Opinion
23-P-246
07-15-2024
JULIO B. LEIVA v. DEAN GRAY.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff, Julio B. Leiva, is an inmate at Souza-Baranowski Correctional Center (SBCC). In February 2021, Leiva filed suit against Dean Gray, the superintendent of SBCC, because the facility refused to provide Leiva with a free Bible. Leiva now appeals from a Superior Court judgment effectively dismissing his complaint for failure to exhaust his administrative remedies before filing suit, as required by the Federal Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), and G. L. c. 127, § 38F. The judgment is to be amended, and as so amended, we affirm.
Background.
In October 2020, Leiva filed an informal complaint form, asserting that a "new policy" prohibiting the chaplain from distributing free Bibles to prisoners on request violated Leiva's religious rights under Federal and State law. The complaint was rejected as untimely. Leiva then filed a formal grievance repeating his challenge to the policy. In a December 2020 decision denying Leiva's grievance, SBCC's grievance coordinator informed him that the policy was not new; that Leiva could still request a Bible from the prison library or purchase his own copy; and that he could also submit his request to the religious services review committee (RSRC), which was meeting the following month. Instead of following up with the RSRC, Leiva filed an appeal to the superintendent, who upheld the grievance coordinator's decision and denied the appeal.
The informal complaint was dated September 12, 2020, but Leiva later asserted that he had simply written the date incorrectly.
Leiva then filed this action in the Superior Court, claiming that the failure to provide him with a free Bible infringed on his right to practice his religion under the Federal and State Constitutions and violated various statutes, State common law, and Department of Correction regulations. The complaint sought monetary, injunctive, and declaratory relief. Both parties filed motions for judgment on the pleadings. The judge ruled that Leiva, by failing to submit his request to the RSRC, had failed to exhaust his administrative remedies. Leiva appealed from the resulting judgment.
Discussion.
Prison inmates in Massachusetts are generally prohibited from bringing an action concerning conditions of or occurrences during confinement unless they have exhausted their available administrative remedies. See 42 U.S.C. § 1997e(a); G. L. c. 127, § 38F. An exception exists under § 38F for complaints seeking equitable relief from an unconstitutional or otherwise unlawful policy. See Grady v. Commissioner of Correction, 83 Mass.App.Ct. 126, 137 n.9 (2013) (declaratory relief). However, "[i]t is not enough to claim a constitutional violation; rather, a plaintiff must plead a particular constitutional violation and demonstrate that such a violation extends beyond the plaintiff's individual case and is 'consistently repeated' by the administrative agency." Id., quoting G. L. c. 231A, § 2. Here, Leiva's complaint failed to plead sufficient facts to establish that SBCC's failure to provide him with a free Bible has resulted in a consistent or repeated violation of his and other prisoners' constitutional rights. Compare Haas v. Commissioner of Correction, 103 Mass.App.Ct. 1, 7 (2023) (allegedly unlawful standard operating procedure consistently and repeatedly relied on to deny inmates' lawful requests). Thus, his complaint was subject to the exhaustion requirement.
Although § 38F excepts "actions seeking equitable relief" from the exhaustion requirement, see Grady, supra at 137 n.9, Leiva's claims for injunctive (and for that matter declaratory) relief were not addressed in his motion for judgment on the pleadings and therefore are waived.
Under most circumstances, Leiva's completion of the generally-applicable inmate grievance procedure outlined in 103 Code Mass. Regs. § 491, through an appeal to the superintendent, would have exhausted his administrative remedies. See Grady, 83 Mass.App.Ct. at 135. Under 103 Code Mass. Regs. § 491.11(1)(a) (2017), however, issues concerning "religious practices" are not grievable using § 491, because those are covered by a separate appeal mechanism, set forth in 103 Code Mass. Regs. § 471.08 (2017). Under § 471.08, an inmate "who requests to possess a religious item not approved in the Religious Services Handbook" or in the inmate property regulations must submit a written request to the superintendent, who shall make a recommendation to the RSRC "in light of the institution's available resources and security level." 103 Code Mass. Regs. § 471.08(10)(a), (c). The RSRC may approve, modify, or deny the request, and denials are appealable to the Commissioner of Correction. See id. § 471.08(10)(d)-(f). This process is "the sole means/mechanism by which an inmate may seek a . . . religious item not otherwise approved." Id. § 471.08(10)(a). See id. § 471.08(10)(h).
Although the institutional grievance coordinator suggested that Leiva bring his request to the RSRC, he did not do so. Therefore, he did not exhaust his administrative remedies.
