United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, District Judge.
Plaintiff Timothy Greene is a practicing Orthodox Jew who was incarcerated in the custody of the Suffolk County Sheriff's Department ("the Department") from May 2011 to October 2012 and from February 2013 to an unidentified date prior to the hearing in this matter. Greene contends that during these periods he was denied calorically adequate kosher food as well as access to religious services. The remaining defendants are individuals who he claims were responsible for his care and custody during the periods of his incarceration. Greene seeks damages and prospective injunctive and declaratory relief. Defendants move to dismiss the complaint.
Greene is a convert to Judaism and practices as an Orthodox Jew. Compl. ¶ 10. He alleges that his sincerely held religious beliefs require him to maintain a kosher diet, meaning a diet consistent with Jewish law. Id. ¶ 12. Greene informed the Department that he needed kosher meals, and he was placed on a list of inmates who receive kosher meals. Id. ¶ 15. The complaint does not allege when that request was made or when he was placed on the list. The Department does not provide a kosher breakfast option for inmates, id. ¶ 22, instead serving the same meal, prepared with non-kosher utensils, to all inmates, id. ¶ 21. The Department occasionally opened otherwise kosher meals with non-kosher utensils, exposing the food to contaminants, id. ¶ 25, and intermingled kosher and non-kosher food on the same trays in a way that violates the rules of a kosher diet. Id. ¶ 27.
The Department served meals that purported to be kosher twice a day during the period of Greene's incarceration. Id. ¶ 29. These two meals combined typically contained approximately six hundred or fewer calories. Id. ¶ 30. Greene saved wrappers from some of these meals, and he alleges that on one day he was served two meals totaling only five hundred calories for the entire day. Id. ¶ 31. On another day he was provided with two meals totaling only seven hundred and ten calories. Id. ¶ 32. He has provided copies of the labels from those two days as an exhibit to the complaint. When he complained about his lack of access to calorically adequate kosher food, he was told to eat the non-kosher food or to go hungry. Id. ¶ 34.
Greene also alleges that the Suffolk County House of Correction ("the HOC") severely limited his access to religious services. There are no regularly held services for Jewish people in custody at the HOC, id. ¶ 36, nor are there non-denominational services, id. ¶ 36. Greene was told that rabbis were not offered to inmates, id. ¶37. Non-Jewish inmates in the custody of the department, however, do have access to religious services. Id. ¶ 42.
Greene has alleged violations of federal and state law against numerous administrative defendants. These defendants are Andrea Cabral, the former Sheriff of Suffolk County, sued in her individual capacity; Steven Tompkins, the current Sheriff of Suffolk County, sued in his individual and official capacities; Gerard Horgan, the former Superintendent of the Suffolk County House of Correction, sued in his individual capacity; Yolanda Smith, the current Superintendent of the Suffolk County House of Correction, sued in her individual and official capacities; and Anne Nee, the Director of Social Services, sued in her individual and official capacities. Greene initially brought this action pro se but never served the defendants. On January 15, 2013, he began to be represented by counsel. Greene filed a first amended complaint on February 26, 2013, and properly served the defendants. At that time, Greene also dismissed the Suffolk County Sheriff's Department as a defendant. Defendants moved to dismiss and Greene moved to further amend the complaint. He filed a Second Amended Complaint in December 2013.
Greene alleges that he filed grievances on June 18, 21, and 24, 2012, as well as on April 19, 2013, about the food he was provided. Id. ¶¶ 56, 57, 58, 60, 62. After filing one of the grievances, he was told to contact Director Nee, which he did. She did not resolve his complaint. Id. ¶¶ 58, 59. On June 16, 2013, he filed a grievance concerning lack of access to non-denominational or Jewish religious services. Id . ¶ 63. The response he received suggested that Greene contact an outside rabbi or synagogue to set up a special visit, but Greene does not have a rabbi he could ask to see him. Id. ¶ 63, 64. He followed up with people recommended in the grievance denials, but received no remedy. Id. ¶ 65.
In the Second Amended Complaint, Greene presents a theory of supervisory liability against each of the defendants based on each defendant's role in implementing practices, programs, or policies that Greene claims caused the violations he alleges. For former Sheriff Cabral and current Sheriff Tompkins, Greene alleges that each is or was responsible for "overseeing the operation and conditions of the correctional institutions in Suffolk County" and is or was "responsible for promulgating and implementing practices and policies" and ensuring the enforcement of the law. Id. ¶¶ 86, 88. He claims that each knew or should have known that Jewish inmates lack access to kosher meals, religious services and religious materials. Id. ¶¶ 87, 88.
