McClinton v. Suffolk County Jail

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

SHAWN T. MCCLINTON, )

)

Plaintiff, )

)

v. ) Civil Action No. 19-11315-JCB

)

SUFFOLK COUNTY JAIL, et al., )

)

Defendant. )

____________________________________)

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT1

[Docket No. 118]

November 1, 2021

Boal, M.J.

Pro se plaintiff Shawn T. McClinton, who at all relevant times was committed to the

Suffolk County Jail as a pretrial detainee, alleges that the Defendants have violated his First

Amendment right to practice his religion by failing to provide him with kosher meals.

Defendants have moved for summary judgment. Docket No. 118. For the following reasons, I

grant the motion.

I. SCOPE OF THE RECORD

Local Rule 56.1 provides that a “party opposing [a motion for summary judgment] shall

include a concise statement of the material facts of record as to which it is contended that there

1 All parties have consented to the jurisdiction of a U.S. Magistrate Judge for all purposes.

Docket Nos. 17, 24.

exists a genuine issue to be tried, with page references to affidavits, depositions and other

documentation.” In addition, this Court ordered as follows:

In addition to the requirements set out in Local Rule 56.1, and in order for

the Court to have in hand a single document containing the parties’ positions

as to material facts in an easily comprehensible form, the opposing party, in

preparing its response to the statement of facts, shall reprint the moving

party’s statement of material facts and shall set forth a response to each

directly below the appropriate numbered paragraph.

Docket No. 75 at 2. Rather than responding to each of the Defendants’ statement of facts,

however, McClinton stated as follows:

The plaintiff states that the defendants stated what they (the defendants)

deemed are undisputed facts about matters that do not concern the plaintiffs

[sic] claims; the plaintiff will not address those claimed undisputed facts

from the defendants that are irrelevant, and only mentioned by the

defendants in order to attach the plaintiffs [sic] character, education

(academic and spiritual), and race . . . There is no need to waste the court

[sic] time.

Docket No. 122 at 1. He then proceeded to restate his allegations without any reference to each

of the Defendants’ statements of fact. See generally Docket No. 122. McClinton has therefore

failed to comply with Local Rule 56.1 and this Court’s order.

This Court’s insistence that McClinton comply with Local Rule 56.1 is not just a matter

of form over substance. Rather, the First Circuit has “repeatedly emphasized the importance of

local rules similar to Local Rule 56.” Caban Hernandez v. Phillip Morris USA, Inc., 486 F.3d 1,

7 (1st Cir. 2007). It explained that:

Such rules were inaugurated in response to this court’s abiding concern that,

without them, ‘summary judgment practice could too easily become a game

of cat-and-mouse.’ Such rules are designed to function as a means of

‘focusing a district court’s attention on what is—and what is not—

genuinely controverted.’ When complied with, they serve ‘to dispel the

smokescreen behind which litigants with marginal or unwinnable cases

often seek to hide [and] greatly reduce the possibility that the district court

will fall victim to an ambush.’

Given the vital purpose that such rules serve, litigants ignore them at their

peril. In the event that a party opposing summary judgment fails to act in

accordance with the rigors that such a rule imposes, a district court is free,

in the exercise of its sound discretion, to accept the moving party’s facts as

stated.

Id. (internal citations omitted).

Rules like Local Rule 56.1 “are meant to ease the district court’s operose task and to

prevent parties from unfairly shifting the burdens of litigation to the court.” Id. at 8. Therefore,

while this Court is generally disinclined to decide issues on procedural, rather than substantive

grounds, McClinton’s complete failure to comply with Local Rule 56.1 has improperly placed

the burden on this Court to comb through the record to ascertain whether a genuine issue of facts

exists. This is exactly what Local Rule 56.1 proscribes. “It is not the role of the Court to sift

through the evidence looking for reasons to keep claims alive when plaintiff [himself] has

declined to do so.” Salcedo v. Town of Dudley, 629 F. Supp. 2d 86, 93 (D. Mass. 2009).

While McClinton is proceeding pro se in this matter, pro se status does not excuse a party

from complying with procedural and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886,

890 (1st Cir. 1997). Moreover, this Court twice advised McClinton of his obligation to respond

to the Defendant’s statement of undisputed facts in accordance with the Local Rules, the Federal

Rules of Civil Procedure, and this Court’s order. Docket Nos. 113, 117. This Court also

warned McClinton that failure to do so may result in the Court deeming the Defendants’

statement of undisputed facts admitted for purposes of the motion for summary judgment. Id.

