Nzaddi v. Department of Corrections et al

Filing 5

Judge Richard G. Stearns: MEMORANDUM AND ORDER entered granting 2 Motion for Leave to Proceed in forma pauperis and deferring the assessment of the filing fee; denying without prejudice 3 Motion for TRO and/or Preliminary Injunction. Within fo rty-two (42) days of the date of this Memorandum and Order, Nzaddi shall submit a certified prison account statement for the six-month period preceding the filing of the Complaint. A copy of this Memorandum and Order shall be sent to the Treasurers Offices at MCI- Shirley (Medium) and Bridgewater State Hospital with the request that they provide Nzaddi, and/or this court, with a certified prison account statement reflecting the average monthly balance and average monthly deposits for the six-mo nth period preceding May 8, 2012. Upon receipt of the certified prison account statement, an Order shall issue assessing Nzaddis filing fee obligations under the in forma pauperis statute. Failure by Nzaddi to comply with this directive to submit a certified prison account statement may result in a dismissal of this action. The Clerk shall issue summonses for defendants Dinardo and Wood. The United States Marshal shall effect service on defendants Dinardo and Wood as directed by the plaintif f, and shall advance the costs of service. Within forty-two (42) days of the date of this Memorandum and Order, Nzaddi shall demonstrate good cause, in writing, why the claims against defendants Coakley, Spencer, Ryan, Brockelman, Murphy or the Dire ctor of Treatment should not be dismissed. The order was mailed to plaintiff and to the Treasurer's Offices at MCI Shirley (Medium) and Bridgewater State Hospital. (PSSA, 4) (Additional attachment(s) added on 5/18/2012: # 1 Errata ERRATTA) (PSSA, 4). (Main Document 5 replaced on 5/18/2012) (PSSA, 4).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 12-10876-RGS
IKNATONRHAJIK NZADDI
v.
DEPARTMENT OF CORRECTIONS, et al.
MEMORANDUM AND ORDER
May 18, 2012
STEARNS, D.J.
For the reasons set forth below, the Court: (1) denies plaintiff's Motion for Temporary
Restraining Order and/or Preliminary Injunction; (2) allows plaintiff's Motion to Proceed in
forma pauperis, (3) directs the Clerk to issue summons for service of defendants Dinardo
and Wood with all costs of service to be advance by the United States; (3) within forty-two
(42) days of the date of this Memorandum and Order, Nzaddi shall file a certified prison
account statement; and (4) within forty-two (42) days of the date of this Memorandum and
Order, Nzaddi shall demonstrate good cause why the claims against defendants Coakley,
Spencer, Ryan, Brockelman, Murphy or the Director of Treatment should not be dismissed
for the reasons stated below.
BACKGROUND
On May 10, 2012, Plaintiff Iknatonrhajik Nzaeddi, a self-described Native-American
and G.I.D. diagnosed inmate,1 filed a Complaint, Application to Proceed Without
Prepayment of Fees and Motion for Temporary Restraining Order and/or Preliminary
Injunction. See Docket. Plaintiff is serving a life-sentence and was recently transferred
from MCI Shirley (Medium) to Bridgewater State Hospital for a 30 day observation under

1

In light of the allegation that Plaintiff has Gender Identity Disorder, the Court will
refer to Plaintiff by feminine pronouns.

