PATTI B. SARIS, District Judge.
Pro se Plaintiff Derek Sincere Wolf Cryer ("Cryer") has moved for clarification and reconsideration of this Court's Order entered November 22, 2010, 2010 WL 5317397. Because plaintiff's new motion significantly scales back his requests for relief, the Court will vacate its order of dismissal. In addition, the Court adopts the Magistrate Judge's Report and Recommendations. Accordingly, I
Plaintiff seeks relief under the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq. and under Massachusetts constitutional, statutory and regulatory law. Plaintiff is an inmate at the Souza-Baranowski Correctional Center in Shirley, Massachusetts and is a member of that facility's Native American spiritual group, referred to as the "circle." Plaintiff's complaint, at its core, seeks access to ceremonial tobacco to be used for religious purposes.
Both plaintiff and defendants moved for partial summary judgment in this case. Magistrate Judge Collings provided this Court with a comprehensive analysis of the issues in his Report and Recommendations (Docket No. 82). In the report, Magistrate Judge Collings noted the ambiguity among the Complaint and plaintiff's subsequent pleadings about the breadth of access to ceremonial tobacco that the plaintiff was seeking:
Report and Recommendations at 6. Based on this ambiguity about the relief sought, the Magistrate Judge recommended that this Court allow the defendants' motion for partial summary judgment under RLUIPA to the extent that the plaintiff seeks unrestricted access to ceremonial tobacco, but deny without prejudice to renewal to the extent that the plaintiff seeks access to
Upon review, this Court adopted the legal analysis of the Magistrate Judge's Report and Recommendations and, finding that plaintiff had indicated "that he is not seeking access just during the smudging ceremony," dismissed the case.
After the Court issued its order dismissing this case, Cryer filed a "Motion and Affidavit Seeking Relief from Final Judgment. . . Requesting Reinstatement, Reconsideration, Oral Argument, and Clarification. Plaintiff's motion made clear that Cryer read this Court's November 22, 2010 order as finding that he had not sought access to ceremonial tobacco in any form. The Court writes now to clarify that misconception.
The Complaint in this case appears to seek unrestricted access to ceremonial tobacco within a prison facility at all times and places. The Court agrees with the Magistrate Judge's analysis that such a broad request must result in an award of summary judgment to the defendants.
However, in his recent Motion, Cryer states that "I am seeking access but also state that I'm not seeking UNLIMITED access, UNRESTRICTED access or UNFETTERED access." (See Docket No. 94.) Based on this statement, which significantly limits the relief originally sought by plaintiff in his complaint, the Court agrees that dismissal of the case in its entirety is not the appropriate course of action.
Given the modification of plaintiff's request for relief, the Court adopts the Report and Recommendation in full. Accordingly, the Court:
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COLLINGS, United States Magistrate Judge.
Pending before the Court are the parties' cross-motions for summary judgment on the plaintiff's claim that the Massachusetts Department of Corrections' policy banning tobacco smoking and possession ("DOC policy") abridges his rights under, inter alia, the federal constitution, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. ("RLUIPA"), and Massachusetts constitutional, statutory and regulatory law. His complaint seeks declaratory and injunctive relief, and money damages related to these claims. (See Complaint, #1) For the reasons explained below, the Court will recommend denying the Plaintiff's Motion for Partial Summary Judgment (#70), and granting in part and denying in part the Defendants' Cross-Motion for Summary Judgment (#75).
