Greene v. Suffolk County Sheriff Department

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

TIMOTHY GREENE, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 12-11685-DPW

)

ANDREA CABRAL, ET AL., )

)

Defendants. )

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. 12-

cv-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

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 non-

kosher 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.

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. “On remaining claims, discovery to be completed by April

8. 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. Fed.

R. Civ. P. 26(a)(2)(D). 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

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. As

the subsequent discussion will make evident, the Rosenberg

testimony is not determinative of the outcome on summary

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,

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

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 non-

kosher special diet food was possible. 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. The prison does not hold

weekly Jewish services. 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.”

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

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)); LeBlanc-

Sternberg 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.

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. Nee then reached out to

two rabbis on Greene’s behalf. 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.

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. Vineberg v. Bissonnette, 548

F.3d 50, 56 (1st Cir. 2008). 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

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)).

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

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 cross-

contamination.

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

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.

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.”

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

(2011). 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”).

2023. First, this means that the court must focus on the

clarity of the law at the time of the alleged civil rights

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

2009). 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.” Cruz

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

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”).

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

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).

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

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

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.

because of the constraints of the Jewish faith. I find some

merit to this argument. 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. In fact, Nee purchased a

Torah for Greene. 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.

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 cross-

contamination 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. 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

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 cross-

contamination, 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

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. The MCRA is

largely “coextensive with 42 U.S.C. § 1983.” 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

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.