Greene v. Suffolk County Sheriff Department

Filing 36

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting in part and denying in part 30 Motion to Dismiss for Failure to State a Claim; Defendants are ordered to file a motion for summary judgment by September 11, 2015. Plaintiffs respon se may include an affidavit or declaration detailing any discovery necessary to respond to the motion for summary judgment, see Fed. R. Civ. P. 56(d), but should in any event respond to defendants motion for summary judgment on the merits. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TIMOTHY GREENE,
Plaintiff,
v.
ANDREA CABRAL, ET AL.,
Defendants.

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CIVIL ACTION NO.
12-11685-DPW

MEMORANDUM AND ORDER
July 13, 2015
Plaintiff Timothy Greene is a practicing Orthodox Jew who
was incarcerated in the custody of the Suffolk County Sheriff’s
Department (“the Department”) from May 2011 to October 2012 and
from February 2013 to an unidentified date prior to the hearing
in this matter.

Greene contends that during these periods he

was denied calorically adequate kosher food as well as access to
religious services.

The remaining defendants1 are individuals

who he claims were responsible for his care and custody during
the periods of his incarceration.

Greene seeks damages and

prospective injunctive and declaratory relief.

Defendants move

to dismiss the complaint.

This case was initially captioned Greene v. Suffolk County
Sheriff Department, but the Department was terminated as a party
on February 27, 2013.
1

1

I. BACKGROUND
Greene is a convert to Judaism and practices as an Orthodox
Jew.

Compl. ¶ 10.

He alleges that his sincerely held religious

beliefs require him to maintain a kosher diet, meaning a diet
consistent with Jewish law.

Id. ¶ 12.

Greene informed the

Department that he needed kosher meals, and he was placed on a
list of inmates who receive kosher meals.

Id. ¶ 15.

The

complaint does not allege when that request was made or when he
was placed on the list.

The Department does not provide a

kosher breakfast option for inmates, id. ¶ 22, instead serving
the same meal, prepared with non-kosher utensils, to all
inmates, id. ¶ 21.

The Department occasionally opened otherwise

kosher meals with non-kosher utensils, exposing the food to
contaminants, id. ¶ 25, and intermingled kosher and non-kosher
food on the same trays in a way that violates the rules of a
kosher diet.

Id. ¶ 27.

The Department served meals that purported to be kosher
twice a day during the period of Greene’s incarceration.
¶ 29.

Id.

These two meals combined typically contained

approximately six hundred or fewer calories.

Id. ¶ 30.

Greene

saved wrappers from some of these meals, and he alleges that on
one day he was served two meals totaling only five hundred
calories for the entire day.

Id. ¶ 31.

On another day he was

provided with two meals totaling only seven hundred and ten
2

calories. Id. ¶ 32.

He has provided copies of the labels from

those two days as an exhibit to the complaint.

When he

complained about his lack of access to calorically adequate
kosher food, he was told to eat the non-kosher food or to go
hungry.

Id. ¶ 34.

Greene also alleges that the Suffolk County House of
Correction (“the HOC”) severely limited his access to religious
services.

There are no regularly held services for Jewish

people in custody at the HOC, id. ¶ 36, nor are there nondenominational services, id. ¶ 36.

Greene was told that rabbis

were not offered to inmates, id. ¶37.

Non-Jewish inmates in the

custody of the department, however, do have access to religious
services.

Id. ¶ 42.

Greene has alleged violations of federal and state law
against numerous administrative defendants.

These defendants

are Andrea Cabral, the former Sheriff of Suffolk County, sued in
her individual capacity; Steven Tompkins, the current Sheriff of
Suffolk County, sued in his individual and official capacities;
Gerard Horgan, the former Superintendent of the Suffolk County
House of Correction, sued in his individual capacity; Yolanda
Smith, the current Superintendent of the Suffolk County House of
Correction, sued in her individual and official capacities; and
Anne Nee, the Director of Social Services, sued in her
individual and official capacities.
3

Greene initially brought

this action pro se but never served the defendants.
15, 2013, he began to be represented by counsel.

On January

Greene filed a

first amended complaint on February 26, 2013, and properly
served the defendants.

At that time, Greene also dismissed the

Suffolk County Sheriff’s Department as a defendant.

Defendants

moved to dismiss and Greene moved to further amend the
complaint.

He filed a Second Amended Complaint in December

2013.
Greene alleges that he filed grievances on June 18, 21, and
24, 2012, as well as on April 19, 2013, about the food he was
provided.

Id. ¶¶ 56, 57, 58, 60, 62.