There is no excuse for McClinton’s failure to follow this Court’s instructions, especially after it

put him on notice of the consequences of a failure to comply. Accordingly, this Court deems the

Defendants’ Statement of Facts admitted.

II. FACTS2

A. The Defendants

Steven Tompkins is the Suffolk County Sheriff.3 Eugene Sumpter was the

Superintendent at the Suffolk County Jail until April 2019.4 Carlos Goulart was the Suffolk

County Jail’s Grievance Coordinator.5 As such, he was responsible for considering and

responding to grievances submitted by detainees at the Suffolk County Jail.6

Throughout 2018 and 2019, Robert Tullos was a Lieutenant at the Suffolk County Jail.7

He worked in the kitchen, where he supervised employees of the Suffolk County Sheriff’s

Department (the “Department”).8 He was also responsible for working with employees of

Summit Foods, Inc. (“Summit”), the company that the Department had hired to administer its

food service contract.9

2 The facts are taken from the Defendants’ L.R. 56.1 Statement of Undisputed Material Facts

(“SOF”), which as discussed above, this Court deems admitted. Nevertheless, this Court

construes the record in the light most favorable to McClinton and resolves all reasonable

inferences in his favor. See Zampierollo-Rheinfeldt v. Ingersoll-Rand de Puerto Rico, Inc., 999

F.3d 37, 43 (1st Cir. 2021) (citing Ocasio-Hernandez v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir.

2015)). This Court also notes that the Defendants have not cited to any affidavits, depositions, or

any other evidence in support of some of their statements of fact. See SOF ¶¶ 5-6. Accordingly,

this Court does not rely on SOF ¶¶ 5-6.

3 See Docket No. 10 at 2; Affidavit of Michael Colwell (Docket No. 120-2) (“Colwell Aff.”) at ¶

1.

4 See Colwell Aff. at ¶ 1.

5 Affidavit of Carlos Goulart (Docket No. 120-4) (“Goulart Aff.”) at ¶ 1.

6 Id.

7 Affidavit of Robert Tullos (Docket No. 120-3) (“Tullos Aff.”) at ¶ 1.

8 Id.

9 Id. at ¶ 2.

Sheila Atkins was an Assistant Deputy Superintendent at the Suffolk County Jail.10

Among other things, Atkins was responsible for considering detainees’ requests for religious

diets.11 She supervised Tullos on questions arising from the delivery of special meals to

prisoners.12 She also supervised Goulart.13

B. Kosher Meals

Prior to the events described in the Amended Complaint, the Department and Summit

executed a contract for food services at both the Suffolk County Jail and the Suffolk County

House of Correction.14 That contract was in place throughout McClinton’s incarceration at the

Suffolk County Jail.15

In the course of the bidding process for the food service contract, interested vendors

submitted questions, including the following, which the Department answered and published to

all.

Q: Does the county have a kosher kitchen?

A: There are three types of Kosher kitchens, we fall under the

second category. We have Ovens and Microwaves that are used strictly for

kosher items. The vendor brings in entrée items and side items which are

Kosher, these are reheated in the above mentioned ovens, and assembled

under the guidelines in this category. We do not prepare raw food and as

such we do not need two set of stoves, two sets of dishes, etc. . .16

10 Colwell Aff. at ¶ 6.

11 Id.

12 Id.; Tullos Aff. at ¶ 3.

13 Tullos Aff. at ¶ 3.

14 SOF ¶ 9.

15 Id.

16 SOF ¶ 10.

Pursuant to the food services contract, Summit agreed that it would supply foods that met

the requirements for a particular religion or medical condition, as requested by the Department.17

Specifically, Schedule A of the food service contract requires Summit to:

[P]rovide special religious and/or medical diets inclusive of all snacks and

supplements for medical diets at no additional cost when so ordered by the

[Department]. Such meals will follow SCSD policies18 in so far as makeup

content, portion size and caloric value. The special religious meals shall

not contain side dishes that are not compliant with the dietary restrictions of

that particular religious meal (e.g. serving non-halal side dishes with a halal

meal). The portions of meat and other specifications of a religious meal

shall be the same as regular meals under the Contract.19

During the time that McClinton was incarcerated at the Suffolk County Jail, Tullos

supervised operations at the jail’s kitchen.20 In addition to his supervision of prisoners, Tullos

was the Department’s liaison with Summit.21

Summit is responsible for buying all foodstuffs used in the production of meals.22

Summit is also responsible for overseeing the preparation and service of food to inmates and

staff at the Suffolk County jail.23 Food is prepared or heated in the kitchen at the jail, by a chef

and others who work under his or her supervision.24 Once the components of the meal are ready,

17 SOF ¶ 11.

18 In his affidavit, Michael Colwell makes reference to the Department’s policies regarding

religious practice (S-471) and food service (S-760). Colwell Aff. at ¶ 9. However, the food

service policy attached to the affidavit is numbered S-477.

