,. / (pd '7 -.3 d -- O;Z / I?

e llal( Case 1:01-cv-12145-RGS Document 7 Filed 08/05/02 Pa(gO e f1co/cf /1)'01a (k/V-h

• cU UNITED STATES DISTRICT

'r, /lid, eX hi

FOR THE

\

/

DISTRICT OF MASSACHUSETT

/'

MAe S. HU6S0M, et,al, Plaintiffs,
V. MICHEAL MALONEY,et, al,
DEFENDANTS,

C.A.No.
01-12145
._'

PLAINTIFF'S VERIFIEF COMPLAINT FOR CLASS ACTION

Introduction :
Plaintiff's are filing a class action suit for violation of their religious rights under Islamic Religion and for not being "i' afforded the same opportunity to ob8~rv§~ltheir religious beliefs as other religious groups housed within the Department of Corrections, in violation of their first amendmen rights and 14th equal protection rights under the law and governing promulgated State regulatory provisions, G.L.C. 127 §

PARTIES: 1. Plaintiff Mac S. Hudson is a prisoner lawfully committed to the Department of Corrections, who reside at MCI-CJ. He is at all time relevant through out this complaint. 2. Plaintiff Derrick tyler is a prisoner lawfully committed to the Department of corrections, who reside at MCI-CJ. He is at all times relevant throughout this complaint. 3. Plaintiff Antwan Crawford is a prisoner lawfully committed to the Department of corrections, who reside at MCI-CJ. He is at all times relevant throughout this complaint. 4. Plaintiff Garrick Wilson ,;its, fa: prisoner lawfully committed to the Department of Corrections, who reside at MCI-CJ. He is at all times relevant throughout this complaint. 5. Plaintiff Anthony Tucker is a prisoner lawfully committed to the Department of Corrections, who reside at MCI-CJ. He's at all relevant throughout this complaint.

• Case 1:01-cv-12145-RGS Document 7 2.

•Filed 08/05/02 Page 2 of 10

6.

Defendant Michael Maloney is the Commissioner of Corrections,

He is at all times relevant throughout this complaint. He's in charge

of the care and custody of Plaintiff's and is being sued in his

individual and officiaL, capacity as Commissioner;

7. Defendant Adrea Emodey is the Head of religious Committee for the

Department of Corrections and is responsinle for Plaintiff's ability

to abserve religious rights. She is at all times relevant in this

complaint and is being sued in her individual and official capacity.

8. Defendant Peter Allen is Superintendant of MCI-CJ and is at

all time relevant in this complaint. He's responsible for Plaintiff's

care and custody and is being sued in his individual and official

capacity as Superintendant.

9. Defendant Beter Pepe was Former Superintendant of MCI-CJ and is

at all times relevant. He's responsible for the care and custody of

Plaintiffs. He's being sued in his individual and oiticiai capacity as

Superintendent.

10. Defendant Sherry Elliot is Program Director of MCI-CJ, who is

at all times relevant throughout this complaint. She is responsible

for the care and custody and enforcement of Religious observance of

prisoners. She's being sued in her individual and official capacity

as Program Director.

FACTS:

HISTORY OF ISLAMIC PRACTICE WITHIN DEPARTMENT OF CORRECTION AND ISLAMIC LAWS

11. The Nation of Islam established the Masjihads within all the MassacWu~etts Department of Corrections in the 1980's when Islam was virtual unknown and practice by a few African Americans in these istitutions. 12. The first Masjids was erected within MCI-Walpole Called MCI-CJ today. Commissioner George Vose and Superintendant Jos~ph Ponte of MCI-Walpole reached a cent~act with: NatioD.bf Islam~representatives permitting these representatives to enter the prison and teach Islam to it's fellow Moslims pupil. 13. The contract reached between the Nation of Islam and Officials outlined religious ~slamic practices concerning Halal meals,; the practice of Ramadan and the following Eid-ul-Fitr, and access to ~relig±ous material that permit observance to Islam practice.

Case 1:01-cv-12145-RGS Document 7
3.

•Filed 08/05/02 Page 3 of 10

14. The Contract consist of prisoners not being served pork or pork by products contained in food. with the' promise that Department of Correction would expand the Halal meals in complete observance of Islamic Dietary requirments. That these meals were to be prepared by Moslims empJioyed:at the prison kitchen. 15. Prisoners would be permitted to purchase pra¥er rugs to make their five (5) daily required Salats at their own expense. Prisoners would be able to posses Religious Islam pieces and artifacts i.e. prayer beads,Kufis, at their own expense. The Department of Corrections would provide prisoners with Holy Qur'an (Moslim bible) and payment expense of Ramadan and Eid-ul-Fitr (Feast of Thanksgiving),. 16. The Department of Corrections agreed to follow Ramadan requirements of allowing Moslim prisoners to fast from sun rise· to;.sun set and provide two meals after sunset (Lunch and Dinner) and the breakfast meal before sunrise. Also to allow Moslim prisoners to prepare the meals in accordance with their practice. The prison would allow prisoners to congregate in the chowhall to shaue~ their meals at the break of sunset fast and whatever the Moslims could not finish could be taken back to their cells to eat as needed in observance wjth Islamic beliefs. 17. The Department of Corrections agreed to pay for the Eid-ul-Fitr feast upon the completion of Ramadan. In which Moslim prisoners would be permitted to congregate in a designated area and celebrate Eid-ul--Fitr. This meal would be prepared by the Iman and Moslim prisoners or catered by a Halal company. Congregation would be permitted only where there was no secuirty concern. Moslims confined in segregation would be able to fast and observed the Eid-ul-Fitr. Supplied in this Feast would be a variety of what Allah considered nothing but the best Halal food. 18. The Department of Corrections agreed to supply Imans and Moslims with a place that they could observed their required prayers and sermons that would allow them to submit to their required washing and allow moslim to attend, as was the case with other Religions. 19. Between the mid ahd Late, 1980's the Department of Corrections changed their volunteer Religious programs for security concerns and required all Religous Counsels alike to enter into a signed contract with Department of Correction, requiring them to report prisoners who voiced some kind of threat or foreseeable security concerns and forbidding them from speaking out against the Department of Corrections or reporting what they saw in conflict of DOC's interest.

• Case 1:01-cv-12145-RGS Document 7 5 •

•Filed 08/05/02 Page 4 of 10

27. Moslims are to also abstain from foods made up from animals

that weren't slaughtered in Islamic beliefs. This consist of additives

like yellow die number (5) five and die red fourty (40); animal

shorting, oils. See. Ex. A. pg.

A list of what is Halal, considered

Haram, or Mash-booh. Mash-booh is Arabic meaning suspect. See. Ex.A.

28. Moslims are to perform Taharah b~fore conducting their five

mandatory Sa'lots and in preparation of their meals and before

eating their meals. Taharah literally means purity, cleanliness and

the state of undefilement. Taharah includes outer and inner cleanliness.

Inner cleanliness includes purity of beliefs and purity of thought.

29. Ramadan is a required fast for all Moslims to observe~ Moslims

are to abstain from eating from sunrise to sunset. During their

sunset break of fast, their required to congregate as a show of

harmony and brother unity. See Ex. A.pg.

This fast last for

29 days. In which a sequence of daily prayers are recited in the

name of Allah.

30. Moslims observing Ramadan meals are required to be prepared by

Moslims who have observed the Taharah in preparation of their meal.

To ensure the food is Halal, and prepared with cleanliness and purity

of inner and outer aspects that govern the Taharah.

31. Upon completion of Ramadan fast, Moslims are required to

celebrate Eid-ul-Fitr. Where again their required to come together to

eat the best of food Allah deemed Halal for consumption. This is done

to markthe.,ending of Ramadan ~nd is the manifestation of real joy

and thankfulness for opportunities has given Allah.

32. As with all requirements of Islamic Dietary law, Moslims are

to prepare these meals in the state and condition of Tahara, and to

ensure that the meals meet the requirements of Halal.See Ex. A. pg.

33. Moslims are requ~red to observe the Eid-ul-Adha (Feast of Sacrafice)

on the tenth month of Dhul-Hijjah. Moslims unable to make the pilgrimage

Makkah oDt'Arabia are to fast the first nine days of Dhul-Hijjih or

minimum on the ninth day (Day of Arafat) the before the feast of

sacrafice. On this day of Eid Moslims collecively express their

gratitude by reme~bering, praising, and glorify~ng Allah in the form

of congregational prayer.

34. Like with all Islamic Dietary laws, these meals are to be

prepared by Moslims in observance of Taharah and of the Halal

meals.

• Case 1:01-cv-12145-RGS Document 7 6.

•Filed 08/05/02 Page 5 of 10

35. There are substantial diffirences between Kosher meals and Halal meals.See Ex. B. DENIAL OF RELIGIOUS RIGHTS BREACH OF CONTRACT.
::i.t.r'- 0' •
36. Plaintiff Hudson, while confined in SBCC prison submitted a request for meals consistant with his Halals requirments to Director of Programs Tony Mendosa in August of 2000. 37. Plaintiff requested to be placed on a vegetarian meal without Haram foods or ingrediants. This was processed along .witmii,Hudsoil, Halal request for meals. Plaintiff was notified that the Superintendant John Marshall approved the request and the package was forwarded to the Religious Committee. See Ex. B. Correspondences. 38. Plaintiff Hudson was subsequently transferred to MCI-CJ pending his decision from the Religious Committee . Plaintiff Hudson requested for Halal meals and to be placed on a vegetarain meal with no Haram foods until the outcome of his Religious Committe decision, to Director Sherry Elliot. This was denied and Hudson was informed to await his pending decision" 39. The Religious Committee only meets twice a year, once in August and once in September. Plaintiff learned this through his continual request for a decision from MS. Elliot. Ex.B. 40. After repeated demands of Halal meals being made to Ms. Elliots office from the, inner Moslim Community, Ms. Elliot decided to provide the Moslims with Meals that met the religious Seven day Adven and were being supplied to this religious sect. 41. Plaintiff requested for a menu of the meals to see if any of the meals or ingrediants were Haram. After non response from Ms. Elliot's office, Plaintiff wrote to the Superintendant Peter Pepe regarding his non-response. Mr. Pepe forwarded(Hudson Ms. Elliots's response of denial of the menu and contents. See. Ex.B. pg. 42. Plaintiff Hudson appealed the decision of refusal of menu and contents . This request was denied by the Superintendant. Therefore Plaintiff was unable to register for the meal. 43. Plaintiff Hudson's Halal request has been pending over a year with no resolution, and have been stone wall in obtaining his religious rights in this regard by the Committee. Plaintiff wrote Maloney regarding the

pending matter and did not receive no response. Ex. B. pg.