After filing one of the

grievances, he was told to contact Director Nee, which he did.
She did not resolve his complaint.

Id. ¶¶ 58, 59.

On June 16,

2013, he filed a grievance concerning lack of access to nondenominational or Jewish religious services.

Id. ¶ 63.

The

response he received suggested that Greene contact an outside
rabbi or synagogue to set up a special visit, but Greene does
not have a rabbi he could ask to see him.

Id. ¶ 63, 64.

He

followed up with people recommended in the grievance denials,
but received no remedy.

Id. ¶ 65.

In the Second Amended Complaint, Greene presents a theory
of supervisory liability against each of the defendants based on
each defendant’s role in implementing practices, programs, or
policies that Greene claims caused the violations he alleges.
4

For former Sheriff Cabral and current Sheriff Tompkins, Greene
alleges that each is or was responsible for “overseeing the
operation and conditions of the correctional institutions in
Suffolk County” and is or was “responsible for promulgating and
implementing practices and policies” and ensuring the
enforcement of the law.

Id. ¶¶ 86, 88.

He claims that each

knew or should have known that Jewish inmates lack access to
kosher meals, religious services and religious materials.

Id.

¶¶ 87, 88.
Former Superintendent Horgan and current Superintendent
Smith are alleged to be or to have been “[r]esponsible for
supervision and daily operations of the Suffolk County House of
Correction” as well as for “promulgating and implementing
practices and policies, providing proper training to
correctional staff” and ensuring enforcement of the law.
¶¶ 89, 90.

Id.

Greene alleges that both knew or should have known

that Jewish inmates lacked access to kosher meals, religious
services, and materials, in violation of the law, id.,

adding

that former Superintendent Horgan knew that this was “by
Department policy and practice,” id. ¶ 89, and that
Superintendent Smith knew this “[d]ue to her involvement with
training, and promulgation of the practices and procedures of
the Suffolk County House of Correction,” id. ¶ 90.

5

Director Nee is alleged to be responsible for “supervision
and daily operation of religious services within the Suffolk
County House of Correction.”

Id. ¶ 91.

She knew or should have

known that Jewish inmates lacked access to calorically adequate
kosher meals and religious services in violation of the law
“[d]ue to her involvement and implementation of the religious
practices and procedures of the Suffolk County House of
Correction, and her direct contact with Mr. Greene during the
grievance process.” Id.
Greene further states that the defendants “have each been
involved in or are aware of the creation, training, oversight
and implementation of the Department’s religious programs”
including religious services, materials, and diets, and the fact
that the diet provided pursuant to these programs “only
sometimes complies with the rules of Kashrut and Jewish inmates’
sincerely held beliefs.”

Id. ¶ 102.

He claims that the

defendants “were aware of the risk to Mr. Greene’s health and
safety and deliberately disregarded that risk” by failing to
provide him with sufficient caloric intake.

Id. ¶ 104.

At

another point in the complaint, Greene claims that defendants
“were each involved in training, and each oversaw or implemented
policies, or were aware of the implementation of policies, that
provided inmates requiring a Kosher diet[] only two meals a day.
Further, Defendants have trained and overseen both the unit
6

officers, chaplains, and kitchen lieutenant, and created the
policies that these subordinates enforce, when they have
resorted to coercive tactics to force Mr. Greene to go without
food or to abandon his sincerely held religious beliefs.”

Id.

¶ 112.
Greene asserts claims in six counts: for (1) violations of
the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 42 U.S.C. § 2000cc et seq, against defendants
Tompkins, Smith and Nee in their official capacities; for
violations of 42 U.S.C. § 1983 against all defendants based on
infringements of (2) the right to freedom of religion in the
First and Fourteenth Amendments to the United States
Constitution, (3) the right to equal protection in the
Fourteenth Amendment to the United states Constitution, and
(4) the right to be free from cruel and unusual punishment under
the Fourteenth Amendment to the United States Constitution; and
for violations of state civil rights against all defendants
under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch.
12, § 11I, based on infringements of (5) the right to religious
freedom and (6) the right to be free from cruel and unusual
punishment.

Defendants now move to dismiss the Second Amended

Complaint for failure to state a claim upon which relief may be
granted, asserting variously sovereign immunity, qualified
immunity, and inadequate pleading.
7

II. LEGAL STANDARD
In resolving a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, I treat as true all nonconclusory factual allegations in the complaint, while
identifying and disregarding statements in the complaint that
offer “legal conclusions” or “threadbare recitals of the
Ocasio-Hernandez v. Fortuno-

elements of a cause of action.”

