Greene v. Cabral
| Decision Date | 15 June 2018 |
| Docket Number | CIVIL ACTION NO. 12–11685–DPW |
| Citation | 323 F.Supp.3d 96 |
| Parties | Timothy GREENE, Plaintiff, v. Andrea CABRAL, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Amy L. Cogagnone, Boston, MA, for Plaintiff.
Kathleen M. Cawley, Suffolk County Sheriff's Department, Christopher G. Perillo, Murphy & Riley, PC, Boston, MA, for Defendants.
Plaintiff Timothy Greene, who practices as an Orthodox Jew, was twice incarcerated in the Suffolk County House of Correction. In this lawsuit, he asserts that his religious liberties were violated while incarcerated. He claims that he was not properly served sufficient kosher food and that he was denied the ability to participate in religious services led by a rabbi.
Greene filed this action pro se . After becoming represented by counsel, he amended his complaint twice, refining his claims and dismissing the Suffolk County Sheriff's Department as a defendant. In the operative Second Amended Complaint, Greene asserts six sets of claims: one for violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA); three claims under 42 U.S.C. § 1983 —for violations of his right to freedom of religion under the First and Fourteenth Amendments, his right to equal protection under the Fourteenth Amendment, and his right to be free of cruel and unusual punishment under the Eighth Amendment; and two under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I —for parallel religious freedom and cruel and unusual punishment claims.
Defendants moved to dismiss these claims. In an earlier Memorandum and Order of July 13, 2015, Greene v. Cabral , No. 12-cv-11685-DPW, 2015 WL 4270173 (D. Mass. July 13, 2015), I dismissed Plaintiff's RLUIPA claim, all claims against Defendants in their official capacities, and all claims for prospective relief. However, I rejected Defendants' assertion of qualified immunity at that stage and allowed the § 1983 and state claims against Defendants in their individual capacities to proceed to summary judgment.
To allow for the more efficient segmentation of discovery, summary judgment practice has taken place in two phases. After Defendants deposed Plaintiff, but before Plaintiff conducted his own fact discovery, I allowed summary judgment motions where additional discovery was not necessary or clearly would be fruitless. At a hearing on January 6, 2016, I granted summary judgment for Defendants on all claims relating to cruel and unusual punishment under federal and state law because those claims were not clearly established and qualified immunity therefore protected them from suit. I granted summary judgment for all claims arising out of the availability of a Torah in the prison library and for all claims arising out of isolated instances in which Plaintiff was incorrectly provided a non-kosher meal because Plaintiff failed to meet his burden of showing that Defendants possessed the deliberate indifference necessary for supervisory liability under § 1983. Finally, I granted summary judgment on claims based on allegations that Defendants used non-kosher ingredients in ostensibly kosher meals because the clear and ultimately uncontested evidence established that all ingredients used were in fact kosher.1
At the same hearing, I allowed discovery to proceed on Plaintiff's claims concerning the availability of religious services and issues of contamination of kosher food in the preparation and serving processes. Defendants seek summary judgment on those remaining issues in the case. In addition to opposing Defendants' summary judgment motion, Plaintiff has also moved to strike the expert testimony of Rabbi Michael Rosenberg submitted by Defendants in support of summary judgment. I will address the motion to strike before addressing the summary judgment motion.
Plaintiff moves to strike evidence provided by Defendants' expert witness, Rabbi Rosenberg, as untimely disclosed. At the January 6, 2016 hearing, I set the following schedule for this case. I did not specifically discuss expert discovery at that hearing. Rosenberg was retained as an expert on March 16, 2016, inspected the House of Correction kitchen on April 15, 2016, and provided his affidavit and report to Defendants on April 28, 2016. Defendants attached the report to their motion for summary judgment on April 29, 2016.
Under Federal Rule of Civil Procedure 26(a)(2)(A)-(B), parties must disclose the identity of an expert witness and his written report. "Absent a stipulation or court order," that disclosure must be made at least 90 days prior to trial. Fed. R. Civ. P. 26(a)(2)(D). Local Rule 26.4 modifies this timeline, requiring expert disclosures to be made 90 days prior to the final pretrial conference. No date has been set for a final pretrial conference. Accordingly, the expert disclosure in this case would presumably be timely under the default Local Rule. However, if the deadline set for discovery encompasses expert witness disclosures, as Plaintiff contends, then the disclosures were untimely.
