Greene v. Suffolk County Sheriff Department

Filing 75

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 62 Motion for Summary Judgment; granting in part and denying in part 66 Motion to Strike. The grant of summary judgment disposes of the last of the outstanding claims in this case . Accordingly, the Clerk is directed to enter judgment for the defendants. The motion to strike is granted only to the extent that the sanction of $2,000 under Fed. R. Civ. P. 37(c)(1)(A) is imposed for the untimely tender of Rabbi Rosenberg's affidavit. The sanction shall be paid over directly to Plaintiff's counsel on or before July 13, 2018. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

TIMOTHY GREENE,

)
)
)
)
)
)
)
)
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Plaintiff,
v.
ANDREA CABRAL, ET AL.,
Defendants.

CIVIL ACTION NO.
12-11685-DPW

MEMORANDUM AND ORDER
June 15, 2018
Plaintiff Timothy Greene, who practices as an Orthodox Jew,
was twice incarcerated in the Suffolk County House of
Correction.

In this lawsuit, he asserts that his religious

liberties were violated while incarcerated.

He claims that he

was not properly served sufficient kosher food and that he was
denied the ability to participate in religious services led by a
rabbi.
I. PROCEDURAL BACKGROUND
Greene filed this action pro se.

After becoming

represented by counsel, he amended his complaint twice, refining
his claims and dismissing the Suffolk County Sheriff’s
Department as a defendant.

In the operative Second Amended

Complaint, Greene asserts six sets of claims: one for violations
of the Religious Land Use and Institutionalized Persons Act
(RLUIPA); three claims under 42 U.S.C. § 1983 — for violations

of his right to freedom of religion under the First and
Fourteenth Amendments, his right to equal protection under the
Fourteenth Amendment, and his right to be free of cruel and
unusual punishment under the Eighth Amendment; and two under the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I —
for parallel religious freedom and cruel and unusual punishment
claims.
Defendants moved to dismiss these claims.

In an earlier

Memorandum and Order of July 13, 2015, Greene v. Cabral, No. 12cv-11685-DPW, 2015 WL 4270173 (D. Mass. July 13, 2015), I
dismissed Plaintiff’s RLUIPA claim, all claims against
Defendants in their official capacities, and all claims for
prospective relief.

However, I rejected Defendants’ assertion

of qualified immunity at that stage and allowed the § 1983 and
state claims against Defendants in their individual capacities
to proceed to summary judgment.
To allow for the more efficient segmentation of discovery,
summary judgment practice has taken place in two phases.

After

Defendants deposed Plaintiff, but before Plaintiff conducted his
own fact discovery, I allowed summary judgment motions where
additional discovery was not necessary or clearly would be
fruitless.

At a hearing on January 6, 2016, I granted summary

judgment for Defendants on all claims relating to cruel and
unusual punishment under federal and state law because those
2

claims were not clearly established and qualified immunity
therefore protected them from suit.

I granted summary judgment

for all claims arising out of the availability of a Torah in the
prison library and for all claims arising out of isolated
instances in which Plaintiff was incorrectly provided a nonkosher meal because Plaintiff failed to meet his burden of
showing that Defendants possessed the deliberate indifference
necessary for supervisory liability under § 1983.

Finally, I

granted summary judgment on claims based on allegations that
Defendants used non-kosher ingredients in ostensibly kosher
meals because the clear and ultimately uncontested evidence
established that all ingredients used were in fact kosher.1
At the same hearing, I allowed discovery to proceed on
Plaintiff’s claims concerning the availability of religious
services and issues of contamination of kosher food in the
preparation and serving processes.

Defendants seek summary

judgment on those remaining issues in the case.

In addition to

opposing Defendants’ summary judgment motion, Plaintiff has also

1

In his opposition to summary judgment, Plaintiff now raises the
somewhat independent issue whether Defendants properly prepared
meals that were kosher for Passover. The dietary restrictions
required on that holiday are separate from and additional to the
daily obligations of kashrut. However, issues related to
Passover are not mentioned in the operative complaint and were
not subject to Plaintiff’s internal administrative grievances.
Cf. 42 U.S.C. § 1997e(a) (administrative remedies must be
exhausted before prison condition litigation can be brought). I
find these issues to be outside the scope of this litigation.
3

moved to strike the expert testimony of Rabbi Michael Rosenberg
submitted by Defendants in support of summary judgment.

I will

address the motion to strike before addressing the summary
judgment motion.
II. MOTION TO STRIKE
Plaintiff moves to strike evidence provided by Defendants’
expert witness, Rabbi Rosenberg, as untimely disclosed.

At the

January 6, 2016 hearing, I set the following schedule for this
case.
8.

“On remaining claims, discovery to be completed by April

Summary judgment motions due April 29, opposition by May 20,

reply briefs June 3, and argument on June 29 at 3:00.”

I did

not specifically discuss expert discovery at that hearing.
Rosenberg was retained as an expert on March 16, 2016, inspected
the House of Correction kitchen on April 15, 2016, and provided
his affidavit and report to Defendants on April 28, 2016.
Defendants attached the report to their motion for summary
judgment on April 29, 2016.
Under Federal Rule of Civil Procedure 26(a)(2)(A)-(B),
parties must disclose the identity of an expert witness and his
written report.

