McGee v. O'Brien

• Decision Date: 05 February 2016
• Docket Number: CIVIL ACTION NO. 14-13765-MPK
• Citation: 160 F.Supp.3d 407
• Parties: Ricky McGee, Plaintiff, v. Carol Higgins O'Brien and Sean Medeiros, in their official capacities, Commonwealth of Massachusetts, Defendants.
• Court: U.S. District Court — District of Massachusetts

160 F.Supp.3d 407

Ricky McGee, Plaintiff,

v.Carol Higgins O'Brien and Sean Medeiros, in their official capacities, Commonwealth of Massachusetts, Defendants.

CIVIL ACTION NO. 14-13765-MPK

United States District Court, D. Massachusetts.

Signed February 5, 2016

Ricky McGee, pro se.

Valeriano Diviacchi, Diviacchi Law Office, Boston, MA, for Plaintiff.

Joan T. Kennedy, Department of Correction, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT (#25), DEFENDANTS' OPPOSITION TO AND CROSS-MOTION FOR SUMMARY JUDGMENT (#30) AND PLAINTIFF'S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (#36).

KELLEY

, United States Magistrate Judge

I. Introduction.

On October 2, 2014, plaintiff Ricky McGee filed a five-count complaint seeking declaratory and injunctive relief under 42 U.S.C. § 1983

, the First and Fourteenth Amendments of the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. (“RLUIPA”), and the Constitution of the Commonwealth of Massachusetts. Plaintiff and Defendants, Carol Higgins O'Brien and Sean Medeiros, in their official capacities,¹ and the Commonwealth of Massachusetts, filed cross-motions for summary judgment (##25, 34) in July and August, 2015, respectively. Plaintiff filed a supplemental motion for summary judgment in which he narrowed his complaint to only his RLUIPA claims. (#36.) Defendants filed an opposition to Plaintiff's supplemental motion for summary judgment on September 23, 2015. (#39.)

Plaintiff is serving a life sentence and is now housed at the Massachusetts Correctional Institute at Concord (“MCI-Concord”) where he actively practices the faith of the Nation of Gods and Earths (“NGE”). He alleges claims under RLUIPA for constraints on his ability to practice NGE while previously incarcerated at the Massachusetts Correctional Institute at Norfolk (“MCI-Norfolk”).

II. The Facts.

The parties agree that there is no dispute over the material facts in this case. NGE was founded in 1964 by a student of Malcolm X and a former member of the Nation of Islam, and has grown from an offshoot of the Nation of Islam to gain legal recognition as a separate religion. Adherents of NGE are required to help educate others, or proselytize, and are expected to study and adhere to the religion's central literature: The 120 Degrees, The Supreme Alphabet, The Supreme Mathematics, and The Five Percenter.

NGE is one of seventeen religious groups recognized by the Massachusetts Department of Corrections (“DOC”) in its Religious Services Handbook (the “Handbook”). (#35-1, Affidavit of Christopher Mitchell² ¶ 2.) The Handbook, first published in 1999, is the culmination of many years of work “wherein the Department of Correction's chaplains, administrators, outside religious groups and the Department's legal division collaborated to craft religious accommodation policies that are consistent with the health, safety, security and fiscal constraints of the Department.” (#35-1 ¶ 4.) The Handbook is described as “a dynamic resource tool” that is revised frequently in response to inmate religious requests and feedback from DOC chaplains and religious volunteers. (#35-1 ¶ 6.)

NGE was added to the Handbook in January, 2007, following a settlement between the DOC and an inmate who adhered to NGE. (#35-1 ¶ 7.) In developing an NGE section for the Handbook, the DOC worked closely with Mr. Born King Allah, also known as Donald Palmer, who serves as the nationwide Prison Administrator for NGE. (#35-1 ¶ 8.) In the process of recognizing NGE, the Religious Services Review Committee³ (“RSRC”) read and reviewed the Supreme Alphabet, the Supreme Mathematics and the 120 Degrees, NGE's central literature. (#35-1 ¶ 10.) After receiving input and feedback from Mr. Palmer and the DOC's Central Intelligence Unit, and guided by the December 2005 Ellis Settlement Agreement,⁴ the RSRC determined there were security concerns associated with the contents of some of the materials, as some could be interpreted as advocating violence or murder.⁵ Id. According to Mr. Mitchell, a member of the RSRC, “[o]ur concern as a Committee was that inmates, processing this material by themselves, out of context, might be incited to violence against other inmates and staff.” Id. Consequently, restrictions were placed on NGE members, which included limiting their study of NGE's literature and worship to within their own cells. Id. NGE's literature and written materials were only for the personal use of the NGE adherent. Id.