• Case 1:01-cv-12145-RGS Document 7 7.

•Filed 08/05/02 Page 6 of 10

44. Plaintiff Tyler attempted to register for Halal meals from Sherry Elliot's office. Tyler requested for vegetarian Halal meals and mailed in the proper forms. Ms.Elliot refused to process the form to the Religious Committe unless he had a Iman from the street to certify that he's a practicing Moslim 45. On or about Nov of 2000 Plaintiff Hudson, Tyler, Tucker, and Wilson was observing Ramadan~ On· top of the meals arriving late and Plaintiff's grieMancing this process. Plaintiff's meals wer being prepared by non-Moslims in the Kitchen department. 46. MS. Elliot was made rounds in Essex-I where all plaintiffs were confined . Plaintiff's were informed individuality by Ms Elliot, that the prison was not observing Moslims preparing meals in accordance with Tahara. That Plaintiff's could not receive a copy of the menu of food used to cook and prepare the food, or the food to celebrate Eid-ul-Fitra. 47. As a result of these violations, Plaintiff's were unable to observe their fast and had to break their observance of Ramadan and not participate in Eid-ul-Fitra. See. Ex.C. Affifavits of Kitchen workers. 48. Plaintiff Hudson,Tyler, and Crawford requested to be permitted to order prayer rugs. All Plaintiff's have been issued Prayer towels as a substitute. However during cell searches of their ceels, these towels are subject to be confiscated mistakenly as being over the two towel per inmate. 49. Plaintiff Hudson have personally experience that his prayer towel was desecrated on two occasions after a cell search. Where he found his prayer towel with foot prints on it and on the floor, or confiscated. Each time this ocurred Hudson was told that the officer mistaken it for a regular towel, or that the officers did not know how it was damaged. 50. Plaintiff's Hudson, Tyler and Crawford, filed a seperate proposal to Ms elliot pertaining a: request to purchase a Prayer rug in order to make prayer and ovoid the difficulties endured with the towels. This was denied. Plaintiff's request for Superintendant Peter Allen consider their proposal with attached catalog from a distributor to deliver serv~ce. This was denied for no security reasons at all. See. Ex.C.pg.

UNEQUAL TREATMENT CLAIMS:

51. Judasiam prisoners are permitted to have Kosker meals in adherence

to their Religion,ordered from an out side distributor. Therefore the

of Department

Corrections have demonstrated their ability to meet other

• Case 1:01-cv-12145-RGS Document 7 8. religion Dietary means.

•Filed 08/05/02 Page 7 of 10

52. Moslim prisoners observing Islamic Dietary demands are not

afforded Halal meals as Judasiam are afforded Kosher meals from an

outside vender.

53

Prisoners observing the Wica Religion are permitted to posses

religious garbs and items consistent with thier riligion. Native

Americans are supplied with items to perform their rituals.

54. Moslim prisoners are not permitted Prayer rugs ordered through

a vender at their own expense, despite no security interest preventing

possession of this item. Ex. D. Moslims are not permitted to

receive donation from outside Islamic Community Masjids to prison

officials for the use by Moslim prisoners i.e. Prayer rugs or Videos.

Without no expressed security concerns.

55. Moslim prisoners are not permitted to observe Eid-ul- Adha

within the Department of Corrections as their counter parts are able

to observe the required Fast and celebration in SBCC prison under

Iman Omar Bassma.

56. Moslims at MCI-CJ are required to sign up for service. If their

name is not on the list, then they're denied their religious right to

worship and make prayer. MCI-CJ doesn't require Christians or Catholic

prisoners to sign up for religious service and thereby deny: them

the ability to participate and make relious prayer or congregation

prayer.

57. Plaintiff Hudson, Tyler and Crawford was serving a year loss of

TV sanction and held in a segregated unit (Essex-I) considered

population by Defendants. During this time Plaintiff's was disallowed

the right to make mandatory Jumar prayer. MCI-CJ did not make

arrangements for prisoner without TV's to participate effectively in

Jumar prayer through close circuit prison Tv.

58. Plaintiff's submitted a request to have the inner parameter

control office approve an inmate that ooes'nt pose a security risk

to MCI-CJ to make rounds with the Iman to perform the Kutbah ,I"~

. Kutbah needs three people in accordance with Sunnah to have Jumar

prayer. This was denied by Ms. Elliot and Mr. Allen.

CLAIMS OF RELIEF:

Paragraphs 1 to 58 are in corpora ted below:

• Case 1:01-cv-12145-RGS Document 7 9.

Filed 08/05/02 Page 8 of 10

59. By denying Plaintiff Hudson Halal meals, and the opportunity to review the ingrediants to the vegetarian meals forcompari~on with his religious dietary requirements violated Hudsons first amendment rights to the U.S. Constitution and violated promulgated regulations 103CMR471.07.(1) (a) !d); 103CMR471.09. (5) and Standard operation procedures bf Diet meals request by the Department of Correction. 60. By denyin~ Plaintiff Hudson a timely response on his Halal and vegetarian request and the Commissioner Maloney refused to intervene to order the religious Committee to comply with a ruling on Hudsons dietary request violated Hudson's 1st amendment rights to U.S constitution and promulgated, regulations 103CMR4 71. 07. ( 1) (a) (b); 103CMR471.09.(5) and standard operation procedures of Diet meal request by the Department of Corrections. 61. By denying Plaintiff Tyler the ability to apply for Halal vegetarian meals without an outside Clergyperson vouching for his membership to Islamic beliefs violated Tyler's 1st amendment rights to U.S. constitution and 103CMR471.07 (1) (a) (b); 103CMR471.09. (5) and standard operation procedures for dietary religious meals request. 62. By denying Hudson and Tyler access to Halal meals consistent with their religious beliefs, while such rights are afforded to other religions within the prison violated Plaintiff's Equal protection rights 14th Amendment to the U.S. constitution and 103CMR471.07.(1) (a) (b), 103CMR471.09. (5) and Standard operational dietary standards. 63. By denying Plaintiff's the ability to practice Ramadan in accordance with established procedures by, Islamic law and verbal contract reached with administration officials and the Nation of Islam constituted a breach of contract and violation of Plaintiff's freedom to practice their religion 1st amendment rights to the U.S. Constitution and promulgated, ,regulations 103CMR47L07. (1) (a) (b); and 103CMR.471. 09. (5) (b). 64. By denying Plaintiff's the ability to posses religious items ordered from an approved vender and that doesn't pose a security risk. As well as the ability to receive donations of Prayer rugs directly to prison officials control and custody for use by Moslim prisoners violated Plaintiff's 1st amendment rights to the U.S. constitution religious freedom and 14th'amendment rights Equal treatment to U.S. constitution; and 103CMR471.07.(1)(a)(b) and 471.11.(1).

• Case 1:01-cv-12145-RGS Document 7 11.

•Filed 08/05/02 Page 9 of 10

g;~ violating Plaintiff's 1st amendment and 14th amendment rights to U.S. constitution and 103CMR.471.07.(1)(a)(b) and 471.11.(1). h. By denying Plaintiff's the opportunity to observe Jumar by ~jL pt6vldictg opportunity to those prisoners not having tv's and requiring Moslims to sign up in order to observe religious prayer while not pegmlating other religions to do so violated Plaintiff's Equal treatment and freedom to practice their religion 1st and 14th amendment to the U.S. Constitution and 103CMR471.07.(1)(a)(b) and 471.09.(6). i. Award Plaintiff's 2500. in punitive and compensatory damages for violations in paragraphs g and h. j. Declare B~aintiff's have an religious obligation to observe Eid-ulAdha fast and celebration. That defendant's have denied Pilia~ntiff's the opportunity to do so as provided to prisoners in SBCC prison, violating plaintiff's 1st and 14th amendment to U.S. Constitution and 103CMR471.07. (1)(a)(b) and 471.09.(5)(b). k. Order defendant's to provide Plaintiff's with the opportunity to observe Eid-ul-Adha and award plaintiff's punitive and compensatory damages. 1. Award attorney fees pursuant to 42 U.S.C.1988 or alternative fees fpr plaintiff filing and prosecution of complaint. m. Award Plaintiff's whatever else this Court deems just and fit.

VERIFICATION OF COMPLAINT I, Swear under the pains and penalties of perjury that I read paragraphs 1 to 65 and to the best of my recollection they are true and accurate. Sign this 17th day of Nov 2001
Signed

• Case 1:01-cv-12145-RGS Document 7 12.

•Filed 08/05/02 Page 10 of 10

Respectfully Submitted Pro-se

Mac Hudson P.O.Box 100
S.Walpole Mass 02071

. Darrick Wilson
fla1tA~ ;r-::'" J~,

 
 Case 1:01-cv-12145-RGS Document 28 Filed 03/30/04 Page 1 of 4
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 01-CV-12145-RGS
MAC HUDSON, et al.
v.
MICHAEL MALONEY, et al.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
March 29, 2004
STEARNS, D.J.
Two Muslim inmates confined at the Massachusetts Correctional Institution at Cedar
Junction (MCI Cedar Junction), Mac Hudson and Derrick Tyler, allege that corrections
officials have violated their First Amendment right to the free exercise of religion by refusing
to allow them to practice their Muslim faith in accordance with their understanding of Islamic
dietary requirements.' Plaintiffs seek a preliminary injunction ordering that they be provicled
"Hala!" meals,2 and that only Muslim inmates be permitted to handle and prepare their food
'A third plaintiff, Antwan Crawford, has been released from custody and is no longer a party to this action.
2The Halal dietary restrictions at issue principally involve the preparation of meat. An Islamic website, eat-halal.com, describes the proper method as follows:
Animals such as cows, sheep, goats, deer, moose, chickens, ducks, game birds, etc., are also Halal, but they must be Zabihah (slaughtered according to Islamic Rites) in order to be suitable for consumption. The procedure is as follows: the animal must be slaughtered by a Muslim (or a Jew or Christian). The animal should be put down on the ground (or held if it is small) and its throat should be slit with a very sharp knife to make sure that the 3 main blood vessels are cut. While cutting the throat of the animal (without severing it) the person must pronounce the name of Allah or recite a blessing which contains the name of Allah, such as "Bismillah Allah-u-