“Absent a stipulation or court order,” that

disclosure must be made at least 90 days prior to trial.
R. Civ. P. 26(a)(2)(D).

Fed.

Local Rule 26.4 modifies this timeline,

requiring expert disclosures to be made 90 days prior to the
final pretrial conference.

No date has been set for a final
4

pretrial conference.

Accordingly, the expert disclosure in this

case would presumably be timely under the default Local Rule.
However, if the deadline set for discovery encompasses expert
witness disclosures, as Plaintiff contends, then the disclosures
were untimely.
My prior order setting a deadline for discovery included
expert discovery.

Any other interpretation would — as

Defendants should have understood — undermine the basic purpose
of expert discovery.

Here, the introduction of expert testimony

along with a summary judgment motion – with no notice to
Plaintiff beforehand – “deprived [plaintiff] of the opportunity
to depose the proposed expert, challenge his credentials,
solicit expert opinions of its own, or conduct expert-related
discovery.”

Lohnes v. Level 3 Commc’ns, Inc., 272 F.3d 49, 60

(1st Cir. 2001).

“This is exactly the type of unfair tactical

advantage that the disclosure rules were designed to eradicate.”
Id.

Sanction under Rule 37(c)(1), which ordinarily takes the

form of mandatory preclusion, is consequently appropriate.

Id.

That said, there is “a narrow escape hatch that allows the
court to admit belatedly proffered expert evidence if the
proponent's failure to reveal it was either substantially
justified or harmless.”

Id.

The latter prong applies here.

the subsequent discussion will make evident, the Rosenberg
testimony is not determinative of the outcome on summary
5

As

judgment.

His report provides somewhat useful general context

for Orthodox Jewish law and practice, and I treat it as part of
the record for that limited purpose, but the outcome would be
the same without it.

Even so, the late disclosure

inappropriately offered an avenue for minor tactical benefits to
Defendants and considerable diversion of resources required for
Plaintiff’s counsel to prepare the motion to strike and for the
court to address it.

As an alternative sanction authorized by

Rule 37(c)(1)(A), I will, without engaging in further motion
practice on the matter, award Plaintiff reasonable expenses
which I am able reliably to calculate without further factual
development in this context as $2,000, including attorneys’
fees, caused by Defendants’ untimely disclosure.
III. FACTUAL BACKGROUND
Greene has been incarcerated both at the Suffolk County
House of Correction and the Nashua Street Jail.

Greene claims

that his rights were violated at the House of Correction only,
and not the Jail, although both were operated by the Suffolk
County Sheriff’s Department.
While incarcerated, Greene considered himself to have
converted to Orthodox Judaism, identified himself as such to
prison officials and followed Jewish law, although he had not
completed the arduous process of formal conversion to Judaism.
In particular, Greene followed the dietary laws of kashrut,
6

which required him to eat meals that were kosher in their
ingredients, composition, and preparation.
A.

Kosher Meals
Greene contends that he was not fed sufficient kosher food.

Upon entering the House of Correction during each of his periods
of incarceration, he requested kosher meals consistent with his
religious observance, was approved to receive them, and
generally did.

By official policy, the House of Correction

served kosher meals according to planned menus and procedures
developed in conjunction with Trinity Services Group.

According

to this plan, prepackaged kosher entrees were served at lunch
and dinner, while breakfast and side dishes were to be prepared
by kitchen staff using proper kosher products and preparation.
The system was intended to provide adequate nutrition and had
been approved by Rabbi Ari Shapiro as compliant with Jewish law.
Defendants have adduced as evidence labels showing that the
ingredients used in the kosher meals were certified as kosher.
To demonstrate that kosher food was prepared with the
proper techniques, Defendants rely on the affidavit and
deposition testimony of the head chef of the House of
Correction, Dominic Bartholomew, on written policies and on the
expert report of Rabbi Michael Rosenberg.

According to

Defendants, kosher food is prepared before other food, in order
to prevent cross-contamination.

Designated utensils and
7

cookware are used.

Kosher food is then wrapped in plastic wrap

for protection until it is served.

Since some time in 2012,

kosher meals have been served on disposable Styrofoam trays;
prior to then, they were served on gray trays used for all
special meals, with individual wrappers separating the food from
the tray itself.

For this litigation, Defendants retained Rabbi

Rosenberg to inspect the HOC kitchen; he opined that the systems
in place were sufficient to ensure that the kosher meals
complied with all the requirements of Orthodox Jewish law.
Greene does not disagree that the system as described
complies in principle with Jewish law.

He contends, however,

that the system did not in fact provide him with adequate kosher
food.

He believes that only the prepackaged lunch and dinner

entrees were, in fact, truly kosher.

Eating only those two

entrees would not provide adequate daily nutrition.

Greene

contends that at breakfast, he was served the same food provided
to all inmates, served with the same utensils and on the same
trays.

If true, Greene’s meals could have been contaminated by

non-kosher food that touched the same trays and utensils.
Greene further contends that the special trays and utensils
designated for kosher diets were not, in fact, kosher.

