Opinion
CIVIL ACTION NO. 06-11158-PBS.
August 8, 2007
Joan T. Kennedy Department of Correction Boston, MA, representing Kathleen Dennehy (Defendant).
Joseph A. Messere MCI Norfolk Norfolk, MA, (Plaintiff) PRO SE.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
I. INTRODUCTION
The plaintiff, Joseph A. Messere ("Messere"), is presently incarcerated at MCI-Norfolk, where he is serving a life sentence for second degree murder with a parole eligibility. He has brought an action against Kathleen Dennehy, individually and as Commissioner of Corrections ("Commissioner"), alleging that his federal and state constitutional rights have been violated by the Department of Corrections ("DOC"), which requires that he attend Alcoholics Anonymous, Narcotics Anonymous, 12 steps or other programs "which emphasize religion." Messere contends that attending any such program would violate his own religious practices and beliefs. He further contends that his failure to attend has resulted in his receiving an adverse classification precluding his transfer to a lower security facility.This matter is presently before the court on the Commissioner's "Motion to Dismiss, or, in the Alternative, for Summary Judgment" (hereinafter "Motion to Dismiss") (Docket No. 17). The Commissioner argues that the complaint should be dismissed for failure to exhaust administrative remedies as required under 42 U.S.C. § 1997(e)(a), the Prison Litigation Reform Act (" PLRA"), and because the complaint fails to state a claim as Messere has no legal entitlement to classification to a lower security level. Because the complaint sufficiently alleges exhaustion of administrative remedies, and there are disputed facts as to whether Messere had to follow alternative grievance procedures, and because the complaint states a claim for violation of Messere's constitutional rights under the Establishment Clause, this court recommends to the District Judge to whom this case is assigned that the Commissioner's Motion to Dismiss (Docket No. 17) be DENIED.
II. STATEMENT OF FACTS Motion to Dismiss Standard of Review
"In considering a motion to dismiss, a court must take the allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiffs." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). In doing so, the court may consider documents attached to or expressly incorporated in the Complaint, as well as "documents the authenticity of which are not disputed by the parties," "official public records," "documents central to the plaintiffs' claim," and "documents sufficiently referred to in the complaint" without converting the motion into one for summary judgment. Id. at 3-4 and cases cited. The court may grant dismissal only if the Plaintiffs have failed to "allege 'a plausible entitlement to relief.'" Rodriguez-Ortiz v. Margo Caribe, Inc., ___ F.3d ___, 2007 WL 1732883, at *2 (1st Cir. June 18, 2007) (quoting Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1967, ___ L. Ed. 2d ___ (2007)). Applying this standard, the relevant facts are as follows.
Statement of Facts
Messere began serving his sentence for second degree murder on June 17, 1981. (Complaint ("Compl.") (Docket No. 1) ¶ 3). He is presently confined at MCI-Norfolk, a medium security prison. (Compl. ¶¶ 3, 11). Messere has been a minister with the Universal Life Church and a High Priest of the Church of the Druids since 1970. (Id. ¶ 1). In prison he has been assigned to attend Alcoholics Anonymous ("AA"), Narcotics Anonymous ("NA"), 12 Steps or other programs which he believes "emphasize religion." (Id. ¶¶ 7, 11). He has refused to attend because "he does not believe in and doesn't want to hear anything from other religions[.]" (Id. ¶ 9). As a result, at least in part, of his refusal to attend or participate in these programs, Messere has received an "adverse classification decision" which resulted in his failure to qualify for a transfer to a lower security prison. (Id. ¶¶ 8-9, 11-12). According to Messere, he does not have a substance abuse problem of any kind, and there is no reason for him to attend any treatment program. (Id. ¶ 11).
Messere commenced this action against Dennehy, individually and as Massachusetts Commissioner of Correction, on June 30, 2006. The complaint sounds in four counts. Count I alleges a violation of 42 U.S.C. § 1983 arising out of the purported violation of the free exercise and establishment clauses of the First Amendment to the United States Constitution; Count II alleges a violation of 42 U.S.C. § 2000cc-1(a)-(2)-(3), the Religious Land Use and Institutionalized Persons Act ("RLUIPA"); Count III alleges interference with religious beliefs and a violation of the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12 § 11H and I; and Count IV seeks injunctive relief for the alleged federal and state constitutional violations. The Commissioner has moved to dismiss all the counts of the complaint.
The Grievance Procedure
As alleged in the complaint, Messere filed a grievance in 2003, which was denied. (Compl. ¶ 8). Specifically, the documents attached to the complaint establish that Messere filed Grievance and Appeal #03-95 on April 29, 2003, which provided as follows:
On 4/23, 2003 I received a response from Deputy Superintendent Mitchell to the effect that I will continue to be assessed to attend AA/NA and my refusal is a higher point base score which prevents me from minimum and pre-release transfers. I do not attend these programs due to my religious beliefs.
