McGee v. O'Brien
Filing
42
Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER: "For the reasons stated, it is ORDERED that the Motion for Summary Judgment (# 25 ) and Plaintiff's Supplemental Motion For Summary Judgment (# 36 ) be, and the same hereby are, DENIED. It is FURTHER ORDERED that Defendants' Opposition to and Cross-Motion for Summary Judgment (# 30 ) be, and the same hereby are, ALLOWED. Judgment shall enter in favor of Defendants."(Moore, Kellyann)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RICKY McGEE,
Plaintiff,
v.
CIVIL ACTION NO. 14-13765-MPK
CAROL HIGGINS O’BRIEN and
SEAN MEDEIROS, in their official capacities,
COMMONWEALTH OF MASSACHUSETTS,
Defendants.
MEMORANDUM AND ORDER ON
MOTION FOR SUMMARY JUDGMENT (#25), DEFENDANTS’ OPPOSITION
TO AND CROSS-MOTION FOR SUMMARY JUDGMENT (#30) AND
PLAINTIFF’S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (#36).
.
KELLEY, U.S.M.J.
I. Introduction.
On October 2, 2014, plaintiff Ricky McGee filed a five-count complaint seeking declaratory
and injunctive relief under 42 U.S.C. § 1983, the First and Fourteenth Amendments of the United
States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§ 2000cc et seq. (“RLUIPA”), and the Constitution of the Commonwealth of Massachusetts.
Plaintiff and Defendants, Carol Higgins O’Brien and Sean Medeiros, in their official capacities,1 and
the Commonwealth of Massachusetts, filed cross-motions for summary judgment (##25, 34) in July
and August, 2015, respectively. Plaintiff filed a supplemental motion for summary judgment in
1
Carol Higgins O’Brien, now the Commissioner of the Department of Correction, was not employed
in that capacity during the time at issue. Similarly, Sean Medeiros, presently the Superintendent of MCINorfolk, did not hold that position during the relevant time period. (#31, Statement of Material Facts ¶ 1.)
1
which he narrowed his complaint to only his RLUIPA claims. (#36.) Defendants filed an opposition
to Plaintiff’s supplemental motion for summary judgment on September 23, 2015. (#39.)
Plaintiff is serving a life sentence and is now housed at the Massachusetts Correctional
Institute at Concord (“MCI-Concord”) where he actively practices the faith of the Nation of Gods
and Earths (“NGE”). He alleges claims under RLUIPA for constraints on his ability to practice
NGE while previously incarcerated at the Massachusetts Correctional Institute at Norfolk (“MCINorfolk”).
II. The Facts.
The parties agree that there is no dispute over the material facts in this case. NGE was
founded in 1964 by a student of Malcolm X and a former member of the Nation of Islam, and has
grown from an offshoot of the Nation of Islam to gain legal recognition as a separate religion.
Adherents of NGE are required to help educate others, or proselytize, and are expected to study and
adhere to the religion’s central literature: The 120 Degrees, The Supreme Alphabet, The Supreme
Mathematics, and The Five Percenter.
NGE is one of seventeen religious groups recognized by the Massachusetts Department of
Corrections (“DOC”) in its Religious Services Handbook (the “Handbook”). (#35-1, Affidavit of
Christopher Mitchell2 ¶ 2.) The Handbook, first published in 1999, is the culmination of many years
of work “wherein the Department of Correction’s chaplains, administrators, outside religious groups
and the Department’s legal division collaborated to craft religious accommodation policies that are
consistent with the health, safety, security and fiscal constraints of the Department.” (#35-1 ¶ 4.)
2
Christopher Mitchell is the Director of Reentry and Program Services for the DOC, having been
appointed to the position in 2007. (#35-1 ¶ 1.) Mr. Mitchell has been employed by the DOC in various
positions since 1987. Id.
2
The Handbook is described as “a dynamic resource tool” that is revised frequently in response to
inmate religious requests and feedback from DOC chaplains and religious volunteers. (#35-1 ¶ 6.)