Burset, 640 F.3d 1, 12 (1st Cir. 2011)(quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).

I do not consider the

likelihood of plaintiff’s success on the merits.

Id.

If I am

able to draw a reasonable inference that defendants are liable
for the alleged misconduct, then the claim is plausible and I
must deny the motion to dismiss.

Id.

III. SOVEREIGN IMMUNITY
Sovereign immunity under the Eleventh Amendment of the
United States Constitution protects states from suit in federal
court unless the state waives immunity.

“The Eleventh Amendment

prevents congressional authorization of suits by private parties
against unconsenting states.”

Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 72 (1996).

Sovereign immunity from suits

authorized by federal law does not extend to municipalities, it
extends “only to States and arms of the State.”
Co. v. Chatham County, 547 U.S. 189, 193 (2006).

Northern Ins.
Despite its

municipal title, the Suffolk County Sheriff’s Department, which
8

oversees the correctional facilities in Suffolk County, is
controlled directly by the Commonwealth of Massachusetts and all
employees of the Department are employees of the Commonwealth.
Mass. St. 2009, c. 61, §§ 3, 13 (effective January 1,
2010)(transferring Barnstable, Bristol, Dukes, Nantucket,
Norfolk, Plymouth, and Suffolk Sheriffs and their employees to
the Commonwealth, “. . . all employees of the office of a
transferred sheriff . . . are hereby transferred to that
transferred sheriff as employees of the commonwealth.”).
Massachusetts Sheriff’s Departments are therefore considered
arms of the state and are entitled to sovereign immunity.

See

Jeffrey Gallo, et al. v. Essex County Sheriff’s Dept., 2011 WL
1155385 at *3 (D. Mass. March 24, 2011).
Greene has asserted federal and state law claims against
Tomkins, Smith, and Nee in their official capacities as
employees of the state.

He does not contest that sovereign

immunity bars official capacity claims against state officials
for punitive and compensatory damages.

Such claims, including

those under RLUIPA, must be dismissed.

See Sossamon v. Texas,

131 S.Ct. 1651, 1659 (2011) (noting that states do not waive
sovereign immunity by accepting funding under RLUIPA).
Greene also, however, advances claims for prospective
relief, including declaratory relief and an injunction.

These

types of claims survive the assertion of sovereign immunity
9

pursuant to Ex Parte Young, 209 U.S. 123 (1908).

Where a

plaintiff seeks “prospective injunctive relief” rather than a
retroactive award, the Eleventh Amendment does not present an
obstacle.

See Id., Edelman v. Jordan, 415 U.S. 651, 677 (1974).

The force of the Eleventh Amendment is even more potent
when faced with state-law claims against state officials.

“[I]t

is difficult to think of a greater intrusion on state
sovereignty than when a federal court instructs state officials
on how to conform their conduct to state law.”

Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).

Thus, the

prospective relief exceptions outlined in Young and Edelman do
not apply to claims against state officials based on state law,
such as those presented in Counts 5 and 6, to the extent they
raise official capacity claims.

Id. (The doctrinal basis for

Young and Edelman disappears where plaintiffs allege violations
of state law because a “federal court’s grant of relief against
state officials on the basis of state law, whether prospective
or retroactive, does not vindicate the supreme authority of
federal law.”)
IV. PROSPECTIVE RELIEF UNDER FEDERAL LAW
I next consider whether injunctive or declaratory relief,
the type of prospective relief permitted against states under
Young, 209 U.S. 123, may be appropriate in this case.

Greene

requests declaratory and injunctive relief in his Second Amended
10

Complaint, c.f. Mitchell v. Massachusetts Dept. of Correction,
190 F.Supp.2d 204 (D. Mass. 2002)(finding that Young does not
apply because the plaintiff did not request prospective relief).
While Greene properly has requested this relief, I must consider
whether Greene’s request for these forms of relief is moot.

The

parties have not included any argument about mootness in their
memoranda.
Greene states in his complaint that he has been in the
custody of the Suffolk County Sheriff’s Department from May 2011
to October 2012 and from February 2013 to the present.

Greene

does not admit in his complaint that the violations of which he
complains have ceased.

C.f. Seaver v. Manduco, 178 F.Supp.2d

30, 36 (D. Mass. 2002)(finding that injunctive relief would be
inappropriate given plaintiff’s admission that the violation was
in the past and was not ongoing).

Instead, he alleges that the

violations spanned his earlier and current periods of
incarceration, that the violations happen “routinely,” id. ¶ 1,
and that the violations continue, id. ¶ 95, 101, 107, 112.
At oral argument on the motion to dismiss, I inquired
whether Greene remained in custody, and his counsel informed me
that he has been released.