Case 1:01-cv-12145-RGS Document 28 Filed 03/30/04 Page 2 of 4
during the Moslem holy month of Ramadan.' Plaintiffs state that they are seeking to follow the diet prescribed by Elijah Muhummad in How to Eat to Live Under Islam, which prohibits the consumption of meat "substitutes," corn, and Jell-O, pudding and other foods made with pork byproducts: Plaintiffs argue that defendants' refusal to provide Halal meals violates equal protection because similarly situated Jewish and Seventh Day Adventist inmates are offered meals prepared according the dietary laws of their religions.
Defendants make the unassailable point that correctional facilities are permitted to balance valid penological interests, including the necessity of operating a prison within budgetary constraints, against an inmate's desire for an individualized religious diet. ~3ee Denson v. Marshall, 59 F. Supp. 2d 156, 158-159 (D. Mass. 1999), aff'd, 230 F.3d 1347 (1st Cir. 2000); Muhammed v. Warithu-Deen Umar, 98 F. Supp. 2d 337, 344 (W.D.N.Y. 20(0). Defendants maintain that it is not financially feasible to provide meals that conform to the unorthodox Muslim teachings that plaintiffs have embraced and that Kosher and vegetarian meals are provided to Jewish and Seventh Day Adventist inmates because of marketplace considerations and not out of any desire to elevate one religion over another. Defendants
Akbar." 'According to the affidavit of Ibrahim Rahim, the Director of the Diversity Office for the Department of Correction, and a University of Medina graduate in Islamic law, the Holy Qu'ran permits Muslims to consume food prepared by non-Muslims. Defendants also point out that any special selection of inmates for food service positions based on their religious affiliation would violate the Department of Correction's policy of assigning jobs on a nondiscriminatory basis and expose it to potential litigation, as well as risk resentment on the part of other inmates at the special treatment accorded to plaintiffs. 4Director Rahim attests that there is no Islamic prohibition against the consumption of corn, and that Jell-O, pudding, and similar foods served by the Department of Correction are pork-free.
2

Case 1:01-cv-12145-RGS Document 28 Filed 03/30/04 Page 3 of 4
also contend that plaintiffs are not prevented from practicing their religion because they are offered the alternative of a vegetarian diet, while it is undisputed that all meals served in the prison system are pork-free.
The award of a preliminary injunction "requires consideration of (1) the movant's likelihood of success on the merits, (2) the potential for irreparable harm, (3) a balancing of the relevant equities, and (4) the effect on the public interest." Campbell Soup CompalJYjL Giles, 47 F.3d 467, 470 (1st Cir. 1995). "Likelihood of success is the main bearing weill of the four-factor framework." Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 1L~, 15 (1 st Cir. 1996). The issues raised by plaintiffs are not novel. As defendants point out, a raft of precedent holds that providing Muslim inmates with a pork-free diet satisfies the First Amendment. See O'Lone v. Shabazz, 482 U.S. 342, 352 (1987). A persuasive example is Abdul-Malik v. Goord, 1997 WL 83402 (S.D.N.Y. Feb. 27, 1997), where Judge Cote, after a trial of the issue, held that the failure of corrections officials to provide Halal meat to Mu~,lim inmates, given the availability of alternative diets that did not offend Islamic teachings, did not violate the First Amendment or the Equal Protection Clause. 5 The general thrust of Abdul-Malik and like cases is that "[a]1I that is required for a prison diet not to burden an inmate's free exercise of religion is 'the provision of a diet sufficient to sustain the prisoner in good health without violating [his religion's] dietary laws.''' .!9.,. at *6, quoting Kahane v. Carlson, 527 F.2d 492, 496 (2d Cir. 1975). Because plaintiffs have not established that their personal interest in a dietary regime tailored to their specific religious beliefs outweighs the
5As attested by Director Rahim, an absolute prohibition against the consumption of nonHalal meat is not a central tenet of Islam. Nor does a Halal diet require the eating of any meat whatsoever. See Abdul-Malik, supra at *2.
3

Case 1:01-cv-12145-RGS Document 28 Filed 03/30/04 Page 4 of 4 interest of the Department of Correction in the efficient and secure management of its penal institutions, the court will deny the request for a preliminary injunction.
ORDER For the foregoing reasons, plaintiffs' motion for a preliminary injunction is DENIED. Dispositive motions shall be filed within forty-five (45) days of the date of this Order, with oppositions due twenty-one (21) days thereafter. 6
SO ORDERED. lsI Richard G. Stearns UNITED STATES DISTRICT JUDGE
60n the existing record, the only potential dispute of fact that the court can identify involves the defendants' claim that the provision of a Halal diet would impose an undue financial and administrative burden on the Department of Correction. But see Abdullah v. Fard, 974 F. Supp. 1112, 1118-1119 (N.D. Ohio 1997).
4

 
 Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 1 of 19

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

MAC HUDSON, DERRICK TYLER,

Plaintiffs,

v.

C.A. No. 01-12145-RGS

MICHAEL MALONEY, et aI.,

Defendants.

DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
Defendants submit the following memorandum in support of their Motion for Summary Judgment, pursuant to Mass. R. Civ. P. 56.
INTRODUCTION Plaintiffs Mac Hudson ("Hudson") and Derrick Tyler ("Tyler") are inmates within the custody of the Massachusetts Department of Correction ("Department"). Both Hudson and Tyler are currently incarcerated at MCI-Cedar Junction in S. Walpole, Massachusetts ("Cedar Junction"). Named as defendants are Michael Maloney, formerly Commissioner of Correction; Peter Allen, formerly Superintendent of Cedar Junction; Peter Pepe, formerly Superintendent of Cedar Junction; Andrea Emodi, formerly Director of Program Services; and Sherry Elliot, Director of Treatment at Cedar Junction ("defendants"). Plaintiffs have brought this action seeking declaratory and injunctive relief and damages for alleged violations of their fee exercise of religion. Plaintiffs' complaint raises claims under 42 U.S.C. §1983 and Department of Correction regulation 103 CMR 471.00 et seq. Specifically, plaintiffs allege a violation of their rights under the First and Fourteenth Amendments where the

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 2 of 19 2
defendants have: (1) refused to provide plaintiffs with Halal meals; (2) allowed non-Muslim inmate kitchen workers to prepare plaintiffs' meals; (3) required the use of prayer towels instead of prayer rugs; (4) violated the Equal Protection Clause by denying plaintiffs' request for Halal meals, yet providing other inmate religious groups with meals consistent with their religions. On March 29, 2004, the Court (Steams, DJ.) entered an order denying plaintiffs' request for a preliminary injunction.
STATEMENT OF UNDISPUTED FACTS 1. Plaintiffs Mac Hudson and Derrick Tyler are inmates within the custody of the Massachusetts Department of Correction ("DOC"), currently incarcerated at MCI-Cedar Junction, a maximum security state prison. Complaint, ~ ~ 1, 2; Affidavit of Sherry Elliot, ~ 2.1 2. Plaintiffs profess to be members of the Nation of Islam and observe the religious practices of Islam such as the Ramadan fast, annual Eid feasts, praying five (5) times daily, using prayer oil, wearing kufis and prayer beads, reading from the Qur'an, dietary restrictions prohibiting the consumption of pork or pork by-products, non-Halal meats and corn, and attending Friday Jumah services. Complaint, ~~ 15-16,23-34. 3. Plaintiffs are able to observe the religious practices ofIslam such as the Ramadan fast, annual Eid feasts, praying five (5) times daily, wearing kufis and prayer beads, reading from the Qur'an, dietary restrictions prohibiting the consumption of pork or pork by-products, nonHalal meats and com, and attending Friday Jumah services. Elliot Affidavit, ~~ 4-10. 4. Plaintiffs have a choice of eating the standard menu that is free from all pork and pork by-products or the vegetarian alternative menu. Hudson and Tyler have been advised that, as followers of Islam, they may chose to eat the vegetarian alternative menu. The vegetarian
I Affidavit of Sherry Elliot is attached hereto as Exhibit 1.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 3 of 19 3
alternative menu substitutes the meat items provided to other inmates with vegetarian items made of soy, wheat or other vegetable products. Elliot Affidavit, ~~ 4, 6; Affidavit of Peter Szafir, ~~ 2,32
5. The Department presently houses over 10,000 inmates who must be fed three (3) meals per day. There are four menus in place at all times: the standard menu, which does not contain pork or pork by products, including lard; the alternative vegetarian menu, which is entirely free of any meat or meat-by-products and is designed to accommodate a variety of religious dietary restrictions; the kosher menu; and the medical diet menu. Inmates who are practicing Muslims, Rastafarians, Buddhists, Hindus, Hare Krishnas, Seventh Day Adventists, and Catholics during Lent, may partake of the Department's alternative vegetarian menu. The alternative vegetarian menu was instituted throughout the prison system on June 4, 2000 and was approved for Muslim inmates in December, 2000. Szafir Aff. ~ 2.
6. The menus for all inmates meals, including the alternative vegetarian menu, are prepared under the supervision of a registered dietician and meet the Recommended Dietary Allowance (RD.A.) of the Food and Nutrition Board, National Academy of Sciences, National Resource Council, (revised 1989) and the American Correctional Association. Szafir Aff., ~ 3.
7. Food preparation within a prison involves cooking very large quantities of food and the kitchen equipment of each prison is specially designed for that purpose. The preparation of specialized meals is very burdensome where the prisons lack kitchen equipment designed to prepare small quantities of food, kitchen staff would have to be diverted from performing normal food preparation duties in order to prepare the small quantities of food, and the difficulty and expense of purchasing and storing a variety of foods for separate meals. Szafir Aff., ~ 4.
2 Affidavit of Peter Szafir is attached as Exhibit 2.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 4 of 19 4
8. The Department's policy of not providing special individualized meals to inmates also helps to prevent conflicts between inmates who feel that some inmates are receiving special treatment from prison staff. Conflicts may arise between groups of inmates where one group feels another group is receiving preferential treatment, this is especially true for food issues since food plays an important role in the daily lives of inmates and inmates in the chow hall can easily observe who is receiving special meals. Some inmates join a religion merely to obtain a different diet, without intending to follow the religion's practices, which creates conflicts with other inmates who have a sincere belief in the religion. Elliot Aff., ~ 5; Szafir Aff., ~ 5.
9. The Department does not have the ability to prepare Kosher meals in separate kitchens in any of its facilities, as required under Jewish dietary laws, so the Food Services Division contracts with a vendor to provide a Kosher menu. The Department's three other menus are prepared in the institutions and are not Kosher. Szafir Aff., ~ 6.
10. Purchasing Halal diuners from an outside vendor would cost the Department nearly three times more money than is allocated for the standard menu and more than twice as much as the Department incurs for the cost of the alternative vegetarian meals. The Department is required to spend a comparable rate per meal for the Kosher meals, however, due to the lack of Kosher kitchen facilities. Because there are significantly more inmates who identify themselves as Muslims than Jews, thus, the cost of providing Halal meals for Muslim inmates would be prohibitive. Also, the Department has determined that it would be very difficult to obtain sufficient numbers of Halal meals on a regular basis since there is not a consistent and reliable supply ofHalal meals available. Szafir Aff., ~ 7.
II. Plaintiffs have access to prayer towels to be used in their cells for daily prayers. Complaint, ~ 49; Elliot Aff., ~ 8.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 5 of 19 5
12. The Department's property regulations place strict limits on the type and amount of personal property inmates may keep within their cells. 103 CMR 403.10 (2001). The restrictions on inmate personal property are necessary in order to reduce fire hazards, reduce areas where inmates can secrete contraband, facilitate quicker and more thorough cell searches and reduce sanitation and housekeeping hazards. Muslim inmates are provided with a prayer towel instead of a prayer rug because prayer rugs are much bulkier and heavier that prayer towels. Prayer rugs take up considerably more room in a cell than a prayer towel and present a fire hazard and a housekeeping hazard. The larger size of prayer rugs also make it easier for inmates to hide contraband within the cell and more difficult for staff to search than a prayer towel. A prayer rug has to be unrolled in order to search for contraband and re-rolled after the search, while a prayer towel can often be searched by the staff person quickly running his hands over it. Also, prayer towels present less of a sanitation problem where they can be regularly washed by the inmates. Elliot Aff.,"if 7.
ARGUMENT I. Standard Of Review
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Ciiv. P. 56(c). A "genuine" issue is one "that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A "material" issue is one that "affect[s] the outcome of the suit... " Id. at 248. The burden is on the moving party to aver the lack of a genuine, material factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1 st Cir. 1986).