He

affirmed that no individual wrappers separated the kosher food
from the gray diet trays, meaning contamination from other nonkosher special diet food was possible.
8

Chef Bartholomew

testified that special diet food was cooked using special,
smaller pots and ladles — which could not be confused with the
large items used for the general meal — and that religious diets
were prepared before other special diets; Greene suggests that
halal food might have been cooked in those pots before kosher
food, causing contamination
B.

Religious Services
Greene’s complaints about his access to Jewish religious

services have two dimensions, although Greene himself does not
draw the relevant distinction.

First, he has sought access to

formal, communal Jewish religious services – and specifically
sabbath services — while in prison.
weekly Jewish services.

The prison does not hold

Second, and less explicitly, he has

sought counseling from a rabbi.

Both Greene’s original

grievance and his complaint focus on “services” but also discuss
the availability of a rabbi, without clearly distinguishing the
two.2

The House of Correction does not have a rabbi on staff and

does not offer weekly Jewish services.
A full communal sabbath service, under Orthodox Jewish law,
requires a minyan: a quorum of ten adult Jewish men.

As of June

2

Defendants claim that access to a rabbi was not grieved by
Greene and is not a subject of this lawsuit. However, the
operative complaint includes a paragraph describing Greene’s
request for access to a rabbi and attaches a grievance in which
he describes himself as not able “to facilitate a spiritual
councilor on my own.”
9

16, 2016, there were six inmates at the House of Correction who
identified as Jewish, including Greene, and one at the Nashua
Street Jail.

Not all of these inmates necessarily could have

counted towards a minyan, even if they chose to attend services;
Greene, who had not formally converted, for example, would not
have counted under Orthodox law.

At other points, however,

there may have been larger numbers of Jewish inmates under the
custody of defendants.

In total, 12 inmates at the House of

Correction during 2012 identified as Jewish and 15 did so during
2013.

At the Nashua Street Jail, 28 inmates identified as

Jewish over the course of 2012 and 24 did so during 2013.
The lack of a minyan posed an immediate obstacle to
Greene’s request for Jewish services.

Defendant Anne Nee, the

Director of Social Services charged with overseeing religious
services at the House of Correction, in response to Greene’s
request, contacted an Orthodox rabbi, but that Rabbi informed
her that he could not conduct a communal service without a
minyan.

There is no indication in the record of an attempt to

overcome this obstacle either by combining the Jewish
populations of different Suffolk County correctional facilities
for prayer services or by bringing in sufficient volunteers to
form a minyan.
Some forms of group prayer are permissible without a
minyan.

A minyan is required only for certain important prayers
10

and practices, such as saying the Kaddish and reading Torah.
See Hernandez v. C.I.R., 490 U.S. 680, 711 (1989) (“certain
worship services cannot be performed and Scripture cannot be
read publicly without the presence of at least 10 men.” (citing
12 Encyclopaedia Judaica, Minyan, p. 68 (1972)); LeBlancSternberg v. Fletcher, 67 F.3d 412, 417 (2d Cir. 1995) (“the
saying of certain prayers and the reading from the Torah on the
Sabbath require the presence of a ‘minyan’”).

Nevertheless,

some Jews find spiritual value in praying together, even if they
may only recite those individual prayers that do not require a
minyan.
The record reflects that services without a minyan have
been held in the House of Correction and that Greene has joined
in such services.

Greene has averred, for example, that in 2016

he attended a Passover Seder at the House of Correction with a
rabbi and other inmates, but without a minyan.

Additionally, on

August 7, 2012, Nee scheduled a Jewish service led by a visiting
rabbi, Yossi Stern, for Greene and three other Jewish inmates.
The record does not reflect whether Stern brought other Jews
with him to form a minyan or whether the group prayed together
without a minyan.

Additionally, Greene professes that while

individual prayer is permissible under Judaism, group prayer is
preferred.

11

Defendants claim to have offered Greene the option of a
non-denominational service as an opportunity for spiritual
reflection.

Greene contests the availability of such a service.

He testified that he was not aware of any non-denominational
service being offered during the relevant periods of
incarceration and points to a Departmental Program Guide listing
religious services and programming, which does not mention any
non-denominational services.

He states in his affidavit he

attended a “non-denominational” service and found it to be
Christian in nature, involving New Testament readings and
Communion.
Greene also was unable to meet with a rabbi during the
relevant periods of incarceration at the House of Correction.
After filing his grievances, a caseworker asked whether Greene
would be interested in having a rabbi visit him.

He responded

that he would be interested in a rabbinic visit, but remained
interested in sabbath services as well.
two rabbis on Greene’s behalf.

Nee then reached out to

The first, Rabbi Halpern, was

Orthodox and declined to visit because Greene was not formally
converted to Judaism.

The second, Rabbi Schatzberg, was willing

to meet with Greene but ultimately was unable to do so for
personal reasons.

No additional efforts were apparently made to

find Greene a rabbi.

12

Other rabbis have visited inmates in the House of
Corrections, not including rabbis with whom inmates had a prior
personal connection.