While Greene’s release is not

documented in the complaint, the parties agree that he is not
currently in the custody of the Department.

Based on undisputed

representations from counsel, representations that could “be
11

accurately and readily determined from sources whose accuracy
cannot reasonably be questioned” if there were any purported
disagreement about the underlying facts, I take judicial notice
of the fact that Greene is not currently in the custody of the
Department.

See Fed. R. Evid. 201.

Because Greene is no longer in the custody of the
Department, the request for prospective relief is moot under
governing First Circuit law.

See Ford v. Bender, 768 F.3d 15,

29 (1st Cir. 2014)(“A prisoner’s challenge to prison conditions
or policies is generally rendered moot by his transfer or
release.”)

Greene mentions in passing in his memorandum his

entitlement to prospective relief because he is “subject to
future incarceration by the Defendants,” but he does not expand
on this argument in the context of mootness.

This seems to be a

reference to the general exception to the mootness doctrine for
conduct that is capable of repetition yet evading review.
at 30.

Id.

A future risk of reincarceration is typically not viewed

as demonstrating a reasonable probability of recurrence.

Id.

(“we generally have been unwilling to assume that the party
seeking relief will repeat the type of misconduct that would
once again place him or her at risk of that injury”)(quoting
Honig v. Doe, 484 U.S. 305, 320 (1988)).

Greene has presented

no other information from which I can conclude that there is a

12

reasonable probability of recurrence within the legal framework
laid out by the First Circuit.2
V. QUALIFIED IMMUNITY
Qualified immunity is an affirmative defense for which the
defendants bear the burden of proof.

DiMarco-Zappa v.

Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001).

It limits

government officials’ exposure to liability for damages in their
individual capacities, but does not shield them from prospective
relief.

Ryder v. United States, 515 U.S. 177, 185 (1995).

The

question whether qualified immunity is appropriate should be
“resolved at the earliest possible stage in litigation,” because
it is designed to give government officials protection from the
entire litigation process, not merely from liability, if
immunity is appropriate.
268 (1st Cir. 2009).

Maldonado v. Fontanes, 568 F.3d 263,

At the motion to dismiss stage, any

The defendants also argue that Greene is barred from suing the
defendants in their official capacities because § 1983 claims
lie only against “persons” and “neither a State nor its
officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989). While this argument provides an additional
reason to dismiss the official capacity allegations for
compensatory and punitive damages, it does not provide an
additional reason to dismiss any claim for prospective relief.
The Supreme Court in Will went on to clarify that “[o]f course a
state official in his or her official capacity, when sued for
injunctive relief, would be a person under § 1983 because
‘official-capacity actions for prospective relief are not
treated as actions against the state.” Id. at n. 10 (quoting
Kentucky v. Graham, 473 U.S. 159, 167, n.14 (1985)).
2

13

assessment of qualified immunity requires me to evaluate the
sufficiency of the defense on the face of the plaintiff’s
pleadings.

Id.

Qualified immunity requires a two-part inquiry: whether the
allegations make out a constitutional violation, and whether the
violated right was clearly established at the time of the
offending conduct.

Ford, 768 F.3d at 23.

The “clearly

established” inquiry, in turn, considers the clarity of the law
at the time of the alleged violation and whether a reasonable
defendant would understand that his or her conduct violated the
plaintiff’s constitutional rights.

Id.

Greene contends that, as a preliminary matter, the
defendants have not established that their actions were in the
scope of a “discretionary function.”

Defendants cite two cases

from Georgia federal district courts that note that the
defendants had not shown that they were engaged in a
discretionary function, and consequently could not invoke
qualified immunity.

See Street v. City of Bloomingdale, 2007 WL

1752469, at *4 (S.D. Ga. June 15, 2007); Reed v. Okereke, 2006
WL 2444068, at *19 (N.D. Ga. Aug. 22, 2006).

The argument from

the negative pregnant is that if that showing were made,
qualified immunity may have been available.

While the Eleventh

Circuit regularly analyzes in detail whether an official is
acting within the official’s discretionary authority as a
14

prerequisite to a qualified immunity analysis, see, e.g., Lumley
v. City of Dade City, Fla., 327 F.3d 1186 (11th Cir. 2003) (“To
receive qualified immunity, the public official must first prove
that he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.”), courts
elsewhere, and in the First Circuit in particular, typically
spend little time on this element.

The First Circuit has held

that “[g]enerally, prison officials and officers are included in
the category of those whose positions qualify them for such
immunity.”

