Opinion
14-P-469
02-25-2016
HERNAN CRUZ v. ANITA COLLINS & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Hernan Cruz, is currently confined at the North Central Correctional Institution-Gardner (NCCI). He practices the religion of the Nation of Islam (NOI). He commenced this action against the director of treatment and other Department of Correction (DOC) employees (collectively, the defendants), alleging that the defendants are violating his constitutional and statutory rights which guarantee the free exercise of his religion and equal protection. He also alleges the defendants violated his rights under the Religious Freedom and Restoration Act of 1993, 42 U.S.C. §§ 200bb et seq. (RFRA), and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc-1 et seq. (2012) (RLUIPA), 42 U.S.C. § 1983, as well as several State statutes and regulations. In his complaint Cruz seeks declaratory and monetary relief.
The defendant is precluded from bringing a claim under RFRA because it has been held unconstitutional as applied to the States. See Abdul-Alazim v. Superintendent, Massachusetts Correctional Inst., Cedar Junction, 56 Mass. App. Ct. 449, 454 n.8 (2002), citing Boerne v. Flores, 521 U.S. 507 (1997).
Specifically, Cruz raises claims under 103 Code Mass. Regs. § 471.01, and G. L. c. 127, §§ 32, 88, 89, and 90.
The defendants filed a motion to dismiss or, in the alternative, for summary judgment. A judge of the Superior Court denied the motion on all counts with the exception of Cruz's claim that the defendants had violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The judge dismissed this count for failure to state a claim, but granted Cruz leave to amend. Cruz did not amend his complaint.
Because Cruz did not amend his complaint, we consider this count dismissed.
Following discovery, Cruz filed a motion for partial summary judgment, and the defendants filed a cross motion for summary judgment. After a hearing before a different Superior Court judge, Cruz's motion was denied, and summary judgment in favor of the defendants on all counts was granted. Cruz has appealed. We affirm in part and reverse in part.
Background. We summarize the facts in the light most favorable to Cruz. Lyons v. Nutt, 436 Mass. 244, 245 (2002). In September, 2011, Cruz was transferred from the Old Colony Correctional Center (Old Colony) to NCCI, where he is currently confined. In his complaint, Cruz alleges that the defendants have denied his requests to use classroom space to pray and study throughout the week, which he maintains that he had at Old Colony. He claims that his religious beliefs require him to study the Arabic language using videos to which he is not permitted access. He also claims that he was denied the right to celebrate certain religious holidays and feasts. Cruz further alleges that Sunni inmates are granted accommodations that are denied to members of the NOI.
In November, 2011, Cruz filed a grievance requesting that he be granted access to a classroom throughout the week where he can pray and study. The grievance was denied. Cruz appealed the denial to the NCCI superintendent, and the denial was affirmed. Cruz then was referred to the religious services review committee. After considering his request, that committee recommended that the commissioner deny it. On the basis of that recommendation, the commissioner denied Cruz's "request to be provided with classroom space for group study throughout the week."
In a letter from the acting superintendent, Cruz was informed: "Regrettably, the Minister cannot be there on a daily basis to conduct daily group study. Be advised you may confer with the Nation of Islam Minister with regard to which Nation of Islam books/newsletters you might use for study on the days when the Nation of Islam Minister is not present. You may utilize the Muslim Masjid in accordance with the institutional schedule. You may also choose to worship and study in your cell according to the dictates of your beliefs around institutional count time."
The DOC religious services handbook provides:
"If requested, inmates who identify themselves as NOI [members] should be allowed to congregate each Friday, after midday[,] for Juma'ah prayer and for group study during the week. Allocation of time and space should reflect reasonable accommodations and availability of resources to enable the practice of all religions. The superintendent or a designee will have the right, without notice, to cancel, postpone, restrict, or limit an inmate's participation in any religious program, practice[,] or service. This responsibility will be exercised only if the religious activity, or the inmate's participation in the activity, might jeopardize the security, safety[,] or well[-]being of the institution, its visitors, inmates[,] or staff" (emphasis in original).The handbook contemplates what Cruz has requested: group study during the week.
