SARIS, Chief Judge.
On October 31, 2011, plaintiff Derek Sincere Black Wolf Cryer ("Cryer"), a state prisoner at the Souza-Baranowski Correctional Center ("SBCC"),
Cryer originally identified two defendants in this action: Luis Spencer ("Spencer"), the Commissioner of the Department of Correction, and Christopher Mitchell ("Mitchell"), the Director of the Religious Services Review Committee.
In his original complaint, Cryer claimed to be partially of Native American descent. He described certain aspects of the Native American cultural and spiritual tradition, with a large part of the complaint focused on the alleged importance of language and oral tradition in Native American culture. He further alleged that SBCC did not have any clergy members who could teach the Abenaki, Blackfoot, or Mohican languages and that he had very limited access to Native American services through weekly "Talking Circle Ceremonies," Compl. at ¶ 9. Additionally, Cryer alleged that, although the defendants allowed him to have a cassette player and Native American audiotapes, he has been denied the use of these items in the "cell and yard." Id. at ¶ 12. Cryer claimed that the defendants' actions "abridged and prohibited" him from learning his cultural, spiritual, and ceremonial languages, in violation of his right to free exercise of religion. Id. at ¶ 19.
On May 11, 2012, the defendants filed a Motion to Dismiss the complaint (Docket No. 10) and a Memorandum in support (Docket No. 11). On May 23, 2012, Cryer filed a proposed amended complaint with attached exhibits (Docket No. 13). The amended complaint included the two defendants named in the original complaint (i.e., Spencer and Mitchell), and added as a third defendant, Thomas Dickhaut ("Dickhaut"),
Cryer's claims are essentially twofold: (1) he has been denied access to a cassette player and Native American audiotapes for use in the cell and yard; and (2) he has been denied access to a Native American clergy member or a Native American volunteer.
Cryer's chief complaint is that he has been denied access to a cassette player and Native American audiotapes for use in his cell and in the yard. He claims that his access to these materials is unduly limited. He alleges that (former) Commissioner Clarke and Dickhaut initially had approved his request to use a cassette player (and Native American audiocassette tapes). In support, he attaches a letter from Dickhaut, dated April 24, 2009 indicating that, based on the recommendation of the Religious Services Review Committee, his request for a cassette player and cassette tapes featuring Native American music had been approved. Significantly, there were no limitations to the approval included in the letter from Dickhaut. See Exhibit B (Docket No. 13-2).
Thereafter, Cryer did not receive this property as he expected, and he filed an administrative grievance. On August 10, 2009, the Inmate Grievance Coordinator, Pamela O'Dell, partially approved Cryer's grievance, authorizing him to secure the tape player that was held in the Native American storage unit. The cassette player would be brought to Cryer for use in the Native American Circle. See Exhibit C (Docket No. 13-3). Cryer appealed that decision, and on September 29, 2009, Dickhaut concurred with the decision which gave only "partial" approval to Cryer's request. He was permitted to secure the tape player in the Native American storage unit and bring it up with him to the Native American Circle. See Exhibit D (Docket No. 13-4).
Cryer claims that both Spencer and Mitchell denied his request for access to the cassette player and audiotapes in the cell and yard. He alleges that by limiting his access to these materials, the defendants are restricting his ability to learn Native American languages by not providing him sufficient time for study. He further alleges that since 2009 (to the date of filing of the amended complaint), he had used the cassette player and audiotapes no more than 10 times because of the lack of access of time and available space. He contends that these restrictions substantially limit the availability for his use because he cannot use the cassette player and tapes except during three ceremonies: the "Talking Ceremony," the "Smudge Ceremony," and the "Pipe Ceremony." However, he asserts that he cannot use the cassette player or audiotapes during the "Talking Ceremony" because this would disturb other members who are conducting that ceremony, and because this would mean he would not be able to participate in the Talking Ceremony. Similarly, Cryer claims that he cannot use the cassette player or tapes on the first Monday of each month outdoors, when the "Smudge and Pipe Ceremonies" are scheduled, because he would disturb those ceremonies, and would not be able to attend them.
