledge of the importance of the oral tradition of
Native American culture and religion.

Am. Compl. at ¶¶ 27-30.

Additionally, Cryer asserts that he has been denied access to the
cassette player and tapes during the regularly scheduled times
for Native American Services, as those services had been canceled
for the past 8 to 9 months.

Finally, Cryer contends the

defendants have no legitimate penological reason to deny him the
use of the cassette player and audiotapes in the cell or in the
yard.
B.

Claims Regarding Access to Native American Clergy

In addition to his complaints about the restricted access to
a cassette player and Native American audiotapes, Cryer alleges
2

The Court presumes this document is an excerpt from the
Religious Services Handbook, which serves as a “tool and
reference source for prison administrators and inmates.” Rasheed
v. Commissioner of Correction, 446 Mass. 463, 475-477 (2006).
5

that the defendants have refused to hire contracted Native
American Clergy, and, as a result, except for the first outdoor
gathering on May 7, 2012, all Native American Services have been
canceled for the past 8 to 9 months (since the filing of the
amended complaint).

Am. Compl. at ¶¶ 19-20.

Moreover, Cryer

contends that the defendants have refused to allow him to meet on
Monday mornings under the watch of Pastor Johnston or to allow
Native Americans to meet Monday mornings without a volunteer
present; yet there are no Native American volunteers available.
As relief, Cryer seeks declaratory and/or injunctive relief,
as well as nominal, compensatory, and punitive damages.
C.

Motions Filed

On June 12, 2012, Cryer filed an ex parte Motion to Waive
Service and for an Order to Defendants to Answer the Amended
Complaint (Docket No. 15).
In addition to the earlier Motion to Dismiss, on July 24,
2012, defendants Dickhaut, Mitchell, and Spencer filed a Motion
to Dismiss the Amended Complaint (Docket No. 17), along with a
Memorandum in support (Docket No. 18).

On August 6, 2012, Cryer

filed an ex parte Motion to Answer Amended Complaint (Docket No.
19) again seeking an Order for the defendants to file an Answer
to the Amended Complaint, but did not file an Opposition to the
Motion to Dismiss.

6

II.
A.

Discussion

The Amended Complaint, the First Motion to Dismiss, the
Motion to Waive Service and the Ex Parte Motion to Answer
Amended Complaint
Cryer may amend his complaint pursuant to Rule 15(a) of the

Federal Rules of Civil Procedure.

See Fed. R. Civ. P. 15(a).

Accordingly, Cryer’s Motion for Leave to File an Amended
Complaint (contained in Docket No. 12) is ALLOWED.
In light of the filing of the amended complaint (and the
subsequent filing of a Motion to Dismiss the Amended Complaint),
Spencer and Mitchell’s first Motion to Dismiss the original
complaint is moot.

Accordingly, the defendants’ Motion to

Dismiss (Docket No. 10) will be DENIED.

Additionally, Cryer’s

Motion to Waive Service and to Order the Defendants to Answer the
Amended Complaint (Docket No. 15), and his Ex Parte Motion to
Answer Amended Complaint (Docket No. 19) will be DENIED in light
of the rulings in this Memorandum and Order.
B.

The Motion to Dismiss the Amended Complaint
1.

Standard of Review

To survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), a complaint “must ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it rests,’ and
allege ‘a plausible entitlement to relief.’”

Decotiis v.

Whittemore, 635 F. 3d 22, 29 (1st Cir. 2011)(quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 559 (2007).

7

In evaluating the

amended complaint, the court must delineate factual allegations
from allegations that merely offer legal conclusions couched as
facts or statements that are otherwise threadbare or conclusory.
See Soto-Torres v. Fraticalli, 654 F.3d 153, 158 (1st Cir. 2011).
“The make-or-break standard... is that the combined allegations,
taken as true, must state a plausible, not a merely conceivable,
case for relief.”

Id. at 159 quoting Sepulveda-Villarini v.

Dep’t. of Educ. of Puerto Rico, 628 F.3d 25, 29 (1st Cir. 2010).
A court must draw all reasonable inferences in the plaintiff’s
favor and accept all well-pleaded facts in the complaint as true.
Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48
(1st Cir. 2009).

This direction applies even more forcefully in

pro se proceedings, for “pro se pleadings are to be liberally
construed, in favor of the pro se party.”

Ayala Serrano v.

Lebron Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990).

Still, a court

should not credit “bald assertions... or problematic
suppositions.”

Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st

Cir. 2008)(internal quotations omitted).

A court may consider

documents “central to the plaintiffs’ claim” or “sufficiently
referred to in the complaint” without converting the motion to
dismiss into one for summary judgment.

Watterson v. Page, 987

F.2d 1, 3 (1st Cir. 1993).
2.

Claims Under RLUIPA

“RLUIPA ‘protects institutionalized persons who are unable
freely to attend to their religious needs and are therefore
dependent on the government’s permission and accommodation for
8

exercise of their religion.’”

Cutter v. Wilkinson, 544 U.S. 709,

721 (2005)(footnote omitted).

See Magistrate Judge Collings’s

Report and Recommendation on Plaintiff’s Motion for Partial
Summary Judgment as a Matter of Law, and Defendants’ Cross Motion
for Summary Judgment (Docket No. 82 at 8) in Cryer v. Clarke, et
al., Civil Action No. 09-10238-PBS; Cryer v. Clark, 2009 WL
6345768 (D. Mass. July 9, 2009).

