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Denson v. Gelb

United States District Court, D. Massachusetts

July 13, 2015

MacARTHUR DENSON, Plaintiff,
BRUCE GELB, Defendant.


DOUGLAS P. WOODLOCK, District Judge.

Plaintiff MacArthur Denson is currently incarcerated at the Souza Baranowski Correctional Center ("SBCC") in Shirley, Massachusetts. Denson alleges that Bruce Gelb, the Superintendent of SBCC, is responsible for SBCC's policies for removing prisoners from their religious diets and that these policies and their implementation violate his statutory and constitutional rights.


Denson filed his initial complaint pro se on December 12, 2014 against Gelb in his official and individual capacities. He also moved for appointment of counsel, and I denied that motion without prejudice. Gelb has filed a motion to dismiss on grounds of insufficient service of process and failure to state a claim. Denson has now renewed his motion to appoint counsel and he has also moved to amend his complaint, but he has not provided a proposed amended complaint indicating precisely how he would amend the complaint. He requests that I stay a decision on the motion to amend and the motion to dismiss until I determine whether to appoint counsel.[1]

The complaint as it now stands alleges that the "Standard Operating Procedures" ("SOP") that govern removal of prisoners from their religious diets are unconstitutional. Denson does not explicitly state in the complaint that he is a practicing Muslim, but he alleges that he received and was properly entitled to a halal diet and he mentions observance of Ramadan and religious fasts. He does not state when he was first put on a halal diet, but the complaint alleges that he was removed from the halal diet first temporarily and then permanently. Denson alleges that the SOP calls for the removal of a prisoner from an approved religious diet for failing to access their special meal, or for accessing the general menu, three times within a thirty day period, even if the general menu is the same as the halal menu for a particular day. Compl. ¶ 7, 13. A first removal is for sixty days, after which a prisoner may reapply for the religious diet. Id. ¶ 8. A prisoner removed twice within a twelve-month period is permanently removed from the religious diet. Id. ¶ 9. The SOP does not distinguish between prisoners who do not access their meal due to illness or religious fasting, and Denson alleges that he suffers from a chronic illness and routinely observes religious fasts. Id. ¶ 11-12.

Denson also includes various allegations about his own removal from the religious diet list. He alleges that on one occasion he was temporarily removed from the halal diet for not signing for his requested diet from the kitchen during a period when he was being housed in a restrictive housing unit that did not permit prisoners to access the kitchen. Id. ¶¶ 16-24. Denson was later permanently removed from his religious diet on February 20, 2013. Id. ¶ 29. He contests the circumstances that led to his removal. Id. ¶¶ 31-36.

Denson alleges that most prisoners receiving a halal diet have been removed from that religious diet due to the SOPs, but he does not explicitly tie this to the content of the SOP and any particularly harsh effect on Muslim prisoners. Id. ¶¶ 37-38. Denson alleges that as a result of his own removal from the religious diet, he has had to spend thousands of dollars at the institutional canteen to supplement his diet, id. ¶ 40, and that at one point Gelb allowed the imposition of a sixty-day loss of canteen sanction, which resulted in Denson's having to eat food inconsistent with his faith, id. ¶ 41. Denson challenges the process by which the removal is effected as well as the SOPs themselves in that they do not take into account the reason a prisoner did not access the special diet. Id. ¶¶ 15, 43.

Denson asserts violations of (1) the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., (2) the First Amendment to the United States Constitution, (3) Equal Protection and (4) Due Process under the Fourteenth Amendment of the United States Constitution, as well as similar claims under the Massachusetts Declaration of Rights, including deprivation of (5) religious freedom, (6) equal protection, (7) and due process, (8) the right to worship under Mass. Gen. Laws c. 127 § 88m (9) Department of Corrections regulations and policies, and (10) civil rights under the Massachusetts Civil Rights Acts, Mass. Gen. Laws c. 12, § 11(H) and (I). Denson seeks injunctive relief, including an order requiring Gelb to provide Denson with a halal diet and preventing Gelb from suspending or permanently removing Denson from his religious diet, various forms of compensation and restitution, punitive damages, costs, and attorneys fees.[2]


A. Motion to Dismiss and Motion to Amend

I will permit Denson to amend his complaint and instruct the Pro Se Staff Attorneys Office to make efforts to secure counsel for Denson in doing so.

Denson has not submitted a proposed amended complaint, so I am not in a position to analyze closely the viability of any claims that might be included in an amended complaint. I observe, however, that where it is apparent that even an amended complaint necessarily would fail to state a claim upon which relief could be granted, then the amendment would be futile. See Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996). In reviewing for futility, a court will apply the same standard of legal sufficiency as I would apply to a Rule 12(b)(6) motion. Id. Therefore, although I deem Gelb's motion to dismiss moot in light of the prospects for a future amendment of the complaint, I will still consider whether any of the arguments in the motion to dismiss are meritorious and would necessarily apply to an amended complaint. In this connection, I direct the parties' attention to a Memorandum and Order I have issued today, Greene v. Cabral, Civ. Action No. 12-11685 (D. Mass. July 13, 2015), dealing at greater length with issues similar to those presented in this case. A copy of the Greene Memorandum and Order is attached hereto as Exhibit A.