Cryer's amended complaint again stresses the importance of Native American language and music, calling it "essential and necessary." Am. Compl. at ¶¶ 25-30. He attaches several exhibits in support. Among those is Exhibit E, a typed document that describes various aspects of the Native American religious tradition. See
In addition to his complaints about the restricted access to a cassette player and Native American audiotapes, Cryer alleges that the defendants have refused to hire contracted Native American Clergy, and, as a result, except for the first outdoor gathering on May 7, 2012, all Native American Services have been canceled for the past 8 to 9 months (since the filing of the amended complaint). Am. Compl. at ¶¶ 19-20. Moreover, Cryer contends that the defendants have refused to allow him to meet on Monday mornings under the watch of Pastor Johnston or to allow Native Americans to meet Monday mornings without a volunteer present; yet there are no Native American volunteers available.
As relief, Cryer seeks declaratory and/or injunctive relief, as well as nominal, compensatory, and punitive damages.
On June 12, 2012, Cryer filed an ex parte Motion to Waive Service and for an Order to Defendants to Answer the Amended Complaint (Docket No. 15).
In addition to the earlier Motion to Dismiss, on July 24, 2012, defendants Dickhaut, Mitchell, and Spencer filed a Motion to Dismiss the Amended Complaint (Docket No. 17), along with a Memorandum in support (Docket No. 18). On August 6, 2012, Cryer filed an ex parte Motion to Answer Amended Complaint (Docket No. 19) again seeking an Order for the defendants to file an Answer to the Amended Complaint, but did not file an Opposition to the Motion to Dismiss.
Cryer may amend his complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 15(a). Accordingly, Cryer's Motion for Leave to File an Amended Complaint (contained in Docket No. 12) is ALLOWED.
In light of the filing of the amended complaint (and the subsequent filing of a Motion to Dismiss the Amended Complaint), Spencer and Mitchell's first Motion to Dismiss the original complaint is moot. Accordingly, the defendants' Motion to Dismiss (Docket No. 10) will be DENIED. Additionally, Cryer's Motion to Waive Service and to Order the Defendants to Answer the Amended Complaint (Docket No. 15), and his Ex Parte Motion to Answer Amended Complaint (Docket No. 19) will be DENIED in light of the rulings in this Memorandum and Order.
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint "must `give the defendant fair notice of what the ... claim is and the grounds upon which it rests,' and allege `a plausible entitlement to relief.'" Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir.2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In evaluating the amended complaint, the court must delineate factual allegations from allegations that merely offer legal conclusions couched as facts or statements that are otherwise threadbare or conclusory. See Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir.2011). "The make-or-break standard ... is that the combined allegations, taken as true, must state a plausible, not a merely conceivable, case for relief." Id. at 159 quoting Sepulveda-Villarini v. Dep't of Educ. of Puerto Rico, 628 F.3d 25, 29 (1st Cir. 2010). A court must draw all reasonable inferences in the plaintiff's favor and accept all well-pleaded facts in the complaint as true. Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). This direction applies even more forcefully in pro se proceedings, for "pro se pleadings are to be liberally construed, in favor of the pro se party." Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 15 (1st Cir.1990). Still, a court should not credit "bald assertions ... or problematic suppositions." Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008) (internal quotations omitted). A court may consider documents "central to the plaintiffs' claim" or "sufficiently referred to in the complaint" without converting the motion to dismiss into one for summary judgment. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993).
"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). See Magistrate Judge Collings's Report and Recommendation on Plaintiff's Motion for Partial Summary Judgment as a Matter of Law, and Defendants' Cross Motion for Summary Judgment (Docket No. 82 at 8) in Cryer v. Clarke, et al., Civil Action No. 09-10238-PBS; Cryer v. Clark, 2009 WL 6345768 (D.Mass. July 9, 2009). This Court has adopted that Report and Recommendation and relies on the statements of the law contained therein, which are reiterated in part in this opinion. See Cryer v. Massachusetts Dept. of Correction, 763 F.Supp.2d 237 (D.Mass.2011).