On appeal, Leiva argues that his request for a Bible was actually a request for a mental health service, rather than a religious service, because having a Bible is part of his treatment plan for a mental illness. Nowhere in his informal complaint, grievance, or grievance appeal, however, did Leiva mention a secular purpose for his request. Instead, he consistently claimed that SBCC's failure to provide him with a free Bible was an infringement of his religious rights. Thus, the superintendent was never asked to consider whether he should provide Leiva with a Bible as a mental health service, and the courts may not review the superintendent's decision in that light. See Albert v. Municipal Court of Boston, 388 Mass. 491, 493 (1983) ("A party is not entitled to raise arguments on appeal that he could have raised, but did not raise, before the administrative agency").
We express no view on which regulations would apply to such a grievance or on how SBCC would be required to respond to a request so framed.
We also reject Leiva's argument that the grievance process provided through the RSRC was "unavailable." There are three circumstances under which an official administrative remedy is "unavailable" to inmates: (1) when officers are "unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) when an administrative scheme is "so opaque that it becomes, practically speaking, incapable of use" because "no ordinary prisoner can discern or navigate it"; or (3) "when prison administrators thwart inmates from taking advantage of [it] through machination, misrepresentation, or intimidation." Ross v. Blake, 578 U.S. 632, 643-644 (2016). Leiva argues that the RSRC was unable to provide relief because he was requesting a religious item which was already approved, and under the regulations, the RSRC addresses only "Inmate Requests for Religious Practices, Programs, Groups or Items Not Currently Approved" (emphasis added). 103 Code Mass. Regs. § 471.08(10).
We are not persuaded. If what he was requesting -- a free Bible -- were already approved, the failure to provide it would have been corrected by the grievance coordinator in the first instance. Further, we owe some deference to the superintendent's view (implicit in his approval of the grievance coordinator's response to Leiva) that Leiva's request was appropriate for consideration by the RSRC.
Neither are we convinced by Leiva's argument that appeal to the RSRC would have been futile. No futility exception exists under the PLRA. See Ross, 578 U.S. at 640-642. And, to whatever extent a futility exception to § 38F might be recognized, the "exhaustion of administrative remedies is generally only considered futile 'where the power and authority of the agency themselves are in question, and not where the exercise of that agency's discretion is challenged.'" Temple Emanuel of Newton v. Massachusetts Comm'n Against Discrimination, 463 Mass. 472, 480 (2012), quoting Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141 (1975). Even if the RSRC was unlikely to allow the request, the regulations authorize the RSRC to approve reasonable accommodations needed for religious practice in light of the institution's available resources. 103 Code Mass. Regs. § 471.08(10)(c)-(d).
The RSRC could also have addressed Leiva's claim that there was a "new policy" prohibiting the provision of free Bibles to inmates. The RSRC could have determined whether there was in fact any such policy and, if so, whether any arguments made by Leiva provided a basis for reconsidering or modifying the policy. Even if, after that analysis, the RSRC were still to deny relief, Leiva could have appealed that denial to the Commissioner, and then, if necessary, sought judicial review of the Commissioner's decision. This procedure would have allowed the RSRC to develop a reasoned response to Leiva's request, based on the RSRC's policy knowledge and its experience considering religion-based requests from throughout the State's correctional system, which would have been of assistance to any court considering Leiva's claims and challenges to the policy. Accordingly, we conclude that an appeal to the RSRC would not have been futile.
Finally, to correct a misapprehension of Leiva's that might otherwise prolong this dispute, we note that G. L. c. 127, §§ 88-93, do not establish Leiva's entitlement to a free Bible. Section 90, on which Leiva places special emphasis, merely authorizes (but does not require) certain correctional officials to request legislative appropriations for funding to provide religious texts; it does not require the Legislature to agree to such requests. To similar effect is G. L. c. 127, § 93, which, in any event, as the motion judge noted, applies only to the "keeper or superintendent of a jail or house of correction" and not to the superintendent of a State prison like SBCC.
For the foregoing reasons, the judge was correct (1) in concluding that Leiva had failed to exhaust his administrative remedies, and consequently (2) in declining to resolve the merits of Leiva's claims. The judgment that entered, however, merely stated that Leiva's motion for judgment on the pleadings was denied and that the superintendent's motion was allowed. The judgment is therefore amended to dismiss Leiva's complaint for failure to exhaust administrative remedies; as so amended, the judgment is affirmed.
So ordered.
The panelists are listed in order of seniority.