This Court has adopted that

Report and Recommendation and relies on the statements of the law
contained therein, which are reiterated in part in this opinion.
See Cryer v. Massachusetts Dept. of Correction, 763 F. Supp. 2d
237 (D. Mass. 2011).
Section 3 of RLUIPA provides, in part, that:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined
to an institution ... even if the burden results from a
rule of general applicability, unless the government
demonstrates that imposition of the burden on that
person(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that
compelling governmental interest.
Id.; 42 U.S.C. § 2000cc-1(a)(1)-(2).
The First Circuit has summarized the shifting burdens of the
plaintiff and the government, stating:
a claim under RLUIPA includes four elements. On the
first two elements, (1) that an institutionalized
person’s religious exercise has been burdened and (2)
that the burden is substantial, the plaintiff bears the
burden of proof. Id. § 2000cc-2 (b). Once a plaintiff
has established that his religious exercise has been
9

substantially burdened, the onus shifts to the
government to show (3) that the burden furthers a
compelling governmental interest and (4) that the
burden is the least restrictive means of achieving that
compelling interest. Id.
Spratt v. Rhode Island Dept. Of Corrections, 482 F.3d 33, 38 (1st
Cir. 2007).

“RLUIPA provides greater protection to inmates’

free-exercise rights than does the First Amendment.”

Kuperman v.

Wrenn, 645 F.3d 69, 79 (1st Cir. 2011) citing Spratt, 482 F.3d at
42 n.12.
2012).

See Bader v. Wrenn, 675 F.3d 95, 98 (1st Cir. Mar. 29,

“It bars prisons receiving federal funds from

substantially burdening an inmate’s religious exercise unless the
regulation under attack is the least restrictive way to advance a
compelling state interest.”

Kuperman, 645 F.3d at 79.

RLUIPA

defines a “religious exercise” broadly as “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).

A “substantial

burden” is defined as one in which the government puts
“substantial pressure on an adherent to modify his behavior and
to violate his beliefs ....”

Thomas v. Review Bd. of Indiana

Employment Sec. Division, 450 U.S. 707, 718 (1981); Hudson v.
Dennehy, 538 F. Supp. 2d 400, 409-410 & n. 20 (D. Mass. 2008);
see also Rasheed v. D’Antonio, 2012 WL 4049376, *36 (D. Mass.
Sept. 12, 2012)(defining a “substantial burden” as “‘put[ting]
substantial pressure on [him as an] adherent to modify his
behavior and to violate his beliefs.’” (quoting Spratt, 482 F.3d
at 38 quoting Thomas, 450 U.S. at 718)); Cryer v. Massachusetts

10

Dept. of Correction, 763 F. Supp. 2d at 244 (where this Court
discussed the definition of “substantial burden,” noting, inter
alia, that the statute did not define this term, and that the
First Circuit assumed, arguendo, the applicability of the Thomas
standard in Spratt, but did not definitively adopt it).
Here, the defendants’ defenses to each of Cryer’s claims
hinge on the contention that he cannot show that there is a
substantial burden on his religious exercise due to the
restrictions on his access to the cassette player and tapes.

The

defendants stop there and do not address in any meaningful
fashion the compelling governmental interest or the least
restrictive means of achieving that interest, nor do they address
Cryer’s second claim regarding the lack of access to a Native
American clergy member or volunteer for a substantial period of
time.
Cryer has presented undisputed evidence concerning the
importance of Native American Languages (see Exhibit 13-5).
Native Americans do not have a holy book as such because their
spiritual traditions come from oral tradition.

Based on this

record, the Court concludes that Cryer has sufficiently alleged
he suffers a substantial burden on his free exercise of religion
by the limitations on access to a cassette player and Native
American tapes.

Specifically, he has alleged that the

limitations force him to refrain from participation in other
Native American ceremonies and/or inhibit his use of the cassette
player and tapes in order not to disturb the practices of co11

inmate members.

In other words, Cryer claims that the

restriction serves as a constructive denial of his right to the
cassette player and tapes because it forces him to choose whether
to listen to the audiotapes and forgo certain essential Native
American ceremonies with other members, or participate in those
ceremonies and give up all opportunities to listen to the tapes.
The defendants argue that there are no Native American
ceremonies and practices available at SBCC that require his
ability to understand and speak Native American tribal languages.
The fact that this may not be “required” during the ceremonies at
SBCC does not undermine the allegation that the languages are
central to the exercise of Cryer’s religion, and that the
restrictions on Cryer force him to choose whether or not to
participate in other religious activities with other inmates.
Thus, Cryer has alleged sufficiently that he is forced to modify
his religious behavior, to violate his religious beliefs, and/or
to depart significantly from his religious traditions, and that
the restrictions do not amount simply to an “incidental” impact
on his religious exercise.
Further, defendants have not given any explanation for the
lack of any Native American clergy member or volunteer or the
availability of comparable clergy.

See Mayfield v. Texas Dep’t

of Criminal Justice, 529 F.3d 599, 614-15 (5th Cir. 2008)(holding
the availability of an outside volunteer only once every 18
months, and no evidence that new volunteers would likely be
available to reduce burden on prisoner’s ability to worship in a
12

group, permitted a reasonable basis for a factfinder to conclude
the prison’s volunteer policy imposed a substantial burden).
In short, although the defendants argue in their Memorandum
that there is no substantial burden from a restriction on a
prisoner if there are alternative means to pursue his religion,
they have not offered information to demonstrate that there are,
in fact, alternative means available to Cryer, nor have they
shown there is a compelling governmental interest in imposing the
restrictions.3
Accordingly, this Court will not dismiss Cryer’s RLUIPA
claim based on the defendants’ assertion that he has failed to
establish a substantial burden upon his free exercise of
religion.
a.