19 Id.

20 SOF ¶ 13.

21 Id.

22 SOF ¶ 14.

23 Id.

24 SOF ¶ 15.

kitchen workers put food onto trays that move along a conveyor belt.25 Each tray is covered and

then stacked on a cart, which is delivered to individual housing units where the prisoners eat

their meals.26 Kosher meals are assembled on a disposable “clamshell” food container, and

stacked on the same cart.27

C. McClinton’s Grievances

On April 15, 2018, McClinton filed a grievance complaining that the kitchen was not

sending kosher juice.28 He also complained that the kitchen was sending bread that was unsealed

or wrapped by an inmate or officer, which, according to him, made the bread not kosher.29

Goulart responded that he would check with “religious services and the kitchen supervisor.”30

Goulart then spoke with Rabbi Rodkins, who works with Jewish detainees at the jail, and learned

that the way the kitchen served bread was not improper.31

On May 8, 2018, Goulart told McClinton about the discussion with Rabbi Rodkins, and

that McClinton would receive kosher juice containers, as requested.32 Goulart also told

McClinton that if he wanted to speak with the rabbi, the Department could arrange that.33

25 Id.

26 Id.

27 Id.

28 SOF ¶ 17.

29 SOF ¶ 17; Docket No. 120-4 at 5.

30 SOF ¶ 17.

31 Id.

32 SOF ¶ 18.

33 Id.

On May 7, 2018, McClinton filed another grievance, complaining that he had received

cereal and cookies that were not kosher.34 According to McClinton, the cereal and cookies were

not kosher because they were taken out of their original packaging and rewrapped by an officer

or inmate.35 He also alleged that he was discriminated against because the kitchen sent him and

other Jewish detainees less juice than everyone else in the jail.36 Goulart responded as follows:

Mr. McClinton, your issue with the juice has been addressed by the kitchen

supervisor and you will receive two juices with your meals. The cereal and

the cookies that are provided are kosher and the method by which they are

packaged in your meal was referred to Rabbi Rodkins and approved by him

and religious services. If you would like to speak with Rabbi Rodkins we

could arrange it.37

McClinton appealed this resolution to Sumpter, who said that “[t]he method used by the

Department to serve kosher meals has been reviewed and approved by Rabbi Rodkins. I agree

with the Grievance Coordinator’s suggestion for you to speak with Rabbi Rodkins regarding

your concerns.”38

On September 19, 2018, McClinton again filed a grievance, this time stating that while he

had received a “sealed TV dinner,” he did not receive a “complete tray,” and that bread and

cookies provided to him had been removed from their packaging and rewrapped.39 He also

asked to see Rabbi Rodkins.40 In response, Goulart wrote that a representative of the

34 Docket No. 120-4 at 9

35 Id.

36 Id.

37 Id.

38 SOF ¶ 19.

39 SOF ¶ 20; Docket No. 120-4 at 12.

40 Id.

Department’s religious services staff would contact the rabbi and McClinton, and that Tullos

would address the issue of the allegedly incomplete meal.41

In a grievance dated December 11, 2018, McClinton asserted that the breakfast cereal and

cookies he received were not kosher.42 He wrote that he had recently spoken with Rabbi

Rodkins, who told him that if a person “who is not Jewish opens a presealed kosher container

and reseals it,” the food inside is no longer kosher.43 McClinton asked that the Department pay

him monetary damages and provide him with single serving cookies and breakfast cereal.44

Goulart spoke with Summit’s staff, who said that the food provided was in fact kosher.45

McClinton conceded to Goulart that the cereal issue had been resolved, and Goulart asked Tullos

to discuss cookies with McClinton.46 McClinton appealed the resolution of that grievance,

specifically requesting monetary damages.47 Sumpter denied the appeal “because ‘Monetary

Damages’ are beyond the scope of the grievance process,” and “the issues regarding cereal and

single serve cookies have been resolved.”48

41 Id.

42 SOF ¶ 21; Docket No. 120-4 at 14.

43 Id. An investigative note dated January 18, 2019 indicates that Rabbi Rodkins confirmed that

he spoke with McClinton and told him that “the way the cookies, breads and cereals were being

served was not technically kosher.” Docket No. 66 at 34.