NGE was added to the Handbook in January, 2007, following a settlement between the DOC
and an inmate who adhered to NGE. (#35-1 ¶ 7.) In developing an NGE section for the Handbook,
the DOC worked closely with Mr. Born King Allah, also known as Donald Palmer, who serves as
the nationwide Prison Administrator for NGE. (#35-1 ¶ 8.) In the process of recognizing NGE, the
Religious Services Review Committee3 (“RSRC”) read and reviewed the Supreme Alphabet, the
Supreme Mathematics and the 120 Degrees, NGE’s central literature. (#35-1 ¶ 10.) After receiving
input and feedback from Mr. Palmer and the DOC’s Central Intelligence Unit, and guided by the
December 2005 Ellis Settlement Agreement,4 the RSRC determined there were security concerns
associated with the contents of some of the materials, as some could be interpreted as advocating
violence or murder.5 Id. According to Mr. Mitchell, a member of the RSRC, “[o]ur concern as a
Committee was that inmates, processing this material by themselves, out of context, might be incited
3
At the relevant time, the members of the RSRC included two Assistant Deputy Commissioners, each
of whom had decades of experience in the DOC including serving as Superintendents at various DOC
facilities, a Deputy Commissioner of Classification, Reentry and Programs and the Director of Reentry and
Program Services. (#35-1 ¶¶ 29-30.) In light of their experience, these individuals had considerable security
expertise. Id.
4
This refers to the Settlement Agreement reached in another case brought by an inmate NGE adherent.
5
For example, in the literature, the “original man” is defined as “the Asiatic Blackman, the maker, the
owner, the cream of the planet earth, father of civilization and God of the Universe.” (#35-5 at 1.) The
“colored man” is defined as “the Caucasian (white man) or yacob’s grafted devil, the white man of the planet
earth.” Id. In one lesson, it is taught that “the Earth belongs to the Original man and knowing that the devil
is weak and wicked and there wouldn’t be any peace among them.” (#35-5 at 3.) In response to the question
“[w]hy does Muhammed and any muslim murder the devil?,” it is taught that it is “[b]ecause the devil is
100% weak and wicked and will not obey the laws of Islam . . . . So Muhammed learned that he could not
reform the devil and so they had to be murdered. . . .” (#35-5 at 6.)
3
to violence against other inmates and staff.” Id. Consequently, restrictions were placed on NGE
members, which included limiting their study of NGE’s literature and worship to within their own
cells. Id.
NGE’s literature and written materials were only for the personal use of the NGE
adherent. Id.
Since the addition of the NGE section to the Handbook, two changes have been made at the
request of Mr. Palmer. (#35-1 ¶ 11.) Mr. Palmer objected to the use of the term “Holy Days”
because “where a male practitioner views himself as a God, there is no need for a Holy Day, insofar
as a God doesn’t worship himself.” (#35-1 ¶ 12.) A compromise was reached, and the days were
redesignated as “Honor/Holy Days/Festivals.” Id. Second, Mr. Palmer sought removal of the
phrase “Security Threat Group” from the NGE section of the Handbook, and this was done in
January 2011. (#35-1 ¶ 13.) Other changes include that NGE adherents may now receive Halal
meals if requested (compare #35-3 at 3 with 35-3 at 7) and possession of a Universal Flag medallion
has been approved by the RSRC and the Commissioner of the DOC. (Compare #35-3 at 7-8 with
35-3 at 11.)
NGE does not have a full-time chaplain on staff in the DOC due to limited resources. (#351 ¶ 40.) The DOC does not have the budget to hire a NGE chaplain: the “creation of a new DOC
Chaplain position requires the involvement of outside stakeholders, which includes the
Commonwealth’s Human Resources division. Currently, there is a statewide hiring freeze in the
Commonwealth.” (#35-1 ¶ 40.) Instead, the DOC relies on volunteers for religious services. (#311 ¶¶ 34-40.) This is not uncommon, as only ninety-two inmates across the seventeen DOC
facilities – thirty-one of whom are at MCI-Norfolk – adhere to NGE. (#31-1 ¶¶ 43-44.) Other
religious groups, including Native Americans (twenty-seven inmates practicing) and Buddhists
4
(thirty-eight inmates), do not have their own chaplain. (#31-1 ¶ 44.) NGE practitioners are
welcomed to worship with Minister Randy Curet of the Nation of Islam, the religion from which
NGE originated. (#31-1 ¶¶ 34-36.) Many NGE members attend the weekly Nation of Islam
corporate worship. (#31-1 ¶ 36.)