Since the addition of the NGE section to the Handbook, two changes have been made at the request of Mr. Palmer. (#35-1 ¶ 11.) Mr. Palmer objected to the use of the term “Holy Days” because “where a male practitioner views himself as a God, there is no need for a Holy Day, insofar as a God doesn't worship himself.” (#35-1 ¶ 12.) A compromise was reached, and the days were redesignated as “Honor/Holy Days/Festivals.” Id. Second, Mr. Palmer sought removal of the phrase “Security Threat Group” from the NGE section of the Handbook, and this was done in January 2011. (#35-1 ¶ 13.) Other changes include that NGE adherents may now receive Halal meals if requested (compare #35-3 at 3 with 35-3 at 7) and possession of a Universal Flag medallion has been approved by the RSRC and the Commissioner of the DOC. (Compare #35-3 at 7-8 with 35-3 at 11.)

NGE does not have a full-time chaplain on staff in the DOC due to limited resources. (#35-1 ¶ 40.) The DOC does not have the budget to hire a NGE chaplain: the “creation of a new DOC Chaplain position requires the involvement of outside stakeholders, which includes the Commonwealth's Human Resources division. Currently, there is a statewide hiring freeze in the Commonwealth.” (#35-1 ¶ 40.) Instead, the DOC relies on volunteers for religious services. (#31-1 ¶¶ 34-40.) This is not uncommon, as only ninety-two inmates across the seventeen DOC facilities—thirty-one of whom are at MCI-Norfolk—adhere to NGE. (#31-1 ¶¶ 43-44.) Other religious groups, including Native Americans (twenty-seven inmates practicing) and Buddhists (thirty-eight inmates), do not have their own chaplain. (#31-1 ¶ 44.) NGE practitioners are welcomed to worship with Minister Randy Curet of the Nation of Islam, the religion from which NGE originated. (#31-1 ¶¶ 34-36.) Many NGE members attend the weekly Nation of Islam corporate worship. (#31-1 ¶ 36.)

The Handbook provides that “ ‘if requested, inmates who identify themselves as NGE adherents should be allowed to corporately celebrate the four holy days mentioned above ... with the presence of an external approved NGE permanent volunteer. Also, one-on-one meetings between inmate adherents and external approved NGE volunteers in accordance with 103 CMR 471.10

will be allowed if consistent with institutional safety and security requirements.’ ” (#35-1 ¶ 19.) Mr. Mitchell states that he has worked with Mr. Palmer to recruit religious volunteers pursuant to the Volunteer Services Policy to lead NGE corporate services, as has William Milhomme, the DOC Director of Volunteer Services. (#35-1 ¶¶ 14, 37.) As a result of their efforts, more NGE volunteers have been recruited to provide religious education and spiritual counseling to NGE inmates. (#35-1 ¶ 37.) Difficulties remain in retaining volunteers for a variety of reasons, i.e., some NGE volunteers are inappropriate due to prior relationships with NGE inmates, time commitments involved pose hurdles when volunteers work full time, and individuals with prior records would not qualify. (#35-1 ¶ 38.) At present one NGE volunteer, John Cox, goes to MCI-Norfolk to provide NGE religious education, study and corporate worship services. Id. Because Mr. Cox lives in western Massachusetts, on occasion he is unable to visit MCI-Norfolk. Id.

The DOC has a policy that prohibits inmate preaching or proselytizing entitled Inmate Management, 103 DOC at 400.06, No Inmates Control Over Other Inmates(s), which provides “No inmate or group of inmates shall be in a position of control or authority over any other incarcerated person(s).” (#35-1 at ¶ 46.) According to Mr. Mitchell, this policy “serves the Department's compelling security need to supervise 10,500 inmates in its 17 prison facilities.” Id.

Plaintiff's grievances with MCI-Norfolk began on or about April 16, 2010, when he alleges that he and twelve other NGE practitioners were told to disperse while assembled in the prison's recreational area. (#1 ¶ 32.) On April 24, 2010, Plaintiff filed a grievance with the prison seeking a space to study with other members of NGE; the grievance was denied and appealed to Superintendent Gary Roden. (#1 ¶¶ 33-35.) The appeal upheld the denial of Plaintiff's grievance and stated that members of NGE were not allowed to have one-on-one meetings with other members except when supervised by an approved NGE volunteer. (#1 ¶ 35.)

The RSRC is responsible for reviewing all inmate religious requests and then making a formal recommendation to the Commissioner of the DOC. (#35-1 ¶ 31.) In May 2010, Plaintiff requested access to corporate worship, fasting, reflections upon NGE literature, group gatherings, and designated space for NGE members to worship and collectively study the religion's central literature through an Inmate Religious Services Review Request Form. (#1 ¶ 36.) In November 2010 Plaintiff received a response from the RSRC wherein most of his May 2010 requests were deferred to the Program Services Division. (#1 ¶ 43.) When no action had been taken by the Program Services Division, on March 6, 2013, Plaintiff filed a grievance to address the denial of his ability to discuss his religion with other NGE adherents with no volunteer present. (#1 ¶ 46.) This grievance was denied and Plaintiff was advised that he had the right to file an Inmate Religious Services Request Form to the Director of Treatment's Office. (#1 ¶ 47.) Plaintiff appealed, but the appeal was denied. (#1 ¶ 48.) Plaintiff then met with the...