Giorgio et al v. Clarke et al

Filing 37

Judge Joseph L. Tauro: ORDER entered. MEMORANDUM and ORDER(Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MATTHEW GIORGIO and
COLIN TRAVER,

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*
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Plaintiffs,
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v.
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HAROLD W. CLARKE, MICHAEL
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THOMPSON, DUANE MACEACHEARN, *
GARY RODEN, LISA JACKSON, and
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STEVEN DUXBURY,
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Defendants.
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Civil Action No. 12-11171-JLT

MEMORANDUM
July 31, 2013
TAURO, J.
I.

Introduction
Plaintiffs Matthew Giorgio and Colin Traver allege that Defendants Harold Clarke,

Michael Thompson, Duane MacEachern, Gary Roden, Lisa Jackson, and Steven Duxbury, all
officials with the Massachusetts Department of Correction, violated their First Amendment right
to the free exercise of their religion. Plaintiffs bring this suit for damages against Defendants in
their individual capacities. Before the court are Defendants’ Motion to Dismiss [#18] and
Plaintiffs’ Motion to Amend [#28] the complaint. For the reasons below, the court allows the case
to proceed only against Defendants Jackson and Duxbury.
II.

Factual Background1
1

The court presents the facts drawn from Plaintiffs’ Complaint [#1] in the light most
favorable to Plaintiffs.
1

Plaintiffs are Native Americans formerly incarcerated in Massachusetts. Giorgio was
released from custody in March 2010. Traver was released in July 2010.2
Prior to incarceration, Plaintiffs practiced Native American religious rites, including sweat
lodge ceremonies, use of prayer feathers and other religious artifacts, sage cleansing, and
smudging ceremonies. While incarcerated, Plaintiffs were denied access to these ceremonies and
artifacts, which they claim form an essential component of their religious beliefs.3 Plaintiffs filed
inmate grievances and appealed each denial to the correctional facilities’ superintendents.4 On July
9, 2009, they brought a grievance against Defendants Jackson and Duxbury for interfering with
their right to worship. Although the grievance was approved, Jackson and Duxbury failed to
return Plaintiffs’ religious artifacts to them.5
According to Plaintiffs, the regulations denying them access to key Native American rites
bore no rational relation to any legitimate concern of rehabilitation, institutional order, or security.
In fact, they claim that the Department of Correction had expressly allowed these rites in the past.
Plaintiffs also claim that Defendants could have accommodated their religious practices without
any additional supervision, threats to prison security, or perceived favoritism.6
Each plaintiff brings a single count against each defendant individually for violation of his

2

Compl. “Gen. Allegations” ¶¶ 1-2 [#1].

3

Compl. “Factual Allegations” ¶¶ 2-5.

4

Compl. “Factual Allegations” ¶ 8.

5

Compl. “Count VII” ¶ 2; Compl. “Count VIII” ¶ 2; Compl. “Count XV” ¶ 2; Compl.
“Count XVI” ¶ 2.
6

Compl. “Factual Allegations” ¶¶ 5-6.
2

constitutional rights.
III.

Discussion
A.

Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a complaint must include factual
allegations that demonstrate a plausible claim for relief.7 The court “must ‘take all factual
allegations as true and draw all reasonable inferences in favor of the plaintiff.’ ”8 Nevertheless, the
court need not accept the plaintiff’s legal conclusions, and the plaintiff must provide more than
“labels and conclusions or a formulaic recitation of the elements of a cause of action.”9
B.

Defendants’ Motion to Dismiss

Defendants raise five arguments in support of dismissal. They argue both that the
complaint fails to plausibly allege entitlement to relief as required by the Supreme Court in Bell
Atlantic Corp. v. Twombly10 and that the complaint fails to state a claim for relief under the First
Amendment. They assert that Plaintiffs cannot recover damages for claims brought against them
in their official capacity and that they have qualified immunity for claims brought against them in
their individual capacity. Finally, Defendants argue that Plaintiffs failed to allege any facts
supporting supervisory liability under 42 U.S.C. §1983.
i.

7

Sufficiency of the Complaint

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58 (2007).