G.L. 123, § 18(a).
Plaintiff alleges that she is a practicing Baha'i and that the defendants denied her
request for meals that are "hermetically sealed and blessed by the (Union of Orthodox
Rabbis) as they duly follow the revelations of the Prophets." See Docket No. 3. Named
as defendants are (1) Martha Coakley, Attorney General for the Commonwealth of
Massachusetts; (2) Luis S. Spencer, Commissioner of Corrections; (3) Kelly A. Ryan,
Superintendent of MCI Shirley (Medium); (4) Karen DiNardo, Deputy Superintendent of
Programs and Classification at MCI Shirley (Medium); (5) Christine Brockelman, Director
of Treatment at MCI Shirley (Medium); (6) Robert Murphy, Superintendent of Bridgewater
State Hospital; (7) Martin Wood, Deputy Superintendent at Bridgewater State Hospital; and
(8) an unnamed Director of Treatment at Bridgewater State Hospital. See Compl., Docket
No. 1.
Plaintiff alleges that “she is being clearly treated differently than other DOC inmates
[that have received kosher meals]” and she has “exhausted all institutional remedies in an
attempt to resolve this situation; however, the Defendant, DOC Commissioner Luis S.
Spencer, and all other subordinate - defendants have repeatedly displayed incompetence,
unprofessionalism and insensitivity with regards to the civil, as well as the criminal statutes of this Commonwealth.”

Id.

With the Complaint, Nzaddi attaches several

documents as exhibits. Id.
DISCUSSION
I.

Motion to Proceed In Forma Pauperis

Plaintiff filed a Motion to Proceed in forma pauperis that includes the first page of
Form AO 240 as well as her signature under the penalties of perjury. However, Plaintiff
has not submitted a certified copy of her prison account statement. The court will grant the
motion notwithstanding that Nzaddi failed to submit a certified prison account statement as
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required under 28 U.S.C. § 1915. Because Nzaddi is a prisoner, she is obligated to make
payments toward the filing fee pursuant to 28 U.S.C. § 1915(b), but this court cannot
assess the fee without the certified prison account statement. Nzaddi will be granted
additional time to file a certified prison account statement so that the court can assess
Nzaddi’s filing fee obligation.
II.

Review

When a plaintiff seeks to bring an action without prepayment of the filing fee,
summonses do not issue until the court reviews the operative complaint and determines
that it satisfies the substantive requirements of 28 U.S.C. § 1915. Similarly, under 28
U.S.C. § 1915A, prisoner complaints in civil actions that seek redress from a governmental
entity or officers or employees of a governmental entity are also subject to screening. Both
§ 1915 and § 1915A authorize federal courts to dismiss a complaint if the claims therein
are frivolous, malicious, fail to state a claim on which relief may be granted, or seek
monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(ii) and (iii); 28 U.S.C. § 1915A(b); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Gonzalez-Gonzalez v. United
States, 257 F.3d 31, 37 (1st Cir.2001).
In conducting a review of a complaint filed by a litigant proceeding in forma pauperis,
the court reads plaintiff's complaint with "an extra degree of solicitude," Rodi v. Ventetuolo,
941 F.2d 22, 23 (1st Cir.1991), due to her pro se status, see id.; see also Strahan v. Coxe,
127 F.3d 155, 158 n. 1 (1st Cir. 1997) (noting obligation to construe pro se pleadings
liberally) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96 (1972)).
III.

Plaintiff’s Section 1983 Claim

Section 1983 creates a cause of action against those who, acting under color of

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State law, violate federal constitutional or statutory law. See 42 U.S.C. § 1983.2 In order for
a defendant to be held liable under Section 1983, his or her conduct must have caused the
alleged constitutional or statutory deprivation. See Monell v. Dep't of Soc. Servs., 436 U.S.
658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62 (1st Cir.), cert. denied, 522 U.S.
819 (1997).
The First Amendment's religion clauses provide that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.
amend. I. The first clause, the Establishment Clause, mandates the separation of church
and state. The second clause, the Free Exercise Clause, requires that government respect
and not interfere with the religious beliefs and practices of those protected by the United
States Constitution. See Cutter v. Wilkinson, 544 U.S. 709, 719 (2005).
A prisoner “retains those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological objectives of the corrections system.”
Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Bell v. Wolfish, 441 U.S. 520, 545
(1979) (“prisoners do not forfeit all constitutional protections by reason of their conviction
and confinement in prison.”).