Section 3 of RLUIPA provides, in part, that:
Id.; 42 U.S.C. § 2000cc-1(a)(1)-(2).
The First Circuit has summarized the shifting burdens of the plaintiff and the government, stating:
Spratt v. Rhode Island Dept. Of Corrections, 482 F.3d 33, 38 (1st Cir.2007). "RLUIPA provides greater protection to inmates' free-exercise rights than does the First Amendment." Kuperman v. Wrenn, 645 F.3d 69, 79 (1st Cir.2011) citing Spratt, 482 F.3d at 42 n. 12. See Bader v. Wrenn, 675 F.3d 95, 98 (1st Cir.2012). "It bars prisons receiving federal funds from substantially burdening an inmate's religious exercise unless the regulation under attack is the least restrictive way to advance a compelling state interest." Kuperman, 645 F.3d at 79. 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). A "substantial burden" is defined 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. Division, 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Hudson v. Dennehy, 538 F.Supp.2d 400, 409-410 & n. 20 (D.Mass.2008); see also Rasheed v. D'Antonio, 2012 WL 4049376, *36 (D.Mass. Sept. 12, 2012) (defining a "substantial burden" as "`put[ting] substantial pressure on [him as an] adherent to modify his behavior and to violate his beliefs.'" (quoting Spratt, 482 F.3d at 38 quoting Thomas, 450 U.S. at 718, 101 S.Ct. 1425)); Cryer v. Massachusetts Dept. of Correction, 763 F.Supp.2d at 244 (where this Court discussed the definition of "substantial burden," noting, inter alia, that the statute did not define this term, and that the First Circuit assumed, arguendo, the applicability of the Thomas standard in Spratt, but did not definitively adopt it).
Here, the defendants' defenses to each of Cryer's claims hinge on the contention that he cannot show that there is a substantial burden on his religious exercise due to the restrictions on his access to the cassette player and tapes. The defendants stop there and do not address in any meaningful fashion the compelling governmental interest or the least restrictive means of achieving that interest, nor do they address Cryer's second claim regarding the lack of access to a Native American clergy member or volunteer for a substantial period of time.
Cryer has presented undisputed evidence concerning the importance of Native American Languages (see Exhibit 13-5). Native Americans do not have a holy book as such because their spiritual traditions come from oral tradition. Based on this record, the Court concludes that Cryer has sufficiently alleged he suffers a substantial burden on his free exercise of religion by the limitations on access to a cassette player and Native American tapes. Specifically, he has alleged that the limitations force him to refrain from participation in other Native American ceremonies and/or inhibit his use of the cassette player and tapes in order not to disturb the practices of co-inmate members. In other words, Cryer claims that the restriction serves as a constructive denial of his right to the cassette player and tapes because it forces him to choose whether to listen to the audiotapes and forgo certain essential Native American ceremonies with other members, or participate
The defendants argue that there are no Native American ceremonies and practices available at SBCC that require his ability to understand and speak Native American tribal languages. The fact that this may not be "required" during the ceremonies at SBCC does not undermine the allegation that the languages are central to the exercise of Cryer's religion, and that the restrictions on Cryer force him to choose whether or not to participate in other religious activities with other inmates. Thus, Cryer has alleged sufficiently that he is forced to modify his religious behavior, to violate his religious beliefs, and/or to depart significantly from his religious traditions, and that the restrictions do not amount simply to an "incidental" impact on his religious exercise.
Further, defendants have not given any explanation for the lack of any Native American clergy member or volunteer or the availability of comparable clergy. See Mayfield v. Texas Dep't of Criminal Justice, 529 F.3d 599, 614-15 (5th Cir. 2008) (holding the availability of an outside volunteer only once every 18 months, and no evidence that new volunteers would likely be available to reduce burden on prisoner's ability to worship in a group, permitted a reasonable basis for a factfinder to conclude the prison's volunteer policy imposed a substantial burden).