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 6 of 19 6
If a motion for summary judgment is properly supported, the burden shifts to the non-movant to show that a genuine issue exists. Donovan v. Agnew, 712 F.2d 1509, 1516 (1st Cir. 1983). "A party opposing summary judgment must 'present definite, competent evidence to rebut the motion'." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1 st Cir. 1994). "Brash conjecture, coupled with earnest hope that something concrete will eventually materialize, is insufficient to block summary judgment." Id. at 581.
II. Defendants Are Entitled To Judgment On The § 1893 Claim.
A. No Violation of First Amendment Rights It is well established that prisoners do not give up all constitutional protections upon their incarceration, Bell v. Wolfish, 441 U.S. 520, 545 (1979), including the free exercise of religion guaranteed under the First Amendment. Cruz v. Beto, 405 U.S. 319 (1972). However, the "free exercise" right is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." O'Lone v. Shabazz, 482 U.S. 342, 348 (1987). The O'Lone Court stated that prisoners' constitutional rights are subject to restrictions based on "valid penological objectives, including deterrence of crime, rehabilitation of prisoners and institutional security." The O'Lone Court adopted the standard of review set out in Turner v. Safley, 482 U.S. 78, 89 (1987), stating that, To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights. O'Lone, 482 U.S. at 349. In Turner v. Safley, 482 U.S. at 89, the Supreme Court held that "[w]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." The Turner Court set out four factors to be considered in determining when a regulation is reasonably related to legitimate penological

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 7 of 19 7
interests. First, there must be a "valid rational connection between the prison regulation and the legitimate government interest put forward to justify it." Id. at 89. Second, courts must consider whether there are "alternative means of exercising the right that remain open to prison inmates." Id. Third, what is the "impact of accommodation of the asserted right on guards and other inmates, and on the allocation of prison resources generally." Id. Fourth, courts must ascertain whether there are "ready alternatives" available to the regulation. The "existence of obvious, easy alternatives may be evidence the regulation is not reasonable." Id.
1. Religious Diet Plaintiffs alleges that the failure to provide them with a Halal diet violates their rights under the First Amendment. However, there is no requirement under Islam that Muslims may only eat meat that has been ritually slaughtered, known as Halal. Nor does Islam require its
adherents to eat meat. Affidavit of Ibrahim Rahim, 'Il'll 5, 6.3 Plaintiffs are unable to show that
eating the alternative vegetarian diet conflicts with Islamic laws. See Rashad v. Maloney, 16 Mass. 1. Rptr. 162, 2003 WL 1906778 *4 (Mass. Super. Ct.) (failure to provide Muslim inmate with Halal meat does not violate First Amendment).4 Providing plaintiffs with a choice of a pork-free menu or an alternative vegetarian menu does not violate their First Amendment rights.
Assuming, .arguendo, that the failure to provide plaintiffs with a menu that includes Ralal meat infringes upon their religious rights, it is clear that the prison policy does not violate the First Amendment under Turner, supra. It is well established that prison policies placing limitations on inmate religious diets are rationally related to a prison's interests in reducing costs and operational burdens by keeping its food service as simple as possible and not providing inmates with a vast array of religious menus. See M., Johnson v. Hom, 150 F.3d 276, 282 (3rd
3 Affidavit ofIbrahim Rahim is attached as Exhibit 3. 4 A copy of this decision is attached for the court's convenience as Attachment A.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 8 of 19 8
Cir. 1998) ("prison has legitimate interest in keeping its food service system as simple as possible."); Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) denial of request for kosher diet was reasonable in light of goal of avoiding complicated food service); Denson v. Marshall, 59 F. Supp. 156, 158-59 (D. Mass. 1999) (denial of inmate's request for a special feeding routine upheld where prison officials have a "legitimate interest in operating an efficient and costeffective food program"), affd 230 F.3d 1347 (1st Cir. 2000) (per curiam); Abdullah v. Fard, 974 F. Supp. 1112, 1118 (N.D. Ohio 1997) (prison's decision not to provide Muslim inmates with Halal meats upheld as reasonable); Benjamin v. Coughlin, 708 F. Supp. 570, 575-76 (S.D.N.Y. 1989) (Cost and administrative burdens justified denial of Rastafarian religious diet), affd, 905 F.2d 571, 579-80 (2nd Cir. 1990), cert denied. 498 U.S. 951; Muslim v. Frame, 854 F. Supp. 1215,1224 (E.D. Pa. 1994) (defendants were granted summary judgment where Muslim inmates were provided a pork-free diet); Kahey v. Jones, 836 F.2d 948, 951 (5th Cir. 1988) (Muslim inmate not entitled to specialized diet where the expense and diversion of resources from other penological goals could be considerable); Dehart v. Hom, 277 F.3d 47, 53 (3rd Cir. 2000) (prison's interest in an efficient food system is a legitimate penologicial concern under Turner); Martinelli v. Dugger, 817 F.2d 1499, 1507 (11th Cir. 1987) (prison's restrictions on religious diets "rationally related to goal of avoiding excessive administrative expense"); Abdul-Malik v.
Goord, 1997 WL 83402, * 3-6 (S.D.N.Y. February 27, 1997) (denial of Halal diet did not violate
the First Amendment where Muslim inmates had a choice of a pork-free diet or a religious alternative menu, a meatless diet designed to meet dietary requirements of Islam and other religions);5 Muharnmad v. Warithu-Deen Umar, 98 F. Supp.2d 337 (W.D. N.Y. 2000) (access to religious alternative diet did not violate First Amendment); Salaam v. Collins, 830 F. Supp. 853,
857 (D. Md. 1993); Allah v. Stachelek, 1998 WL 281930 at * 9 (E.D. Pa. May 29, 1998)
5 A copy of the decision is attached as Attachment B.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 9 of 19 9
(Muslim inmates entitled to a pork-free diet);6 Collins v. Rhode Islaod Department of Corrections, 1994 WL 115968 (D.R.I.) (substituting pork products with turkey products for Muslim inmates permissible where it allowed the prison to provide all inmates with balaoced uniform meals)/ Rashad v. Maloney. supra at *4-5 (lack of Halal diet did not violate the First Amendment where it was not shown that vegetariao menu violated Islamic dietary laws)
Further, courts have held that prisons may limit available menus based on concerns of creating conflicts between inmates where perception of preferential treatment for some inmates may result in morale issues aod possible disruptions. See Dehart, 277 F.3d at 53 (prison's interest in avoiding inmate jealousy over special diets is a legitimate penological concern); Benjamin, 708 F. Supp. at 575 ("other prisoners understaodably resent special treatment that is given to aoy group, aod the possibility of tension aod confrontation is particularly troublesome at mealtime, which is often the only time the entire prison is together"); Denson, 59 F. Supp.2d at 158 (concern that inmates react negatively when they perceive that other inmates are receiving speCial privileges aod may result in "a flood of new requests from inmates, or worse, that they might act out against" other inmates is a legitimate government interest); Ward, 1 F.3d at 878; Ashelmao v. Wawrzasek, 111 F.3d 674, 677 (9th Cir. 1997) (court "accepted warden's contention that other prisoners who are not accommodated might perceive [plaintiff] as being favored"); Kahey, 836 F.2d at 951 (perception of favoritism will have adverse impact upon prison morale).
Here, defendaots have an interest in providing inmates with meals that meet national dietary staodards aod avoiding excessive operational costs and increased burdens on staff. See 103 DOC 760.01.8 Providing inmates with ao array of religious diets would severely hamper the prison's ability to provide meals for the entire inmate population in ao efficient aod cost effective
6 A copy of the decision is attached as Attachment C. 7 A copy of the decision is attached as Attachment D. 8 A copy of the DOC Food Services policy, 103 DOC 760.00!l!~. is attached as Exhibit 4.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 10 of 19 10
manner. Szafir Aff., ~~ 4, 5. In addition, there are serious problems in obtaining sufficient supplies of Halal meals. Id. at ~ 7. By providing inmates with an alternative vegetarian diet, the DOC can meet the religious dietary requirements of a number of religions, including Rastafarians, Hindus, Buddhists, Muslims, and Hare Krishnas, thus making food services more efficient and economical. Id. at ~ ~ 2, 4, 7. Also, providing specialized religious diets may result in a flood of inmate requests for individualized special diets or prompt other inmates to demand to have the existing diets altered to meet individual preferences, thus increasing the financial and administrative burdens on defendants. Szafir Aff., ~ 5; Elliot Aff., ~ 5.
Further, plaintiffs are provided with access to alternative ways to practice their religious beliefs, including access to weekly Jumah services, the ability to pray daily, ability to possess a prayer towel, access to limited amounts of prayer oil, a kufi, prayer beads or a medal, and ability to possess religious books, including the Qur'an. Elliot Aff., ~ 10. Providing plaintiffs with access to the alternative vegetarian menu is an "obvious, easy alternative" since the menu does not violate plaintiffs' First Amendment rights and allows defendants to meet the dietary requests of many other religions in cost efficient manner.
2. Food Preparation Plaintiffs allege that their food must be blessed and handled only by other Muslims. Complaint, ~~ 17, 30. However, plaintiffs offer no support for their contention that their religion requires their meals to be blessed and prepared by other Muslims. Defendants have submitted the affidavit of Ibrahim Rahim, who has worked for the Department of Correction as a Muslim Chaplain and as the Program Services Coordinator. Mr. Rahim, who is a graduate of the University of Medina, Saudi Arabia, with a concentration in Islamic Law and Arabic, states that