Monetary Damages Under RLUIPA: Official Capacity
Claims

Next, defendants contend that Cryer cannot recover monetary
damages against them under RLUIPA for conduct done in their
official capacities because Massachusetts has not waived its
sovereign immunity from suit for damages.

This Court agrees.

See Sossamon v. Texas, 131 S. Ct. 1651, 1660 (2011)(holding that
the phrase “appropriate relief” was “not so free from ambiguity
3

The Court is mindful that the pleadings in Cryer’s
other free exercise case (Civil Action No. 09-10238-PBS) indicate
that the SBCC defendants asserted that the volunteer had left and
that SBCC was searching for a new volunteer. See Defendants’
Response to the April 9, 2012 Order (Docket No. 165).
Apparently, none has been found, but it is unclear what the
current status is.
13

that we may conclude that the States, by receiving federal funds,
have unequivocally expressed intent to waive their sovereign
immunity to suits for damages.”).

Thus, under a strict

construction in favor of the sovereign state, as required, the
Supreme Court concluded that appropriate relief for violations of
RLUIPA did not include monetary damages against a state.

Id.

Since Cryer cannot recover damages against the state, he
likewise may not recover monetary damages against a state
official sued in his official capacity.

“...[A] suit against a

state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s
office.

As such, it is no different from a suit against the

State itself.”

Will v. Michigan Department of State Police, 491

U.S. 58, 71 (1989).

Thus, Cryer’s monetary claims under RLUIPA

against the defendants Spencer, Mitchell, and Dickhaut, in their
official capacities, will be DISMISSED.
b.

Personal Capacity Claims Under RLUIPA

Since Cryer may not recover monetary damages under RLUIPA
against the defendants in their official capacities, the next
question is whether he could recover monetary damages against the
defendants in their personal capacities.

Although the First

Circuit has declined to rule on this issue, see Kuperman, 645
F.3d at 78-79, other courts have found that RLUIPA does not
provide for personal capacity claims for monetary damages, where

14

Congress passed RLUIPA under the authority of the Spending
Clause, courts should not impose individual liability on those
who do not receive federal funds, and the individual is not a
party to the contract for federal funds.
The Third, Fourth, Fifth, Seventh, Tenth, and Eleventh
Circuits have taken the view that personal capacity claims for
monetary damages under RLUIPA are barred.

See Sharp v. Johnson,

669 F.3d 144, 154 (3d Cir. 2012)(holding no personal liability
since the defendants were not parties to the contract between the
state and the federal government); Rendelman v. Rouse, 569 F.3d
182, 189 (4th Cir. 2009)(In enacting RLUIPA, Congress did not
state with sufficient clarity an intent to subject an individual
to damages); DeMoss v. Crain, 636 F.3d 145, 151 (5th Cir.
2011)(RLUIPA does not create a cause of action for damages
against defendants in their individual capacities); Sossamon v.
Lone Star State of Tex., 560 F.3d 316, 327–29 (5th Cir. 2009),
aff’d, Sossamon v. Texas, 131 S.Ct. 1651 (2011); Grayson v.
Schuler, 666 F.3d 450, 451 (7th Cir. 2012); Nelson v. Miller, 570
F.3d 868, 886–89 (7th Cir. 2009)(as a statute enacted pursuant to
the Spending Clause, RLUIPA does not apply to those not receiving
federal funds); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir.
2012)(Spending Clause legislation operates as a contract, and
individual defendants are not parties to the contract); Hathcock
v. Cohen, 287 Fed. Appx. 793 (11th Cir. 2008)(unpublished

15

decision relying on Smith v. Allen, 502 F.3d 1255, 1275 (11th
Cir. 2007) abrogated on other grounds by Sossamon, 131 S.Ct. at
1655, 1657 n.3 (abrogating Smith as to its holding that RLUIPA
abrogated a state’s sovereign immunity from suit for money
damages)).4
The First, Second Sixth, Eighth, and Ninth Circuits have not
reached the issue.

See Kuperman, supra, 645 F.3d at 79 (1st

Cir.); Hall v. Ekpe, 408 Fed. Appx. 385 (2d Cir. 2010)(declining
to reach issue in view of the determination that defendants were
entitled to qualified immunity); Heard v. Caruso, 351 Fed. Appx.
1, 13 (6th Cir. 2009)(unpublished decision, declining to reach
issue because parties had not briefed it and case was being
remanded to District Court); Zajrael v. Harmon, 677 F.3d 353, 355
(8th Cir. 2012)(declining to consider issue because the amended
4

Many district courts have also held that personal
capacity suits under RLUIPA are barred. See e.g. Pettiford v.
Davis, 2012 WL 2577499, *11 (S.D. Ind. 2012); Quinn v. Knab, 2012
WL 2504160, *8 (S.D. Ohio 2012)(noting that plaintiff may only
obtain injunctive relief for RLUIPA violations); Easterling v.
Pollard, 2012 WL 666797, *6 (E.D. Wis. 2012)(money damages are
not available for plaintiff under RLUIPA, but the Act does
authorize injunctive relief. But see Israelite Church of God in
Jesus Christ, Inc. v. City of Hackensack, 2012 WL 3284054, *6
(D.N.J. 2012)(“the RLUIPA provision at issue was enacted pursuant
to the Commerce Clause, and the rationale in these Spending
Clause cases does not apply.... In the absence of any controlling
or other appellate authority on this question, this Court finds
the relevant RLUIPA provision similar to § 1983, which has been
held to allow actions against officials in their personal
capacities.”); Knapp v. Kench, 2012 WL 2061701, *7 (D.N.H.
2012)(declining to comment on the merits but permitting personal
capacity claim to proceed with service because the First Circuit
declined to rule expressly on the issue).
16