In November 2013, two Jewish inmates

requested to meet with a rabbi.

Nee contacted Rabbi Dan Judson

of Hebrew College, who referred her to a rabbinical student,
Moshe Givental, who met and prayed with the two inmates.

In the

summers of 2012 and 2013, rabbinical students Reuven Eliezer
Overlander and Menachem M. Yaffee performed a prayer service
with inmates.

At other points from 2007 to the present, Rabbis

Rachelle Schoenfeld, Benjamin Shalva, and Ari Lev Fornari met
with Jewish inmates.

Greene also testified that he was able to

meet with a rabbi at the Nashua Street Jail, where the rabbi was
a regular volunteer.
IV. STANDARD OF REVIEW
The party moving for summary judgment bears the burden of
demonstrating the absence of a genuine issue of material fact
and showing that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).

In determining whether a genuine issue

of material fact exists, all reasonable inferences should be
drawn in the non-movant’s favor.
F.3d 50, 56 (1st Cir. 2008).

Vineberg v. Bissonnette, 548

Where the non-movant bears the

ultimate burden of proof at trial, as here, he must also present
enough “definite, competent evidence to rebut the motion,”
without relying on “conclusory allegations, improbable
13

inferences, and unsupported speculation,” to rebut the motion
for summary judgment.

Id. (citations omitted).3
V. ANALYSIS

Although all Defendants assert a qualified immunity
defense, I address first the question of supervisory liability
asserted by some Defendants before turning to the remaining
issues of qualified immunity.4
A.

Supervisory Liability – Deliberate Indifference
Greene has only alleged that one Defendant, Anne Nee,

directly violated his constitutional rights (Nee was responsible
for the relevant decisions concerning religious services and
access to a rabbi).

For all of the other Defendants except Nee,

Plaintiff proceeds under a theory of supervisory liability,
asserting, for example, that Defendants were “ultimately
responsible for and control[led] the care and custody of the

3

Plaintiff in his current submissions seems to request
additional discovery under FRCP 56(d), specifically related to
the number of other Jewish inmates in his unit. It appears that
this discovery has been conducted and is in the record, and that
this current request was inadvertently not removed from the
previous round of summary judgment briefs (it is word-for-word
identical). In any event, any further discovery on this point
would not be material.
4
I note that in cases alleging supervisory liability and
deliberate indifference, the qualified immunity analysis
essentially merges into the deliberate indifference analysis.
See Doe v. Fournier, 851 F. Supp. 2d 207, 222 n.8 (D. Mass.
2012) (citing Camilo–Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.
1999)).
14

inmates” or approved the House of Correction policies concerning
religious diets and services.
Supervisory liability exists under § 1983, although only
for an official’s “own acts or omissions” and not under
respondeat superior or other theories of vicarious liability.
Whitfield v. Melendez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005).
The supervisor’s behavior must be “affirmatively linked” to the
constitutional violations of her subordinates, such that it
could be deemed “supervisory encouragement, condonation or
acquiescence, or gross negligence . . . amounting to deliberate
indifference.”

Id.

(internal quotations omitted).

Greene did not allege that Defendants directly encouraged
or acquiesced in any violations of his rights – and to the
extent that he did, such allegations did not survive the motion
to dismiss — but rather has proceeded on a theory of deliberate
indifference.

In the First Circuit, a plaintiff must establish

deliberate indifference by showing “(1) that the officials had
knowledge of facts, from which (2) the official[s] can draw the
inference (3) that a substantial risk of serious harm exists.”
Ramirez-Lluveras v. Rivera-Merced, 759 F.3d 10, 20 (1st Cir.
2014) (internal citations and quotations omitted).

Plaintiff’s

theory is that Defendants were deliberately indifferent to his
rights because they formulated or implemented the House of
Correction policies which Defendants should have understood
15

would lead to Plaintiff’s serious injuries (both physical, such
as weight loss, and intangible, such as the ability to worship).
Plaintiff does not muster evidence sufficient to show
deliberate indifference by the named supervisory Defendants.
First, he points to the supervisory Defendants’ role in creating
and approving the House of Corrections policies governing
religious diets and religious services.

However, these policies

cannot be found to have caused the deprivations of Greene’s
religious liberty.
The policy on religious diets requires special diets to be
provided to those whose religious beliefs require them.

The

kitchen contractor, Trinity Services Group, provides a more
detailed plan for providing kosher food which provides for the
use of separate utensils and the prevention of crosscontamination.
The policy on religious services provides that when a
religious leader of an inmate’s faith is not regularly available
as staff or a volunteer, “the Department chaplain shall endeavor
to assist the inmate in contacting a religious leader of the
inmate’s faith.”

It allows for requests for individual

counseling sessions to be made through the caseworker staff or
to the Supervisor of Volunteer and Religious Services.
Greene’s allegations concern non-compliance with these
policies.

The supervisory Defendants would have no reason to be
16

aware of a risk of harm from these policies alone; the policies
appear designed to protect against the very harms Greene claims
to have suffered.