In his affidavit in support of his motion for partial summary judgment, Cruz claims that he spoke with acting superintendent Christine Verdini, who told him that he could not bring materials related to the NOI into the masjid. He also alleges that Verdini told him that Sunni inmates could watch videos but that videos pertaining to the NOI were not permitted.
The term masjid, an Arabic word for mosque, refers to the space at NCCI reserved for Muslim inmates to worship.
An attorney for the DOC, Joan Kennedy, sent a letter to Cruz that was attached as an exhibit to Cruz's motion for partial summary judgment. The letter stated: "Please be advised that your request that prison administrators provide you with sole access to the Muslim Masjid so that you may study your Nation of Islam faith and worship there by yourself is denied." The letter also explained:
"[Y]ou may utilize the Muslim masjid on a daily basis if you so desire. That recommendation was for group or silent prayer where the masjid functions primarily as a Muslim chapel. It was not an invitation for you to conduct a solo Nation of Islam study group in the masjid. Finally, you were also informed, in writing, that you may worship and study in your cell according to the dictates of your beliefs around institutional count times."
Discussion. Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Nelson v. Salem State College, 446 Mass. 525, 530 (2006), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). It is well established that our review of such a determination is de novo. See, e.g., Lind v. Domino's Pizza LLC, 87 Mass. App. Ct. 650, 653 (2015).
The defendants erroneously identified the standard of review as an abuse of discretion.
Cruz has raised a number of claims. We begin by considering Cruz's claims under the Federal statute that provides the most significant protection, that is, RLUIPA.
There is no question that RLUIPA affords Cruz more protection of his right to free exercise of his religion than he is guaranteed under the First Amendment to the United States Constitution. As we conclude that there is a question of material fact that precludes the allowance of summary judgment under RLUIPA, we need not address Cruz's Federal First Amendment constitutional claim. Compare Trapp v. Roden, 473 Mass. 210, 211 (2015). Even if we were to consider Cruz's claim under the free exercise clause of the First Amendment to the United States Constitution, it "readily fails under the more lenient standard of Turner v. Safley, 482 Mass. 78 (1987)." Ahmad v. Department of Correction, 446 Mass. 479, 486 n.7 (2006).
The protection afforded Cruz under the State Constitution is the equivalent of that provided by RLUIPA. See id. at 485486 (2006). We do not consider the State Constitutional claim because those claims have not been accompanied by a claim under the Massachusetts Civil Rights Act. See Martino v. Hogan, 37 Mass. App. Ct. 710, 720 (1994). See also Hudson v. Spencer, 2015 U.S. Dist. LEXIS 129304 at *28 (Sept. 25, 2015).
RLUIPA. To prevail on a claim under RLUIPA, Cruz must show that the exercise of his religion has been burdened in a substantial manner. See Trapp v. Roden, 473 Mass. 210, 214 (2015). Cruz has presented evidence to this effect. In his affidavit, he asserts that "[t]here are important difference[s] between the Nation of Islam and the Sunni faith[,] which requires that the Nation of Islam be given separate accommodation." In his motion for summary judgment, Cruz provided clarification, explaining:
"Under the Religion of the Nation of Islam, the plaintiff must pray 5 times a day. However, the prayer requires the recitation of the Holy Qur'an in Arabic. Under the Teaching of the Most Honorable Elijah Muhammad which informed us (the plaintiff) in the Message to the Blackman pg. 93 that the Holy Qur'an readings are not the kind that will lull one to sleep, but to get a real Qur'an one should know the Arabic language in which it was written. Holy Qur'an Chapter 12:2 Says 'surely we have revealed it an Arabic Qur'an that you may understand.'Cruz also contends that he has been denied any group study during the week. Taken as true the evidence, which is unrefuted by the defendants, suggests that the lack of accommodation has imposed an actual and substantial burden on the exercise of Cruz's religion, coercing him "into acting 'contrary to [his] religious beliefs.'" Rasheed v. Commissioner of Correction, 446 Mass. 463, 473 (2006), quoting from Attorney Gen. v. Desilets, 418 Mass. 316, 324 (1994). See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) ("RLUIPA's 'substantial burden' inquiry asks whether the government has substantially burdened religious exercise . . . , not whether the RLUIPA claimant is able to engage in other forms of religious exercise").