The factual background and relevant law has been set out in this Court's previous report and recommendation, see Cryer v. Clark, No. 09-10238-PBS, 2009 WL 6345768 (D.Mass. July 9, 2009) (slip copy); Docket No. 31, and the Court presumes familiarity with its contents. For present purposes, the Court notes that the parties appear to agree on the following facts. The plaintiff, Derek Sincere Black Wolf Cryer ("Cryer"), is an inmate at the Souza-Baranowski Correctional Center ("SBCC"), a maximum security facility in Shirley, Massachusetts. Cryer is a member of the Native American spiritual group at SBCC, also known as the "circle." On the first Monday of the month, the Native American circle meets outside in a fenced area in SBCC's South yard. During these monthly meetings, the Native American circle is permitted to conduct smudging and pipe ceremonies. At this time, the inmates may burn and smoke kinnick-kinnick,
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." Rojas-Ithier v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 394 F.3d 40, 42 (1st Cir.2005) (internal quotations and citation omitted). When considering a motion for summary judgment, the Court must determine whether "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of asserting the absence of a genuine issue of material fact and "supporting] 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). "Once the moving party avers the absence of genuine issues of material fact, the nonmovant 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, "a court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor." Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006). Rule 56(c) "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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Cryer's complaint seeks a number of accommodations to be able to practice his Native American religion. The present motions are limited to Cryer's complaint concerning the defendants' decision to deny Cryer's request for access to ceremonial tobacco. A fair reading of Cryer's complaint suggests that Cryer contends that only unrestricted access to ceremonial tobacco will do: he suggests, for example, that he is unable to pray in his cell or
As explained below, the Court has no difficulty concluding that the DOC policy abridges no federal or state rights, and that summary judgment is warranted in the defendants' favor, to the extent that Cryer seeks unrestricted access to ceremonial tobacco: the security and health concerns associated with permitting inmates unrestricted access to tobacco within their cells, or even outdoors are manifest. However, construing Cryer's pleadings liberally, as the Court is bound to do, to the extent that Cryer advances a more modest proposal, viz., access to ceremonial tobacco during the monthly ceremony, the Court recommends denying the defendants' cross-motion for summary judgment under the RLUIPA, the free exercise clauses of the First Amendment and Art. 2 of the Massachusetts Declaration of Rights, and Mass. Gen. L. Ch. 127, § 88. The Court notes, however, that because the present motions came as cross-motions for summary judgment, the defendants have not addressed this more limited request. Thus, to the extent the Court recommends denying the defendants' cross-motion for summary judgment, the denial is without prejudice to later renewal.
Cryer has asserted a statutory claim anent the DOC policy under the RLUIPA, 42 U.S.C. § 2000cc, et seq. In addition, pursuant to 42 U.S.C. § 1983, Cryer challenges the DOC policy under the Free Exercise Clause of the First Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. The defendants assert various immunity defenses in connection with the section 1983 claims, and also contend that summary judgment is warranted on the merits of all the federal claims.
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, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (footnote omitted). Section 3 of RLUIPA provides, in pertinent part, that:
42 U.S.C. § 2000cc-1(a)(1)-(2).
RLUIPA requires strict scrutiny of a rule that substantially burdens religious exercise "even if the burden results from a rule of general applicability." Thus, at the threshold, it is no answer to a claim under
Spratt v. Rhode Island Dept. of Corrections, 482 F.3d 33, 38 (1st Cir.2007). Thus, the statute sets up a burden-shifting standard, under which the plaintiff must first demonstrate that he or she has been inhibited in an "exercise of religion" and that the resulting burden is "substantial."
Here, there is no serious dispute that the use of "Ceremonial Prayer Tobacco" for smudging and pipe ceremonies constitutes "religious exercise" under the statute. RLUIPA defines a "religious exercise" broadly as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). See also Cutter, 544 U.S. at 720, 125 S.Ct. 2113 ("[T]he `exercise of religion' often involves not only belief and profession but the performance of ... physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine....") (internal quotation marks and citation omitted). Indeed, there also appears to be no dispute between the parties that smoking of certain herbs is an important part of Native American religious practice. Rather, the defendants contend that summary judgment is appropriate because Cryer "has failed to present any evidence demonstrating that the use of tobacco-free kinnick-kinnick for the ceremonies substantially burdens the exercise of his religion." (#76 at 7)
The statute does not define "substantial burden," and the First Circuit has not elaborated on its contours. See Spratt, 482 F.3d at 38. Nevertheless, the Supreme Court has elsewhere defined such a burden as one in which the government puts "substantial pressure on an adherent to modify his behavior and to violate his beliefs...." Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); see also Hudson v. Dennehy, 538 F.Supp.2d 400, 409-410 & n. 20 (D.Mass. 2008) (noting that the First Circuit assumed arguendo the applicability of Thomas standard in Spratt, but did not definitively adopt it, and surveying the various formulations adopted in other courts).
In an exhibit attached to his complaint, Cryer has alleged the following:
#1, Exh. A ¶ D.
In addition, Cryer responds to the summary judgment motion by pointing to the DOC's Religious Services Handbook (see #77, Exh. 1),
#77, Exh. A at 42-43.
Cryer has also submitted a document entitled "Affidavits in Petition Form," (#77, Exh. C), in which Cryer and several other members of the "Native American Spiritual Awareness Council" at SBCC aver:
Finally, Cryer points to a document that he says was produced by Chief Paul Pouliot of the Pennacook-Abenaki People.