My prior order setting a deadline for discovery included expert discovery. Any other interpretation would—as Defendants should have understood—undermine the basic purpose of expert discovery. Here, the introduction of expert testimony along with a summary judgment motion—with no notice to Plaintiff beforehand—"deprived [plaintiff] of the opportunity to depose the proposed expert, challenge his credentials, solicit expert opinions of its own, or conduct expert-related discovery." Lohnes v. Level 3 Commc'ns, Inc. , 272 F.3d 49, 60 (1st Cir. 2001). "This is exactly the type of unfair tactical advantage that the disclosure rules were designed to eradicate." Id. Sanction under Rule 37(c)(1), which ordinarily takes the form of mandatory preclusion, is consequently appropriate. Id.
That said, there is "a narrow escape hatch that allows the court to admit belatedly proffered expert evidence if the proponent's failure to reveal it was either substantially justified or harmless." Id. The latter prong applies here. As the subsequent discussion will make evident, the Rosenberg testimony is not determinative of the outcome on summary judgment. His report provides somewhat useful general context for Orthodox Jewish law and practice, and I treat it as part of the record for that limited purpose, but the outcome would be the same without it. Even so, the late disclosure inappropriately offered an avenue for minor tactical benefits to Defendants and considerable diversion of resources required for Plaintiff's counsel to prepare the motion to strike and for the court to address it. As an alternative sanction authorized by Rule 37(c)(1)(A), I will, without engaging in further motion practice on the matter, award Plaintiff reasonable expenses which I am able reliably to calculate without further factual development in this context as $2,000, including attorneys' fees, caused by Defendants' untimely disclosure.
Greene has been incarcerated both at the Suffolk County House of Correction and the Nashua Street Jail. Greene claims that his rights were violated at the House of Correction only, and not the Jail, although both were operated by the Suffolk County Sheriff's Department.
While incarcerated, Greene considered himself to have converted to Orthodox Judaism, identified himself as such to prison officials and followed Jewish law, although he had not completed the arduous process of formal conversion to Judaism. In particular, Greene followed the dietary laws of kashrut, which required him to eat meals that were kosher in their ingredients, composition, and preparation.
Greene contends that he was not fed sufficient kosher food. Upon entering the House of Correction during each of his periods of incarceration, he requested kosher meals consistent with his religious observance, was approved to receive them, and generally did. By official policy, the House of Correction served kosher meals according to planned menus and procedures developed in conjunction with Trinity Services Group. According to this plan, prepackaged kosher entrees were served at lunch and dinner, while breakfast and side dishes were to be prepared by kitchen staff using proper kosher products and preparation. The system was intended to provide adequate nutrition and had been approved by Rabbi Ari Shapiro as compliant with Jewish law. Defendants have adduced as evidence labels showing that the ingredients used in the kosher meals were certified as kosher.
To demonstrate that kosher food was prepared with the proper techniques, Defendants rely on the affidavit and deposition testimony of the head chef of the House of Correction, Dominic Bartholomew, on written policies and on the expert report of Rabbi Michael Rosenberg. According to Defendants, kosher food is prepared before other food, in order to prevent cross-contamination. Designated utensils and cookware are used. Kosher food is then wrapped in plastic wrap for protection until it is served. Since some time in 2012, kosher meals have been served on disposable Styrofoam trays; prior to then, they were served on gray trays used for all special meals, with individual wrappers separating the food from the tray itself. For this litigation, Defendants retained Rabbi Rosenberg to inspect the HOC kitchen; he opined that the systems in place were sufficient to ensure that the kosher meals complied with all the requirements of Orthodox Jewish law.
Greene does not disagree that the system as described complies in principle with Jewish law. He contends, however, that the system did not in fact provide him with adequate kosher food. He believes that only the prepackaged...
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