In short, although the defendants argue in their Memorandum that there is no substantial burden from a restriction on a prisoner if there are alternative means to pursue his religion, they have not offered information to demonstrate that there are, in fact, alternative means available to Cryer, nor have they shown there is a compelling governmental interest in imposing the restrictions.
Accordingly, this Court will not dismiss Cryer's RLUIPA claim based on the defendants' assertion that he has failed to establish a substantial burden upon his free exercise of religion.
Next, defendants contend that Cryer cannot recover monetary damages against them under RLUIPA for conduct done in their official capacities because Massachusetts has not waived its sovereign immunity from suit for damages. This Court agrees. See Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 1660, 179 L.Ed.2d 700 (2011) (holding that the phrase "appropriate relief" was "not so free from ambiguity that we may conclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their sovereign immunity to suits for damages."). Thus, under a strict construction in favor of the sovereign state, as required, the Supreme Court concluded that appropriate relief for violations of RLUIPA did not include monetary damages against a state. Id.
Since Cryer cannot recover damages against the state, he likewise may not recover monetary damages against a state official sued in his official capacity. "... [A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will
Since Cryer may not recover monetary damages under RLUIPA against the defendants in their official capacities, the next question is whether he could recover monetary damages against the defendants in their personal capacities. Although the First Circuit has declined to rule on this issue, see Kuperman, 645 F.3d at 78-79, other courts have found that RLUIPA does not provide for personal capacity claims for monetary damages, where Congress passed RLUIPA under the authority of the Spending Clause, courts should not impose individual liability on those who do not receive federal funds, and the individual is not a party to the contract for federal funds.
The Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits have taken the view that personal capacity claims for monetary damages under RLUIPA are barred. See Sharp v. Johnson, 669 F.3d 144, 154 (3d Cir.2012) (holding no personal liability since the defendants were not parties to the contract between the state and the federal government); Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir.2009) (In enacting RLUIPA, Congress did not state with sufficient clarity an intent to subject an individual to damages); DeMoss v. Crain, 636 F.3d 145, 151 (5th Cir.2011) (RLUIPA does not create a cause of action for damages against defendants in their individual capacities); Sossamon v. Lone Star State of Tex., 560 F.3d 316, 327-29 (5th Cir.2009), aff'd, Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011); Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir.2012); Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir.2009) (as a statute enacted pursuant to the Spending Clause, RLUIPA does not apply to those not receiving federal funds); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir.2012) (Spending Clause legislation operates as a contract, and individual defendants are not parties to the contract); Hathcock v. Cohen, 287 Fed.Appx. 793 (11th Cir.2008) (unpublished decision relying on Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir.2007) abrogated on other grounds by Sossamon, 131 S.Ct. at 1655, 1657 n. 3 (abrogating Smith as to its holding that RLUIPA abrogated a state's sovereign immunity from suit for money damages)).
The First, Second Sixth, Eighth, and Ninth Circuits have not reached the issue. See Kuperman, supra, 645 F.3d at 79 (1st Cir.); Hall v. Ekpe, 408 Fed.Appx. 385 (2d
In the absence of First Circuit directives on this issue, this Court aligns itself with the majority of appellate courts holding RLUIPA does not provide for monetary damages against defendants in their individual capacities, as the bases for that conclusion are sound. Accordingly, Cryer may only seek injunctive relief under RLUIPA, and his claims for monetary damages against the defendants in their personal capacities will be DISMISSED.
Defendants argue that they are entitled to qualified immunity from monetary damages on the RLUIPA claims because Cryer has not shown a "substantial burden" on his free exercise of religion. Having found that Cryer has alleged sufficiently a substantial burden, but also having concluded that Cryer has no cognizable claim for monetary damages against the defendants in their personal capacities, the issue of qualified immunity with respect to the RLUIPA claims need not be addressed further. The issue will be addressed, however, in connection with Cryer's § 1983 claims.
