Cryer v. Mass. Dep't of Correction

• Decision Date: 07 January 2011
• Docket Number: Civil Action No. 1:09–10238–PBS.
• Citation: 763 F.Supp.2d 237
• Parties: Derek Sincere Black Wolf CRYER, Plaintiff,v.MASSACHUSETTS DEPARTMENT OF CORRECTION, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

763 F.Supp.2d 237

Derek Sincere Black Wolf CRYER, Plaintiff,

v.MASSACHUSETTS DEPARTMENT OF CORRECTION, et al., Defendants.

Civil Action No. 1:09–10238–PBS.

United States District Court, D. Massachusetts.

Jan. 7, 2011.

Richard C. McFarland, Commonwealth of Massachusetts, Department of Correction, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

PATTI B. SARIS, District Judge.

Pro se Plaintiff Derek Sincere Wolf Cryer (“Cryer”) has moved for clarification and reconsideration of this Court's Order entered November 22, 2010, 2010 WL 5317397. Because plaintiff's new motion significantly scales back his requests for relief, the Court will vacate its order of dismissal. In addition, the Court adopts the Magistrate Judge's Report and Recommendations. Accordingly, I DENY in part both plaintiff's partial motion for summary judgment (Docket No. 70) and defendants' partial motion for summary judgment (Docket No. 75), and ALLOW in part defendants' motion.

I. BACKGROUND

Plaintiff seeks relief under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. and under Massachusetts constitutional, statutory and regulatory law. Plaintiff is an inmate at the Souza–Baranowski Correctional Center in Shirley, Massachusetts and is a member of that facility's Native American spiritual group, referred to as the “circle.” Plaintiff's complaint, at its core, seeks access to ceremonial tobacco to be used for religious purposes.

Both plaintiff and defendants moved for partial summary judgment in this case. Magistrate Judge Collings provided this Court with a comprehensive analysis of the issues in his Report and Recommendations (Docket No. 82). In the report, Magistrate Judge Collings noted the ambiguity among the Complaint and plaintiff's subsequent pleadings about the breadth of access to ceremonial tobacco that the plaintiff was seeking:

A fair reading of Cryer's complaint suggests that Cryer contends that only unrestricted access to ceremonial tobacco will do: he suggests, for example, that he is unable to pray in his cell or elsewhere without access to ceremonial prayer tobacco, stating that “Plaintiff has been denied to Pray with Ceremonial Tobacco in the Mornings, Afternoons and Nights” ... and he requests declaratory and injunctive relief permitting him “to Pray with Ceremonial Tobacco in the Mornings, Afternoon, and Nights”.... Cryer is less categorical in his response to the defendants' cross-motion for summary judgment [docket no. 77], in which he requests an accommodation allowing “Native Americans to use tobacco during the time the administration has already scheduled [Native American inmates] to meet in the south yard which is closed off to all other inmates.”

Report and Recommendations at 6. Based on this ambiguity about the relief sought, the Magistrate Judge recommended that this Court allow the defendants' motion for partial summary judgment under RLUIPA to the extent that the plaintiff seeks unrestricted access to ceremonial tobacco, but deny without prejudice to renewal to the extent that the plaintiff seeks access to ceremonial tobacco during the once-monthly smudging ceremony. Id. at 40.

Upon review, this Court adopted the legal analysis of the Magistrate Judge's Report and Recommendations and, finding that plaintiff had indicated “that he is not seeking access just during the smudging ceremony,” dismissed the case.

II. DISCUSSION

After the Court issued its order dismissing this case, Cryer filed a “Motion and Affidavit Seeking Relief from Final Judgment ... Requesting Reinstatement, Reconsideration, Oral Argument, and Clarification. Plaintiff's motion made clear that Cryer read this Court's November 22, 2010 order as finding that he had not sought access to ceremonial tobacco in any form. The Court writes now to clarify that misconception.

The Complaint in this case appears to seek unrestricted access to ceremonial tobacco within a prison facility at all times and places. The Court agrees with the Magistrate Judge's analysis that such a broad request must result in an award of summary judgment to the defendants.

However, in his recent Motion, Cryer states that “I am seeking access but also state that I'm not seeking UNLIMITED access, UNRESTRICTED access or UNFETTERED access.” ( See Docket No. 94.) Based on this statement, which significantly limits the relief originally sought by plaintiff in his complaint, the Court agrees that dismissal of the case in its entirety is not the appropriate course of action.

III. ORDER

Given the modification of plaintiff's request for relief, the Court adopts the Report and Recommendation in full. Accordingly, the Court:

1. ALLOWS the defendants' Motion for Summary Judgment under the RLUIPA to the extent that the plaintiff seeks unrestricted access to ceremonial tobacco, but DENIES the motion without prejudice to renewal to the extent that the plaintiff seeks access to ceremonial tobacco during the once-monthly smudging ceremony.