Brown v. Ponte, 842 F.2d 16, 18 (1st Cir. 1988)(per

curiam)(citing Procunier v. Navarette, 434 U.S. 555, 561(1978)).
Each of the defendants here was alleged by the plaintiff to
be involved in making high-level determinations about the
practices and policies of the Suffolk Department of Correction
or Suffolk House of Correction and their misconduct is alleged
to be the creation or implementation of an improper practice or
policy.

Greene’s efforts to undercut the claim of qualified

immunity based on a non-discretionary function fails.
Defendants do not challenge in any particularized manner
the conclusion that their conduct as alleged amounts to a
constitutional violation. Even their conclusory language,
“Defendants contend that the action they took in response to
Plaintiff’s numerous complaints, grievances and requests did not
violate the Plaintiff’s constitutional rights,” seemingly misses
15

the point.

Greene’s primary theory is that the Defendants are

liable for creating and implementing the policies that led to
his being deprived of calorically adequate kosher food and
Jewish religious services, not that they themselves were
directly involved in the violations or the remedial process.
While Greene has an additional factual hook for his claims
against Nee based on his filing a grievance to her directly, the
focus of this action is not the response to Greene’s complaints
but rather the policies that he claims led to his being provided
calorically inadequate kosher food and being denied access to
religious services.
It is clearly established that a prisoner must have “a
reasonable opportunity of pursuing his faith comparable to the
opportunity afforded fellow prisoners who adhere to conventional
religious precepts.”

Cruz v. Beto, 405 U.S. 319, 322 (1972).

Multiple federal and state laws provide protection for inmates’
free exercise of their religion.

For example, RLUIPA prohibits

prisons that receive federal funds from imposing a “substantial
burden” and an inmate’s religious exercise in the absence of the
prison’s demonstration that the imposition of such a burden “(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).

Massachusetts

law similarly requires that “an inmate of any prison or other
16

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 a place where he
is confined.”

Mass. Gen. Laws c. 127 § 88.

In addition to identifying general rights that touch on
freedom of religious practice for inmates, I must consider
whether the specific rights Greene alleges were violated were
clearly established and “determine whether an alleged right was
established with sufficient particularity that a reasonable
official could anticipate that his actions would violate that
right.”

Borucki v. Ryan, 827 F.2d 836, 838 (1st Cir. 1987).

Concerning the claim that the kosher food provided to Greene was
calorically inadequate, the First Circuit noted in 2013, that
“it has been held that ‘a prisoner’s religious dietary practice
[will be found to be] substantially burdened when the prison
forces him to choose between his religious practice and adequate
nutrition.’”

LeBaron v. Spencer, 527 Fed.Appx. 25, 30 (1st Cir.

2013)(quoting Nelson v. Miller, 570 F.3d 868, 879 (7th Cir.
2009).3

There may be a stronger argument that the claims related to
cruel and unusual punishment are not based on clearly
established rights given uncertainty in the law about whether
caloric deprivation related to religious observance is the same
as caloric deprivation generally, the latter being a clear
Eighth Amendment violation, Farmer v. Brennan, 511 U.S. 825,
832-33 (1994). Compare Campbell v. Cornell Corr. of Rhode
Island, Inc., 564 F. Supp. 2d 99, 102-03 (D.R.I. 2008)(holding
3

17

Rights of inmates are evaluated while considering the
burden on the prison and giving “due deference to the experience
and expertise of prison and jail administrators.”

Spratt v.

Rhode Island Dept. of Corrections, 482 F.3d 33, 39 (1st Cir.
2007)(quoting Cutter v. Wilkinson, 544 U.S. 709, 717 (2005)).
On the face of the pleadings as they stand now, the defendants
have not argued or made a showing that the rights that Greene
claims were violated were not clearly established.

Of course as

the case moves forward, additional facts about the scope and
nature of the alleged violations could lead to a different
conclusion.
Defendants next argue that even if the rights were clearly
established, the action they took in response to Greene’s
complaints and requests did not violate Greene’s constitutional

that a claim that an inmate was denied food that was consistent
with his religious belief was distinct from a claim of
inadequate quantity of food or inadequate nutritional value and
therefore does not state a claim under the Eighth Amendment)
with Hall v. Sutton, 2012 WL 407244 (S.D. Ill. Feb. 8,
2012)(holding that a claim that a Muslim inmate was only
provided with 1000 calories worth of food before sunrise and
after sunset during Ramadan could be sufficient to satisfy the
objective prong of the Eighth Amendment, drawing no distinction
between deprivation of calories generally and those based on
religious observance) and with Florer v. Bales-Johnson, 752
F.Supp.2d 1185, 1200 (W.D. Wash. 2010) aff’d 473 F. App’x 651
(9th Cir. 2012)(Eighth amendment requires nutrition adequate to
maintain health, Kosher menu need not meet USDA nutritional
guidelines as those recommendations are not constitutional
requirements on their own, drawing no distinction between
nutritional deprivation for purposes of religious observance and
for other reasons).
18

rights.