The Handbook provides that “‘if requested, inmates who identify themselves as NGE
adherents should be allowed to corporately celebrate the four holy days mentioned above . . . with
the presence of an external approved NGE permanent volunteer. Also, one-on-one meetings
between inmate adherents and external approved NGE volunteers in accordance with 103 CMR
471.10 will be allowed if consistent with institutional safety and security requirements.’” (#35-1
¶ 19.) Mr. Mitchell states that he has worked with Mr. Palmer to recruit religious volunteers
pursuant to the Volunteer Services Policy to lead NGE corporate services, as has William
Milhomme, the DOC Director of Volunteer Services. (#35-1 ¶¶ 14, 37.) As a result of their
efforts, more NGE volunteers have been recruited to provide religious education and spiritual
counseling to NGE inmates. (#35-1 ¶ 37.) Difficulties remain in retaining volunteers for a variety
of reasons, i.e., some NGE volunteers are inappropriate due to prior relationships with NGE
inmates, time commitments involved pose hurdles when volunteers work full time, and individuals
with prior records would not qualify. (#35-1 ¶ 38.) At present one NGE volunteer, John Cox, goes
to MCI-Norfolk to provide NGE religious education, study and corporate worship services. Id.
Because Mr. Cox lives in western Massachusetts, on occasion he is unable to visit MCI-Norfolk.
Id.
The DOC has a policy that prohibits inmate preaching or proselytizing entitled Inmate
Management, 103 DOC at 400.06, No Inmates Control Over Other Inmates(s), which provides
5
“No inmate or group of inmates shall be in a position of control or authority over any other
incarcerated person(s).” (#35-1 at ¶ 46.) According to Mr. Mitchell, this policy “serves the
Department’s compelling security need to supervise 10,500 inmates in its 17 prison facilities.” Id.
Plaintiff’s grievances with MCI-Norfolk began on or about April 16, 2010, when he alleges
that he and twelve other NGE practitioners were told to disperse while assembled in the prison’s
recreational area. (#1 ¶ 32.) On April 24, 2010, Plaintiff filed a grievance with the prison seeking
a space to study with other members of NGE; the grievance was denied and appealed to
Superintendent Gary Roden. (#1 ¶¶ 33-35.) The appeal upheld the denial of Plaintiff’s grievance
and stated that members of NGE were not allowed to have one-on-one meetings with other
members except when supervised by an approved NGE volunteer. (#1 ¶ 35.)
The RSRC is responsible for reviewing all inmate religious requests and then making a
formal recommendation to the Commissioner of the DOC. (#35-1 ¶ 31.) In May 2010, Plaintiff
requested access to corporate worship, fasting, reflections upon NGE literature, group gatherings,
and designated space for NGE members to worship and collectively study the religion’s central
literature through an Inmate Religious Services Review Request Form. (#1 ¶ 36.) In November
2010 Plaintiff received a response from the RSRC wherein most of his May 2010 requests were
deferred to the Program Services Division. (#1 ¶ 43.) When no action had been taken by the
Program Services Division, on March 6, 2013, Plaintiff filed a grievance to address the denial of
his ability to discuss his religion with other NGE adherents with no volunteer present. (#1 ¶ 46.)
This grievance was denied and Plaintiff was advised that he had the right to file an Inmate
Religious Services Request Form to the Director of Treatment’s Office. (#1 ¶ 47.) Plaintiff
appealed, but the appeal was denied. (#1 ¶ 48.) Plaintiff then met with the Acting Director of
6
Treatment in July 2013, who told him “that she follows instructions on this issue from the Program
Services Division and uses the Religious Service handbook as her central guide when dealing with
NGE practices, and that she could not deviate from these references.” (#1 ¶ 49.)
Plaintiff claims that his rights under RLUIPA have been abridged, and seeks an order for
five forms of relief: “(1) permit NGE adherents to participate in group observance of NGE Honor
Days, Civilization classes, Rallies, and Parliaments; (2) provide an area to hold the abovementioned meetings, to engage in corporate worship, and to study and worship collectively, where
NGE adherents can bring their lessons and materials, including the 120 Degrees, the Supreme
Alphabet, and the Supreme Mathematics; (3) allow NGE members to have one-on-one
conversations about their cultural tenets without the presence of an approved volunteer; (4) relieve
NGE adherents of the stigma of having ties to an all-edged Security Threat Group in the D.O.C.’s
Religious Service Manual; and (5) permit NGE adherents to invite unrecognized members of NGE
to attend any of the four cultural observances throughout the year.” (#1 ¶ 58.) Defendants argue
that there has been no violation of Plaintiff’s rights under RLUIPA and that they are entitled to the
entry of judgment as a matter of law.