8

Pettengill v. Curtis, 584 F. Supp. 2d 348, 362 (D. Mass. 2008) (quoting Rodriguez-Ortiz
v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007) (emphasis omitted)).
9

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and internal quotation marks
omitted).
10

550 U.S. 544 (2007).
3

The court concludes that, although Plaintiffs’ complaint borders on insufficiency, it
satisfactorily states a claim under the First Amendment against Defendants Jackson and Duxbury.
The First Amendment permits restrictions on prisoners’ free exercise rights that are “reasonably
related to legitimate penological interests.”11 In determining a regulation’s constitutionality, the
court must consider: 1) whether there is a valid, rational connection between the regulation and
the legitimate government interest justifying it; 2) whether alternative means to exercise the right
exist; 3) the impact of accommodating the right on prison resources; and 4) the absence of
alternatives.12 The prisoner bears the burden of persuasion when contesting the reasonableness of
a prison regulation.13
Plaintiffs allege that they practiced their religion prior to incarceration and that the
prohibited rites comprised a central part of their sincerely held beliefs. Additionally, they identified
the specific rites to which they lacked access: sweat lodge ceremonies, use of prayer feathers,
sage cleansing, and smudging ceremonies. Although Plaintiffs bear the burden to prove this denial
of access unreasonable, Defendants have not yet offered any justification for the regulations.14
Without further development of the record, the court cannot conclude, even granting full

11

Kuperman v. Wrenn, 645 F.3d 69, 74 (1st Cir. 2011) (quoting Turner v. Safley, 482
U.S. 78, 89 (1987)); see Beard v. Banks, 548 U.S. 521, 528-29 (2006).
12

Kuperman, 645 F.3d at 74 (citing Turner, 482 U.S. at 89-90).

13

Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Kuperman, 645 F.3d at 74.

14

See Knapp v. Kench, No. 11-cv-491-PB, 2012 WL 2061701, at *3 (D.N.H. May 14,
2012), report & recommendation approved, No. 11-cv-491-PB, 2012 WL 2061598, at *1
(D.N.H. June 6, 2012).
4

deference to Defendants,15 that the regulations at issue related reasonably to legitimate
penological interests.
Additionally, Plaintiffs allege specific conduct by Defendants Jackson and Duxbury.
According to Plaintiffs, Jackson and Duxbury failed to return religious items after approval of
Plaintiffs’ grievance. Jackson and Duxbury allegedly participated directly in the unconstitutional
conduct, and Plaintiffs’ claims against them may proceed.16
This same analysis, however, shows that Plaintiffs have failed to state a claim against
Defendants Clarke, Thompson, MacEachearn, and Roden. Plaintiffs have failed to provide any
facts tying their alleged constitutional injuries to these Defendants. Plaintiffs may not use the
doctrine of respondeat superior to hold Defendants liable under Section 1983.17 “[S]upervisory
liability lies only where an ‘affirmative link’ between the behavior of a subordinate and the action
or inaction of his supervisor exists such that the supervisor’s conduct led inexorably to the
constitutional violation.”18 The supervisor’s conduct must amount to “supervisory
encouragement, condonation or acquiescence[,] or gross negligence of the supervisor amounting

15

O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987) (“We take this opportunity to
reaffirm our refusal, even where claims are made under the First Amendment, to ‘substitute our
judgment on . . . difficult and sensitive matters of institutional administration’ for the
determinations of those charged with the formidable task of running a prison.” (quoting Block v.
Rutherford, 468 U.S. 576, 588 (1984))).
16

See Whitfield v. Melendez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005) (“Supervisory liability
can be grounded on either the supervisor’s direct participation in the unconstitutional conduct, or
through conduct that amounts to condonation or tacit authorization.”).
17

Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 209 (1st Cir. 1990).