Further, this document states that "[t]he vast majority of Native American Indian spiritual leaders insist on using tobacco in sacred ceremonies." (#77, Exh. B)
The Court begins by noting that at least one court has agreed with the defendants'
Furthermore, because the matter comes before the Court as cross-motions for summary judgment, the defendants have not responded to Cryer's submissions on the question of "substantial burden," which of course followed the defendants'
Once the plaintiff meets the initial burden, the defendants must show that the restriction serves a "compelling interest" and that the regulation is the "least restrictive means" of serving that interest. Maintaining prison security is a compelling state interest, see Spratt, 482 F.3d at 39, and courts should "continue to give `due deference to the experience and expertise of prison and jail administrators' in determining prison policy," id. (quoting Cutter, 544 U.S. at 717, 125 S.Ct. 2113). Nevertheless, "[c]ontext matters," Cutter, 544 U.S. at 723, 125 S.Ct. 2113 (internal quotations and citation omitted), in applying the standard, and prison officials fail to establish a compelling state interest by merely asserting a security concern, see Spratt, 482 F.3d at 39.
Here, the defendants have not responded to several of Cryer's arguments, advanced in his reply to the defendants' cross-motion for summary judgment, that the DOC's stated compelling interest in protecting the other inmates from second-hand smoke is inadequate because he and other Native American inmates are currently allowed access to the outdoors for the pipe and smudging ceremony, in an area that is closed off to all other inmates. (See #77 at 2-3) He also questions the unsupported assertion that permitting Native Americans' access to ceremonial tobacco for religious purposes will create resentment among other inmates, and he notes that a similar argument was rejected in Hudson, 538 F.Supp.2d at 411 (noting that "Defendant produced little if any evidence validating its assertion that serving Halal meals to Muslim inmates would ignite inmate conflict").
Finally, even if prison officials meet their burden to establish a compelling state interest in burdening an inmate's religious exercise, they must still establish that its inhibition is the "least restrictive means" to achieve that interest. That is, prison officials must establish that the challenged prohibition does not "sweep[] more broadly than necessary to promote the government's interest," Spratt, 482 F.3d at 41 (internal quotation marks and citation omitted), and "[a] prison `cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy
Thus, the Court recommends granting summary judgment in favor of the defendants to the extent that Cryer seeks unrestricted access to tobacco, but otherwise denying summary judgment on the limited request to have access to ceremonial tobacco during corporate ceremonies. The Court recommends that summary judgment be denied on this more narrowly circumscribed claim without prejudice to renewal once the district court judge to whom this case is assigned has set a schedule for dispositive motions to be filed.
As noted, in addition to injunctive and declaratory relief, Cryer seeks monetary
The defendants move for summary judgment to the extent that Cryer alleges that the DOC policy violates his Eighth Amendment right to be free from cruel and unusual punishment and the Equal Protection Clause of the Fourteenth Amendment; they argue that Cryer cannot satisfy the relevant standards under each claim. The Court agrees that summary judgment is warranted, but for a different reason: the factual bases for these claims merely duplicate the claims based on RLUIPA and the First Amendment, and Cryer gains nothing by asking the Court to analyze these claims under different constitutional labels. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.2005) (although complaint included equal protection and Eight Amendment claims related to plaintiff's Fast of Ramadan claim, "the free-exercise claim arises under the First Amendment and gains nothing by attracting additional constitutional labels") (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (stating that the "explicit textual source of constitutional protection... must be the guide for analyzing [the constitutional] claims")).
"`In the First Amendment context... a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" Hudson, 326 F.Supp.2d at 210 (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)). Thus, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). See also O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (reiterating standard). The Turner Court enumerated four factors to consider in analyzing the reasonableness of the prison regulation or policy at issue: 1) whether there is "a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it" and whether the prison restriction "operate[s] in a neutral fashion, without regard to the content of the expression"; 2) "whether there are alternative means of exercising the right that remain open to prison inmates"; 3) whether the "accommodation of the asserted constitutional right will have [an impact] on guards and other inmates, and on the allocation of prison resources generally"; and 4) whether there are "ready alternatives" to the prison regulation, and whether "an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests." Turner, 482 U.S. at 89-91, 107 S.Ct. 2254 (internal quotation marks and citations omitted).
Here, at least to the extent that Cryer seeks an accommodation permitting him unfettered access to ceremonial prayer tobacco, the DOC has stated a legitimate interest in safeguarding the health of its inmates, and in ensuring that tobacco does not become fodder for black market trade; the policy is applied neutrally without regard to the content of expression; and the DOC has identified "alternative means of exercising the right" in that Cryer, in addition to the other ways in which he may practice his Native American religion, is permitted to smudge once a month using kinnick-kinnick. To the extent that Cryer requests an accommodation to be able to smudge daily— whether outdoors or in his cell—summary judgment is warranted: the prison has sufficiently explained (and Cryer does not dispute) that supervising the smudging ceremony drains staff resources. Further, the security implications of permitting Native American inmates to use and possess ceremonial tobacco in their cells is obvious.