However, the Supreme Court has held that a prisoner's

sincerely held religious beliefs must yield, if contrary to prison regulations that are
reasonably related to legitimate penological interests. See O'Lone v. Estate of Shabazz,
482 U.S. 342, 351-352 (1987) (finding that the Constitution does not require the prison to
sacrifice legitimate penological objectives to satisfy an inmate's desire to exercise his
religion so long as an inmate is not deprived of all forms of religious exercise). Free

2

42 U.S.C. § 1983 provides that:
Every person who under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law....
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exercise claims brought by prisoners are “judged under a ‘reasonableness' test less
restrictive than that ordinarily applied to alleged infringements of fundamental constitutional
rights.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir.2003) (quoting O'Lone, 482 U.S. at
349); see also Shaw v. Murphy, 532 U.S. 223, 227-229 (2001).
Here, Nzaddi alleges that she has been denied kosher meals at MCI Shirley
(Medium) and the Bridgewater State Hospital. Nzaddi’s complaint and exhibits specifically
mention and/or concern defendants Karen DiNardo at MCI Shirley and Martin Wood at the
Bridgewater State Hospital. “[C]ourts have generally found that to deny prison inmates the
provision of food that satisfies the dictates of their faith does unconstitutionally burden their
free exercise rights.” McEachin v.. McGuinnis, 357 F.3d 197, 203 (2d Cir.2004) (citing
cases). Nzaddi notified DiNardo and Wood and they apparently failed to remedy the
alleged violation. These allegations suffice to allow plaintiff’s claims to proceed against
defendants DiNardo and Wood at this time.
Even with a liberal reading of the complaint, Ndazzi does not allege facts from which
the court may infer that the remaining six defendants were directly involved in the alleged
denial of religious meals. A plaintiff must plead the personal involvement of each defendant
in a violation of Section 1983 because there is no respondeat superior liability in Section
1983 cases. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978); CeperoRivera v. Fagundo, 414 F.3d 124, 129 (1st Cir.2005) ("[O]nly
those individuals who participated in the conduct that deprived the plaintiff of his rights can
be held liable [in a § 1983 action].").

Instead, "a plaintiff must plead that each

Government-official defendant, through the official's own individual actions, has violated the
Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009). The law in this Circuit before Iqbal was that a plaintiff may state a claim against a
supervisory defendant in a Section 1983 case by depicting "a scenario that would permit
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a fact-based inference that [the supervisory defendants] were guilty of ‘conduct that
amount[ed] to condonation or tacit authorization' of wrongdoing." Rogan v. Menino, 175
F.3d 75, 78 (1st Cir. 1999) (citations omitted). A supervisor must be either “a primary actor
involved in, or a prime mover behind, the underlying violation.” Camilo-Robles v. Zapata,
175 F.3d 41, 43-44 (1st Cir.1999). There must be “an affirmative link, whether through
direct participation or through conduct that amounts to condonation or tacit authorization”
to the violation alleged. Id. at 44.
Here, Plaintiff has not identified any specific actions taken by defendants Coakley,
Spencer, Ryan, Brockelman, Murphy or the Director of Treatment. See Feliciano v.
DuBois, 846 F. Supp. 1033, 1045 (D. Mass. 1994) ("[A] defendant supervisor cannot be
held liable for the constitutional violations of a subordinate merely by virtue of the
defendant's status as supervisor"). Nzaddi simply alleges that these six defendants are
liable as supervisors. She contends that defendant Coakley is liable because she is “the
highest ranking legal-officer for the Commonwealth. Compl., p. 2. She alleges that Spencer
is “the Supervisor directly responsible for securing the plaintiff’s rights.” Id. As for Ryan,
she alleges that she is “subordinate to the Commissioner and is responsible for the
Plaintiff’s appropriate care and custody. Id. As to Brockelman, she alleges that she has
“multiple responsibility with regard to all religious and dietary matters, as well as with
programs, school, library, mental health, correctional program officers (CPO’s), etc.” Id.
at p. 2. As to Murphy, she alleges that he is a supervisor who is “responsible for training
and overseeing other subordinate-defendants.” Id. Although Nzaddi does not identify the
Director of Treatment by name, she alleges that the Director is “designated to supervise
and train those involved in protecting patients’ rights with practicing their religion and
receiving apapropriate religious dietary foods and/or medical diets.” Id. Nzaddi does not
allege that these six defendants have been notified of the constitutional violations alleged
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here. It appears they are named as defendants simply because they are supervisory
officials. Accordingly, the claims against defendants Coakley, Spencer, Ryan, Brockelman,
Murphy or the Director of Treatment are subject to dismissal.
IV.