Nothing approved by them, for example, allows

for kitchen trays to touch both kosher and non-kosher food, or
authorizes staff to make only limited attempts to secure access
to a rabbi.
The same circumstances are applicable with respect to
Plaintiff’s allegations of failure to train kitchen staff
properly on how to prepare kosher meals.

“A finding of

deliberate indifference requires also that the City have
disregarded a known or obvious risk of serious harm from its
failure to develop a training program . . . .”

Young v. City of

Providence ex rel. Napolitano, 404 F.3d 4, 28 (1st Cir. 2005).
There is no evidence of any sort of notice to the supervisory
Defendants of shortcomings in the training regimen and therefore
can be no finding of deliberate indifference.
Next, Plaintiff argues that certain Defendants who needed
to approve particular religious services, such as the admission
of a rabbi to meet with an inmate, should have realized that no
such services were being provided.

However, there is no record

evidence suggesting these Defendants knew that Plaintiff had
sought, for example, to meet with a rabbi, so there is no way to
infer that they knew Plaintiff was being denied the opportunity
to meet with a rabbi.
17

Plaintiff’s remaining argument, that “Defendants have an
oversight obligation in their roles” and “had the responsibility
of supervising the operations of the jail,” represents a
statement at a high level of generality and underscores what the
limits on supervisory liability under § 1983 are meant to cabin.
Greene cannot first impute to Defendants knowledge about all
prison conditions and then infer deliberate indifference from
that knowledge.

Conclusory invocations of training obligations

do not strengthen Plaintiff’s argument in this respect.

No

affirmative link has been put forward connecting the supervisory
Defendants to Greene’s alleged constitutional deprivations.
Summary judgment is therefore granted for all claims against
Defendants Cabral, Tompkins, Horgan, and Smith.
B.

Qualified Immunity
The non-supervisory Defendant, Nee, has asserted a

qualified immunity defense with regard to the religious services
claims made against her.

“An official sued under § 1983 is

entitled to qualified immunity unless it is shown that the
official violated a statutory or constitutional right that was
‘clearly established’ at the time of the challenged conduct.”
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014).

“When

properly applied, [qualified immunity] protects all but the
plainly incompetent or those who knowingly violate the law.”

18

Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 743 (2011)).
Courts have discretion in how to sequence their qualified
immunity decisions.

In the interest of developing a clarified

body of constitutional law, a court might first determine
whether a constitutional violation exists and then ask whether
the right was clearly established.

Alternatively, a court may

begin instead with the qualified immunity inquiry to engage
efficiently with the issue.

The Supreme Court has instructed

courts to “think hard, and then think hard again” before taking
the former approach.
(2011).

Camreta v. Greene, 131 S. Ct. 2020, 2032

I begin the inquiry in this case, by asking whether the

rights in question were clearly established.
For a right to have been clearly established, such that
qualified immunity does not shield an official from liability,
“the right's contours [must have been] sufficiently definite
that any reasonable official in the defendant's shoes would have
understood that he was violating it.”5

Plumhoff, 134 S. Ct. at

5

Defendants misstate the standard for qualified immunity,
claiming that whenever “the actions taken were reasonable,” an
official is shielded. The reasonableness inquiry is not
directed to determining whether the official’s actions were
reasonable – although that may be an element of whether an
official acted unconstitutionally – but rather whether an
official reasonably believed that his actions were lawful. See,
e.g., Anderson v. Creighton, 483 U.S. 635, 641 (1987) (“those
officials — like other officials who act in ways they reasonably
believe to be lawful — should not be held personally liable”).
19

2023.

First, this means that the court must focus on the

clarity of the law at the time of the alleged civil rights
violation.
2009).

Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.

Judicial precedent must have placed the legal question

“beyond debate” at a level of specificity sufficient for the
official to be capable of applying it to their circumstances.
Plumhoff, 134 S. Ct. at 2023.

Second, the court must focus more

concretely on the facts of the particular case and determine
whether a reasonable defendant would have understood that his
conduct violated the plaintiff’s constitutional rights.
Maldonado, 568 F.3d at 269.
Most of Plaintiff’s claims involve clearly established
rights at some level of generality.

The Supreme Court has long

held 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.”
v. Beto, 405 U.S. 319, 322 (1972) (per curiam).

Cruz

Greene’s

specific rights of access to adequate kosher meals and to
religious services are also well-established at this level of
generality.
As to meals, the First Circuit has explicitly held that

The reasonableness of Defendants’ actions may be material in
determining whether a constitutional violation occurred at all,
but it is not directly at issue in determining qualified
immunity.
20

prisoners cannot be forced to choose between adequate nutrition
and compliance with their religious dietary requirements.6
LeBaron v. Spencer, 527 F. App'x 25, 30 (1st Cir. 2013) (per
curiam).

I will not address any qualified immunity defense at

this stage of the litigation with respect to kosher meals
because I have concluded in Part V.A., above that no defendant
has been shown to bear supervisory responsibility for any kosher
meals claim.