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 11 of 19 11
there is no requirement that only Muslims prepare food for other Muslims. To the contrary, he states that the Qu'ran specifically addresses this point:
This day are (all) things good and pure made lawful unto you. The food of the People of the Book is lawful unto you and yours is lawful unto them. Chapter 5 of the Holy Qu'ran, (AI-Maidah) Verse 5. (Exhibit 3, ~ 9). Mr. Rahim goes on to explain that the term "People of the Book" refers to individuals of the Jewish and Christian faiths and the term "book" refers to the Bible. Id. at ~ 10 Thus, according to the Qu'ran, food prepared by non-Muslims is lawful for Muslims to consume and does not violate a basic tenet of plaintiffs' religion. Id. at ~ 11. In addition to the fact that having only Muslim imnates prepare and serve other Muslims is not required by Islam, such a practice would be extremely disruptive and complicated to implement and could expose the Department to claims of discrimination by non-Muslim iumates. Elliot Aff., ~ 11. Pursuant to policy, when making determinations as to what imnates may fill a particular job, the policy specifically states that "Imnate skills, abilities and work histories should be the criteria employed in matching imnates with institution work assigmnents." 103 DOC 450.01(1).9 Imnates must also be approved medically for clearance as food handlers. 103 DOC 450.(1 )(f). The Department also must screen for potential enemy situations and must view an imnate's disciplinary history when considering certain types of jobs. Selecting imnates for kitchen positions based upon their religious affiliation would undermine this policy and create great disruption and resentment. Elliot Aff., ~ 11. See Benjamin, 708 F. Supp. at 575 ("other prisoners understandably resent special treatment that is given to any group and the possibility of tension and confrontation is particularly troublesome at mealtime, which is often the only time the entire prison is together."); Denson, 59 F. Supp.2d at 158 (concern that imnates react
9 The Institution Work Assignments Policy, 103 DOC 450.00 ~ ~., is attached as Exhibit 5.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 12 of 19 12
negatively when they perceive that other inmates are receiving special privileges and may result in "a flood of new requests from inmates, or worse, that they might act out against" other inmates is a legitimate government interest.). The policy of allowing non-Muslim inmate kitchen workers to prepare meals eaten by Muslim inmates is rationally related to legitimate correctional interests.
3. Prayer Rug The policy providing plaintiffs with a prayer towel for use in their cells in lieu of a prayer rug is reasonably related to legitimate security concerns. See Turner v. Safley, supra. Prayer rugs pose specific security concerns where they are much bulkier and heavier than prayer towels and take up considerably more room in a cell than a prayer towel, thus, presenting a greater fire
and housekeeping hazard. Elliot Aff., 'if 7. The larger size of a prayer rug also makes it easier for
inmates to hide contraband within the cell and more difficult for staff to search than a prayer towel, since a prayer rug has to be unrolled in order to search for contraband and re-rolled after the search, while a prayer towel can often be searched by the staff person quickly running his hands over it. rd. Prayer towels present less of a sanitation problem where they can be regularly laundered by inmates. Id. There are also concerns that providing some inmates with a prayer rug for their cells may create jealousies where some inmates may feel that others are receiving preferential treatment and conflicts between inmates may occur as a result. rd. Providing inmates with a prayer towel for use in their cells does not violate the First Amendment.
B. Plaintiffs Are Not Denied Eqnal Protection With Regard To Their Diet. Plaintiffs allege that providing Jewish inmates with a Kosher diet, but denying plaintiffs a "halal diet" violates their rights under the Equal Protection Clause. In order to succeed on an equal protection claim, plaintiffs must show that a discriminatory purpose was the motivating factor in the defendants' decision not to provide them with a Halal diet. See Washington v.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 13 of 19 13
Harper, 426 U.S. 229 (1976); Smith v. Stratus Computer, Inc., 40 F.3d 11,17 (1 st Cir. 1994), cert denied, 514 U.S. 1108 (1995) (to prove equal protection violation, plaintiff must demonstrate that action taken with discriminatory intent.).
The differences in diets available to Jewish inmates is not the result of a discriminatory purpose. Case law has established that providing Muslim inmates with a pork-free diet IS appropriate. Further, plaintiffs have had access to the vegetarian/alternative diet, which IS available to Seventh Day Adventists and other religions, since December, 2000. Jewish inmates are provided with Kosher diets because Kosher food must be prepared in a Kosher kitchen, served on Kosher plates and consnmed with Kosher utensils. The Department of Correction does not have the facility space or staffing necessary to prepare Kosher diets. Szafir Aff., 'il6. There is no requirement in Islam that meals be prepared in separate kitchens with separate utensils,
therefore, there is no need to utilize more expensive frozen meals. Rahim Aff., 'iI 9. Defendants'
policy is based on legitimate correctional concerns and does not violate a clearly established right of the plaintiffs. Se~ Abdul-Malik, supra at *7-9 (prison policy providing Jewish inmates with a Kosher diet but denying Muslim inmates a diet with Halal meat did not violate the Equal Protection Clause); Abdullah, supra at 1119 (failure to provide Muslim inmates with Halal meat while providing Jewish inmates with Kosher meals did not violate the Equal Protection Clause in the absence of evidence of discriminatory intent); Johnson, supra at 281-85 (no Equal Protection Clause violation where differences between the diets of Muslim and Jewish inmates were rationally related to legitimate penological interests); DeHill!, supra at 61; Muhammad v. Warithu-Deen Umar, supra at 344-45; Rashad, supra at *5 (no equal protection violation where Muslim inmates are denied a Halal menu but Jewish inmates have Kosher menu). Where the

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 14 of 19 14
differences between the menus available to Jewish and Muslim imuates are based operational and financial concerns, defendants are entitled to summary judgment.
C. Defendants Are Entitled To Immunity In Their Official Capacities. Plaintiffs' civil rights claims against defendants, in their official capacities, must fail because it is well-settled that a state, or in this case, a state agency, is not a "person" within the meaning of 42 U.S.C. §1983. As the Supreme Court has ruled: "Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants against a State for alleged deprivations of civil liberties." Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989); Haferv. Melo, 502 U.S. 21 (1991). Defendants, in their official capacities, are immune from suit under §1983. D. Defendants Are Entitled To Qualified Immunity. 1. Standard of Review The doctrine of qualified immunity seeks to protect govermuent officials from the burdens of vindictive and harassing lawsuits which may inhibit them from properly exercising their powers, whik, at the same time, protecting private citizens from oppressive or malicious govermuent action. Knight v. Mills, 836 F.2d 659, 665 (1 st Cir. 1987) (citing Scheuer v. Rhodes, 416 U.S. 232, 238 (1974». The Supreme Court has held that govermuent officials performing discretionary functions are shielded with a qualified immunity "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987); Davis v. Scherer, 468 U.S. 182, 195 (1984) ("officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages"); Harlow v. Fitzgerald, 457 U.S. 810 (1982); Mitchell v. Forsvth, 472 U.S. 511 (1985).

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 15 of 19 15
The analysis of a state actor's claim of qualified immunity requires a court to utilize a three-part test. Saucier v. Katz, 533 U.S. 194 (2001); Hope v. Pelzer, 536 U.S. 730 (2002); Suboh v. District Attorney Office of Suffolk District 298 F.3d 81,89-90 (1 st Cir. 2002). The initial inquiry is whether the plaintiffs allegations, if true, establish a constitutional violation. The second prong concerns whether the right was clearly established at the time of the alleged violation. The third prong is whether a reasonable actor, similarly situated, would have understood that his conduct violated that clearly established right. See Saucier, 533 U.S. at 201; Hope, 536 U.S. at 740; Wilson v. Layne, 526 U.S. 609 (1999); Suboh, 298 F.3d at 89-90; Hatch v. Department of Children, Youth & Their Families, 274 F.3d 12, 20 (lst Cir. 2001). Ifplaintiffs allegations establish a constitutional violation, it must then be determined whether the constitutional right was clearly established at the time of the defendant's actions to ensure that the state actor had "fair warning" that the alleged action was unconstitutional. Hope, 536 U.S. at 740 (officers sued in a civil" action for damages have the same right to fair notice as do defendants charged with a criminal offense); Saucier, 533 U.S. at 202 ("The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."); Suboh, 298 F.3d at 90. The Supreme Court has determined that the inquiry into whether the constitutional right was clearly established must take into consideration the particular circumstances at issue in the case. Saucier, 533 U.S. at 201 ("this inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition"); Suboh, 298 F.3d at 93. Next, if plaintiff shows that the constitutional right at issue was clearly established, the qualified immunity inquiry focuses on whether an objectively reasonable official in defendant's position would have understood that the alleged action violated plaintiffs rights. Saucier, 533 U.S. at

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 16 of 19 16
208 ("The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards."). Qualified immunity is available to a state actor who violates a clearly established right if he acted under the mistaken but reasonable belief that his actions were lawful. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity leaves "ample room for mistaken judgments" and protects "all but the plainly incompetent or those who knowingly violate the law"); Suboh, 298 F.3d at 95; Fletcher v. Town of Clinton, 196 F.3d 41,50-51 (1st Cir. 1999); Berthiaume v. Caron, 142 F.3d 12,15 (1st Cir. 1998) (qualified immunity may exist even though in hindsight a court might determine that the action of the official violated the Constitution). This is consistent with the purpose of qualified immunity to avoid chilling official action by exposing officials to personal liability for good faith judgments. Harlow, 457 U.S. at 814-815.
2. Discretionary Function In defining what conduct constitutes discretionary acts under § 1983, the Supreme Court has held that a "law that fails to specify the precise action that the official must take in each instance creates only discretionary authority." Davis, 468 U.S. at 196-97 n. 14; Horta v. Sullivan, 4 F.3d 2, 12 (1st Cir. 1993); Fosterv. McGrail, 844 F. Supp. 16,23 (D. Mass. 1994). In the instant case, the Department officials, Commissioner Maloney, Superintendent Allen, Superintendent Pepe, Director Emodi and Director Elliot are alleged to have established and implemented polices which infringed upon plaintiffs' free exercise of religion. However, establishing and carrying out such policies are clearly within the defendants' discretionary functions. There are no statutes or regulations that state precisely what actions must be taken by the defendants in establishing policies regarding religious menus, the religious beliefs of inmate kitchen employees, whether prayer rugs must be provided, or limitations on attending Jumah