complaint did not specifically name defendants in their
individual capacities); Van Wyhe v. Reisch, 581 F.3d 639, 655 n.6
(8th Cir. 2009)(noting that the district court concluded RLUIPA
did not permit personal capacity claims, but that conclusion was
not at issue on appeal); Shilling v. Crawford, 377 Fed. Appx. 702
(9th Cir. 2010)(unpublished decision declining to decide issue
because defendants were entitled to qualified immunity).
In the absence of First Circuit directives on this issue,
this Court aligns itself with the majority of appellate courts
holding RLUIPA does not provide for monetary damages against
defendants in their individual capacities, as the bases for that
conclusion are sound.

Accordingly, Cryer may only seek

injunctive relief under RLUIPA, and his claims for monetary
damages against the defendants in their personal capacities will
be DISMISSED.5
c.

Qualified Immunity Under RLUIPA

Defendants argue that they are entitled to qualified
immunity from monetary damages on the RLUIPA claims because Cryer
has not shown a “substantial burden” on his free exercise of
religion.

Having found that Cryer has alleged sufficiently a

substantial burden, but also having concluded that Cryer has no

5

In view of this ruling, the Court need not address the
impact of Prison Litigation Reform Act, 42 U.S.C. § 1997e(e)
(barring a federal action by a prisoner for emotional or mental
distress absent a physical injury). That issue is discussed in
connection with the § 1983 claims, infra.
17

cognizable claim for monetary damages against the defendants in
their personal capacities, the issue of qualified immunity with
respect to the RLUIPA claims need not be addressed further.

The

issue will be addressed, however, in connection with Cryer’s
§ 1983 claims.
d.

Claims For Declaratory and Injunctive Relief

The only issue remaining on the RLUIPA claims is Cryer’s
request for declaratory and injunctive relief against the
defendants Spencer, Mitchell, and Dickhaut in their official
capacities. For the foregoing reasons, the defendants’ Motion to
Dismiss the Amended Complaint will be DENIED in this regard.
3.

First Amendment Claims Under 42 U.S.C. § 1983
a.

Failure to Allege Legitimate Penological Interest

Defendants contend that Cryer’s First Amendment free
exercise claims under 42 U.S.C. § 1983 must be considered in the
prison context, where the right to free exercise is curtailed in
order to achieve legitimate penological interests such as
correctional goals (e.g., deterence of crime, rehabilitation of
prisoners) or institutional security.

See O’Lone v. Shabazz, 482

U.S. 342 (1987); Turner v. Safley, 482 U.S. 78 (1987).

Prison

officials should be accorded broad deference in the adoption of
policies and practices that are needed to preserve internal order
and discipline in the prison.

See Bell v. Wolfish, 441 U.S. 520,

547-48 (1979); Wolff v. McDonnell, 418 U.S. 539, 566 (1974).

18

In evaluating this claim, the court must determine:
(1) whether there is a “valid, rational connection
between the prison regulation and the legitimate
governmental interest put forward to justify it”; (2)
whether “there are alternative means of exercising the
right that remains open to prison inmates”; (3) what
“impact accommodation of the asserted constitutional
right will have on guards and other inmates”; and (4)
whether there is an “absence of ready alternatives.”
Turner, 482 U.S. at 89–90 (citations and internal quotation marks
omitted).
While that assertion of law is true, as a factual matter,
the defendants in this case do not allege with any specificity
what legitimate penological interests are at stake in limiting
Cryer’s access to a cassette recorder and audiotapes (i.e. not
allowing him to possess those materials in his cell or in the
yard), nor do they allege any factual reason for denying him
access to a Native American clergy member or volunteer.
b.

No Monetary Damages for Official Capacity Claims

Next, defendants Spencer, Mitchell, and Dickhaut argue that
no monetary damages can be awarded to Cryer in connection with
his § 1983 claims against them in their official capacities.
Court agrees.
c.

The

See Will, supra, 491 U.S. at 71.
No Respondeat Superior Liability

The defendants assert they are not liable under § 1983 based
on the theory of respondeat superior.
(1st Cir. 2000).

Ruiz v. Riley, 209 F.3d 24

Cryer asserts that he is not basing liability

under a respondeat superior theory; rather, he asserts direct
19

liability of Dickhaut, Spencer, and Mitchell, claiming that each
of these defendants denied his requests to use the cassette
player and tapes in his cell and in the yard.
In particular, Cryer alleges the defendants refused to
provide additional time and space for him to study and practice
Native Languages and Learn Native Music, that they refused to
hire contracted Native American Clergy, that they refused to
allow him to meet on Monday mornings under the watch of Pastor
Johnston, and that they refused to allow Native Americans to meet
on Monday mornings without a volunteer present, but there are no
Native American volunteers available.

Further, Cryer alleges

that each of the defendants knew of the great importance of the
oral tradition in Native American Culture.
For purposes of evaluating whether Cryer has stated
plausible § 1983 claims, knowledge of Dickhaut and Mitchell
reasonably may be inferred based on the recommendation of the
Religious Services Review Committee (of which Mitchell is the
Director) and the initial approval by Dickhaut of the request for
cassette players and tapes and later modification to a partial
approval.
With respect to Commissioner Spencer, however, other than
raising a bald allegation that this defendant knew of his free
exercise requests and refused to honor them, Cryer has not set
forth any underlying supporting facts from which knowledge on the
part of this defendant reasonably could be inferred.
20

Indeed,

despite his claim to the contrary, Cryer appears to be holding
Spencer liable under a theory of respondeat superior for actions
of his predecessor, Commissioner Clarke.