I will, nevertheless, in the interest of

completeness, discuss the issue of kosher meals claims in Part
V.C. below as a matter of record evidence not merely as to
supervisory responsibility, but as to the underlying claims
themselves.
Turning now specifically to Jewish religious services and
access to a rabbi, the Supreme Court has held that while
prisoners do not necessarily have a right to be led in group
prayer at a particular time or for a particular service, a total
deprivation of one faith’s ability to participate in religious

6

While this decision was under the more prisoner-friendly
standards of RLUIPA, rather than the First Amendment directly,
reasonable prison officials would know that they could not deny
observant Jews adequate nutrition through kosher meals.
Moreover, many courts have held similarly under the First
Amendment. See, e.g., Kahane v. Carlson, 527 F.2d 492, 495 (2d
Cir. 1975)(“The courts have properly recognized that prison
authorities must accommodate the right of prisoners to receive
diets consistent with their religious scruples.”); Ward v.
Walsh, 1 F.3d 873, 879 (9th Cir. 1993)(“inmates have the right
to be provided with food that satisfies the dietary laws of
their religion”).
21

ceremonies violates the Constitution.

O'Lone v. Estate of

Shabazz, 482 U.S. 342, 352 (1987).
Addressing the religious services claim asserted against
Nee, I observe at the outset that there is no clearly
established law as to how hard a prison official must work to
secure access to religious services for inmates when obstacles
present themselves.

An official like Anne Nee might discharge

her obligations to provide religious services even without
actually securing such access, should obstacles prove too
daunting, and case law provides no guide as to what point that
might be (nor at what point an official might reasonably believe
she had done enough).

This uncertainty is sufficient to provide

Nee qualified immunity in this case.

I cannot say on this

record that a reasonable official in Defendant Nee’s position,
aware of the general obligation to provide religious services
and counsel, knowingly violates the law or acts in a plainly
incompetent fashion if she considers the efforts Nee made
sufficient to meet her duties.
The case law does not require that every form of observance
be made available to a prisoner.

In Estate of Shabazz, the

Supreme Court concluded that “[t]he record establishe[d] that
respondents [we]re not deprived of all forms of religious
exercise, but instead freely observe[d] a number of their

22

religious obligations.”

482 U.S. at 3527; see also Kuperman v.

Wrenn, 645 F.3d 69, 75 (1st Cir. 2011) (“Our inquiry is not into
whether a religiously-acceptable alternative to growing a full
beard existed.

Instead, we consider whether alternative means

remained open for [the prisoner] to exercise the
constitutionally-protected right at issue—here free exercise of
his religion.”); Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993)
(“courts have found that although some aspects of religious
practice were impinged upon, claimants retained the ability to
participate in other significant rituals and ceremonies of their
faith.”).
With respect to obtaining a rabbi for Greene, the language
is not fully prescriptive in Policy Statement IV.

The policy

provides, “[w]hen a religious leader of an inmate’s faith is not
represented by the Department’s chaplaincy staff or volunteers,
the Department chaplain shall endeavor to assist the inmate in
contacting a religious leader of the inmate’s faith.”

(emphasis

7

The Supreme Court in Cruz had earlier stated that it did not
intend to “suggest, of course, that every religious sect or
group within a prison — however few in number — must have
identical facilities or personnel.” The Court recognized that
“[a] special chapel or place of worship need not be provided for
every faith regardless of size; nor must a chaplain, priest, or
minister be provided without regard to the extent of the
demand.” 405 U.S. at 322 n.2. Rather, the Court concluded,
“reasonable opportunities must be afforded to all prisoners to
exercise the religious freedom guaranteed by the First and
Fourteenth Amendment without fear of penalty.” Id. (emphasis
supplied).
23

added).

The question is whether Nee “endeavor[ed] to assist”

Greene in contacting a rabbi.

I find the record evidence

establishes that she did.
Nee arranged for Greene to be included in a service with a
rabbi on August 7, 2012.

To be sure, Greene, in his affidavit,

claims that on the one occasion a rabbi came to the HOC in 2012
“[w]hen [he] was called to leave for the service, [he] was using
the bathroom” and “[w]hen [he] was finished using the bathroom,
[he] was not permitted to leave [his] unit to attend the
service.”

Even assuming that the lack of permission for Greene

then belatedly to attend the service is somehow an unreasonable
restriction of free exercise rights, I cannot say that this
restriction establishes knowing violations of constitutional
rights.

As demonstrated by Rabbi Berel Paltiel’s emails to Nee,

Greene had the ability to reach out to rabbis on his own.

He

could have arranged for a visit from a rabbi on his own.

The

Department’s Program Guide indicates that “[a]n inmate/detainee
can request his/her own clergy to visit them” and that “outside
clergy may request to visit inmates/detainees as long as the
outside clergy can provide the proper credentials of a religious
affiliation.”

As the Ninth Circuit observed in Ward, 1 F.3d at

880, there is no affirmative obligation to provide a rabbi for a
prisoner.

I find the same to be true here.

Moreover, there is

no evidence in the record here that Defendants precluded visits
24

from rabbis or volunteers.
With respect to holding religious services, in her answers
to Plaintiff’s first set of interrogatories, Nee responded that
upon receiving Greene’s June 2013 grievance requesting a sabbath
service, she contacted Rabbi Halpern regarding providing Jewish
sabbath services.