Even so, Cryer has "point[ed] to an alternative" that he suggests can accommodate his rights "at de minimis cost to valid penological interests," viz., that he be permitted to use ceremonial tobacco during the monthly smudging ceremony when the risk of exposing other inmates to second-hand smoke is absent and the prison has already dedicated staff to supervising the smudging ceremony. Because the
Withal, the argument for summary judgment on qualified immunity grounds is strong, even on this narrow point. "The doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "The qualified immunity analysis has two parts. A court must decide whether the facts shown by the plaintiff make out a violation of a constitutional right and whether the right was `clearly established' at the time of the alleged violation by the defendant." Cortes-Reyes v. Salas-Quintana, 608 F.3d 41, 51 (1st Cir.2010) (citing Pearson, 129 S.Ct. at 815-16). In Pearson v. Callahan, supra, the Supreme Court held that courts are no longer required to determine whether a plaintiff's constitutional rights were violated before proceeding to an analysis of whether the constitutional rights at issue were clearly established at the time of the alleged violation. Pearson, 129 S.Ct. at 818 ("There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right."). Here, the Court readily concludes that summary judgment is warranted in favor of the defendants on qualified immunity grounds.
"The law is `clearly established' if courts have ruled that `materially similar conduct was unconstitutional,' or if there is a previously identified general constitutional principle that applies `with obvious clarity to the specific conduct at issue.'" Cortes-Reyes, 608 F.3d at 52 (quoting Jennings v. Jones, 499 F.3d 2, 16 (1st Cir. 2007), cert. denied, 552 U.S. 1170, 128 S.Ct. 1125, 169 L.Ed.2d 957 (2008)); Giragosian v. Bettencourt, 614 F.3d 25, 29 (1st Cir. 2010) ("A right is `clearly established' if, at the time of the alleged violation, `[t]he contours of the right ... [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'") (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009) (further citation and quotation marks omitted)).
The plaintiff bears the burden of establishing that the law was clearly established. Cortes-Reyes, 608 F.3d at 52. "Here, it is important not to confuse the general with the particular and to frame the issue precisely.... [A] reasonable official would have known that a prisoner's right to the free exercise of his religion, so long as it did not compromise institutional security, was clearly established.... Rather, the precise question that would have to
Thus, the sole remaining issue is whether Cryer is entitled to prospective relief on his First Amendment claim that he be permitted to use ceremonial tobacco during regularly scheduled outdoor ceremonies.
In his motion for partial summary judgment (#70), Cryer argues that the DOC policy runs afoul of Massachusetts statutory law, viz., Mass. Gen. L. Ch. 270 § 22(c)(8), and the Massachusetts Administrative Procedure Act, Mass. Gen. L. Ch. 30A. As both of these claims lack merit, the Court recommends denying Cryer's partial motion for summary judgment, and granting summary judgment in favor of the defendants.
The DOC originally introduced the inmate smoking policy on September 2, 1996, following settlement of a suit brought by nonsmoking prison inmates that alleged that continual exposure to second-hand tobacco smoke was harmful to their health. (See #70, Exh. C. at 1) As originally formulated, the DOC policy banned smoking in enclosed spaces, but stated that inmates "may be permitted to smoke outdoors and in designated smoking areas, approved by the Commissioner...." (#70, Exh. C at 3); see also Lemay v. Dubois, 1996 WL 914061, at *1 (Mass.Super. Sept. 16, 1997) (describing class action suit). The DOC has since adopted a policy that prohibits inmates from possessing or using tobacco products on all DOC property. The DOC has adopted a similar policy prohibiting DOC employees from possessing or using tobacco.
Cryer first contends that the smoking ban violates Mass. Gen. L. Ch. 270, § 22(c)(8). This contention is without merit. The Supreme Judicial Court has
American Lithuanian Naturalization Club, Athol, Mass., Inc. v. Board of Health of Athol, 446 Mass. 310, 313-314, 844 N.E.2d 231, 235 (2006) (footnotes omitted). As the basis for summary judgment, Cryer suggests that the inmate smoking policy is contrary to that part of the statute that states that "smoking may be permitted" in "[r]eligious ceremonies where smoking is part of the ritual." Mass. Gen. L. Ch. 270, § 22(c)(8). This language, however, is permissive, not mandatory. The DOC's policy does not contravene the statute, which confers no rights or entitlements.