(Compl. at p. 10). The relief he sought was compliance with his rights under the Establishment Clause of the First Amendment, and for him to be excused from attending these meetings. (Id.).
This Grievance was denied by the Deputy Superintendent on May 9, 2003 because "in accordance with 103 C.M.R. 491, Inmate Grievance Policy, Classification is not grievable under this Policy." (Id. at p. 11). He was further informed that if he disagreed with this decision, he could appeal in accordance with "103 C.M.R. 491." (Id.). Specifically, 103 C.M.R. 491.08(1) provides that "classification, including identification of an inmate as a sex offender, and disciplinary decisions and recommendations are not grievable under 103 C.M.R. 491.00 as there are existing appeal mechanisms for each of these areas." 103 C.M.R. 491.10(4) provides that "[d]enied grievances shall inform the inmate of the right of appeal." The appeal process includes a right of appeal to the Superintendent (103CMR 491.12(1)) and then to the "departmental grievance coordinator." ( 103 C.M.R. 491.13).
Following the denial of his appeal, Messere appropriately appealed to the Departmental Grievance Coordinator on June 6, 2003. (Compl. at p. 9). Therein he renewed his request that the Commissioner "send out a notice that no adverse conditions can result from a prisoner's refusal to attend AA/NA (or any other such programs) which has a religious content to it" on the grounds that attending such programs infringes on his religious beliefs and violates his First Amendment Rights. (Id.). This appeal was denied on July 9, 2003. (Id. at p. 13). As the Department Grievance Coordinator wrote:
Please be advised that after a thorough review of the above-mentioned grievance and appeal, I support the Superintendent's decision to deny your grievance, as I concur with the Superintendent that classification decisions and recommendations are not grievable, as they have their own appeal process. Furthermore, I find that if you are concerned over a religious violation, you should address your concerns through the Religious Review Committee. To do so, please complete and submit the enclosed Inmate Services Request Form to your respective Superintendent. The Superintendent will be responsible to attach additional paperwork and forward the entire package to the Religious Review Committee for final disposition.
(Id.) (emphasis added). The Commissioner contends that Messere's failure to submit the Inmate Services Request Form establishes that he failed to exhaust his administrative remedies. However, the Form is clearly a request for permission to engage in specific religious practices. (See Pl.'s Br. (Docket No. 20) at Ex. C). For example, but without limitation, it asks questions about whether the group has ministers and holy days, what religious practices are necessary for observance, and the time and space requirements for the faith. (Id.). On its face, it does not cover the situation where the prisoner is seeking not to engage in an activity due to religious beliefs.
The Commissioner asserts that an appeal to the Religious Services Review Committee was mandated by 103 C.M.R. 403.10(9), a section of the DOC regulations defining the "inmate property policy." See 103 C.M.R. 403.00. According to the Commissioner, the cited regulation "delineated the RSRC as the specific group for inmate religious accommodation requests. (See Def.'s Mem. (Docket No. 18) at 6-7). That regulation provides as follows:
A list of approved religious articles will be posted quarterly in the inmate libraries. If an inmate has a request for an item that is not on the list of approved religious articles, the inmate should submit his or her request to the Superintendent. The Superintendent will forward the request with a recommendation to the Religious Services Review Committee through the Director of Program Services for review. The Religious Services Review Committee consists of three Assistant Deputy Commissioners, the Director of Offender Management and Placement and the Director of Program Services. This committee shall meet on an as needed basis to review requests for religious articles that are not already approved for retention and shall forward their recommendations to the Commissioner for his approval.103 C.M.R. 403.10(9) (emphasis added). Obviously, there is nothing in this regulation which indicates that the Religious Services Review Committee has jurisdiction over Messere's claims.
Messere responded to the Department Grievance Coordinator by letter dated July 16, 2003. (Compl. at p. 16). Therein he stated that the Inmate Religious Services Request Form did not apply to his situation. (Id.). He further renewed his request that he not be penalized for not attending AA/NA meetings due to his religious beliefs, and requested that previously issued penalties be removed. (Id.).
Additional facts will be provided below if appropriate.