Rabbi Halpern informed her that a sabbath

service could not take place because a minyan could not be met.
Nee claimed that on June 27, 2013, case worker Marilyn Paniccia
informed Greene that a sabbath service could not be performed
but that the institution would try to arrange for a rabbi to
visit him.

Rabbi Halpern, however, informed Nee that he would

not meet with Greene because he did not consider him to be
Jewish insofar as he had not formally converted to Judaism.

Nee

did not stop there, she also contacted a reform rabbi, Rabbi
Schatzberg, who agreed to visit with Greene, but due to a
personal issue, was unable to do so.

In her responses, Nee

further indicated that, with respect to finding rabbi
volunteers, she had spoken with religious contacts in the
community, Jewish friends, and other community resources.

In

sum, Nee has demonstrated sufficient effort into remedying
Greene’s grievances.
As to the possibility of providing some form of communal
religious service at the HOC that could satisfy Greene’s
religious needs, the record does not support a conclusion of
25

infringement of his religious liberties, let alone a knowing
violation of clearly established law.

The record shows that

Nee, in fact, did reach out to other rabbis concerning this
matter, but was unsuccessful.

While Greene asserts that the

number of inmates at the Jail and the HOC8 during 2012 and 2013
could have met a minyan at certain points during those years,
Nee has responded that “Greene was the first to request a Jewish
Sabbath service at the House of Correction during the time frame
specified.”

See Colvin v. Caruso, 605 F.3d 282, 291 (6th Cir.

2010) (“This court has consistently permitted prisons to take
into account the level of inmate interest in a particular
religion when determining whether to hold services.”); Hall v.
Tyszkiewicz, 28 F. App’x 493, 495-96 (6th Cir. 2002)
(unpublished) (The prisoner “admitted that there were
insufficient interested inmates at his prison to hold a proper
service.”).

The record provides evidence speculative at best

regarding inmate interest coincident with Greene’s in particular
types of services requiring a minyan.
Defendants maintain that Greene’s requests for religious
services were impossible, not because of action by them, but

8

The HOC had 12 inmates in 2012 that identified as Jewish and 15
in 2013. On June 6, 2013, 6 inmates at the HOC identified as
Jewish.

26

because of the constraints of the Jewish faith.
merit to this argument.

I find some

I do, however, recognize that Greene

himself believed communal prayer to be essential.

In any event,

nothing in Defendants’ policies or practices prevented Greene
from his individual prayer obligation.
Torah for Greene.

In fact, Nee purchased a

Furthermore, as I will discuss in the next

section, Greene was provided adequate kosher meals in observance
of kashrut.

This case is unlike Ward where the only Orthodox

Jewish prisoner did not have access to any forms of religious
exercise other than his private prayer, which the Ninth Circuit
deemed insufficient.

Accordingly, the record here establishes

that Greene was not deprived of all forms of religious exercise,
but instead freely observed a number of his religious
obligations.

Under the circumstances, I find no violation of a

clearly established constitutional right.

Summary judgment is

appropriate on the religious services claim.
C.

Kosher Meals
As a substantive matter, what remains of Plaintiff’s claims

concerning access to kosher meals are his concerns about
contamination of his food on more than an incidental basis from
trays, pots, and utensils that touched non-kosher food.
Defendants assert that, even drawing all reasonable inferences
in favor of Plaintiff, it could not be found that the House of
Corrections unconstitutionally served Greene non-kosher food.
27

With respect to the pots and utensils, there is no record
evidence at all suggesting that cross-contamination ever
occurred while Greene was an inmate at the House of Correction.
Greene himself has no firsthand knowledge of how the kosher
meals were prepared.

He only raises speculative concerns about

potential gaps in Defendants’ methods for ensuring that the laws
of kashrut are followed.

For example, Plaintiff worries that

although special diets are prepared using special utensils and
religious meals are prepared before non-religious special meals,
a non-kosher halal meal might be prepared before a kosher meal
with the same pot or utensils.

Greene also doubts that a kosher

certification by Rabbi Shapiro remained relevant after years had
passed and kitchen conditions had changed.

These concerns

combine two layers of speculation: speculation that adequate
prophylaxis has not been used, and then speculation that crosscontamination actually resulted from the weakness in prevention.
Such hypothetical speculation is insufficient to forestall
summary judgment here, where the moving party has met its own
burdens through unrebutted testimony of head chef Bartholomew.
See LeBaron v. Spencer, 527 F. App’x 25, 30-31 (1st Cir. 2013)
(per curiam) (“[A]ppellant, in order to create a question of
fact, was required to have provided more detail regarding the
allegedly small meal portions and high sodium levels.

28

In other

words, his allegations are too conclusory to create a question
of fact regarding these issues.”).
To be sure, Greene offers eyewitness testimony that the
special diet trays he used were not properly kept kosher prior
to 2012.

According to Defendants, special diet trays were

intermingled with each other, but side dishes were kept
protected from the trays by individual wrappers, akin to
cardboard hot dog containers.