"However, to be able to learn how to pronounce the words and/or how to learn how to pray, it is required that the plaintiff be able to be in continued study by watching videos and/or listening to some CDs. However, the plaintiff does not have a place where he could study to pray under the Teaching and beliefs of the Nation of Islam."
To prevail on summary judgment, the defendants must demonstrate that the burden on Cruz's exercise of his religion is justified by a compelling governmental interest and that the burden placed on him is the least restrictive means of achieving that compelling interest. Trapp v. Roden, 473 Mass. at 214. The penological interests that motivate the defendants' conduct are compelling. Specifically, in the materials the defendants submitted on their summary judgment motion, they point to two incidents of serious assault (in 2005 and 2010) that occurred in the E-building, which is the building where religious services are held. Prior to the time of the assaults, the inmates had been allowed unsupervised time in the E-building. After the assaults, NCCI instituted a policy that inmates could not move freely in the E-building. These significant concerns for safety certainly support the decision not to allow inmates to be in the E-building without supervision.
The defendants have not, however, argued that there is not a less restrictive means to protect those interests. In Trapp v. Roden, 473 Mass. at 218, the court stated that "the DOC must prove that it used the least restrictive means to further that [compelling government] interest. This is an 'exceptionally demanding' standard that requires the DOC to demonstrate 'that it lacks other means of achieving its desired goal without a substantial burden' on [Cruz's] religious exercise." There has been no effort on the part of the DOC to show that there is not a less restrictive alternative. For example, it is unclear why Cruz is prohibited from watching a video in the masjid while Sunni inmates partake in group study or prayer. See Spratt v. Rhode Island Dept. of Corrections, 482 F.3d 33 (1st Cir. 2007) (holding defendants cannot prevail on summary judgment because they burdened plaintiff's exercise of religion by preventing him from preaching, despite justification that preaching by inmate may threaten prison security). It is also not clear from the record that there is not a less restrictive alternative to denying all "group study during the week," which group study the religious services handbook contemplates. Therefore, the judgment must be reversed in part.
Although we conclude that there is an issue of fact concerning Cruz's RLUIPA claim, we are also mindful that RLUIPA does not "elevate accommodation of religious observances over an institution's need to maintain order and safety." Cutter v. Wilkinson, 544 U.S. 709, 722 (2005).
Equal protection. Cruz alleges that because he is a member of the NOI, he was not allowed access to the same facilities as Sunni inmates. A violation of equal protection is established where there is "proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations," including, for example, the person's religion. DuPont v. Commissioner of Correction, 448 Mass. 389, 398 (2007), quoting from Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st Cir. 1995).
In order to sustain a claim under the equal protection clause, a plaintiff must set forth "specific instances where persons situated similarly 'in all relevant aspects' were treated differently . . . ." Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 376 (2006) (Spina, concurring), quoting from Rubinovitz v. Rogato, supra at 910. Cruz has failed to make this kind of particularized showing, and his claim under the equal protection clause therefore fails.
Claims under Massachusetts statutes and regulations. Cruz claims that his rights were violated under certain DOC regulations; his claim fails because these regulations do not provide a basis for a cause of action. See 103 Code Mass. Regs. § 471.01 ("103 C[ode ]M[ass ]R[egs. §] 471.00 is not intended to confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law"); Martino v. Hogan, 37 Mass. App. Ct. 710, 720 (1994) ("It is implausible to imagine that the Legislature, in granting the department authority to promulgate regulations . . . , was empowering the department to create possible civil liability against the officials").
Cruz also cites G. L. c. 127, §§ 32, 88, 89, and 90, as providing a basis for his claims. For substantially the reasons set forth by the second motion judge in his decision on the motions for summary judgment, we affirm the dismissal of these claims.
Conclusion. The portion of the judgment dismissing the plaintiff's claim under RLUIPA is reversed, and that matter is remanded to the Superior Court for further proceedings consistent with this memorandum and order. In all other respects, the judgment is affirmed.
So ordered.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 25, 2016.