III. Summary Judgment Standard.
The purpose of summary judgment is “to pierce the boilerplate of the pleadings and assay
the parties’ proof in order to determine whether trial is actually required.” Tobin v. Federal
Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (internal quotations marks and citation omitted).
The applicable rule mandates that “a court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Summary judgment would be inappropriate “if the record
7
is sufficiently open-ended to permit a rational fact finder to resolve a material factual dispute in
favor of either side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir. 2014).
The moving party bears the initial burden of asserting the absence of a genuine issue of
material fact and “support[ing] that assertion by affidavits, admissions, or other materials of
evidentiary quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003) (citations
omitted). A genuine issue of fact exists where a fact finder could find in favor of the non-moving
party, “while material facts are those whose existence or nonexistence has the potential to change
the outcome of the suit.” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014)
(internal quotations marks and citation omitted). “Once the moving party avers the absence of
genuine issues of material fact, the non-movant must show that a factual dispute does exist, but
summary judgment cannot be defeated by relying on improbable inferences, conclusory
allegations, or rank speculation.” Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 54-55 (1st
Cir. 2006) (internal quotation marks and citation omitted).
In determining whether summary judgment is proper, evidence is considered “in the light
most favorable to the non-moving party” and “all reasonable inferences” are drawn in his favor.
Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). Rule 56 “mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “‘Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.’” Scott v. Harris, 550 U.S. 372, 380 (2007)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (further
8
internal quotation marks omitted)).
IV. RLUIPA Standard.
RLUIPA was enacted6 in response to the Supreme Court’s decision in City of Boerne v.
Flores, 521 U.S. 507, 529–36 (1997), which struck down portions of the Religious Freedom
Restoration Act. Spratt v. Rhode Island Dept. of Corrs., 482 F.3d 33, 37 (1st Cir. 2007).
“RLUIPA ... protects institutionalized persons who are unable freely to attend to their religious
needs and are therefore dependent on the government’s permission and accommodation for
exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005) (footnote omitted).
In relevant part, RLUIPA provides that:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution, as defined in [42 U.S.C. § 1997],
even if the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that person(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a). When interpreting the requirements of the RLUIPA, the First Circuit
Court of Appeals established a four-part test for a successful challenge under the Act. Spratt, 482
F.3d at 38. The burden is on the plaintiff to establish the initial two elements: (1) that an
institutionalized individual’s religious exercise has been burdened; and (2) that burden was
substantial. Id. If that two-part inquiry is satisfied, the burden then shifts to the government to
demonstrate: (3) the burden furthers a compelling governmental interest; and (4) the burden is the
6
RLUIPA narrowed the statute protecting religious freedom to apply only to programs in institutions
that receive federal financial assistance.
9
least restrictive means of furthering that interest. Id. When applying the burden-shifting standard
established by the statute, courts should afford “due deference to the experience and expertise of
prison and jail administrators in establishing necessary regulations and procedures to maintain
good order, security and discipline, consistent with consideration of costs and limited resources.”
Cutter, 544 U.S. at 723 (internal citation, quotation marks and footnote omitted).
What constitutes a “substantial burden” under RLUIPA was not defined in the Act. It is
deemed a term of art that has been considered by the Supreme Court in various contexts. See
Sherbert v. Verner, 374 U.S. 398, 404 n. 6 (1963). In Sherbert, the Court indicated that
government action having “a tendency to inhibit constitutionally protected activity,” such as
religious exercise, could constitute a substantial burden. 374 U.S. at 404 n. 6. The Sherbert Court
found that a substantial burden on religious exercise would exist if one was forced to “choose
between following the precepts of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept work on the other hand.” Id. at
404. On different occasions, the Supreme Court has stated that “substantial pressure on an
adherent to modify his behavior and to violate his beliefs” or a government policy that tends “to
coerce individuals into acting contrary to their religious beliefs” constitutes a substantial burden
on one’s religious exercise. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439,
450 (1988); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987); Thomas
v. Review Bd of Ind. of Employment Sec. Div., 450 U.S. 707, 717-18 (1981). The First Circuit has
adopted a comparable definition, stating that “[a]lthough we have not yet defined the term
‘substantial burden,’ we accepted, in Spratt v. Rhode Island Dept. of Corrections, 482 F.3d 33 (1st
Cir.2007), the definition used by the district court in that case - i.e., such a burden is one that puts
10
‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’ Id. at 38
(internal quotation marks and citation omitted).” LeBaron v. Spencer, 527 F. App'x 25, 29 (1st Cir.