The only issue remaining on the RLUIPA claims is Cryer's request for declaratory and injunctive relief against the defendants Spencer, Mitchell, and Dickhaut in their official capacities. For the foregoing reasons, the defendants' Motion to Dismiss the Amended Complaint will be DENIED in this regard.
Defendants contend that Cryer's First Amendment free exercise claims under 42 U.S.C. § 1983 must be considered in the prison context, where the right to free exercise is curtailed in order to achieve legitimate penological interests such as correctional goals (e.g., deterence of crime, rehabilitation of prisoners) or institutional security. See O'Lone v. Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Prison officials should be accorded broad deference in the adoption of policies and practices that are needed to preserve internal order and discipline in the prison. See Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Turner, 482 U.S. at 89-90, 107 S.Ct. 2254 (citations and internal quotation marks omitted).
While that assertion of law is true, as a factual matter, the defendants in this case do not allege with any specificity what legitimate penological interests are at stake in limiting Cryer's access to a cassette recorder and audiotapes (i.e. not allowing him to possess those materials in his cell or in the yard), nor do they allege any factual reason for denying him access to a Native American clergy member or volunteer.
Next, defendants Spencer, Mitchell, and Dickhaut argue that no monetary damages can be awarded to Cryer in connection with his § 1983 claims against them in their official capacities. The Court agrees. See Will, supra, 491 U.S. at 71, 109 S.Ct. 2304.
The defendants assert they are not liable under § 1983 based on the theory of respondeat superior. Ruiz v. Riley, 209 F.3d 24 (1st Cir.2000). Cryer asserts that he is not basing liability under a respondeat superior theory; rather, he asserts direct liability of Dickhaut, Spencer, and Mitchell, claiming that each of these defendants denied his requests to use the cassette player and tapes in his cell and in the yard.
In particular, Cryer alleges the defendants refused to provide additional time and space for him to study and practice Native Languages and Learn Native Music, that they refused to hire contracted Native American Clergy, that they refused to allow him to meet on Monday mornings under the watch of Pastor Johnston, and that they refused to allow Native Americans to meet on Monday mornings without a volunteer present, but there are no Native American volunteers available. Further, Cryer alleges that each of the defendants knew of the great importance of the oral tradition in Native American Culture.
For purposes of evaluating whether Cryer has stated plausible § 1983 claims, knowledge of Dickhaut and Mitchell reasonably may be inferred based on the recommendation of the Religious Services Review Committee (of which Mitchell is the Director) and the initial approval by Dickhaut of the request for cassette players and tapes and later modification to a partial approval.
With respect to Commissioner Spencer, however, other than raising a bald allegation that this defendant knew of his free exercise requests and refused to honor them, Cryer has not set forth any underlying supporting facts from which knowledge on the part of this defendant reasonably could be inferred. Indeed, despite his claim to the contrary, Cryer appears to be holding Spencer liable under a theory of respondeat superior for actions of his predecessor, Commissioner Clarke. See Am. Compl. (Docket No. 13 at ¶ 11) (stating: "Defendant Spencer (Predecessor) denied Plaintiff's request to use the Cassette Player and Tapes in the cell and yard"). In light of this, and in view of
Accordingly, the § 1983 claims against Spencer in his personal capacity will be DISMISSED.
Next, the defendants contend that Cryer cannot recover compensatory damages under § 1983 because under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), "no federal action may be brought by a prisoner .... for mental or emotional injury suffered while in custody, without a prior showing of physical injury." Id. The case law is split on whether § 1997e(e) applies to bar compensatory damages only (leaving the availability to recover nominal or punitive damages), or whether the statutory provision applies to constitutional claims at all.