See Am. Compl. (Docket

No. 13 at ¶ 11) (stating: “Defendant Spencer (Predecessor) denied
Plaintiff’s request to use the Cassette Player and Tapes in the
cell and yard”).

In light of this, and in view of Cryer’s

failure to file any Opposition to the motion to dismiss
addressing the issue, this Court finds that Cryer has failed to
state plausible claims against Spencer in his personal capacity.
Accordingly, the § 1983 claims against Spencer in his
personal capacity will be DISMISSED.
d.

Impact of 42 U.S.C. § 1997e(e) As a Bar to
Monetary Damage Claims

Next, the defendants contend that Cryer cannot recover
compensatory damages under § 1983 because under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(e), “no federal action
may be brought by a prisoner .... for mental or emotional injury
suffered while in custody, without a prior showing of physical
injury.”

Id.

The case law is split on whether § 1997e(e)

applies to bar compensatory damages only (leaving the
availability to recover nominal or punitive damages), or whether
the statutory provision applies to constitutional claims at all.
The First Circuit has not addressed expressly the
application of § 1997e(e),6 and there is a split in other
6

However, the First Circuit in Kuperman, supra,
intimated that at the least, nominal and punitive damages are
21

circuits addressing this issue, with the majority of appellate
courts holding that § 1997e(e) bars all suits for monetary
damages for emotional or mental distress absent a physical
injury, including those claims based on constitutional
deprivations.
Specifically, the Second, Third, Fifth, Eighth, Tenth and
Eleventh Circuits have held that § 1997e(e) applies to all
federal civil actions, regardless of the underlying
constitutional violation.

See Thompson, 284 F.3d at 417 (2d

Cir.)(agreeing with majority of sister courts holding that
§ 1997e(e) applies to constitutional claims including the Eighth
Amendment claim asserted by prisoner); Mitchell v. Horn, 318 F.3d
523 (3d Cir. 2003)(claims for nominal or punitive damages are not
barred by § 1997e(e) since they are not “for” mental or emotional
recoverable.

The First Circuit stated:

Although neither party discussed the Prison Litigation
Reform Act, we note that it could preclude Kuperman
from recovering on his § 1983 claim seeking
compensatory damages. See 42 U.S.C. § 1997e(e). Section
1997e(e) provides that “[n]o Federal civil action may
be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional
injury suffered while in custody without a prior
showing of physical injury.” Although some courts have
interpreted section 1997e(e)’s limitation not to apply
to constitutional claims, see generally Thompson v.
Carter, 284 F.3d 411, 416–17 (2d Cir. 2002)(collecting
cases), we need not reach the issue. It does not
matter whether compensatory damages are available to
Kuperman, because his requests for nominal and punitive
damages are enough to keep his claims alive.
Id. at 73 n.5 (emphasis added).
22

injury, but are used to vindicate constitutional violations or
deter or punish for egregious violations) citing Allah v.
Al-Hafeez, 226 F.3d 247, 251-52 (3d Cir. 2000)(in free exercise
claim, nominal or punitive damages were not barred under
§ 1997e(e), but compensatory damages were barred absent a
physical injury)7; Mayfield, 529 F.3d at 605 (5th Cir.)(holding,
in free exercise and RLUIPA case, that application of § 1997e(e)
turns on the relief sought, preventing a prisoner from seeking
compensatory damages for violations of federal law), citing
Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005)8; Sisney v.
Reisch, 674 F.3d 839 (8th Cir. 2012)(§ 1997e(e) barred
compensatory damages) cert. denied, 133 S.Ct. 359 (2012); Royal
v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004);9 Searles v. Van
7

Cf. Doe v. Delie, 257 F.3d 209, 324 n.3 (3d Cir.
2001)(dissenting opinion in medical privacy case stating that
punitive damage claim should be barred by § 1997e(e) but the
claim for nominal damages should not be barred).
8

The Fifth Circuit has held that an inmate’s failure to
allege physical injury in connection with a Fourth Amendment
claim arising out of a strip search precluded recovery for
compensatory damages for emotional injury, but the failure to
allege physical injury did not preclude a claim for nominal or
punitive damages. See Hutchins v. McDaniels, 512 F.3d 193, 197
(5th Cir. 2007). By contrast, the D.C. Circuit and the Eleventh
Circuit have concluded that § 1997e(e) makes no distinction
between compensatory and punitive damages. See Davis v. District
of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998); Al-Amin v.
Smith, 637 F.3d 1192, 1199 n.9 (11th Cir. 2011)(holding in case
alleging mail opening and denial of access to the courts and free
speech, prisoner could not seek punitive damages absent physical
injury) cert. denied Smith v. Al-Amin, 555 U.S. 820 (2008).
9

Royal stated:

We join the majority, concluding Congress did not
23

Bebber, 251 F.3d 869, 876 (10th Cir. 2001)(holding in free
exercise of religion suit that the plain language of § 1997e(e)
is not premised on the basis of the underlying rights being
asserted.

The statute limits the remedies regardless of the

rights asserted) cert. denied 536 U.S. 904 (2002); Al-Amin, 637
F.3d at 1197-98 (11th Cir.)(holding there is no distinction
between constitutional claims such as the Eighth Amendment, where
physical injury may be likely, and those rarely accompanied by a
physical injury such as First Amendment violations; Prison
Litigation Reform Act applied equally to constitutional claims).
The Fourth Circuit has not addressed this issue, while the
Sixth Circuit noted the differing views but expressly declined to
reach the issue because the case at bar hinged on the failure to
exhaust administrative remedies.