They do not provide any support for this argument,

however, other than their claims that Greene does not allege
that they (other than defendant Nee) were aware of the
violations, and that any response was reasonable.

While Nee is

the only defendant that Greene claims was directly aware of at
least some of the violations, this action is not predicated on a
theory that the defendants were actually aware that Greene in
particular was being deprived of kosher food, sufficient caloric
intake, and religious materials and services.

Instead, Greene

alleges that each of the defendants was aware of and implemented
policies and practices that they knew or should have known led
to Jewish inmates being denied calorically adequate kosher food
and access to religious services.

The policies and practices

are what Greene claims to be the defendants’ violations here,
not their roles in his own deprivation.
As for defendant Nee, Greene has alleged that she did not
in any way remedy the violation of which he complained.

Greene

therefore adequately alleges knowledge, individualized for Nee
and based on policies and practices for all of the defendants,
that could be the foundation for a finding of a constitutional
violation, and the complaint does not provide any grounds for
the defendants’ arguments that their responses to the existence
of a violative policy or to Greene’s individual situation were
reasonable.
19

Aside from challenging the lack of knowledge, defendants
also attempt to argue that at the motion to dismiss stage I can
assume that the only alleged violations occurred during the sixday period in June 2012 plus on the one occasion in April 2013
that Greene filed formal grievances and that I must assume that
on the other dates the food and access to religious services was
not a problem.

They further argue that I must assume that the

responses to the grievances were satisfactory because Greene did
not file follow-up grievances.

These arguments neglect the

essential fact that at the motion to dismiss stage, I must
“accept the well-pleaded facts in the operative complaint as
true, construing them in the light most favorable to . . . the
nonmoving party.”

Lydon v. Local 103, Intern. Broth. Of Elec.

Workers, 770 F.3d 48, 50 (1st Cir. 2014).

I accept Greene’s

allegations as true and view them in the light most favorable to
him.

Consequently, contrary to the defendants’ arguments here,

I must accept that “[i]n the two meals a day that [the
Department] does provide, the Department regularly fails to
comply with Kosher requirements,” Compl. ¶ 24, and other
allegations by Greene that the violations were regular and
ongoing.

The lack of additional grievances does not indicate

that the grievances were resolved.

20

At this stage, taking the plaintiff’s well-pled allegations
as true, I find that constitutional violations have been alleged
adequately and the violations alleged are clearly established.
VI. RLUIPA AND INDIVIDUAL CAPACITY CLAIMS
The Department contends that RLUIPA applies only to
defendants acting in their official capacities, and because
sovereign immunity bars such claims, as discussed above, there
is no viable RLUIPA claim against defendants.

The First Circuit

has not addressed the issue whether RLUIPA can reach actions
against individuals acting in their individual, rather than
official, capacities.

The Third, Fourth, Fifth, Seventh, Tenth,

and Eleventh Circuits, however, have taken the view that FLUIPA
does not allow for personal capacity claims for monetary
damages.

See, e.g., Sharp v. Johnson, 669 F.3d 144, 154 (3d

Cir. 2012) (collecting cases from other circuits sharing this
view).
Greene does not contest this argument, and in fact his
RLUIPA claims in the complaint are directed only against
defendants Tompkins, Smith and Nee in their official capacities.
He seeks only prospective relief under this count.

Compl. ¶ 84.

Therefore, I note that while the RLUIPA claims would not be
dismissed on this ground because claims for official capacity
prospective relief survive the sovereign immunity challenge, the

21

RLUIPA claims must be dismissed because the prospective relief
requested in this case is moot, see Section IV supra.
VII. INDIVIDUAL CAPACITY CLAIMS
The individual capacity claims that Greene asserts against
Cabral, Tompkins, Horgan, Smith, and Nee require that each of
the defendants be held liable on the basis of that defendant’s
own actions.

See Leavitt v. Correctional Medical Services,

Ind., 645 F.3d 484, 502 (1st Cir. 2011).