The First Circuit has not addressed expressly the application of § 1997e(e),
Specifically, the Second, Third, Fifth, Eighth, Tenth and Eleventh Circuits have held that § 1997e(e) applies to all federal civil actions, regardless of the underlying constitutional violation. See Thompson, 284 F.3d at 417 (2d Cir.) (agreeing with majority of sister courts holding that § 1997e(e) applies to constitutional claims including the Eighth Amendment claim asserted by prisoner); Mitchell v. Horn, 318 F.3d 523 (3d Cir.2003) (claims for nominal or punitive damages are not barred by § 1997e(e) since they are not "for" mental or emotional injury, but are used to vindicate constitutional violations or deter or punish for egregious violations) citing Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d Cir.2000) (in free exercise claim, nominal or punitive damages were not barred under § 1997e(e), but compensatory damages were barred absent a physical injury)
The Fourth Circuit has not addressed this issue, while the Sixth Circuit noted the differing views but expressly declined to reach the issue because the case at bar hinged on the failure to exhaust administrative remedies. See Taylor v. United States, 161 Fed.Appx. 483, 487 (6th Cir. 2005).
By contrast, the Seventh and Ninth Circuits have taken a different view of the application of § 1997e(e). See Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir.1999) ("A prisoner is entitled to judicial relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may have sustained."); Robinson v. Page, 170 F.3d 747, 748 (7th Cir.1999) ("when ... a prisoner alleges [a constitutional] injury that is neither mental nor emotional, the court has no occasion to consider the meaning of the statutory term `physical injury[.]'");
In this District, Judge Gertner concluded that § 1997e(e) did not apply where damages were sought for a constitutional injury. Shaheed-Muhammad v. Dipaolo 138 F.Supp.2d 99, 107 (D.Mass.2001) citing Gordon v. Pepe, 2004 WL 1895134, *2 (D.Mass. Aug. 24, 2004) (where Judge Zobel concluded the physical injury requirement of § 1997e(e) did not require summary judgment in a claim for First Amendment violations that did not involve a claim for emotional distress); Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80, 107-08 (D.Mass.2005) (reaffirming ruling in summary judgment context); see also Ford v. Bender, 2012 WL 262532, *13 (D.Mass. Jan. 27, 2012) (concluding that § 1997e(e) had to be raised as an affirmative defense, and, in any event, that compensatory damages were available for suits alleging deprivation of constitutional rights) motion to amend decision denied, 2012 WL 1378651 (D.Mass. Apr. 19, 2012) (citations omitted).
The Ford case is presently pending appeal in the First Circuit, and the issue of the application of § 1997e(e) has been raised in that appeal. See Ford v. Bender, No. 12-1622 (1st Cir.2012) and related appeal, Ford v. St. Amand, No. 12-2142 (1st Cir.2012). In light of the pending appeal, this Court declines to resolve this issue at this time. Accordingly, the Court will DENY the defendants' Motion to Dismiss the Amended Complaint based on the bar of § 1997e(e).
Next, as an additional ground for dismissal of Cryer's § 1983 claims, defendants argue that even if his free exercise of religion was violated, qualified immunity protects the defendants (now limited to Dickhaut and Mitchell) from liability for monetary damages in their personal capacities. Cryer has not addressed these issues with respect to his claim regarding the cassette and audiotapes or his claim regarding a volunteer clergy member.
Accordingly, for the reasons set forth by the defendants, the Motion to Dismiss the Amended Complaint will be ALLOWED as to the § 1983 claims for monetary damages against Dickhaut and Mitchell in their personal capacities, based on qualified immunity.
On this record, this Court cannot find that the defendants have shown sufficiently that Cryer is not entitled to declaratory or injunctive relief. Accordingly, the defendants'
Turning now to Cryer's claims based on state law, defendants argue that, for the same reasons raised in connection with the RLUIPA claims, Cryer fails to set forth claims under Article 2 of the Declaration of Rights and Article 46 of the Amendments to the Massachusetts Constitution. Further, they argue that monetary damages are not available under the State Constitution, citing Martino v. Hogan, 37 Mass.App.Ct. 710, 720, 643 N.E.2d 53 (1994). The Court agrees with the defendants. "To bring a claim of a violation under the Massachusetts Constitution, [a plaintiff] must allege a cause of action under the Massachusetts Civil Rights Act, M.G.L. c. 12 §§ 11H and 11I." Grubba v. Bay State Abrasives, Division of Dresser Industries, Inc., 803 F.2d 746, 748 (1st Cir.1986); Martino v. Hogan, et al., 37 Mass.App.Ct. 710, 711, 643 N.E.2d 53 (1994)"); see Orell v. UMass Memorial Medical Center, Inc., 203 F.Supp.2d 52, 71 (D.Mass.2002).