III. ANALYSIS
A. Exhaustion of Administrative Remedies
The Commissioner contends that this complaint should be dismissed because Messere failed to exhaust his administrative remedies by failing to appeal to the Religious Services Review Committee. It is undisputed that under the Prison Litigation Reform Act of 1995 (" PLRA"), "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983] . . . or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Porter v. Nussle, 534 U.S. 516, 519-20, 122 S. Ct. 983, 985-86, 152 L. Ed. 2d 12 (2002) (quoting 42 U.S.C. § 1997(e)(a)). Thus, exhaustion is mandatory and requires an inmate to exhaust inmate grievance procedures before bringing suit. Id. at 524, 122 S. Ct. at 988. That having been said, this court still recommends that the motion to dismiss be denied to the extent it is based on an alleged failure to exhaust. Messere complied with the inmate grievance procedure by appealing to the Superintendent and the Department Grievance Coordinator. See 42 C.M.R. 491.12(1) and 491.13. Based on the form sent to Messere, the Religious Services Review Committee does not seem to have any authority over the issue Messere has presented. The form related to accommodations and facilities necessary to practice a religion. Similarly, there is nothing in the "inmate property" regulation relied on by the Commissioner to indicate that the Religious Services Review Committee was the appropriate entity to address Messere's concerns that he was being forced to attend a religious-based activity against his religious beliefs. According to the regulations, the Committee is responsible for determining whether requests for religious articles should be approved. 103 C.M.R. 403.10(9). Nothing in Messere's complaint can be construed as a request for any permission to use religious articles. Based on the record before the court, Messere, did, in fact, exhaust his administrative remedies, or there are disputed facts as to whether he was required to appeal to the Religious Services Review Committee. Therefore, there is no basis to dismiss his complaint due to an alleged failure to exhaust inmate grievance procedures.
Similarly, Massachusetts requires that an inmate exhaust administrative remedies before filing suit. See Mass. Gen. Laws ch. 127, §§ 38E- 38H.
103 C.M.R. 471.00 is entitled Religious Programs and Services, and would logically be the source of information about religious-based disputes. However, these regulations do not mention the Religious Services Review Committee at all, and do not establish or refer to a grievance procedure.
B. Failure to State a Cause of Action
The Commissioner has moved to dismiss the complaint on the grounds that Messere has no liberty interest in either the placement in a lower security facility or eligibility for parole, and that, consequently, he cannot maintain an action alleging a violation of his Fourteenth Amendment due process rights. (See Def.'s Mem. at 11). Whether or not this is an accurate statement of the law, it misconstrues the claims brought by Messere. For example, but without limitation, Count I of the Complaint asserts a violation of 42 U.S.C. § 1983 arising out of the purported violation of the free exercise and establishment clauses of the First Amendment to the United States Constitution — Messere has not asserted a claim based on the alleged violation of his due process rights. Since Messere has stated a claim asserting a violation of the Establishment Clause as set forth in the First Amendment of the United States Constitution, this court recommends that the motion to dismiss be denied.
Since the Commissioner has limited the motion to dismiss to her contention that the complaint does not state a violation of Messere's due process rights, this court will not address the substantive issues which arise in evaluating claims alleging a violation of the Establishment Clause, such as the appropriate standard of review of such claims. See Gray v. Johnson, 436 F. Supp.2d 795, 799-80, n. 4 (W.D. Va. 2006) (discussing different standards). Nor will the court address the sufficiency of Messere's other claims under RLUIPA and the MCRA.
Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989) (quotations and citation omitted). It states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983. "A claim under section 1983 has two essential elements. First, the challenged conduct must be attributable to a person acting under color of state law" and "second, the conduct must have worked a denial of rights secured by the Constitution or by federal law." Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.), cert. denied, 522 U.S. 819, 118 S. Ct. 71, 139 L. Ed. 2d 32 (1997). In the instant case, there is no dispute that the defendant was acting in her official capacity at all relevant times and was therefore acting under color of state law. At issue, is whether Messere has alleged a violation of his constitutional rights.
The Commissioner asserts, without explanation, that Messere's "constitutional claims are appropriately analyzed under the due process clause of the Fourteenth Amendment." (Def.'s Mem. at 11). Due process claims involve a two step analysis. "[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506 (1989) (citation omitted). Therefore, if Messere does not have a constitutionally protected liberty interest in parole or in placement in a lower security facility, he would not be able to maintain a claim based on a violation of his due process rights. See Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, (9th Cir. 2006) (holding that first issue in assessing due process claim is whether inmate has a protected liberty interest in parole, and then confirming that California's parole scheme does give rise to such a cognizable liberty interest). That issue does not need to be resolved in this case, however, as Messere is asserting a violation of his Establishment Clause First Amendment rights, not a violation of his Fourteenth Amendment due process rights. The two types of claims are distinct. See, e.g., Parker v. Hurley, 474 F. Supp. 2d 261, 271 (D. Mass. 2007) (Establishment Clause claims differ from, and have different considerations than substantive due process and Free Exercise Clause claims); Armstrong v. Beauclair, ___ F.3d ___, No. CV06-49-S-EJL, 2007 WL 1381790, at *2-3 (D. Idaho Mar. 29, 2007) (while inmate's claim that his constitutional rights were violated by compelling him to attend a religiously-based prison rehabilitation program before being eligible for parole does not allege a Fourteenth Amendment due process violation, it does allege a violation of his First Amendment Establishment Clause rights).