44 SOF ¶ 21.

45 SOF ¶ 22.

46 Id.

47 SOF ¶ 22; Docket No. 120-4 at 15.

48 Id.

McClinton’s next two grievances alleged that, on January 11 and 18, 2019, the kitchen

staff had refused to send him kosher diet meal trays to him.49 Goulart investigated the matter

and told McClinton that he had checked with kitchen staff who verified that McClinton received

kosher meals on both occasions.50 Goulart denied McClinton’s request for monetary damages.51

McClinton submitted the final grievance referenced in his Amended Complaint on April

5, 2019.52 He alleged that he had received an “incomplete kosher meal tray,” and requested

service of peanut butter with crackers and jelly “until the single served kosher cookies come

from the vendor” as well as monetary damages.53 Defendant Goulart responded by confirming

that the new cookies were on order, and noting that the kitchen had been sending McClinton a

substitute in the interim.54 McClinton appealed the grievance, which was denied because “we

are in consultation with Rabbi Rodkins regard kosher dietary needs, and are meeting his

recommendation.”55

Tullos continued to work with McClinton to resolve his concerns.56 After McClinton

asserted that the kitchen served cookies that were not kosher, Tullos found an alternative and

49 SOF ¶ 23; Docket No. 120-4 at 17, 19.

50 SOF ¶ 24.

51 Id.

52 SOF ¶ 25; Docket No. 120-4 at 21.

53 Id.

54 Id.

55 Docket No. 120-4 at 23.

56 SOF ¶ 27.

ordered them for McClinton.57 According to Tullos, he sampled the cookies and disliked them,

so he met with McClinton, who agreed.58 Eventually, Tullos proposed that the kitchen serve

“Craisins,” a sweetened dried fruit snack that was kosher, and tasted better than the cookies he

and McClinton had eaten.59 Tullos instructed the kitchen staff to supply these substitutes to

McClinton.60

III. ANALYSIS

A. Standard Of Review

Summary judgment is appropriate if the record, viewed in the light most favorable to the

nonmoving party – here, McClinton – “discloses ‘no genuine issue of material fact’ and [thus]

demonstrates that ‘the moving party is entitled to a judgment as a matter of law.’” Zabala-De

Jesus v. Sanofi-Aventis Puerto Rico, Inc., 959 F.3d 423, 427-428 (1st Cir. 2020) (quoting

Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)). A dispute is genuine where the

evidence “is such that a reasonable jury could resolve the point in the favor of the non-moving

party.” Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir. 2018) (citation

omitted). A material fact is one with the “potential of changing a case’s outcome.” Doe v.

Trustees of Bos. College, 892 F.3d 67, 79 (1st Cir. 2018).

“A plaintiff opposing a properly documented summary judgment motion must carry ‘the

burden of producing specific facts sufficient to deflect the swing of the summary judgment

scythe.’” Trahan v. Wayfair Maine, LLC, 957 F.3d 54, 60 (1st Cir. 2020) (quoting Hannon v.

57 Id.

58 Id.

59 Id.

60 Id.

Beard, 645 F.3d 45, 48 (1st Cir. 2011)). While the pleadings of a pro se litigant should be

construed broadly, “even a pro se litigant must meet the specificity requirement of Federal Rule

56, at least when the litigant becomes aware that specific facts must be provided to defeat a

motion for summary judgment.” Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st

Cir. 1988).

B. McClinton Has Failed To Provide Any Evidence That The

Defendants Were Deliberately Indifferent To A

Substantial Burden On The Exercise Of His Religious Faith

This Court has construed McClinton’s complaint as bringing a claim under 42 U.S.C. §

1983. See Docket No. 8 at 3. “Section 1983 provides a cause of action against those who, acting

under color of state law, violate federal law.” Kuperman v. Wrenn, 645 F.3d 69, 74 (1st Cir.

2011) (citing 42 U.S.C. § 1983; Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997)).