2013) (per curiam).
If a plaintiff successfully establishes that a substantial burden has been placed on his
religious exercise, the burden then shifts to the government to demonstrate that there was a
compelling interest to burden that religious exercise and that it was achieved using the least
restrictive means. 42 U.S.C. § 2000cc-1(a). Prison security and prison safety have been
recognized as compelling government interests in situations involving prisoners’ rights. See, e.g.,
Cutter, 544 U.S. at 725 n. 13; Spratt, 482 F.3d 33 at 39. It is important to bear in mind
As the Supreme Court recently explained, ‘“[c]ontext matters’ in
the application of that standard.” Cutter, 544 U.S. at 723, 125 S.Ct.
2113 (quoting Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct.
2325, 156 L.Ed.2d 304 (2003)). Courts should apply the
‘compelling governmental interest’ standard with ‘“due deference
to the experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good
order, security and discipline, consistent with consideration of costs
and limited resources.”’ Id. (quoting S.Rep. No. 103-111, at 10
(1993) 1993 U.S.C.C.A.N. 1892, 1899). RLUIPA, in other words,
is not meant to elevate accommodation of religious observances
over the institutional need to maintain good order, security, and
discipline or to control costs. See Lovelace v. Lee, 472 F.3d 174,
190 (4th Cir. 2006).
Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007); see also Hudson v. Dennehy, 538 F. Supp.
2d 400, 409 (D. Mass. 2008), aff'd sub nom. Crawford v. Clarke, 578 F.3d 39 (1st Cir. 2009). The
“least restrictive means” standard is more demanding. Burwell v. Hobby Lobby Stores, Inc., -U.S.
-, 134 S.Ct. 2751, 2780 (2014). The Supreme Court has defined this standard as requiring the
government to demonstrate that “it lacks other means of achieving its desired goal without
imposing a substantial burden on the exercise of religion by the objecting parties in these cases.”
11
Id.
V. Discussion.7
A.
Request for Order for Group Observance of NGE Holy/Honor Days, Civilization
Classes, Rallies, and Parliaments.
Plaintiff argues that he is prohibited from celebrating NGE’s four Holy/Honor Days or
participating in other corporate or group worship. It is obligatory that NGE adherents attend
Civilization Classes, which are weekly study meetings between members, Rallies, which are held
on the third Sunday of each month for members to discuss their lessons, and Parliaments, which
are held on the fourth Sunday of each month for members to educate each other on their lessons.
(#25-1 ¶¶ 11-13.)
Plaintiff claims Defendants do not allow him to attend these mandatory
Civilization Clases, Rallies or Parliaments. (#25-1 ¶ 14.) Defendants counter that this argument
is moot, as the Handbook has recognized the right of NGE members to make such observances
since May 2008. (#35-1 ¶ 7; #35-3, DOC Handbook at 71.)
“The doctrine of mootness enforces the mandate ‘that an actual controversy must be extant
at all stages of the review, not merely at the time the complaint is filed.’” Mangual v. RotgerSabat, 317 F.3d 45, 60 (1st Cir. 2003) (quoting Steffel v. Thompson, 415 U.S. 452, 460 n. 10
(1974)). A case can be considered moot “if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.” United States v.
Concentrated Phosphate Exp Ass’n, 393 U.S. 199, 203 (1968).
Plaintiff’s claim regarding the observance of NGE Holy/Honor Days is moot. The
Handbook specifically provides that NGE adherents be allowed to observe the four Holy/Honor
7
The sincerity of Plaintiff’s beliefs have not been challenged. Similarly, there is no dispute that the
activities about which Plaintiff complains involve the “exercise of religion” within the meaning of RLUIPA.
12
days in group (corporate) worship in the presence of an NGE volunteer. In his affidavit, Mr.
Mitchell states:
With regard to corporate worship, ‘[I]f requested, inmates
who identify themselves as NGE adherents should be allowed to
corporately celebrate the four holy days mentioned above (#1) with
the presence of an external approved NGE permanent volunteer.
Also, one-on-one meetings between inmate adherents and external
approved NGE volunteers in accordance with 103 CMR 471.10 will
be allowed if consistent with institutional safety and security
requirements.’ See NGE section of Handbook - 2015.