Former Superintendent Horgan and current Superintendent Smith are alleged to be or to have been "[r]esponsible for supervision and daily operations of the Suffolk County House of Correction" as well as for "promulgating and implementing practices and policies, providing proper training to correctional staff" and ensuring enforcement of the law. Id. ¶¶ 89, 90. Greene alleges that both knew or should have known that Jewish inmates lacked access to kosher meals, religious services, and materials, in violation of the law, id., adding that former Superintendent Horgan knew that this was "by Department policy and practice, " id. ¶ 89, and that Superintendent Smith knew this "[d]ue to her involvement with training, and promulgation of the practices and procedures of the Suffolk County House of Correction, " id. ¶ 90.
Director Nee is alleged to be responsible for "supervision and daily operation of religious services within the Suffolk County House of Correction." Id. ¶ 91. She knew or should have known that Jewish inmates lacked access to calorically adequate kosher meals and religious services in violation of the law "[d]ue to her involvement and implementation of the religious practices and procedures of the Suffolk County House of Correction, and her direct contact with Mr. Greene during the grievance process." Id.
Greene further states that the defendants "have each been involved in or are aware of the creation, training, oversight and implementation of the Department's religious programs" including religious services, materials, and diets, and the fact that the diet provided pursuant to these programs "only sometimes complies with the rules of Kashrut and Jewish inmates' sincerely held beliefs." Id . ¶ 102. He claims that the defendants "were aware of the risk to Mr. Greene's health and safety and deliberately disregarded that risk" by failing to provide him with sufficient caloric intake. Id . ¶ 104. At another point in the complaint, Greene claims that defendants "were each involved in training, and each oversaw or implemented policies, or were aware of the implementation of policies, that provided inmates requiring a Kosher diet only two meals a day. Further, Defendants have trained and overseen both the unit officers, chaplains, and kitchen lieutenant, and created the policies that these subordinates enforce, when they have resorted to coercive tactics to force Mr. Greene to go without food or to abandon his sincerely held religious beliefs." Id . ¶ 112.
Greene asserts claims in six counts: for (1) violations of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq, against defendants Tompkins, Smith and Nee in their official capacities; for violations of 42 U.S.C. § 1983 against all defendants based on infringements of (2) the right to freedom of religion in the First and Fourteenth Amendments to the United States Constitution, (3) the right to equal protection in the Fourteenth Amendment to the United states Constitution, and (4) the right to be free from cruel and unusual punishment under the Fourteenth Amendment to the United States Constitution; and for violations of state civil rights against all defendants under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, based on infringements of (5) the right to religious freedom and (6) the right to be free from cruel and unusual punishment. Defendants now move to dismiss the Second Amended Complaint for failure to state a claim upon which relief may be granted, asserting variously sovereign immunity, qualified immunity, and inadequate pleading.
II. LEGAL STANDARD
In resolving a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, I treat as true all non-conclusory factual allegations in the complaint, while identifying and disregarding statements in the complaint that offer "legal conclusions" or "threadbare recitals of the elements of a cause of action." Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). I do not consider the likelihood of plaintiff's success on the merits. Id. If I am able to draw a reasonable inference that defendants are liable for the alleged misconduct, then the claim is plausible and I must deny the motion to dismiss. Id.
III. SOVEREIGN IMMUNITY
Sovereign immunity under the Eleventh Amendment of the United States Constitution protects states from suit in federal court unless the state waives immunity. "The Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting states." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72 (1996). Sovereign immunity from suits authorized by federal law does not extend to municipalities, it extends "only to States and arms of the State." Northern Ins. Co. v. Chatham County, 547 U.S. 189, 193 (2006). Despite its municipal title, the Suffolk County Sheriff's Department, which oversees the correctional facilities in Suffolk County, is controlled directly by the Commonwealth of Massachusetts and all employees of the Department are employees of the Commonwealth. Mass. St. 2009, c. 61, §§ 3, 13 (effective January 1, 2010)(transferring Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth, and Suffolk Sheriffs and their employees to the Commonwealth, "... all employees of the office of a transferred sheriff... are hereby transferred to that transferred ...