With respect to Messere's Establishment Clause claim, the law, as summarized in Yates v. Cunningham, 70 F. Supp. 2d 47, 48 n. 2 (D.N.H. 1999), is as follows:
The Establishment Clause of the First Amendment to the United States Constitution bars Congress from making any "law respecting an establishment of religion." U.S. Const. amend. I. The provisions of the First Amendment are made applicable to the states through the Fourteenth Amendment. Several federal and state courts have held that required attendance at AA or AA-based programs violates the Establishment Clause of the First Amendment due to the program's religious content. See, e.g., Warner v. Orange County Dep't of Probation, 115 F.3d 1068, 1076-77 (2d Cir. 1997) (forced attendance at AA meetings as condition of probation violated Establishment Clause); Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir. 1996) (conditioning prisoners' risk status and parole eligibility on participation in Narcotics Anonymous violated Establishment Clause); Arnold v. Tenn. Board of Paroles, 956 S.W.2d 478, 484 (Tenn. 1997) (where treatment program is religious and is the only treatment program available, forced participation and consideration of attendance or non-attendance in parole decisions violates Establishment Clause): Griffin v. Coughlin, 88 N.Y.2d 674, 691-92, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996) (mandated rehabilitation programs at prison which incorporate AA principles violate Establishment Clause), cert. denied, 519 U.S. 1054, 117 S. Ct. 681, 136 L. Ed. 2d 607 (1997).
More recent cases have reached the same result. See Armstrong, 2007 WL 1381790, at *5 ("The law has been clear for many years that an inmate may not be forced to participate in a religiously-oriented prison program.") (and cases cited). Whether a specific program is religiously-oriented, or whether an inmate is being "coerced" to attend so as to constitute a constitutional violation, is generally a question of fact. See DeStafano v. Emergency Housing Group, Inc., 247 F.3d 397, 402, 407, 412-13, 416-20 (2d Cir. 2001) (while AA program is a "religion" for Establishment Clause purposes, court must determine whether state-funded alcohol crisis center staff coerced clients to attend AA meetings or indoctrinated clients in AA principles). Messere's allegations to the effect that he has suffered adverse classification decisions as a result of his refusal to attend or participate in religiously-oriented programs in prison, was rendered ineligible for a transfer to a lower security prison as a result, and was also thereby hindered in his eligibility for parole, states a claim for relief. See, e.g.,Warburton v. Underwood, 2 F. Supp. 2d 306, 318 (W.D.N.Y. 1998) (allegation that inmate was required to participate in Narcotics Anonymous as a condition for the restoration of his good time credits states a claim of violation of the Establishment Clause);Moeller v. Bradford County, No. 3:05CV334, 2006 WL 319288, at *3 (M.D. Pa. Feb. 10, 2006) (unpub. op.) (prisoner who alleged that he was required to attend religiously-oriented education and vocational training or forego any such training stated a claim for violation of the Establishment Clause); Catala v. Comm'r, N.H. Dep't of Corr., No. Civ. 05-CV-106-JD, 2005 WL 3133036, at *3 (D.N.H. Nov. 22, 2005) (unpub. op.) (whether prison's requirement that inmate attend a 12-step program for alcohol abuse violated the Establishment Clause cannot be decided in the context of a motion for judgment on the pleadings; "[g]iven the factual complexities, the claim would be better addressed in a properly supported motion for summary judgment, if that is appropriate in this case"). Consequently, this court recommends that the motion to dismiss for failure to state a claim be denied.
Qualified Immunity
The Commissioner makes reference to qualified immunity in her brief, but the argument is not fully articulated. To the extent that she is raising qualified immunity as a defense, the record needs to be more fully developed before this court can determine whether it is a viable defense to the instant action. By the late 1990's a number of courts had held that a prisoner's right to not be coerced to participate in a religious activity had been clearly established so that "the reasonable defendant would have known that coerced participation in [Narcotics Anonymous] violates the Establishment Clause of the United States Constitution" and qualified immunity was not a valid defense.Warburton, 2 F. Supp. 2d at 318-19; see also Armstrong, 2007 WL 1381790, at *15. Therefore, it is not apparent that the defense of qualified immunity is available to the Commissioner in the instant case. To the extent that the motion to dismiss is based on a claim of qualified immunity, this court recommends that the motion be denied.IV. CONCLUSION
For all the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the Commissioner's Motion to Dismiss (Docket No. 17) be DENIED.
The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, 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 this Rule shall preclude further appellate review. See Keating v. Sec'y of Health Human Servs., 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S. Ct. 466, 474, 88 L. Ed. 2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir. 1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).