The opinion
United States District Court
District of Massachusetts
)
MAC S. HUDSON, FARADAN IBN )
SALAHUDDIN, EDGAR ROCK, RAYMOND )
COLON, ABDUL J. LOPEZ, RALPH )
BROWN, EVANS MAHON and UMAR )
SALAHUDDIN, )
)
Plaintiffs, )
) Civil Action No.
v. ) 11-12173-NMG
)
LUIS S. SPENCER, CHRISTOPHER )
MITCHELL, BRUCE GELB, KAREN )
DINARDO, CHRISTINE LARKINS, LOIS )
RUSSO, JAILEEN HOPKINS and DALE )
BISSONNETTE, )
)
Defendants. )
)
MEMORANDUM & ORDER
GORTON, J.
This is a pro se prisoner case in which inmates at MCI-
Concord claim that they have been denied the right to observe
tenets of the Nation of Islam (“NOI”) while incarcerated.
Defendants are all employees of MCI-Concord or the Massachusetts
Department of Correction (“the DOC”).
Pending before the Court are defendants’ motion for summary
judgment and plaintiffs’ cross-motion for summary judgment.
For the reasons that follow, defendants’ motion for summary
judgment will be allowed and plaintiffs’ cross-motion for
summary judgment will be denied.
I. Background
Plaintiffs (sometimes referred to as “the inmates”)
initiated this lawsuit in December, 2011, and filed an amended
complaint in March, 2014. In their amended complaint,
plaintiffs alleged that defendants violated 1) plaintiffs’ First
and Fourteenth Amendment rights, including the right to equal
protection, under 42 U.S.C. § 1983, 2) the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”) under 42 U.S.C. §
2000cc, et seq., 3) the Prison Litigation Reform Act (“PLRA”)
under 42 U.S.C. § 1997e, 4) Massachusetts General Laws chapter
127, § 88, 5) articles I and XII of the Massachusetts
Declaration of Rights and 6) Title 103 of the Code of
Massachusetts Regulations, § 471.
The inmates requested 1) the appointment of a full-time NOI
chaplain, 2) daily access to space for worship, 3) separate NOI
fasting and feast sessions during religious ceremonies, 4) an
ability to wear religious attire such as bow ties and lapel
pins, 4) an ability to engage in “spiritual drilling” and
6) compensatory and punitive damages.
The DOC filed a motion for summary judgment in July, 2015,
and the inmates filed a cross-motion for summary judgment the
following month. This Court entered its original Memorandum and
Order allowing, in part, and denying, in part, the parties’
cross-motions for summary judgment in September, 2015. The
Court allowed defendants’ motion for summary judgment as to all
of plaintiffs’ claims except as to plaintiff’s RLUIPA claim for
injunctive relief with respect to daily access to worship space.
As the Court acknowledged in its original Memorandum and
Order, defendants explained why they have not hired a full-time
Nation of Islam chaplain but did not explain why plaintiffs
cannot have access to worship space when there is no chaplain
available. Plaintiffs asserted that defendants have allowed
other religious groups access to worship space and have provided
non-chaplain supervision. The Court’s compromise position was
to require defendants to provide plaintiffs with televised
recordings of Jumuah services when a chaplain is unavailable to
provide in-person services.
In January, 2018, the First Circuit Court of Appeals
affirmed, in part, the Court’s Memorandum and Order allowing
defendants’ motion for summary judgment and remanded for
reconsideration of the limitations upon the inmates’ access to
worship space. Hudson v. Spencer, No. 15-2323, 2018 WL 2046094,
*5 (1st Cir. Jan. 23, 2018). The First Circuit held that
plaintiffs’ affidavits were sufficient to show that the lack of
daily access to space for congregational worship substantially
burdened their religious exercise. Id. at *2. The First Circuit
remanded the case so this Court could consider whether
defendants have demonstrated that those access limitations were
the least restrictive means of furthering defendants’ compelling
security interests. Id.
II. Motions for Summary Judgment
A. Legal standard
The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,
895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving
party to show, through the pleadings, discovery and affidavits,
“that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
A fact is material if it “might affect the outcome of the
suit under the governing law . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A genuine issue of material
fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
If the moving party satisfies its burden, the burden shifts
to the non-moving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). The Court must view the entire record in
the light most favorable to the non-moving party and make all
reasonable inferences in that party's favor. O'Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is
appropriate if, after viewing the record in the non-moving
party's favor, the Court determines that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law.
B. Overview of the Parties’ Arguments
The parties assert that they are each entitled to summary
judgment. Defendants concede that the least restrictive means
of permitting plaintiffs to meet for daily congregational prayer
is for them to be supervised by a NOI religious volunteer.
Defendants submit that Chaplain Randy Curet is a full-time
employee of the DOC and that one of his primary responsibilities
as a DOC chaplain is to recruit religious volunteers to
supervise NOI religious services. Despite that duty, Chaplain
Curet has been unable to secure a NOI religious volunteer to
work with or supervise NOI inmates at MCI-Concord.
At the recent hearing on the pending motions, Chaplain
Curet informed the Court that there is only one NOI mosque in
the Commonwealth of Massachusetts and thus his access to helpers
is very limited. Chaplain Curet has attempted on numerous
occasions to secure NOI religious volunteers from his mosque but
they have either failed to complete the approval process or have
been rejected by the Director of Volunteer Services at MCI-
Concord for security reasons.
Defendants also submit that corrections officers cannot
provide direct supervision of religious services. They explain
that non-chaplain employees cannot supervise plaintiffs’ daily
congregational prayer because those employees cannot be diverted
from their normal duties.