A defendant may not be

held individually liable on a respondeat superior or other
supervisory theory alone; rather, the plaintiff must show that
the defendant had a direct connection to the misconduct.

“In a

§ 1983 suit or a Bivens action — where masters do not answer for
the torts of their servants — the term ‘supervisory liability’
is a misnomer. Absent vicarious liability, each Government
official, his or her title notwithstanding, is only liable for
his or her own misconduct.”

Iqbal, 556 U.S. at 677.

For a supervisor to be held liable for a supervisee’s
conduct, liability must be premised on the supervisor’s “own
acts or omissions.”

Whitfield v. Melendez-Rivera, 431 F.3d 1,

14 (1st Cir. 2005).

This does not require direct involvement in

misconduct, but it does require an “affirmative link” between
the supervisor’s actions and the alleged violation.

“Absent

direct participation, a supervisor may only be held liable where
(1) the behavior of [his] subordinates results in a
22

constitutional violation and (2) the [supervisor’s] action or
inaction was ‘affirmatively link[ed]’ to the behavior in the
sense that it could be characterized as ‘supervisory
encouragement, condonation or acquiescence’ or ‘gross negligence
. . . amounting to deliberate indifference.’” Id. (quoting
Hegarty v. Somerset County, 53 F.3d 1367, 1379-80 (1st Cir.
1995)).
Liability may be appropriate under limited circumstances
where the training and supervision of employees led to a civil
rights deprivation even if a supervisor was not directly
involved in or even aware of a specific violation.

Liability is

appropriate in such circumstances only where a supervisor shows
“deliberate indifference” to the “possibility that deficient
performance of the task eventually may contribute to a civil
rights deprivation.”
(1st Cir. 1999).

Camilo-Robles v. Zapata, 175 F.3d 41, 44

Deliberate indifference requires that “a

prison official subjectively must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”
Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002).
Supervisory liability under a theory of deliberate indifference
can be found “only if it would be manifest to any reasonable
official that his conduct was very likely to violate an
individual's constitutional rights.”
23

Maldonado, 568 F.3d at

275.

Prison officials “cannot be deliberately indifferent if

they responded reasonably to the risk, even if the harm
ultimately was not avoided.”

Burrell, 307 F.3d at 7.

Defendants argue that Greene has failed adequately to
allege facts in his complaint to make out a claim of deliberate
indifference, noting what they claim are insufficient
allegations concerning notice and active involvement by each of
the defendants.

This argument, however, appears to rest on the

defendants’ misunderstanding of Greene’s allegations.

Greene

does not allege that the defendants themselves were directly
involved in the claimed violations; instead, he roots his claims
against the defendants in allegations that each was involved in
creating and implementing the policies and practices at the
Department and the HOC and that each knew or should have known
that the policies and practices concerning food and religious
services for Jewish inmates were unlawful.

In these

circumstances, Greene need not allege that the defendants knew
of or participated in the particular deprivations of which
Greene complains, because a supervisor, “removed from the
perpetration of the rights-violating behavior [] may be liable
under section 1983 if he formulates a policy or engages in a
practice that leads to a civil rights violation committed by
another.”

Camilo-Robles, 151 F.3d at 7.

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The fact that each of the defendants had supervisory roles
and were involved in policies and programming would be
insufficient to support supervisory liability in this case if
the alleged violations were committed by other officers in
violation of the policies and programs because there is no
allegation that the defendants (other than perhaps Nee) were
aware of any deviation from policy or practice.

Here, however,

Greene alleges that the misconduct occurred in compliance with
the practice, policy, and programs implemented by the
defendants.

This language is clearest in relation to

Superintendent Horgan, because Greene claims that Horgan was
aware that the deprivations of calorically adequate kosher food
and access to religious programming occurred “by Department
policy and practice.”

Compl. ¶ 89.

For all defendants,

however, Greene makes the general allegation it is the
“Defendants’ implementation and oversight of policies that
deprived Mr. Greene . . . of sufficient caloric intake.”
¶ 103.

Id.

See also id. ¶ 112 (noting that the subordinates are

enforcing policies when they force Greene to go without food or
abandon his sincerely held religious beliefs).

At other times,

however, Greene appears to claim in more general terms that the
defendants’ involvement in the highest levels of policy and
program decisions for the Department and the HOC meant that they
knew or should have known of other violations occurring under
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their watch.

These latter allegations are not enough on their

own, but other allegations connecting the violations to the
policies and programs created and enforced by the defendants are
sufficient to make out a claim for supervisory liability.
A supervisor is liable only when he or she demonstrates
deliberate indifference.

Greene alleges facts that could make

out deliberate indifference.

