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Greene v. Cabral

United States District Court, D. Massachusetts

June 15, 2018

TIMOTHY GREENE, Plaintiff,
v.
ANDREA CABRAL, ET AL., Defendants.

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.

         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.

         I. PROCEDURAL BACKGROUND

         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.

         II. MOTION TO STRIKE

         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. “On remaining claims, discovery to be completed by April 8. Summary judgment motions due April 29, opposition by May 20, reply briefs June 3, and argument on June 29 at 3:00.” 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.

         III. FACTUAL BACKGROUND

         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.

         A. Kosher Meals

         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 lunch and dinner entrees were, in fact, truly kosher. Eating only those two entrees would not provide adequate daily nutrition. Greene contends that at breakfast, he was served the same food provided to all inmates, served with the same utensils and on the same trays. If true, Greene's meals could have been contaminated by non-kosher food that touched the same trays and utensils. Greene further contends that the special trays and utensils designated for kosher diets were not, in fact, kosher. He affirmed that no individual wrappers separated the kosher food from the gray diet trays, meaning contamination from other non-kosher special diet food was possible. Chef Bartholomew testified that special diet food was cooked using special, smaller pots and ladles - which could not be confused with the large items used for the general meal - and that religious diets were prepared before other special diets; Greene suggests that halal food might have been cooked in those pots before kosher food, causing contamination

         B. Religious Services

         Greene's complaints about his access to Jewish religious services have two dimensions, although Greene himself does not draw the relevant distinction. First, he has sought access to formal, communal Jewish religious services - and specifically sabbath services - while in prison. The prison does not hold weekly Jewish services. Second, and less explicitly, he has sought counseling from a rabbi. Both Greene's original grievance and his complaint focus on “services” but also discuss the availability of a rabbi, without clearly distinguishing the two.[2] The House of Correction does not have a rabbi on staff and does not offer weekly Jewish services.

         A full communal sabbath service, under Orthodox Jewish law, requires a minyan: a quorum of ten adult Jewish men. As of June 16, 2016, there were six inmates at the House of Correction who identified as Jewish, including Greene, and one at the Nashua Street Jail. Not all of these inmates necessarily could have counted towards a minyan, even if they chose to attend services; Greene, who had not formally converted, for example, would not have counted under Orthodox law. At other points, however, there may have been larger numbers of Jewish inmates under the custody of defendants. In total, 12 inmates at the House of Correction during 2012 identified as Jewish and 15 did so during 2013. At the Nashua Street Jail, 28 inmates identified as Jewish over the course of 2012 and 24 did so during 2013.

         The lack of a minyan posed an immediate obstacle to Greene's request for Jewish services. Defendant Anne Nee, the Director of Social Services charged with overseeing religious services at the House of Correction, in response to Greene's request, contacted an Orthodox rabbi, but that Rabbi informed her that he could not conduct a communal service without a minyan. There is no indication in the record of an attempt to overcome this obstacle either by combining the Jewish populations of different Suffolk County correctional facilities for prayer services or by bringing in sufficient volunteers to form a minyan.

         Some forms of group prayer are permissible without a minyan. A minyan is required only for certain important prayers and practices, such as saying the Kaddish and reading Torah. See Hernandez v. C.I.R., 490 U.S. 680, 711 (1989) (“certain worship services cannot be performed and Scripture cannot be read publicly without the presence of at least 10 men.” (citing 12 Encyclopaedia Judaica, Minyan, p. 68 (1972)); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 417 (2d Cir. 1995) (“the saying of certain prayers and the reading from the Torah on the Sabbath require the presence of a ...


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