Plaintiffs respond, however, that they have been provided
access to their designated place of prayer in the past without
the supervision of a chaplain or religious volunteer and that
other religious groups at MCI-Concord have been allowed access
to places of congregational worship under only intermittent
supervision of security staff. Plaintiffs also contend that
they are presently allowed to meet under intermittent
supervision of security staff in a designated NOI worship area
on Thursdays and have been doing so since 2016. Finally, the
inmates submit that there is adequate time and classroom space
available to accommodate their request for daily access to NOI
congregational prayer and that there is sufficient staff at hand
to supervise such prayer.
Matthew Divris, Deputy Superintendent of MCI-Concord, who
also appeared at the hearing, confirmed that plaintiffs are in
fact provided access to their designated place of worship on
Thursdays without the presence of a chaplain or religious
volunteer. During such sessions, plaintiffs watch religious
videos together but are not permitted to lead each other in
religious services consistent with DOC policy. Divris reported
that security personnel are posted nearby to provide
intermittent supervision of Thursday religious sessions and that
there have been no security issues with that arrangement.
Divris also explained, however, that MCI-Concord is short-
staffed at present and that to require the facility to supervise
NOI inmates’ congregational worship on a daily basis would force
the prison either to close the gym or cancel other recreational
activities which benefit all inmates.
Divris conceded that there are spaces available for NOI
congregational services but reiterated that there is simply not
enough security staff to provide the required supervision of
daily congregational sessions. Defendants also point out that
allowing access to the NOI prayer space at night presents
special security concerns. Divris suggested that the current
prayer schedule for NOI inmates is reasonable given the prison’s
staffing issues and because other religious groups are provided
access to corporate worship only two to three days each week.
C. Religious Land Use and Institutionalized Persons Act
1. Legal Standard
RLUIPA “protects institutionalized persons who are unable
freely to attend to their religious needs.” Cutter v. Wilkinson,
544 U.S. 709, 721 (2005). The statute provides more protection
than the First Amendment does for an inmate’s free exercise
rights. Kuperman v. Wrenn, 645 F.3d 69, 79 (1st Cir. 2011).
Section 3 of RLUIPA provides:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined
to an institution . . . 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. Courts applying the RLUIPA standard
should give
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.
The First Circuit evaluates RLUIPA claims under a burden-
shifting standard with four elements. Spratt v. Rhode Island
Dep’t of Corr., 482 F.3d 33, 38 (1st Cir. 2007).
The plaintiff first must show that 1) there is a burden on
the institutionalized person’s religious exercise and 2) the
burden is substantial. Id. If the plaintiff establishes such a
“substantial burden,” the requirement of proof then shifts to
the government to demonstrate that 3) the burden furthers a
compelling government interest and 4) the burden is the least
restrictive means of achieving the interest. Spratt, 482 F.3d at
38. A compelling interest is “more than a colorable interest,
or an interest serving the convenience of the State.” Hudson,
538 F. Supp. 2d at 410. Courts should evaluate claims
with particular sensitivity when security concerns are
legitimately at issue . . . [because] prison security is
a compelling state interest, and [] deference is due to
institutional officials’ expertise in this area.
Id. at 409. To satisfy the least restrictive means requirement,
the government need not “refute every conceivable option” but it
must “explore at least some alternatives” and provide an
explanation for rejection. Spratt, 482 F.3d at 41 n.11.
2. Application
The inmates claim a RLUIPA violation based upon the DOC’s
refusal to allow them daily access to space for congregational
worship. The First Circuit has held that the inmates have shown
that the lack of daily access to space for congregational
worship substantially burdens their religious exercise. Thus
the burden of proof has shifted to the DOC to demonstrate that
the access limitations are the least restrictive means of
furthering a compelling government interest.
That burden has been met because defendants have adequately
explained their denial of plaintiffs’ request for daily access
to space for congregational prayer. Deputy Superintendent
Divris notified the Court that MCI-Concord has a serious
staffing shortage and that requiring its staff to supervise
plaintiffs’ daily access to congregational worship space would
force the prison to discontinue other important recreational
services for all inmates. While MCI-Concord currently provides
NOI inmates access to worship space under only intermittent
supervision on days when Chaplain Curet is unavailable, the
Court is satisfied that such an arrangement is reasonable, given
present resource limitations and staffing concerns.
Defendants concede that the least restrictive means of
permitting NOI inmates to have daily access to their
congregational worship space is to provide a religious volunteer
on days Chaplain Curet is unavailable but their failure to do so
is not their fault. Indeed, the lack of NOI religious
volunteers is the result of factors beyond the control of MCI-
Concord. Chaplain Curet has made a good faith effort to arrange
for NOI religious volunteers in the past but has been
unsuccessful due to the limited resources available and
application difficulties.
The Court concludes that defendants have shown that the
access limitations are the least restrictive means of furthering
their compelling security interests.
ORDER
For the foregoing reasons, defendants’ motion for summary
judgment (Docket No. 314) is ALLOWED and plaintiffs’ cross-
motion for summary judgment (Docket No. 333) is DENIED.
Notwithstanding this order, in an effort to resolve any
lingering dispute, the Court DIRECTS the continuation of:
1) collaboration between the NOI inmates and MCI-Concord
personnel to accommodate the religious exercise of NOI
inmates, an example of which has been the allowance of
Thursday prayer sessions under intermittent supervision;
2) efforts by Chaplain Curet, the NOI religious volunteer
candidates and the Director of Volunteer Services at MCI-
Concord to retain the services of religious volunteers to
supervise the NOI inmates’ congregational worship; and
3) compliance with its prior Memorandum & Order (Docket No.
340) which requires the Department of Corrections, when
at all possible, to provide plaintiffs access to
televised recordings with sounds and images of Jumuah
services led by an appropriate chaplain whenever the NOI
chaplain is unavailable to conduct in-person Jumuah
services.
So ordered.
_/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated September 28, 2018