#35-1 ¶ 19. This addition to the Handbook approximately seven and a half years ago makes clear
that this claim is moot because the “wrongful behavior could not reasonably be expected to recur.”
Concentrated Phosphate, 393 U.S. at 203.
Plaintiff is permitted “to pray/acknowledge God individually throughout the day” (#35-1
¶ 18), “worship, study and pray in his cell” (#35-1 ¶ 33), and “seek spiritual counseling and
guidance from Minister Randy” (#35-1 ¶ 36), the Nation of Islam Chaplain at MCI-Norfolk.8
However, Plaintiff argues that he is yet unable to engage in Civilization Classes, Rallies, and
Parliaments, insofar as he and other NGE adherents cannot participate in such activities without
the supervision of an approved NGE volunteer.9 Several Courts of Appeals have concluded “that
the requirement of an outside volunteer did not place a substantial burden on the plaintiff's religious
exercise under RLUIPA,” Baranowski, 486 F.3d at 125 (citation omitted), which ends the inquiry.
8
As noted, NGE arose from the Nation of Islam. Moreover, “DOC Chaplains are required, by policy,
to assist inmates in their individual spiritual journey even if the inmate’s particularized understanding of his
own faith does not completely comport with the theology as understood by the [] DOC Chaplain.” (#35-1 ¶
36.)
9
With respect to this claim, Plaintiff states that he “is not requesting that the Defendants find a NGE
volunteer, nor is Plaintiff requesting ‘unsupervised’ meetings.’ (#36 at 4.)
13
See also Kramer v. Pollard, 497 Fed. Appx. 639, 643-44 (7th Cir. 2012); Spies v. Voinovich, 173
F.3d 398, 405-06 (6th Cir. 1999).
Even assuming that the DOC’s policy allowing corporate worship only in the presence of
a DOC chaplain or minister or a DOC-approved volunteer does place a substantial burden on
Plaintiff’s religious practice, Defendants contend that this is in keeping with an overarching policy
that prohibits inmates from preaching or engaging in corporate worship absent supervision,
motivated by concerns about safety and security. (#35-1 ¶¶ 9-10.) According to Plaintiff, this
policy is not applied to each religious group in a consistent manner.
Plaintiff has presented evidence in support of his position. (See # 25-1 ¶¶ 10-15; #36, Ex.1,
Affidavit of Daniel LaPlante ¶¶ 2-3; #36, Ex. 2, Second Affidavit of Cynthia Sumner ¶¶ 4-7.)
During prior litigation between one Daniel LaPlante, an inmate at MCI-Norfolk and a practicing
Wiccan, and the DOC, Cynthia Sumner submitted an affidavit. Serving as the Deputy
Superintendent for Classification and Treatment at MCI-Norfolk, Sumner discussed MCI-Norfolk’s
Community Services Division (“CSD”) building, which is used for inmate activities including
religious services. (#36-2 ¶¶ 5-6.) She noted that “there are two correction officers [generally]
assigned to the CSD building who conduct periodic security rounds when it is open” and that
“numerous inmate groups . . . meet every day in the CSD building.” (#36-2 ¶¶ 6-7.) LaPlante, too,
has filed an affidavit wherein he stated:
2) I worked in the CSD building, for several years, as the Committee
Coordinator, and I am familiar with the running of the building, as
well as the scheduling of groups, as that was part of my functions as
Committee Coordinator. Groups often have meetings without
volunteers, including religious groups. These groups are supervised
by periodic rounds of the two correctional officers assigned to the
CSD building. With regard to specific religious groups, sixteen (16)
readily come to mind:
a. Buddhist: CSD Battleroom; 1:00 PM; Mondays
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b. Catholic Work Group CSD Catholic Office; 1:00 PM; Mondays
c. Jews: CSD Synagogue; five days a week, when the Rabbi in (sic) not here
d. Muslims: CSD Masjid; when the Iman is not here
e. Jehovah’s Witnesses: CSD Battleroom; 6:00 PM; Mondays
f. Asian Catholic Bible Study: CSD Catholic Office; 6:00 PM; Mondays
g. Rastafarian: CSD Chapel; 1:00 PM; Tuesdays
h. Native American: CSD Battleroom; 1:00 PM; Tuesdays
i. Protestant Bible Study: CSD Protestant Office; 1:00 PM; Tuesdays
j. Refuge Church Bible Study: CSD Chapel; 1:00 PM; Wednesdays
k. Dominican Laity Group: CSD Catholic Office; 6:00 PM; Wednesdays
l. Cursillo Group: CSD Council Room; 6:00 PM; Fridays
m. Wiccans: CSD Battleroom; 6:00 PM; Sundays
n. Catholic Choir: CSD Chapel; 6:00 PM; Sundays
o. Protestant Prayer Group: CSD Battleroom; 6:00 PM; Tuesdays
p. Catholic Video: CSD Catholic Office; 1:00 PM; Wednesdays
q. Protestant Spanish Choir: CSD Foyer; 1:00 PM; Fridays
3) The Wicca group at MCI-Norfolk does not have a volunteer, and
is supervised by periodic security rounds conducted by the two (2)
correctional officers assign (sic) to the CSD building.