McClinton’s claim is based on his contention that the Defendants violated his rights under the

First Amendment by denying him kosher meals.61

The Amended Complaint, however, does not allege personal participation by any of the

Defendants. Rather, McClinton alleges that the Defendants failed to supervise unnamed kitchen

staff who sent non-kosher meals to him. See generally Docket No. 10. Supervisory liability

exists under Section 1983 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

61 The Defendants argue that McClinton cannot prevail on his claim because he lacks any

admissible evidence that he received non-kosher food. Docket No. 119 at 8-9. They contend

that McClinton failed to take the deposition of Rabbi Rodkins or to designate an expert witness

that would testify that the food he received was non-kosher. Id. at 9. McClinton, however, has

pointed to evidence that, viewed in the light most favorable to him, could show that, in January

2019, Rabbi Rodkins told the Defendants that the way the kitchen staff was handling cookies and

bread was “not technically kosher.” See Docket No. 66 at 34. Therefore, whether or not

McClinton received non-kosher food is a disputed fact. Accordingly, I decline to grant summary

judgment in favor of Defendants on that basis.

F.3d 1, 14 (1st Cir. 2005); see also Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005)

(only individuals who have directly participated in the conduct that deprived the plaintiff of his

rights can be held liable under Section 1983). Rather, in order to hold a supervisor liable under

Section 1983, the supervisor’s behavior must be “affirmatively linked” to the constitutional

violations of his or her subordinates, such that it could be deemed “supervisory encouragement,

condonation or acquiescence, or gross negligence . . . amounting to deliberate indifference.”

Whitfield, 431 F.3d at 14.

McClinton has not alleged that the Defendants directly encouraged or acquiesced in any

violations of his rights. Rather, he appears to be proceeding on a deliberate indifference theory.

See Docket No. 10 at 5. A plaintiff establishes 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).

Based on the record before this Court, McClinton cannot show that the Defendants were

deliberately indifferent even if he could prove that he occasionally received non-kosher food.

First, McClinton has not pointed to any evidence that defendants Tompkins or Atkins had

knowledge of, or were involved at all, in the events giving rise to McClinton’s claims. In

addition, the remaining Defendants took measures to resolve McClinton’s complaints.

When McClinton complained about the receipt of non-kosher juice, bread, cookies, and

cereal, Goulart arranged for the delivery of kosher juice and cereal, and determined, based on a

conversation with Rabbi Rodkins, that the way the kitchen served bread was not improper.62 He

also told McClinton that he could arrange for him to speak with Rabbi Rodkins about his

62 SOF ¶¶ 17-18, 22.

concerns.63 It was not until January 2019 that Defendants apparently learned that it was

improper to serve kosher food that had been removed from its original packing and rewrapped by

kitchen staff.64 In response, Tullos ordered individually wrapped kosher rolls to serve to

detainees receiving kosher food trays, and instructed kitchen staff to provide them to people on

kosher diets.65 He also continued to work with McClinton regarding his concerns about

receiving non-kosher cookies, ordering individually wrapped cookies, and finding a substitute

when it turned out that McClinton disliked those cookies.66

Similarly, when McClinton complained that he had not received kosher meals on January

11 and 18, 2019, Goulart checked with kitchen staff who verified that McClinton received kosher

meals on both occasions.67 On this record, therefore, McClinton has presented no evidence that

any of the Defendants were deliberately indifferent to a serious risk that McClinton’s exercise of

his religious faith would be burdened by being denied kosher meals. Accordingly, the

Defendants are entitled to summary judgment on McClinton’s claim.68, 69

63 SOF ¶ 18.

64 Docket No. 66 at 34.

65 Tullos Aff. at ¶ 9.

66 SOF ¶ 27.

67 SOF ¶ 24.

68 The Defendants have argued that they are entitled to qualified immunity. Docket No. 119 at

13-14. Because McClinton has failed to establish a constitutional violation by the Defendants,

however, this Court need not address their qualified immunity argument. Ruiz-Casillas v.

Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005) (“The failure of appellant’s constitutional

claims obviates our need to address the qualified immunity defense: we have found no

constitutional violation.”).

69 The Defendants have also argued that they are entitled to Eleventh Amendment immunity to

the extent that McClinton has attempted to make any official capacity claims against the

IV. ORDER

For the foregoing reasons, this Court grants the Defendants’ motion for summary

judgment.

/s/ Jennifer C. Boal

JENNIFER C. BOAL

UNITED STATES MAGISTRATE JUDGE

Defendants. Docket No. 119 at 14-15. In his opposition, however, McClinton clarified that he

has sued the Defendants in their individual capacities only. Docket No. 121 at 12.