18

Maldonado v. Fontanes, 568 F.3d 263, 275 (1st Cir. 2009) (citations and internal
quotation marks omitted).
5

to deliberate indifference.”19 The court must assess the potential liability of each defendant
separately.20
With the exception of Defendants Jackson and Duxbury, discussed earlier, Plaintiffs have
not alleged any specific conduct by any Defendant. Without such specific allegations against
Defendants Clarke, Thompson, MacEachern, and Roden, the court has no basis to conclude that
their actions either constituted encouragement, acquiescence, or gross negligence or were
affirmatively linked to the alleged constitutional violations. Consequently, the court must dismiss
the claims against Clarke, Thompson, MacEachern, and Roden.
ii.

Qualified Immunity

Because the court concludes that Plaintiffs have sufficiently stated a claim against
Defendants Jackson and Duxbury, it must consider whether Jackson and Duxbury have qualified
immunity.21 A court should address qualified immunity “at the earliest possible stage in
litigation.”22 In evaluating entitlement to qualified immunity, the court must decide: “(1) whether
the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if

19

Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012) (alteration in original)
(quoting Welch v. Ciampa, 542 F.3d 927, 937 (1st Cir. 2008)).
20

Id.

21

Although Defendants correctly note that Plaintiffs cannot seek damages against them in
their official capacities, the complaint does not bring any claims against them in their official
capacities.
22

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Hunter v. Bryant, 502 U.S.
224, 227 (1991) (per curiam)).
6

so, whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.”23
The second question turns on (1) “whether the contours of the constitutional right were
sufficiently clear at the time of the alleged conduct” and (2) “whether, under the particular facts of
the case, a reasonable officer would have understood that his behavior violated that clearly
established right.”24 In sum, “the salient question is whether the state of the law at the time of the
alleged violation gave the defendant fair warning that his particular conduct was
unconstitutional.”25
On the current record, the court has insufficient information to resolve the qualified
immunity question. Whether Plaintiffs can show a constitutional violation depends on whether
they can successfully challenge Defendants’ as-yet-to-be asserted justifications of the prison
regulations. And whether Defendants had “fair warning” that their conduct was unconstitutional
will depend on the justifications advanced. The court can better make these determinations at
summary judgment.
C.

Plaintiffs’ Motion to Amend

Plaintiffs move to amend the complaint to add a claim against Defendants pursuant to the
Religious Land Use and Institutionalized Persons Act (42 U.S.C. §§ 2000cc, et seq.) (“RLUIPA”)
and to specify the dates that they filed grievances. “The court should freely give leave [to amend]

23

Maldonado v. Fontanes, 568 F.3d 263, 268-69 (1st Cir. 2009) (citing Pearson, 555 U.S.

at 232).
24

Sanchez v. Pereira-Castillo, 590 F.3d 31, 52-53 (1st Cir. 2009).

25

Maldonado, 568 F.3d at 269 (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
7

when justice so requires.”26 Even so, the court need not allow amendment if the amended
complaint would still fail to state a claim for which relief could be granted.27
Plaintiffs may amend the complaint as to Defendants Jackson and Duxbury. Because the
Proposed Amended Complaint [#29] does not correct the factual deficiencies already discussed as
to Defendants Clarke, Thompson, MacEachern, and Roden, Plaintiffs may not offer the amended
complaint against these defendants.
IV.

Conclusion
For the reasons stated, Defendants’ Motion to Dismiss [#18] is ALLOWED IN PART and

DENIED IN PART. Plaintiffs’ Motion to Amend [#28] is also ALLOWED IN PART and
DENIED IN PART. Plaintiffs may proceed against only Defendants Jackson and Duxbury for
violations of the First Amendment and RLUIPA.28

AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro
United States District Judge

26

Fed. R. Civ. P. 15(a)(2).

27

Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996).

28

The court notes that, although the First Circuit has declined to rule on the issue, a judge
in this district recently concluded that a plaintiff could not bring a RLUIPA claim for damages
against officials in their individual capacities. See Cryer v. Spencer, No. 11-11953-PBS, 2013 WL
1192354, at *6-7 (D. Mass. Mar. 21, 2013). Because Defendants here did not properly raise this
argument in their opposition to Plaintiffs’ motion to amend, this court takes no position at this
time on whether Plaintiffs’ added RLUIPA claim could survive a motion to dismiss.
8