(#36, Affidavit of Daniel LaPlante).
Assuming, arguendo, that these inmate groups meet with only the supervision of two
correctional officers, the DOC has articulated a specific security-related justification that
distinguishes NGE from the other groups. When adding NGE to the Handbook, after reading the
NGE texts and consulting with Mr. Palmer as well as DOC’s Central Intelligence Unit, the RSRC
determined that “[t]here were security concerns about the contents of some written NGE materials
that espouse violence/killing. Our concern as a Committee was that inmates, processing this
material by themselves, out of context, might be incited to violence against other inmates and
staff.” (#35-1 ¶ 10.) It was because of that concern that restrictions were placed on NGE’s written
materials, limiting them to use only by an adherent in his cell. Id. This same concern supports the
limitations on corporate worship, i.e., that it must be conducted “with the presence of an external
approved NGE permanent volunteer.” (#35-3 at 11.)
15
Defendants have demonstrated that the DOC has a compelling interest, namely, prison
security and the avoidance of violence, in burdening Plaintiff’s religious exercise. Deference is due
to the DOC’s expertise in the area of prison safety. Hudson, 538 F. Supp.2d at 409. By requiring
the presence of an NGE volunteer when conducting corporate worship so as to aid adherents in
properly interpreting NGE texts and tenets in order to avoid inciting violence, Defendants have
tailored the least restrictive means of furthering that interest. Id. at 410. The option of allowing
NGE adherents to meet solely under the supervision of two correctional officers simply would not
address the DOC’s specific security concerns.
B.
Request for Order for Dedicated Area for Group Worship.
At present, NGE members can only engage in corporate worship in the presence of an NGE
volunteer and do not have their own designated space for worship. Plaintiff argues that the lack
of a dedicated worship space imposes a substantial burden that implicates his freedom to practice
his faith and so violates his rights under the RLUIPA. This contention is not persuasive. Limiting
an inmate’s ability to practice religion, but still allowing the practice, does not constitute a
substantial burden. See Lyng, 485 U.S. at 447-53; Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972) (“We
do not suggest, of course, that every religious sect or group within a prison - however few in
number - must have identical facilities or personnel. 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. But reasonable opportunities must be afforded to all
prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendment
without fear of penalty.”); Hudson, 538 F. Supp.2d at 409-10.
The lack of a specifically
designated space for worship for NGE adherents in no way tends “to coerce individuals into acting
contrary to their religious beliefs,” Hudson, 538 F. Supp.2d at 409-10, and is not a substantial
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burden on Plaintiff’s exercise of his religion.
C.
Request for Order to Allow NGE Practitioners to Proselytize.
The parties agree that Plaintiff is not allowed to proselytize, or engage in individual
conversations about cultural tenets, with other inmates. Mr. Mitchell states in his affidavit:
The MA DOC does not permit inmates to proselytize. In MA DOC
custody, we have Jehovah’s Witnesses and one of the central tenets
of this faith group is proselytizing. Nonetheless, Jehovah’s Witness
inmates cannot preach or teach their faith to others. The MA DOC
has a prison policy which prohibits inmate preaching; it has a policy
entitled Inmate Management, 103 DOC at 400.06, entitled No
Inmates Control Over Other Inmate(s), which states: ‘No inmate or
group of inmates shall be in a position of authority over any other
incarcerated person(s).’ This serves the Department’s compelling
security need to supervise 10,500 inmates in its 17 prison facilities.
(#35-1 ¶ 46.) A fundamental goal of the DOC’s inmate management policy is to keep inmates from
being in positions of authority or control over other inmates, a driving motivation in the ban on
proselytizing. (#35-1 ¶ 46.) Plaintiff contends that this policy substantially burdens his ability to
practice NGE because proselytizing is required as part of his faith. (#25-1 ¶¶ 4, 8.)