Cryer also contends that the DOC Policy contravenes the Massachusetts Administrative Procedure Act, Mass. Gen. L. Ch. 30A,
Further, "[t]he Administrative Procedure Act does not require an agency to promulgate regulations. Rather, it specifies the procedures to be used in promulgating regulations otherwise required." Tedford v. Massachusetts Housing Finance Agency, 390 Mass. 688, 694, 459 N.E.2d 780, 784 (1984) (emphasis added). The DOC's enabling statute mandates in general terms that the Commissioner of Corrections "maintain security, safety and order," Mass. Gen. L. Ch. 124 § 1(b), and "establish and enforce standards for all
The defendants move for summary judgment on Cryer's remaining state-law claims anent the DOC policy. Cryer has not specifically addressed the defendants' arguments in his response. The Court concludes, however, that certain of these claims fail as a matter of law.
"In order to establish a claim under the [MCRA], plaintiff must prove that:
Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80, 93 (D.Mass.2005) (quoting Columbus v. Biggio, 76 F.Supp.2d 43, 54 (D.Mass.1999)). The Supreme Judicial Court has said that "[n]ot every violation of law is a violation of the State Civil Rights Act. A direct violation of a person's rights does not by itself involve threats, intimidation, or coercion and thus does not implicate the Act." Longval v. Commissioner of Correction, 404 Mass. 325, 333, 535 N.E.2d 588, 593 (1989) (citing Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 781, 506 N.E.2d 1152, 1159 (1987)). The Supreme Judicial Court has further defined a "threat" as "involv[ing] the intentional exertion of pressure to make another fearful or apprehensive of injury or harm," Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985, 990, cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 122 (1994); "coercion" as "the active domination of another's will," id. (internal quotation marks and citation omitted); and "intimidation" as "putting in fear for the purpose of compelling or deterring conduct," id.
Cryer has pointed to nothing in the record to suggest even remotely that a genuine dispute of fact exists on the question whether the defendants interfered with his rights "by threats, intimidation or coercion." Summary judgment on this claim is therefore warranted. Cf. Rasheed v. Commissioner of Correction, 446 Mass. 463, 475, 845 N.E.2d 296, 308 (2006) (summary judgment warranted where "record was devoid of facts demonstrating any cognizable threats, intimidation, or coercion applied in connection with the challenged policies").
Cryer alleges that prohibiting his access to ceremonial tobacco abridges his rights under Art. 2 of the Massachusetts Declaration of Rights. "The Massachusetts Constitution
Mass. Gen. L. Ch. 127, § 88 provides that "[a]n inmate of any prison or other place of confinement shall not be denied the free exercise of his religious belief and the liberty of worshipping God according to the dictates of his conscience in the place where he is confined." "In interpreting M.G.L. c. 127, § 88, courts have adopted a reasonable relationship test that matches the federal constitutional standard," Shaheed-Muhammad, 393 F.Supp.2d at 102, set out in O'Lone v. Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). For the reasons set out above under the analysis of Cryer's First Amendment claim, supra Section IIIB 1biii, the Court recommends granting summary judgment to the extent that Cryer seeks unlimited access to ceremonial tobacco, but otherwise denying summary judgment to the extent that Cryer requests once-monthly access to ceremonial tobacco.
Finally, Cryer has asserted a claim of negligence against the defendants under the Massachusetts Tort Claims Act, ("MTCA"), Mass. Gen. L. Ch. 258, § 4. (See #1 at 1) The defendants correctly point out that the Commonwealth has not waived its Eleventh Amendment immunity to suit in federal court. See Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir.2003). Thus, the Court recommends granting summary judgment in favor of the defendants to the extent that Cryer seeks to sue the Commonwealth and the individuals in their official capacity under the MTCA.
In his complaint, Cryer purports to state a claim based on violations of certain prison policies. (#1 at 1, 5) The defendants seek summary judgment, arguing that the state regulations confer no independent private right of action. True enough: the cases cited in their memorandum of law stand for the proposition that a claim for damages against the individual defendants cannot be read into the prison regulations themselves. See Martino v. Hogan, 37 Mass.App.Ct. 710, 720-721, 643 N.E.2d 53, 60 (1994) (breach of regulations cannot be
For the foregoing reasons, the Court RECOMMENDS that:
The parties are hereby advised that pursuant to Rule 72, Fed.R.Civ.P., any party who objects to these recommendations must file a specific written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
Spratt v. Rhode Island Dept. of Corrections, 482 F.3d 33, 41 n. 11 (1st Cir.2007).