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 17 of 19 17
services. State statute provides the Commissioner of Correction with wide discretion in establishing policies, rules and regulations regarding inmate religious programs. See G. L. C. 124, § l(g). See alsQ G. L. c. 124, § 2 ("Duties of commissioner and deputies"); G. L. c. 125, § 14 ("Powers and duties of superintendent"). Pursuant to his statutory duties, the Commissioner promulgated regulations pertaining to inmate religious programs, entitled Religious Programs and Services, 103 CMR 471.00 et seg.lO Nowhere in the regulations is the Commissioner's discretion or the discretion of his administrative staff limited with regard to the issues raised in the complaint. 103 CMR 471.07. While the regulations provide that "[i]nmates whose religion places restrictions on diets will be permitted access to a special diet," the regulations do not specify the exact nature of the special diet or whether the special diet has to meet every requirement of each religion and denomination or whether the purpose of the special diet is simply not to burden an inmate's religious dietary requirements. CMR 471.09(5). Importantly, the regulations provide that while "[n]o inmate will be denied the free exercise of hislher religious belief and the liberty of worship according to the dictates of hislher conscience," staff may limit religious programs, practices or services based on concerns for security or well being of the institution, its visitors, inmates or staff. 103 CMR 471.07(1)-(3).
3. Religious Diet Defendants are entitled to qualified immunity where it has not been clearly established that providing Muslim or Nation of Islam inmates with the choice of a pork-free menu or a vegetarian menu constitutes a violation of the First Amendment. The cases pertaining to the dietary needs of Muslim inmates have uniformly held that providing a Muslim inmate with a pork-free or vegetarian menu meets the requirements of the First Amendment. Recently, in
10 A copy of the Religious Programs aud Services policy, 103 CMR 471.00 ~ !l§!l., is attached as Exhibit 6.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 18 of 19 18
Rashad v. Maloney, supra at *4-5, a Massachusetts Superior Court held that failure to provide a Muslim inmate with Halal meat did not violate the First Amendment where it was not shown that alternative vegetarian menu violated Islamic dietary laws. Other courts have reached the same decision. See Abdul-Malik v. Goord, supra; Muhammad v. Warithu-Deen Umar, supra; Denson v. Marshall, supra; Abdullah v. Fard, supra; Collins v. Rhode Island Department of Corrections, supra at *4; Allah v. Stachelek, supra; Salaam v. Collins, supra (prohibitive cost of Halal meats fomId sufficient llilder Turner to justify prison's decision to deny inmates' request); Kahey v. Jones, supra. It has not been clearly established that the failure to provide Muslim inmates with a Halal diet violates the First Amendment and the defendants are qualifiedly immllile.
2. Food Preparation Defendants are entitled to qualified immunity where it is not clearly established that providing plaintiffs with Ramadan meals or other meals prepared by non-Muslims violates the First Amendment so as to ensure that defendants had "fair warning" that the policy is llilconstitutional. ~ee Saucier, supra at 202. Plaintiffs are llilable to demonstrate that the policy violates clearly established constitutional rights. Defendants are llilaware of any decisions which hold that preparing meals for Muslims by non-Muslims violates the First Amendment. 3. Prayer Towel Defendants are entitled to qualified immllility where it was not clearly established that providing plaintiffs with a prayer towel instead of a prayer rug violated the First Amendment so as to ensure that defendants had "fair warning" that the alleged action was llilconstitutional. See Saucier, supra at 202. Plaintiffs have not demonstrated that the policy of using prayer towels violates clearly established constitutional rights and defendants are qualifiedly immune.

Case 1:01-cv-12145-RGS Document 30 Filed 05/12/04 Page 19 of 19 19
IV. DAMAGES NOT AVAILABLE UNDER STATE REGULATIONS. Nor can plaintiffs obtain damages for alleged violations of Religious Services
regulations, 103 CMR 471.00 et seq. The enabling statute, G.L. c. 124, §§ l(c) and l(q), is without reference to the possibility of a private action in equity, much less a private damages action, therefore, the regulations do not create a private right of action which would confer standing to seek declaratory, injunctive or monetary relief. Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 546-47 (1998) (no private cause of action under regulation in absence of clear legislative intent to create a private cause of action for person injured by a regulation violation). Massachusetts coillis, have consistently found it improbable that the Legislature, in granting a state agency the authority to promulgate regulations, was also empowering the agency to create possible civil liability. Martino v. Hogan, 37 Mass. App. Ct. 710,720-21 (1994).
CONCLUSION For the foregoing reasons, defendants request that summary judgment be entered in their favor, pursuant to Fed. R. Civ. P. 56(c).

Dated: May 12,20104

Respectfully submitted,
NANCY ANKERS WHITE Special Assistant Attorney General

I HEREBY C:ERnFY THAT ON THIS DAY A TRUE COPY OF THE ABOVE DOCUMENT WAS SERVED UPON EACH
PLAINTIFF APPEARING PRO m;1T11~RNP!'I-=at"
R@j,RC&FUASAUlrA1ffl'BYMAILlBt iiAr4D.
DATE r)fHof l(.rJ"J!! n

Richard C. McFarland, BB Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1300 (617) 727-3300

 
 Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 1 of 11
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 01-CV-12145-RGS
MAC HUDSON AND DERRICK TYLER
v.
MICHAEL T. MALONEY, et al.
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
July 23, 2004
STEARNS, D.J.
In this lawsuit against the former Massachusetts Commissioner of Correction, two
former Superintendents of MCI-Cedar Junction, and one former and one present prison
administrator, plaintiff inmates, who are Muslim, allege violations of their First Amendment
right to the free exercise of their religion. At the center of the dispute is the contention that prison officials have discriminated against Muslim inmates by refusing to provide “Halal”1
meat as a regular part of their diet, and by refusing the request that meals be prepared and
1The Halal dietary restrictions at issue principally involve the preparation of meat. An Islamic website, eat-halal.com, describes the proper method as follows:
Animals such as cows, sheep, goats, deer, moose, chickens, ducks, game birds, etc., are also Halal, but they must be Zabihah (slaughtered according to Islamic Rites) in order to be suitable for consumption. The procedure is as follows: the animal must be slaughtered by a Muslim (or a Jew or Christian). The animal should be put down on the ground (or held if it is small) and its throat should be slit with a very sharp knife to make sure that the 3 main blood vessels are cut. While cutting the throat of the animal (without severing it) the person must pronounce the name of Allah or recite a blessing which contains the name of Allah, such as “Bismillah Allah-uAkbar.”

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 2 of 11
served exclusively by Muslims. Plaintiffs also complain that prison officials have banned Muslim inmates from possessing full-size prayer rugs.2 The Complaint seeks injunctive and declaratory relief and money damages pursuant to 42 U.S.C. § 1983. The defendants are named in both their official and personal capacities. Qualified Immunity
Where a constitutional violation is made out on the face of a party’s submissions, the trial court is to decide the immunity issue at the earliest practicable opportunity. “[B]ecause ‘[t]he entitlement is an immunity from suit rather than a mere defense to liability,’ . . . we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in the litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
Qualified immunity attaches to discretionary conduct of government officials that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See Mitchell v. Forsyth, 472 U.S. 511, 528 (1985) (officers immune unless their actions were “clearly proscribed” by established law). “The right in question, . . . cannot be simply a generalized
2It is undisputed that Muslim inmates are permitted to possess prayer towels for use in their prayer ritual. The Department’s ban on full-size prayer rugs is justified by appropriate security concerns over the fire hazard and sanitation problems the rugs pose as well as their potential use as a repository for concealed contraband. The ban on full-size prayer rugs passes the test of Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”). Moreover, it is unclear that any constitutional right is implicated by the ban, as plaintiffs point to no tenet of the Muslim faith that requires that the prayer ritual be performed on a prayer rug as opposed to a prayer towel.
2

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 3 of 11
right to due process. . . . It must be clearly established in a ‘particularized’ sense, so that ‘the contours of the right’ are clear enough for any reasonable official in the defendant’s position to know that what the official is doing violates that right.” Danese v. Asman, 875 F.2d 1239, 1242 (6th Cir. 1989). As a rule, a right is “clearly established” when it is enunciated by a court of controlling authority in the defendant’s jurisdiction in a case sufficiently similar in its facts “that a reasonable officer could not have believed that his [instant] actions were lawful.” Wilson v. Layne, 526 U.S. 603, 616-617 (1999). See also Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 144-145 (1st Cir. 2001) (relevant state, as well as federal decisions should also be considered). While “general statements of the law are not inherently incapable of giving fair and clear warning,” they do so only if their application to a specific set of facts is apparent. United States v. Lanier, 520 U.S. 259, 271 (1997). “The qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’” Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992), quoting Hunter, 502 U.S. at 229.
Whether a plaintiff has adequately alleged a viable cause of action under § 1983 is a matter of law for the trial court. Siegert v. Gilley, 500 U.S. 226, 232 (1991). In making such a determination, a prescribed sequence is to be followed. The court must “determine whether the plaintiff has alleged [a] deprivation of an actual constitutional right at all,” before considering whether that right was clearly established when the alleged violation occurred. Conn v. Gabbert, 526 U.S. 286, 290 (1999). Stated differently, the “threshold” question that must be answered is this: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? . . . If no
3

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 4 of 11
constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Only if the violation of a right is found does the court proceed to answer the remaining questions in the sequence: whether the right was clearly established; and if so, whether a similarly situated reasonable official would have understood that his conduct violated clearly established law. Savard v. Rhode Island, 338 F.3d 23, 27 (1st Cir. 2003). “This order of procedure is designed to ‘spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ . . . Deciding the constitutional question before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.” Wilson, 526 U.S. at 609.
That the plaintiffs clearly identified viable and pertinent constitutional rights in their Complaint under the First and Fourteenth Amendments is not seriously contested by defendants. While the rights afforded to an inmate are necessarily circumscribed by virtue of incarceration, he does not lose all protections of the Constitution. “In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Pell v. Procunier, 417 U.S. 817, 822 (1974), “including [the Amendment’s] directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). Free exercise claims brought by prisoners are “judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to
4