Plaintiff argues that this case is governed by the First Circuit’s decision in Spratt v. Rhode
Island Dept. Of Corrections, 482 F.3d 33 (1st Cir. 2007). Spratt was an inmate (and ordained
minister) who had been preaching at weekly services at the Adult Correctional Institute in Rhode
Island for a seven-year period when he was told that he was prohibited from doing under prison
regulations. Id. at 35. The court determined that the defendant Rhode Island Department of
Corrections’s blanket prohibition on preaching substantially burdened plaintiff Spratt’s religious
exercise. Id. at 38. With the burden then shifting to the defendant, the First Circuit concluded that
there were “inconsistencies between RIDOC’s various explanations for its policy [which] require[d]
further explanation” and, “[e]ven if we assume that RIDOC has shown a link between Spratt's
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preaching and institutional security, RIDOC still has not shown that the blanket ban on all inmate
preaching is the ‘least restrictive means’ available to achieve its interest.” Id. at 40-41. The court
reversed the entry of summary judgment for the defendant and remanded for further proceedings.
Id at 43.
While the Spratt decision certainly addresses the issue of inmates’ preaching, it is not
dispositive on the facts of this case as it applies to Plaintiff. Plaintiff has established that his
religious exercise has been substantially burdened. However, as discussed earlier, the DOC has
articulated a distinct compelling government interest that supports the preaching ban with respect
to NGE adherents. The DOC views NGE’s central texts as having the potential to create security
threats if not properly interpreted, and therefore requires that NGE adherents’ practice be under the
supervision of an approved volunteer or done individually. (#35-1 ¶ 10.) This conclusion was
reached after a thorough review of NGE’s texts and tenets as well as consultation with the
nationwide Prison Administrator for NGE and prison security experts. The potential for violence
and security threats certainly would carry over to NGE adherents proselytizing to non-believers.
After consideration, the DOC found no less restrictive way to address the particular security issues
raised by the NGE religious materials.
D.
Request for Order Barring NGE Practitioners from Being Labeled a Security Threat
Group.
NGE’s label as a Security Threat Group was removed from the DOC’s Religious Services
Handbook in 2011, rendering this issue is moot. (#35-1 ¶ 13.)
E.
Request for Order to Permit NGE Adherents to Invite Unrecognized Members of
NGE to Attend Any of the Four Cultural Observances.
Plaintiff seeks for NGE practitioners to be allowed to invite other inmates to attend the four
annual NGE cultural observances. According to Mr. Mitchell, inmates may audit faiths in which
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they may have an interest. (#35-1 ¶ 45.) Auditing a faith enables an inmate to attend some
corporate worship services. Id. “However, the inmate who is auditing the faith may not participate
during Holy days or Religious Feast days where it would diminish the spiritual experience for those
inmates who are devout and share a commonality of belief in the faith.” Id. (emphasis in original)
Plaintiff has failed to establish that the DOC’s policy not to allow NGE members to invite
other inmates to attend NGE’s four annual cultural observances creates a substantial burden on his
religious exercise. Courts have long recognized a need to defer to the judgment and expertise of
prison administrators in making such decisions. Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
A prisoner’s right to practice religion is not absolute. Hudson, 538 F. Supp.2d at 409-10 (holding
that government programs “‘which may make it more difficult to practice certain religions but
which have no tendency to coerce individuals into acting contrary to their religious beliefs,’ are not
affected by this standard”). The DOC’s policy refusing to allow inmates to invite other inmates to
participate in their Holy days or Religious Feast days services does not constitute a substantial
burden as that term has been interpreted; there is no “tendency to coerce.” Whatever impact the
DOC’s policy may have on inmates seeking to audit NGE, it does not implicate Plaintiff’s ability
to practice his religion or participate in NGE’s four cultural observances throughout the year.
VI. Conclusion and Order.
For the reasons stated, it is ORDERED that the Motion for Summary Judgment (#25) and
Plaintiff’s Supplemental Motion For Summary Judgment (#36) be, and the same hereby are,
DENIED. It is FURTHER ORDERED that Defendants’ Opposition to and Cross-Motion for
Summary Judgment (#30) be, and the same hereby are, ALLOWED. Judgment shall enter in favor
of Defendants.
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/s/ M. Page Kelley
M. Page Kelley
United States Magistrate Judge
February 5, 2016
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