Accordingly, the Motion to Dismiss the Amended Complaint will be ALLOWED as to any claims raised pursuant to the Massachusetts Constitution.
Cryer asserts claims under section 88 of Chapter 127 of the Massachusetts General Laws, providing for the free exercise of religion, but the right shall not be construed to impair the discipline of the prison. Mass. Gen. Laws ch. 127, § 88.
As an initial matter, Cryer's state law claim for monetary damages against defendant Spencer in his personal capacity will be DISMISSED for the reasons set forth in connection with the § 1983 claims
Additionally, Cryer's state law claim for monetary damages against defendants Spencer, Dickhaut, and Mitchell in their official capacities will be DISMISSED for the same reasons set forth in connection with the § 1983 claims (i.e., sovereign immunity). See Lopez v. Massachusetts, 588 F.3d 69, 73 n. 1 (1st Cir. 2009); Duclerc v. Massachusetts Dept. of Correction, 2012 WL 6615040, *4 (D.Mass. Dec. 18, 2012) (stating that the Eleventh Amendment bars state law claims for monetary damages against state officials, citing, inter alia, Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 531 (1st Cir.2009). Cryer has not set forth any basis for finding that a waiver of sovereign immunity exists with respect to his state claim, and this Court has found none.
In their Motion to Dismiss, the defendants simply argue that the Department of Correction has promulgated regulations providing for the free exercise of religion, and Cryer has failed to demonstrate the restrictions on access to a cassette player and Native American language/music audiotapes in his cell and in the prison yard substantially burdens his ability to practice his religion. For the reasons discussed above, the Court disagrees and finds that, for purposes of overcoming the Motion to Dismiss, Cryer has met his burden. Moreover, the defendants fail to address Cryer's second claim regarding the lack of a volunteer clergy member.
Nevertheless, although the defendants have not raised the issue, the Court notes that Cryer has not set forth a basis for monetary damages under this statute. State law indicates that § 88 does not establish a private right of action for damages for violations. See Riva v. Secretary of Public Safety, 76 Mass.App.Ct. 1104, 2009 WL 5084095, *2 (Mass.App.Ct.2009) (subsequent history omitted). This Court has not found any law to the contrary. In the absence of any legal basis for finding § 88 provides a private cause of action for damages, this Court will follow the state's interpretation and will dismiss the monetary damages claims against the defendants Spencer, Dickhaut, and Mitchell.
Accordingly, this Court will ALLOW the Motion to Dismiss the Amended Complaint with respect to Cryer's claims for monetary damages against all defendants in their official capacities and in their personal capacities, and otherwise will DENY the motion.
In sum, in light of all of the above, defendants' Motion to Dismiss the Amended Complaint (Docket No. 17) will be ALLOWED in part and DENIED in part, as set forth in more detail below.
In view of the rulings contained herein, the only remaining claims are: (1) Cryer's RLUIPA claims for relief other than for monetary damages (i.e. declaratory and/or
The parties are hereby Ordered to submit a joint plan, within 21 days of the date of this Memorandum and Order, addressing the following: (1) the date for the filing of an answer to the amended complaint; (2) the date for the filing of any dispositive motions; (3) the conducting of discovery in connection with the remaining claims; and (4) any other outstanding issues that should be brought to this Court's attention. If no joint discovery plan can be reached after good faith efforts to resolve or narrow the issues, the parties may submit separate proposals.
Based on the foregoing it is hereby Ordered that:
SO ORDERED.
Id. at 73 n. 5 (emphasis added).
Royal, 375 F.3d at 723.
Mass. Gen. Laws ch. 127, § 88.