See Taylor v. United States,

161 Fed. Appx. 483, 487 (6th Cir. 2005).
intend section 1997e(e) to limit recovery only to a
select group of federal actions brought by prisoners.
Instead, we read section 1997e(e) as limiting recovery
for mental or emotional injury in all federal actions
brought by prisoners. In reaching this conclusion, we
cannot escape the unmistakably clear language Congress
used: “No Federal civil action may be brought by a
prisoner ... for mental or emotional injury ... without
a prior showing of physical injury.” To read this
statute to exempt First Amendment claims would require
us to interpret “[n]o Federal civil action” to mean
“[n]o Federal civil action [except for First Amendment
violations].” If Congress desires such a reading of
section 1997e(e), Congress can certainly say so. We
cannot.
Royal, 375 F.3d at 723.
24

By contrast, the Seventh and Ninth Circuits have taken a
different view of the application of § 1997e(e).

See Rowe v.

Shake, 196 F.3d 778, 781-82 (7th Cir. 1999)(“A prisoner is
entitled to judicial relief for a violation of his First
Amendment rights aside from any physical, mental, or emotional
injury he may have sustained.”); Robinson v. Page, 170 F.3d 747,
748 (7th Cir. 1999)(“when ... a prisoner alleges [a
constitutional] injury that is neither mental nor emotional, the
court has no occasion to consider the meaning of the statutory
term ‘physical injury[.]’”);10 Oliver v. Keller, 289 F.3d 623,
630 (9th Cir. 2002)(“[t]o the extent that appellant has
actionable claims for compensatory, nominal or punitive damages premised on alleged Fourteenth Amendment violations, and not on
any alleged mental or emotional injuries - we conclude the claims
are not barred by § 1997e(e)”); Canell v. Lightner, 143 F.3d
1210, 1213 (9th Cir. 1998)(stating: “[t]he deprivation of First
Amendment rights entitles a plaintiff to judicial relief wholly
aside from any physical injury he can show, or any mental or
emotional injury he may have incurred.

Therefore, § 1997e(e)

does not apply to First Amendment claims regardless of the form
of relief sought.”).

The circuit split appears to center upon

10

See also Thomas v. Illinois, 697 F.3d 612 (7th Cir.
2012)(physical injury is not the only type of injury actionable
in a civil rights suit; injunctive relief, nominal and punitive
damages are available); Calhoun v. DeTella, 319 F.3d 936, 941
(7th Cir. 2003)(nominal or punitive damages may be awarded for
Eighth Amendment violation itself).
25

whether the focus should be on the nature of the cause of action,
or instead on the remedies.11
In this District, Judge Gertner concluded that
§ 1997e(e) did not apply where damages were sought for a
constitutional injury.

Shaheed-Muhammad v. Dipaolo 138 F. Supp.

2d 99, 107 (D. Mass. 2001) citing Gordon v. Pepe, 2004 WL
1895134, *2 (where Judge Zobel concluded the physical injury
requirement of § 1997e(e) did not require summary judgment in a
claim for First Amendment violations that did not involve a claim
for emotional distress); Shaheed-Muhammad v. Dipaolo, 393 F.
Supp. 2d 80, 107 -08 (D. Mass. 2005)(reaffirming ruling in
summary judgment context); see also Ford v. Bender, 2012 WL
262532, *13 (D. Mass. Jan. 27, 2012)(concluding that § 1997e(e)
had to be raised as an affirmative defense, and, in any event,
that compensatory damages were available for suits alleging
deprivation of constitutional rights) motion to amend decision
denied, 2012 WL 1378651 (D. Mass. Apr. 19, 2012)(citations
omitted).12
11

Additionally, the matter raises the issue whether the
violation of intangible constitutional rights (such as First
Amendment rights) is an emotional or mental injury, or whether,
standing alone, the violation constitutes a cognizable injury
apart from any emotional or mental injury.
12

In her Findings of Facts and Conclusions of Law,
Magistrate Judge Dein noted as support Justice Marshall’s
concurring opinion in Memphis Comty. Sch. Dist. v. Stachura, 477
U.S. 299, 307 (1986)(stating that deprivations of constitutional
rights can, in and of themselves, constitute compensable
injuries; to hold otherwise “would defeat the purpose of § 1983
by denying compensation for genuine injuries caused by the
26

The Ford case is presently pending appeal in the First
Circuit, and the issue of the application of § 1997e(e) has been
raised in that appeal.

See Ford v. Bender, No. 12-1622 (1st Cir.

2012) and related appeal, Ford v. St. Amand, No. 12-2142 (1st
Cir. 2012).

In light of the pending appeal, this Court declines

to resolve this issue at this time.

Accordingly, the Court will

DENY the defendants’ Motion to Dismiss the Amended Complaint
based on the bar of § 1997e(e).
e.

Qualified Immunity

Next, as an additional ground for dismissal of Cryer’s
§ 1983 claims, defendants argue that even if his free exercise of
religion was violated, qualified immunity protects the defendants
(now limited to Dickhaut and Mitchell) from liability for
monetary damages in their personal capacities.

Cryer has not

addressed these issues with respect to his claim regarding the
cassette and audiotapes or his claim regarding a volunteer clergy
member.
Accordingly, for the reasons set forth by the defendants,
the Motion to Dismiss the Amended Complaint will be ALLOWED as to
the § 1983 claims for monetary damages against Dickhaut and
Mitchell in their personal capacities, based on qualified
immunity.

deprivation of constitutional rights.”).
27

f.