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 5 of 11
alleged infringements of fundamental constitutional rights.” Id. See also Shaw v. Murphy,
532 U.S. 223, 228-229 (2001).
Plaintiffs allege that corrections officials violated their rights under the Free Exercise
Clause by refusing to allow them to practice their Muslim faith in accordance with their understanding of Islamic dietary laws.3 They also argue that the defendants have violated
their rights under the Equal Protection Clause because similarly situated Jewish and
Seventh Day Adventist inmates are offered meals prepared according to the dietary laws of
their religions, while Muslim inmates are offered in lieu of Halal meat, the alternatives of a
vegetarian or pork-free diet.
Consequently, it is to the second step of the Saucier test that the court turns: would
a reasonable prison administrator when confronted, in September of 2002, at the latest, with
plaintiffs’ demands for Halal meals prepared by Muslim inmates, have determined that a
clearly established right was being invoked. Here, it is important not to confuse the general
with the particular and to frame the issue precisely. In September of 2002, a reasonable
prison official would have known that a prisoner’s right to the free exercise of his religion,
so long as it did not compromise institutional security, was clearly established, and further
3Defendants seek to establish through the affidavit of Ibrahim Rahim, the Director of the Department’s Diversity Office, an acknowledged Muslim scholar, and a former prison chaplain, that plaintiffs’ understanding of Islamic dietary requirements, which are drawn from the teachings of Elijah Muhammad and the Nation of Islam, are based on a misinterpretation of Islamic teachings and the dictates of the Qu’ran. The issue in free exercise cases, however, is not whether an adherent has correctly divined the religious commands of his faith, but whether his understanding of what his religion requires, however unorthodox, is based on a sincerely held religious belief. Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 834 (1989). I do not understand defendants to question the sincerity of the plaintiffs’ interpretation of Islamic dietary restrictions.
5

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 6 of 11
that this right encompassed a diet consistent with the prisoner’s sincere religious beliefs. See, e.g., Kahane v. Carlson, 527 F.2d 492, 496 (2d Cir. 1975). Rather, the precise question that would have been asked is whether the law had clearly established a Muslim inmate’s right to a particular dietary ingredient (Halal meal), prepared in a particular way (by other Muslim inmates), or whether it was sufficient for prison authorities to provide an alternative diet (vegetarian or pork-free) that was “consistent” with the teachings of the inmate’s faith, if not every aspect of his belief.
In consulting the decisions of courts that had considered the issue before September of 2002,4 a reasonable prison official would have learned that the vast majority of these courts had determined that a prison permissibly discharged its constitutional duty to respect the dietary beliefs of Muslim inmates by offering an alternative, pork-free diet, and more broadly, that the law permitted prison authorities to limit the dietary options available to prisoners in the interests of reducing the costs and burdens entailed in accommodating the smorgasbord of food-related religious beliefs likely to be encountered in a prison population. See, e.g., Kahey v. Jones, 836 F.2d 948, 950 (5th Cir. 1988) (“[P]risons need not respond to particularized religious dietary requests.”); Denson v. Marshall, 59 F. Supp. 2d 156, 158159 (D. Mass. 1999), aff’d, 230 F.3d 1347 (1st Cir. 2000) (no constitutional violation where a Muslim inmate in a disciplinary unit was denied a request for special food items to be
4A State may create an enforceable liberty or property interest accruing to a prisoner by its own statutes or regulations. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). As defendants point out, there is no statute in Massachusetts that restricts the discretion of the Commissioner of Correction with respect to prison dietary policies. The only relevant regulation, 103 CMR 471.09(5), guarantees inmates whose religion places restrictions on what they may eat “access to a special diet,” but it does not guarantee any particular “special diet.”
6

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 7 of 11
delivered before sunrise during three to five fast days each month); Abdul-Malik v. Goord, 1997 WL 83402, at *7-8 (S.D.N.Y. Feb. 27, 1997) (after a bench trial, the district court found that Muslim inmates’ rights were not violated by the prison’s failure to provide Halal meat three times a week where a “Religious Alternative Menu” (RAM) was available); Muhammad v. Warithu-Deen Umar, 98 F. Supp. 2d 337, 344-345 (W.D.N.Y. 2000) (no constitutional violation where a Muslim inmate was denied Kosher meals because an available RAM did not offend any Muslim dietary requirement); Abdullah v. Fard, 974 F. Supp. 1112, 1118-1119 (N.D. Ohio 1997) (no constitutional violation where a Muslim inmate was provided a “nutritionally adequate alternative” for a meat entrée in lieu of Halal meat); Benjamin v. Coughlin, 708 F. Supp. 570, 575-576 (S.D.N.Y. 1989) (no constitutional violation where a prison refused to provide a Rastafarian diet, even though Jewish and Muslim prisoners were provided special diets); Wesley v. Kalos, 1997 WL 767557, at *4 (S.D.N.Y. Dec. 11, 1997) (inmate’s complaint that he was not provided Halal meals failed to establish an Eighth Amendment claim); Dehart v. Horn, 227 F.3d 47, 53 (3d Cir. 2000) (“[A] prison’s interest in an efficient food system and in avoiding inmate jealousy are legitimate penological concerns . . . .”); Ward v. Walsh 1 F.3d 873, 877 (9th Cir. 1993) (in deciding whether the denial of an inmate’s specific dietary requests violates the First Amendment, courts must balance the impingement on the right of free exercise of religion against the cost of the accommodation and whether there are alternate means by which the inmate can practice his religion); Muslim v. Frame, 854 F. Supp. 1215, 1224 (E.D. 1994) (“[I]n prison, religious practices are subject to reasonable restrictions to preserve order and safety.”); Salaam v. Collins, 830 F. Supp. 853, 857 (D. Md. 1993) (“[P]rison administrators have ‘wide latitude’ to treat inmate
7

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 8 of 11
groups differently unless it is clear that the two groups are so similar as to make the differing
treatment an abuse of discretion.”). In light of this legal precedent, no reasonable prison
official would have concluded that Muslim inmates had an established right to Halal meals
prepared by other Muslim inmates or that prison administrators did not have broad discretion
in the matter of prison dietary alternatives.5 Defendants are therefore entitled to qualified
immunity.
Official Immunity
A suit against a government official in his or her official capacity is the same as a suit
“against [the] entity of which [the] officer is an agent.” Monell v. New York City Dep’t. of
Social Services, 436 U.S. 658, 690 n.55 (1978).
Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, “the entity’s ‘policy of custom’ must have played a part in the violation of a federal law.” For the same reason, the only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses. Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under the color of state law.
5The latter aspect of plaintiff’s demand, that only Muslim inmates be permitted to prepare meals for other Muslim inmates, would not under any circumstances pass the test of Turner, 482 U.S. at 89, as affirmed in a First Amendment context by Estate of Shabazz, 482 U.S. at 350-353. Under the Turner test, a prison regulation or practice that impinges on an inmate’s constitutional rights, passes muster if it is reasonably related to a legitimate penological interest. As the court observed in denying plaintiffs’ motion for a preliminary injunction, “any special selection of inmates for food service positions based on their religious affiliation would violate the Department of Correction’s policy of assigning jobs on a nondiscriminatory basis and [would] expose it to potential litigation, as well as resentment on the part of other inmates at the special treatment accorded to plaintiffs.” Moreover, the Department’s food service employment policy does not impinge on any constitutional right of the plaintiffs. As the Rahim affidavit explains, the Qu’ran specifically permits Muslims to consume food prepared by non-Muslims. Plaintiffs do not maintain that their desire to be served by Muslim food service workers is based on any Islamic teaching, but appears to have as its basis an expression of solidarity with Muslim coreligionists.
8

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 9 of 11
Hafer v. Melo, 502 U.S. 21, 25 (1991) (citations omitted). Under the Eleventh Amendment, a State, its agencies, and agency officials acting in
their official capacities are not “persons” for purposes of section 1983, and therefore are not subject to suit for money damages in the federal courts without the State’s consent. Will v. Michigan Department of State Police, 491 U.S. 58, 65-67 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-103 (1984); Laubinger v. Department of Revenue, 41 Mass. App. Ct. 598, 601-602 (1996). The Commonwealth has not consented to being sued for money damages in either the federal courts or in its own courts under § 1983. Woodbridge v. Worcester State Hospital, 384 Mass. 38, 44-45 & n.7 (1981). Cf. Commonwealth v. ELM Medical Laboratories, Inc., 33 Mass. App. Ct. 71, 76-77 (1992) (same, State Civil Rights Act).
When a state official is sued in his official capacity, the plaintiff is limited to equitable (injunctive) relief. Will v. Michigan Department of State Police, 491 U.S. 58, 71 n.10 (1989). See also Ex parte Young, 209 U.S. 123, 159-160 (1908). The issue, therefore, that remains is whether plaintiffs are entitled to prospective relief ordering the Department to make Halal meat available to Muslim inmates as a regular dietary alternative. The justification offered by the Department in its summary judgment motion for its refusal to do so, as presented in the affidavit of Peter Szafir, the Department’s Director of Food Services, is based on the “prohibitive” cost and the advice of an unnamed food services vendor “that it would be very difficult to obtain sufficient numbers of Halal meals on a regular basis since there is not a consistent and reliable supply of Halal meals available.” The affidavit further acknowledges that Jewish inmates are provided Kosher meals by an outside vendor, but that to provide a
9

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 10 of 11
similar accommodation to Muslim inmates “would cost the Department nearly three times more money than is allocated for the standard menu and more than twice as much as the Department incurs for the cost of the alternative vegetarian meals.” Conspicuously absent from the pleadings is any material establishing in a competent way that no “consistent and reliable” source of Halal meat is available to the Department, that the costs of providing meals with Halal meat would in fact be two or three times that of the existing standard and vegetarian menus, or any analysis of the comparative costs of providing Kosher and Halal meals. Without this information, the court is in no position to determine whether the defendants are able to discharge their burden under Turner of showing that their refusal to provide Muslim inmates with a diet including Halal meat is based on a legitimate penological interest sufficient to overcome the plaintiffs’ free exercise and equal protection claims. Because the issue is one of public significance, and shorn of any claim for monetary damages, potentially involves the larger rights of the Muslim prison population rather than solely the plaintiffs’ private concerns, the court will reconsider plaintiffs’ motion for appointment of counsel, and seek to find counsel willing to represent the plaintiffs’ interests in the concluding injunctive phase of the case.
ORDER For the foregoing reasons, the defendants’ motion for summary judgment [docket # 29] is ALLOWED in part. The court finds that the defendants are entitled to a grant of qualified immunity and will therefore DISMISS all defendants from the suit in their personal capacities. The court further determines that plaintiffs are not entitled to injunctive relief on the issues of the prayer rug ban or the defendants’ policy of assigning food service workers’
10