2. ALLOWS the defendants' Motion for Summary Judgment on the plaintiff's challenge to the DOC policy with respect to claims brought under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment.

3. ALLOWS the defendants' Motion for Summary Judgment on the plaintiff's First Amendment challenge to the DOC policy with respect to official capacity claims for money damages, but DENIES the motion with respect to claims for declaratory and injunctive relief to the extent that the plaintiff seeks access to ceremonial tobacco during the once-monthly smudging ceremony. The Court ALLOWS defendants' motion on the First Amendment claim on qualified immunity grounds.

4. DENIES the plaintiff's Motion for Partial Summary Judgment on the plaintiff's state law claims under Mass. Gen. L. Ch. 22(c)(8) and Mass. Gen. L. Ch. 30A. The Court ALLOWS defendants' motion on these claims.

5. ALLOWS the defendants' Motion for Summary Judgment under the Massachusetts Civil Rights Act, Mass. Gen. L. Ch. 12, §§ 11(H) & 11(I).

6. ALLOWS the defendants' Motion for Summary Judgment in part under Art. 2 of the Massachusetts Declaration of Rights to the extent that the plaintiff seeks unlimited access to ceremonial tobacco, but DENIES to the motion to the extent that the plaintiff seeks access to ceremonial tobacco during the once-monthly smudging ceremony.

7. ALLOWS the defendants' Motion for Summary Judgment in part under Mass. Gen. L. Ch. 127, § 88, to the extent that the plaintiff seeks unlimited access to ceremonial tobacco, but DENIES to the motion to the extent that the plaintiff seeks access to ceremonial tobacco during the once-monthly smudging ceremony.

8. ALLOWS the defendants' Motion for Summary Judgment under the Massachusetts Tort Claims Act, Mass. Gen. L. Ch. 258, § 4, to the extent that Cryer seeks to sue the Commonwealth and the individual defendants in their official capacity.

9. ALLOWS the defendants' Motion for Summary Judgment under 103 C.M.R. 471 and 103 C.M.R. 403.10(9), to the extent that the plaintiff seeks monetary damages under the regulations.

REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS A MATTER OF LAW (# 70), AND DEFENDANTS' CROSS–MOTION FOR SUMMARY JUDGMENT (# 75)

COLLINGS, United States Magistrate Judge.

I. Introduction

Pending before the Court are the parties' cross-motions for summary judgment on the plaintiff's claim that the Massachusetts Department of Corrections' policy banning tobacco smoking and possession (“DOC policy”) abridges his rights under, inter alia, the federal constitution, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (“RLUIPA”), and Massachusetts constitutional, statutory and regulatory law. His complaint seeks declaratory and injunctive relief, and money damages related to these claims. ( See Complaint, # 1) For the reasons explained below, the Court will recommend denying the Plaintiff's Motion for Partial Summary Judgment (# 70), and granting in part and denying in part the Defendants' Cross–Motion for Summary Judgment (# 75).

II. Background

The factual background and relevant law has been set out in this Court's previous report and recommendation, see Cryer v. Clark, No. 09–10238–PBS, 2009 WL 6345768 (D.Mass. July 9, 2009) (slip copy); Docket No. 31, and the Court presumes familiarity with its contents. For present purposes, the Court notes that the parties appear to agree on the following facts. The plaintiff, Derek Sincere Black Wolf Cryer (“Cryer”), is an inmate at the Souza–Baranowski Correctional Center (“SBCC”), a maximum security facility in Shirley, Massachusetts. Cryer is a member of the Native American spiritual group at SBCC, also known as the “circle.” On the first Monday of the month, the Native American circle meets outside in a fenced area in SBCC's South yard. During these monthly meetings, the Native American circle is permitted to conduct smudging and pipe ceremonies. At this time, the inmates may burn and smoke kinnick-kinnick,¹ sweet grass and sage. Otherwise, the inmates are prohibited from possessing and using tobacco products, under a DOC policy that bans smoking on DOC property.²

On November 23, 2009, Cryer filed his Motion for Partial Summary Judgment as a Matter of Law (# 70), with accompanying exhibits, and a Motion for Hearing (# 71). On December 9, 2009, the defendants filed Defendants' Cross–Motion for Partial Summary Judgment (# 75), along with a Memorandum of Law in Support (# 76) and the Affidavit of Anthony Mendonsa (# 76–1). On December 28, 2009, Cryer responded by filing Plaintiff's Combined Affidavit, Memorandum of Law and Opposition Motion to Defendants [sic] Cross Summary Judgement Motion and in Support of Plaintiff's Motion for Partial Summary Judgment as a Matter of Law (# 77), along with additional exhibits. At this juncture, the motions are ripe for resolution.

III. Discussion

A. Summary Judgment Standard

The purpose of summary judgment is...