One argument made by Gelb in the motion to dismiss is that certain of the allegations against Gelb must be dismissed due to sovereign immunity under the Eleventh Amendment of the United States Constitution. Briefly stated, sovereign immunity bars all claims for damages against states, and this includes claims against state employees acting in their official capacities. See generally Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72 (1996). A more extensive discussion of sovereign immunity in the context of prison litigation can be found in Section III of the Greene Memorandum and Order. Under this doctrine, all claims under state law against unconsenting states, including an employee of the state acting in his or her official capacity, must be dismissed and claims for damages under federal law against unconsenting states must also be dismissed. Id. Gelb, as superintendent of a state correctional institution, is undisputedly a state employee. Therefore, Denson's claims against Gelb in his official capacity for damages under federal law and for all relief under state law do not state a claim upon which relief may be granted and any future amendment seeking to do so would be futile.

I further note some skepticism, based on the current complaint, that Denson will be able to amend the complaint in such a way as to avoid dismissal under the doctrine of qualified immunity of all claims for damages against Gelb in his individual capacity. I briefly note here that qualified immunity requires a two-part inquiry, including whether a constitutional violation is alleged and whether that violated right was "clearly established." See Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014). The principles are covered in Section V of the attached Memorandum and Order in Greene. It seems unlikely that claims on the current theory of denial of a religious diet due to claimed disciplinary infractions would be considered a violation of a clearly established right, particularly since this is a claim that appears to be the subject of an emerging circuit split. Compare Kuperman v. Warden, 2009 WL 4042760 (D.N.H. Nov. 20, 2009)( Kuperman II )(finding claims of inmate denied kosher food for a dietary violation to be moot due to modifications of religious diet policy, but noting the possibility that even the modified policy could be a substantial burden on religious exercise) and Kuperman v. N.H. Dep't of Corr., 2007 WL 1200092 (D.N.H. Apr. 18, 2007)( Kuperman I ) (recommending a preliminary injunction where an inmate was denied a kosher diet as a penalty for occasions where he was alleged to have eaten non-kosher food) with Daly v. Davis, 2009 WL 773880 (7th Cir. Mar. 25, 2009)(holding that a prison's program that removes prisoners from religious diets for failure to comply with the religious diets does not substantially burden exercise of religion). Denson and his counsel, if one is secured, will nonetheless have the opportunity to reformulate his complaint to address the issue of qualified immunity in further briefing.

B. Appointment of Counsel

Denson has sought appointment of counsel to assist him in prosecuting his case. Civil plaintiffs do not have a constitutional right to appointed counsel. DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). The statutory authority that permits courts to "request an attorney to represent any person unable to afford counsel, " 18 U.S.C. §1915(e)(1), is discretionary. King v. Greenblatt, 149 F.3d 9, 14 (1st Cir. 1998). A district court is only "compelled to invoke the statute, " and the First Circuit will only find reversible error in denying appointment of counsel, if "exceptional circumstances were present such that a denial of counsel was likely to result in fundamental unfairness impinging on [plaintiffs'] due process rights." Id. (quoting DesRosiers, 949 F.2d at 23).

After reviewing the current complaint, particularly in light of my parallel review in Greene, I am satisfied that some of Denson's claims, particularly the claims for prospective relief under federal law, may have significance. The issue of when an institution is permitted to withdraw religious diets presents an open question.[3] The First Circuit has not addressed this issue, and as Judge LaPlante has observed, it is an issue that has been slowly percolating through other circuits. See Kuperman II, 2009 WL 4042760, *6 ("A circuit split is brewing on this very issue, " referencing the decisions in Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006) and Brown-El v. Harris, 26 F.3d 68, 69-70 (8th Cir. 1994)). While Denson has limned his claims to the best of his ability to this point, the potential merit of this relatively novel and important legal issue would best be developed by trained counsel. Consequently, I will direct the Pro Se Staff Attorneys Office to take all reasonable steps to secure counsel for the plaintiff in this matter.


For these reasons, it is hereby ORDERED that:

1. Plaintiff's Renewed Motion to Appoint Counsel (Doc. No. 24) is GRANTED to the extent that the Pro Se Staff Attorneys Office is directed to take all reasonable steps to secure counsel for Denson, Plaintiff's Supplemental Motion for Appointment of Counsel (Doc. No. 26) is MOOT;

2. Plaintiff's Motion to Amend Complaint (Doc. No. 25) and Plaintiff's Supplemental Motion to Amend Complaint (Doc. No. 29) are DENIED without prejudice to renewal once counsel is appointed;

3. Plaintiff's Motion to Stay (Doc. No. 25) until resolution of the Motion to Appoint Counsel is GRANTED to the extent that the Pro Se Staff Attorneys Office will submit a status report on or before September 30, 2015, indicating whether counsel has been found to represent the plaintiff; if such counsel is identified, the stay shall be lifted and the Clerk shall promptly set the matter for a scheduling conference;

4. Plaintiff's Motion to Stay Ruling on Defendant's Motion to Dismiss (Doc. No. 27) is MOOT;

5. Defendant's Motion to Dismiss (Doc. No. 22) is MOOT in light of the prospect of renewal of a motion to amend the complaint if and when counsel is secured for plaintiff.

6. Plaintiff's motions for a temporary restraining order (Doc. Nos. 5 & 15) and to waive a ...

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