Motion for Temporary Restraining Order and/or Preliminary Injunction

To obtain the extraordinary remedy of preliminary injunctive relief under Fed. R. Civ.
P. 65, a plaintiff must show that: (1) she is likely to succeed on the merits; (2) she is likely
to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities
tips in her favor, and (4) an injunction is in the public interest. Voice of The Arab World v.
MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011). Likelihood of success on the
merits is the critical factor in the analysis. Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.
1993) (citations omitted).
A party seeking an ex parte temporary restraining order must allege that her injury
or loss is "immediate and irreparable" and will occur before the adverse party or that party's
attorney can be heard in opposition to the motion. Fed. R. Civ. P. 65(b)(1)(A). Even where
a plaintiff makes a showing of "immediate and irreparable" injury, the court cannot issue
a temporary restraining order without notice to the adverse parties unless the plaintiff
"certifies in writing any efforts made to give notice and the reasons why it should not be
required." Fed. R. Civ. P. 65(b)(1)(B).
Here, Nzaddi seeks a diet in accordance with her Baha’i beliefs. Nzaddi has not
addressed each of the factors the court must consider in determining whether injunctive
relief is appropriate. She does not allege that "immediate and irreparable" harm will occur
if she is not provided injunctive relief. Nzaddi has not certified her efforts to give notice to
the defendants of her motion for injunctive relief or explained why such notice should not
be required. These failures are grounds, in and of themselves, for denial of the motion.
See, e.g., Thompson v. Ramirez,

597 F. Supp. 726, 726 (D. P.R. 1984) (denying
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temporary restraining order, in part, where there had been no certification to court in
writing, of the efforts, if any, of notification to adverse parties). Thus, the court will deny
Nzaddi's request for Temporary Restraining Order and/or Preliminary Injunction without
prejudice.
ORDER
Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff’s Motion for Leave to Proceed in forma pauperis (Docket No. 2) is GRANED
and the assessment of the filing fee pursuant to 28 U.S.C. § 1915(b) is DEFERRED;

2.

Within forty-two (42) days of the date of this Memorandum and Order, Nzaddi shall
submit a certified prison account statement for the six-month period preceding the
filing of the Complaint. A copy of this Memorandum and Order shall be sent to the
Treasurer’s Offices at MCI- Shirley (Medium) and Bridgewater State Hospital with
the request that they provide Nzaddi, and/or this court, with a certified prison
account statement reflecting the average monthly balance and average monthly
deposits for the six-month period preceding May 8, 2012. Upon receipt of the
certified prison account statement, an Order shall issue assessing Nzaddi’s filing fee
obligations under the in forma pauperis statute. Failure by Nzaddi to comply with
this directive to submit a certified prison account statement may result in a dismissal
of this action.

3.

The Clerk shall issue summonses for defendants Dinardo and Wood.

4.

The United States Marshal shall effect service on defendants Dinardo and Wood as
directed by the plaintiff, and shall advance the costs of service;

5.

Plaintiff’s Motion for a Preliminary Injunction and Temporary Restraining Order
(Docket No. 3) is DENIED without prejudice; and

6.

Within forty-two (42) days of the date of this Memorandum and Order, Nzaddi shall
demonstrate good cause, in writing, why the claims against defendants Coakley,
Spencer, Ryan, Brockelman, Murphy or the Director of Treatment should not be
dismissed for the reasons stated above.
SO ORDERED.

/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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