Claims For Declaratory and/or Injunctive Relief

On this record, this Court cannot find that the defendants
have shown sufficiently that Cryer is not entitled to declaratory
or injunctive relief.

Accordingly, the defendants’ Motion to

Dismiss the Amended Complaint will be DENIED.
4.

Claims Under the Massachusetts Constitution

Turning now to Cryer’s claims based on state law, defendants
argue that, for the same reasons raised in connection with the
RLUIPA claims, Cryer fails to set forth claims under Article 2 of
the Declaration of Rights and Article 46 of the Amendments to the
Massachusetts Constitution.

Further, they argue that monetary

damages are not available under the State Constitution, citing
Martino v. Hogan, 37 Mass. App. Ct. 710, 720 (1994).
agrees with the defendants.

The Court

“To bring a claim of a violation

under the Massachusetts Constitution, [a plaintiff] must allege a
cause of action under the Massachusetts Civil Rights Act, M.G.L.
c. 12 §§ 11H and 11I.”

Grubba v. Bay State Abrasives, Division

of Dresser Industries, Inc., 803 F.2d 746, 748 (1st Cir. 1986);
Martino v. Hogan, et al., 37 Mass. App. Ct. 710, 711, 643 N.E.2d
53 (1994)”); see Orell v. Umass Memorial Medical Center, Inc.,
203 F. Supp. 2d 52, 71 (D. Mass. 2002).13
13

Cryer’s amended complaint does not allege any claims
under Mass. Gen. Laws ch. 12, §§ 11H and 11I, and this Court will
not construe the amended complaint as raising such claims, even
under a broad reading of the amended complaint. In order to set
forth a claim under the Massachusetts Civil Rights Act, Cryer
must have alleged that the exercise or enjoyment of rights
secured by the Constitution or the laws of either the United
28

Accordingly, the Motion to Dismiss the Amended Complaint
will be ALLOWED as to any claims raised pursuant to the
Massachusetts Constitution.
5.

Claims Under Mass. Gen. Laws ch. 127, § 88

Cryer asserts claims under section 88 of Chapter 127 of the
Massachusetts General Laws, providing for the free exercise of
religion, but the right shall not be construed to impair the
discipline of the prison.

Mass. Gen. Laws ch. 127, § 88.14

States or the Commonwealth of Massachusetts have been interfered
with, or were attempted to be interfered with, and that the
interference was by threats, intimidation, or coercion. Mass.
Gen. Laws ch. 12, § 11H-I. See, e.g., Rasheed v. Commissioner of
Correction, 446 Mass 463, 475 (Mass. 2006)(rejecting prisoner’s
claim based on deprivation of religious liberty, where policies
were based on legitimate security concerns, and where the record
was devoid of facts demonstrating any cognizable threats,
intimidation, or coercion).
14

The statute provides:

An inmate of any prison or other place of confinement
shall not be denied the free exercise of his religious
belief and the liberty of worshipping God according to
the dictates of his conscience in the place where he is
confined; and he shall not be required to attend any
service or religious instruction other than that of his
own religious belief, if religious services and
instructions of his own belief are regularly held at
the institution; and he may, in illness, upon request
to the superintendent, keeper, receive the visits of
any clergyman whom he may wish. The officers having the
management and direction of such institutions shall
make necessary regulations to carry out the intent of
this section. This section shall not be so construed as
to impair the discipline of any such institution so far
as may be needful for the good government and the safe
custody of its inmates, nor prevent the assembling of
all the inmates, who do not attend a regularly held
religious service of their own belief, in the chapel
thereof for such general religious instruction,
including the reading of the Bible, as the officer
29

As an initial matter, Cryer’s state law claim for monetary
damages against defendant Spencer in his personal capacity will
be DISMISSED for the reasons set forth in connection with the
§ 1983 claims (i.e., failure to set forth a plausible claim upon
which relief may be granted).
Additionally, Cryer’s state law claim for monetary damages
against defendants Spencer, Dickhaut, and Mitchell in their
official capacities will be DISMISSED for the same reasons set
forth in connection with the § 1983 claims (i.e., sovereign
immunity).

See Lopez v. Massachusetts, 588 F.3d 69, 73 n.1 (1st

Cir. 2009); Duclerc v. Massachusetts Dept. of Correction, 2012 WL
6615040, *4 (D. Mass. Dec. 18, 2012)(stating that the Eleventh
Amendment bars state law claims for monetary damages against
state officials, citing, inter alia, Guillemard-Ginorio v.
Contreras-Gomez, 585 F.3d 508, 531 (1st Cir. 2009).

Cryer has

not set forth any basis for finding that a waiver of sovereign
immunity exists with respect to his state claim, and this Court
has found none.
In their Motion to Dismiss, the defendants simply argue that
the Department of Correction has promulgated regulations
providing for the free exercise of religion, and Cryer has failed
to demonstrate the restrictions on access to a cassette player
and Native American language/music audiotapes in his cell and in
the prison yard substantially burdens his ability to practice his
having charge of the institution considers expedient.
Mass. Gen. Laws ch. 127, § 88.
30

religion.

For the reasons discussed above, the Court disagrees

and finds that, for purposes of overcoming the Motion to Dismiss,
Cryer has met his burden.

Moreover, the defendants fail to

address Cryer’s second claim regarding the lack of a volunteer
clergy member.
Nevertheless, although the defendants have not raised the
issue, the Court notes that Cryer has not set forth a basis for
monetary damages under this statue.