Greene states that such wrappers

were not used and that side dishes were placed directly onto the
trays, with a layer of plastic wrap covering the entire tray.
This, according to Greene, would allow for cross-contamination
from one kind of special diet to the kosher meals he was being
served.
In Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir.
2009), the plaintiff claimed that the defendants violated his
right to free exercise of religion by denying him his right to a
kosher diet because his food was not prepared according to the
kosher requirements.

He specifically argued that the serving

utensils that were reserved for the kosher food preparation were
improperly cleaned with non-kosher utensils.

Id.

Upon

reviewing the pleadings, the Tenth Circuit found that the
plaintiff had alleged a single violation of his kosher diet, not
a prison policy.

Id.

“Taking [the plaintiff’s] allegations as

true, the fact that the utensils were not properly washed
29

indicate[d] that the defendants imperfectly implemented the
kosher requirements, or were even negligent in implementing his
kosher diet.

But there [wa]s no basis to conclude that any of

the defendants deliberately contaminated the kosher utensils, in
violation of [the plaintiff’s] right to free exercise of
religion, or that defendants repeatedly violated kosher
requirements.”

Id.

Therefore, “such an isolated act of

negligence d[id] not support a claim that [the plaintiff] was
denied his First Amendment right to free exercise of religion.”
Id.; see also Hayes v. Bruno, 171 F. Supp. 3d 22, 33 (D. Conn.
2016) (“[E]ven if a violation could be inferred, the situations
described d[id] not tend to show that the entire Common Fare
meal preparation process fail[ed] to comply with Jewish dietary
law.”).
Similarly here, Greene’s testimony that the special diet
trays he used were not properly kept kosher prior to 2012
indicates that Defendants may have “imperfectly implemented the
kosher requirements, or were even negligent in implementing his
kosher diet.”

However, there is no basis in the record before

me to conclude that Defendants deliberately allowed crosscontamination, in violation of Greene’s right to free exercise
of religion.

Summary judgment would therefore be appropriate on

the merits of this claim, even if limitations on supervisory

30

liability did not otherwise provide a basis for summary
judgment.
D.

State Law Claims9
In addition to Plaintiff’s claims under § 1983, he also

brings suit under the Massachusetts Civil Rights Act for
violations of his rights to religious freedom.
largely “coextensive with 42 U.S.C. § 1983.”

The MCRA is
Batchelder v.

Allied Stores Corp., 473 N.E.2d 1128, 1131 (Mass. 1985).

The

primary difference between the two statutes is that the MCRA,
unlike its federal counterpart, does not require state action.
Id.

In the context of a state prison, this distinction is of no

import, of course.

Thus, in the absence of a reason to hold

otherwise, the disposition of Plaintiff’s MCRA claims should be
the same as his parallel claims under federal law.10

9

I note these claims were pressed in the first round of summary
judgment practice, but not renewed in this one. I discussed
basic issues regarding them from the bench during the most
recent hearing. In the interests of completeness, I provide a
short written discussion here.
10 I note also that I would reject two other explanations offered
by Defendants why summary judgment should be granted on the MCRA
claims. First, the MCRA only creates liability for the
interference of rights through “threats, intimidation or
coercion.” Mass. Gen. Laws ch. 12, § 11H. Defendants claim
that no threats or coercion was present in this case. However,
Massachusetts sets a low bar for what constitutes coercion under
the MCRA. The order of a uniformed security guard, carrying an
“implicit threat” of ejection from private premises has been
held to be enough, as was infringement on a contract right.
Bally v. Ne. Univ., 532 N.E.2d 49, 53 (Mass. 1989) (citing
Batchelder II, 473 N.E.2d 1128; Redgrave v. Boston Symphony
Orchestra, Inc., 502 N.E.2d 1375, 1377 (Mass. 1987)). If those
31

Accordingly, I find that the resolution of summary judgment
as to Plaintiff’s federal § 1983 claims governs his parallel
MCRA claims.
VI. CONCLUSION
For the reasons set forth above, Defendants’ motion [Dkt.
#62] for summary judgment is GRANTED.

This disposes of the last

of the outstanding claims in this case.

Accordingly, the Clerk

is directed to enter judgment for the Defendants.
Plaintiff’s motion [Dkt. #66] to strike the affidavit of
Rabbi Rosenberg is GRANTED only to the extent that the sanction
of $2,000 under Fed. R. Civ. P. 37(c)(1)(A) will be imposed for
the affidavit’s untimely tender.

This sanction shall be paid

over directly to Plaintiff’s counsel on or before July 13, 2018.

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

circumstances constitute coercion, there can be no doubt that
the policies of a prison – an institution with strict
disciplinary control over every aspect of an inmate’s life –
plainly constitute coercion under the MCRA.
Second, Defendants assert that “public officials are not
liable under the MCRA for their discretionary acts.” This
purported standard, which would render the MCRA toothless, is
not Massachusetts law. Rather, “public officials are not liable
under the [MCRA] for their discretionary acts, unless they have
violated a right under Federal or State constitutional or
statutory law that was ‘clearly established’ at the time.”
Williams v. O'Brien, 936 N.E.2d 1, 4 (Mass. App. Ct. 2010)
(emphasis added). Massachusetts, in other words, essentially
incorporates the qualified immunity doctrine of § 1983.
32