Deliberate indifference requires

knowledge of facts from which an official could draw an
inference that a substantial risk of serious harm exists.
Ramirez-Lluveras v. Rivera-Merced, 759 F.3d 10, 20 (1st Cir.
2014).

In the complaint, Greene claims significant weight loss

and other medical and psychological consequences, which could
fairly make out a grave risk of harm from caloric deprivation,
and he claims that defendants knew of the policies and practices
because they actually created and enforced them.
The question remains, however, whether alleging unnamed
policies and practices that violated Greene’s rights is too
conclusory an allegation to survive a motion to dismiss.
Allegations that are conclusory are not entitled to an
assumption of truth.

Iqbal, 556 U.S. at 681.

In Sanchez v.

Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009), the First Circuit
rejected claims against administrative defendants in a case
where officers pressured an inmate to receive unnecessary
exploratory surgery to search for contraband.
26

The court upheld

claims against officers directly involved, but dismissed a
§ 1983 supervisory liability claim pursuant to Iqbal against
higher-up administrative defendants, finding that the complaint
merely “[p]arrot[ed] our standard for supervisory liability in
the context of Section 1983 . . . [alleging] that the
administrative defendants were ‘responsible for ensuring that
the correctional officers under their command followed practices
and procedures [that] would respect the rights and ensure the
bodily integrity of Plaintiff’ and that ‘they failed to do [so]
with deliberate indifference and/or reckless disregard of
Plaintiff’s federally protected rights.’” Id. at 49.

The Court

held that language to be conclusory and that it should not be
given credence.

Id.

The sole claim in Sanchez that was more

specific was that one of the officers who was directly involved
and was particularly pushy toward medical staff was following
directives and regulations designed and implemented by the
administrative defendants.

Id.

The only regulations described

in the complaint were a strip search and x-ray regulation, and
the court held that the claim that the surgery resulted from
those policies was implausible.

Id. at 49-50.

Here, Greene does not specify the policies, programs, and
practices that the defendants implemented and oversaw.

He does,

however, claim not only that the policies and programs permitted
the violations to occur but that the violations occurred through
27

compliance with those policies and programs.

The First Circuit

rejected the allegations in Sanchez based on the implausible fit
between the named policies and the harm that resulted, not based
on the fact that a supervisor is not properly held accountable
under § 1983 where an employee commits a violation acting
pursuant to a directive or regulation created and implemented by
supervisors.

Here, given the absence of a specifically

identified policy or program that led to the violations, I do
not have the information necessary to measure the fit between
the policy or program alleged and the violations.
At this very early stage in the case, I conclude that it
would be improvident for me to dismiss the complaint based on
the fact that Greene has not specified the policy.

The general

theory of supervisory liability based on unlawful policies and
practices created and enforced by supervisory defendants is a
valid one that states a claim for relief.

Unlike in Sanchez,

there is no reason apparent on the face of the complaint to
discount the connection alleged by Greene between the policies
and the alleged violations of his rights.
Nonetheless, Greene’s failure to name the specific policies
and practices that underlay his claims make the allegations
border precariously on the conclusory.

I therefore conclude

that the proper course of action in this case is to move this

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case as efficiently as possible to summary judgment.

A schedule

for doing so will be outlined below.
VIII. MASSACHUSETTS CIVIL RIGHTS ACT
The allegations against the defendants under the
Massachusetts Civil Rights Act, Mass. Gen. Laws c. 12 § 11H & I,
in their official capacities are barred by sovereign immunity,
as discussed above, see Section III supra, and are excluded by
the statute itself since the Commonwealth is not a “person”
within the meaning of the MCRA.
1, 11 n.9 (1st Cir. 2002).

See Kelley v. LaForce, 288 F.3d

The claims for prospective relief

are subject to dismissal as moot.

See Section IV supra.

IX. CONCLUSION
For the reasons set forth more fully above, it is hereby
ORDERED that Defendants’ Motion to Dismiss is GRANTED in part
and DENIED in part, in that:
1. All claims for prospective relief are dismissed as moot;
2. Official capacity claims for damages under federal law
in Counts I, II, III, and IV, are hereby dismissed; and
3.

Official capacity claims for damages under state law in
Counts V and VI are hereby dismissed.

Defendants are ordered to file a motion for summary
judgment by September 11, 2015.

Plaintiff’s response may

include an affidavit or declaration detailing any discovery
necessary to respond to the motion for summary judgment, see

29

Fed. R. Civ. P. 56(d), but should in any event respond to
defendants’ motion for summary judgment on the merits.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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