State law indicates that

§ 88 does not establish a private right of action for damages for
violations.

See Riva v. Secretary of Public Safety, 76 Mass.

App. Ct. 1104, 2009 WL 5084095, *2 (Mass. App. Ct. 2009)
(subsequent history omitted).
to the contrary.

This Court has not found any law

In the absence of any legal basis for finding

§ 88 provides a private cause of action for damages, this Court
will follow the state’s interpretation and will dismiss the
monetary damages claims against the defendants Spencer, Dickhaut,
and Mitchell.15

15

As an additional matter, although the defendants raise
§ 1997e(e) as a bar to the § 1983 claims, they have not addressed
the applicability of § 1997e(e) in connection with the state
claims for monetary damages. District court cases are split as
to its application. See, e.g. Bromell v. Idaho Dept. of
Corrections, 2006 WL 3197157 (D. Idaho 2006)(holding that
§ 1997e(e) did not bar a state law claim under the Court’s
supplemental jurisdiction); cf. Schonarth v. Robinson, 2008 WL
510193, *4 (D.N.H. 2008)(agreeing with the line of cases holding
that § 1997e(e) applied to all actions brought in federal court
seeking damages for mental or emotional injury, regardless of
whether the action is based on federal or state law). See Jacobs
v. Pennsylvania Dept. of Corrections, 2011 WL 2295095 (W.D. Pa.
2011)(collecting cases).
31

Accordingly, this Court will ALLOW the Motion to Dismiss the
Amended Complaint with respect to Cryer’s claims for monetary
damages against all defendants in their official capacities and
in their personal capacities, and otherwise will DENY the motion.
In sum, in light of all of the above, defendants’ Motion to
Dismiss the Amended Complaint (Docket No. 17) will be ALLOWED in
part and DENIED in part, as set forth in more detail below.
C.

Order for Joint Discovery Plan
In view of the rulings contained herein, the only remaining

claims are: (1) Cryer’s RLUIPA claims for relief other than for
monetary damages (i.e. declaratory and/or injunctive relief)
against the defendants Spencer, Dickhaut, and Mitchell in their
official capacities; (2) the § 1983 claims for relief other than
monetary damages (i.e. declaratory and/or injunctive relief)
against defendants Spencer, Dickhaut, and Mitchell in their
official capacities; and (3) the claims for declaratory and/or
injunctive relief raised pursuant to Mass. Gen. Laws ch. 127,
§ 88 against Spencer, Dickhaut and Mitchell in their official
capacities.
The parties are hereby Ordered to submit a joint plan,
within 21 days of the date of this Memorandum and Order,
addressing the following: (1) the date for the filing of an
answer to the amended complaint; (2) the date for the filing of
any dispositive motions; (3) the conducting of discovery in
connection with the remaining claims; and (4) any other
outstanding issues that should be brought to this Court’s
32

attention.

If no joint discovery plan can be reached after good

faith efforts to resolve or narrow the issues, the parties may
submit separate proposals.
III.

Conclusion

Based on the foregoing it is hereby Ordered that:
1.

Plaintiff’s Motion for Leave to File an Amended Complaint
(contained in the Opposition to the Motion to
Dismiss)(Docket No. 12) is ALLOWED. The amended complaint
(Docket No. 13) is the operative pleading in this action;

2.

Defendant Spencer and Mitchell’s Motion to Dismiss the
Complaint (Docket No. 10) is DENIED in view of the amended
complaint;

3.

Plaintiff’s Motion to Waive Service and to Order Defendants
to Answer the Amended Complaint (Docket NO. 15) is DENIED;

4.

Plaintiff’s Ex Parte Motion to Answer Amended Complaint
(Docket No. 19) is DENIED;

5.

Defendants’ Motion to Dismiss the Amended Complaint (Docket
No. 17) is ALLOWED in part and DENIED in part,
as follows:
A.

With respect to plaintiff’s RLUIPA claims, the
motion to dismiss is ALLOWED as to plaintiff’s
claims for monetary damages against all of the
defendants in their official capacities but
otherwise is DENIED as to claims for declaratory
and/or injunctive relief;

B.

With respect to plaintiff’s RLUIPA claims, the
motion to dismiss is ALLOWED as to plaintiff’s
claims for monetary damages against all of the
defendants in their personal capacities;

C.

With respect to plaintiff’s § 1983 claims for
monetary damages against the defendants in their
official capacities, the motion to dismiss is
ALLOWED, but otherwise is DENIED as to claims for
declaratory and/or injunctive relief;

33

D.

E.

With respect to plaintiff’s claims raised under
the Massachusetts Constitution, the defendants’
motion to dismiss is ALLOWED;

F.

6.

With respect to plaintiff’s § 1983 claims against
the defendants in their personal capacities, the
motion to dismiss is ALLOWED;

With respect to plaintiff’s claims raised under
Mass. Gen. Laws ch. 127, § 88, the motion to
dismiss is ALLOWED as to any claims for monetary
damages against defendants Spencer, Mitchell, and
Dickhaut in their official and personal
capacities, but otherwise is DENIED with respect
to claims for declaratory and/or injunctive
relief;16 and

Within 21 days of the date of this Memorandum and Order, the
parties shall submit a Joint Discovery Plan with respect to
the conduct of discovery, the filing of dispositive motions,
and the remaining issues in this case.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF, UNITED STATES DISTRICT JUDGE

16

The rulings made on defendants’ Motion to Dismiss the
Amended Complaint are not intended to constitute a separate or
final judgment.
34