Case 1:01-cv-12145-RGS Document 38 Filed 07/23/04 Page 11 of 11
positions on a nondiscriminatory basis. The motion for summary judgment on the issue of the provision of Halal meat to Muslim inmates is DENIED, the court having determined that a triable issue of fact exists on this aspect of the plaintiffs’ request for injunctive relief. The motion to stay summary judgment pending the completion of further discovery [docket # 32] is MOOT. Defendants’ motion for a protective order [docket # 33] is ALLOWED in part. The court will substitute the current Commissioner of Correction in his official capacity for the former officials named by the plaintiffs in their official capacities, and will DISMISS these named defendants from the suit as they no longer have the authority to implement any prospective injunctive relief that the court might grant. The court will for the same reason DISMISS defendant Sherry Elliot, the Director of Treatment at MCI-Cedar Junction, from the lawsuit in her official capacity. The court will STAY further proceedings in this case and defer action on any further discovery requests pending the appointment of counsel to represent plaintiffs on the remaining issue in the case, plaintiffs’ entitlement, if any, to prospective relief on the issue of Halal meat. Plaintiffs’ renewed motion for a preliminary injunction [docket # 36] is DENIED.
SO ORDERED. /s/ Richard G. Stearns ________________________________ UNITED STATES DISTRICT JUDGE
11

 
 Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 1 of 16

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

______________________________________ )

)

MAC. S. HUDSON and

)

DERRICK TYLER,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN DENNEHY, in her official

)

capacity as Commissioner of the

)

Massachusetts Department of

)

Corrections,

)

)

Defendant.

)

______________________________________ )

CIVIL ACTION NO. 01-12145-RGS

FIRST AMENDED COMPLAINT

Plaintiffs Mac S. Hudson and Derrick Tyler for their complaint against defendant, Kathleen Dennehy, state as follows:
INTRODUCTION 1. Plaintiffs Mac S. Hudson and Derrick Tyler are Muslims and members of the Nation of Islam. They are presently in the custody of the Massachusetts Department of Corrections (the “DOC”). Defendant Kathleen Dennehy is the Commissioner of the DOC. As Commissioner, Ms. Dennehy has interfered with Plaintiffs’ right to freely exercise their religion and has denied Plaintiffs an opportunity to exercise their religion equal to that of inmates of other faiths who are confined to DOC facilities . Plaintiffs seek declaratory and injunctive relief for the deprivation of Plaintiffs’ rights as secured by the Constitution, laws and regulations of the United States and the Commonwealth of Massachusetts.
JURISDICTION AND VENUE

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 2 of 16
2. This Court has subject matter jurisdiction over all claims arising under the United States Constitution, 42 U.S.C. § 1983 and 42 U.S.C. §§ 2000cc et seq. pursuant to 28 U.S.C. §§ 1331 and 1343. This court has jurisdiction over the request for declaratory relief pursuant to 28 U.S.C. §§ 1331, 2201 and 2202. This court has supplemental jurisdiction over all state law claims under 28 U.S.C. § 1367(a).
3. Venue lies in the District of Massachusetts pursuant to 28 U.S.C. § 1391(b). The events giving rise to this action occurred in this District and, on information and belief, the defendant resides in this District.
PARTIES 4. At all times mentioned herein, Plaintiff Mac S. Hudson was and is a prisoner of the Commonwealth of Massachusetts, in the custody of the DOC and, except as otherwise noted, confined to MCI-Cedar Junction in Walpole, Massachusetts. 5. At all times mentioned herein, Plaintiff Derrick Tyler was and is a prisoner of the Commonwealth of Massachusetts, in the custody of the DOC and confined to MCI-Cedar Junction. 6. Defendant Kathleen Dennehy is the Commissioner of the Department of Corrections in the Commonwealth of Massachusetts. Ms. Dennehy is ultimately responsible for and controls the care and custody of the Plaintiffs and the operation and actions of the DOC. She is being sued in her official capacity only. 7. The DOC is a department of the Commonwealth of Massachusetts. 8. The DOC receives Federal financial assistance.
2

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 3 of 16
STATEMENT OF FACT Plaintiffs are Muslims and Members of the Nation of Islam 9. Mr. Hudson is, has been, and continues to be a Muslim. More specifically, he is a member of the Nation of Islam. 10. Mr. Tyler is, has been, and continues to be a Muslim. More specifically, he is a member of the Nation of Islam. 11. The Nation of Islam was founded in the 1920s by the Honorable Master Fard Muhammad and the Honorable Elijah Muhammad. The Nation of Islam observes Islamic law and follows the teachings of the Honorable Elijah Muhammad. 12. Nation of Islam members are instructed to follow the Qur’an, which dictates proper Muslim conduct and reveals the doctrines of Islam. 13. Members of the Nation of Islam must not eat pork, any other food forbidden by the Qur`an and certain vegetables. 14. Nation of Islam members are required to pray five times daily: morning, noon, midafternoon, sundown, and before bed. While saying prayers, Muslims must be facing east towards Mecca and may pray only after thoroughly cleansing the body. 15. Nation of Islam members must, as a community, attend Jumah prayer each and every Friday.
Plaintiffs Must Consume Only Halal Food 16. Mr. Hudson and Mr. Tyler sincerely believe that Muslims must eat only food items that are “Halal,” meaning “lawful,” and must not eat food items that are “Haram,” meaning “forbidden.”
3

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 4 of 16
17. Mr. Hudson and Mr. Tyler sincerely believe that any food that contains pork or pork byproducts is not Halal and is Haram.
18. Mr. Hudson and Mr. Tyler sincerely believe that Haram foods include, but are not limited to, additives such as yellow dye number 5 and red dye number 40, as well as gelatin, animal shortening and certain oils.
19. Mr. Hudson and Mr. Tyler sincerely believe that for meat to be Halal, the animal from which it comes must be slaughtered while reciting the Name of Allah and in a manner prescribed by Islamic law. Mr. Hudson and Mr. Tyler sincerely believe that all food containing meat or byproducts of meat that is not slaughtered in this manner is not Halal and is Haram.
20. Mr. Hudson and Mr. Tyler sincerely believe that their Islamic faith requires them to eat Halal foods, including Halal meat.
21. Mr. Hudson and Mr. Tyler sincerely believe that, because eating any food containing Haram ingredients is strictly forbidden, it is a Muslim’s duty to either check all the ingredients used to prepare their meals or abstain from eating those meals altogether. Consequently, Mr. Hudson and Mr. Tyler’s religious beliefs require them to forego all meals that have unknown or undisclosed ingredients.
Plaintiffs Must Consume Only Halal Meals Prepared by Certain Muslims 22. Mr. Hudson and Mr. Tyler sincerely believe that Muslims may eat only Halal meals that are prepared by other Muslims who are in the state and condition of Tahara. In Islam, Tahara is a state of ritual purity. Tahara is reached by a purification rite of absolution that Muslims must perform before conducting their five mandatory Salats and before preparing and eating their Halal meals.
4

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 5 of 16
23. Ramadan is the ninth month of the Islamic calendar. Mr. Hudson and Mr. Tyler sincerely believe that Muslims must fast from sunrise to sunset for the entire month of Ramadan.
24. During Ramadan, the fast is broken each day after sunset with prayer and a meal. Mr. Hudson and Mr. Tyler sincerely believe that, as with all other meals, Ramadan meals must be Halal and must be prepared by Muslims in observance of Taharah.
25. Mr. Hudson and Mr. Tyler sincerely believe that Muslims are required to celebrate Eid-ul-Fitr (Feast of Fast-Breaking). Eid ul-Fitr commemorates the end of the month of Ramadan. Fasting is forbidden on this day as it marks the end of a month-long fast.
26. Mr. Hudson and Mr. Tyler sincerely believe that, as with all other meals, the Eidul-Fitr feast must be Halal and must be prepared by Muslims in observance of Taharah.
27. Mr. Hudson and Mr. Tyler sincerely believe that Muslims are required to observe the Eid-ul-Adha (Feast of Sacrifice) during Dhul-Hijjah, the last month of the Islamic calendar. Muslims unable to make a pilgrimage to Mecca are to fast for the first nine days of Dhul-Hijjah before celebrating the Eid-ul-Adha.
28. Mr. Hudson and Mr. Tyler sincerely believe that, as with all other meals, the Eidul-Adha feast must be Halal and must be prepared by Muslims in observance of Taharah.
The DOC Does Not Provide Halal Meals 29. The DOC does not provide Halal meals in accordance with Mr. Hudson and Mr. Tyler’s religious dietary restrictions. 30. The DOC does not provide meals prepared exclusively by Muslims during Ramadan, Eid-ul-Fitr, Eid-ul-Adha or at any other time.
5

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 6 of 16
31. Mr. Hudson and Mr. Tyler are presently in a segregated unit within MCI-Cedar Junction and are not permitted to supplement the meals the prison provides by purchasing food from the MCI-Cedar Junction Canteen.
32. As a result of the DOC’s actions, both Mr. Hudson and Mr. Tyler have lost a significant amount of weight.
33. The DOC’s failure to provide regular, nutritious meals that Mr. Hudson and Mr. Tyler may eat in accordance with their sincere religious beliefs places a substantial burden on the exercise of their religion.
Hudson and Tyler Have Exhausted Their Administrative Remedies 34. In or around July 2000, while confined at the Souza-Baranowski Correctional Center (“SBCC”), Mr. Hudson submitted a request to former Superintendent John Marshall for meals consistent with his religious dietary restrictions. 35. The DOC notified Mr. Hudson that his request for Halal meals was forwarded to the DOC’s Religious Committee. 36. While awaiting the Religious Committee’s decision, Mr. Hudson was transferred from SBCC to MCI-Cedar Junction. 37. In a letter to Sherry Elliot, Director of Treatment at MCI-Cedar Junction, dated January 2, 2001, Mr. Hudson reaffirmed his initial request for Halal meals. 38. In or around November 2000, Ms. Elliot admitted to Mr. Hudson and Mr. Tyler that the prison did not have Muslims preparing meals in accordance with Tahara. 39. In a letter dated January 8, 2001, Ms. Elliot informed Mr. Hudson that the Religious Committee had taken his request for Halal meals under advisement.
6

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 7 of 16
40. On information and belief, the DOC’s Religious Committee meets quarterly throughout the year.
41. Mr. Hudson’s request before the Religious Committee has been pending since July 2000 with no response or resolution.
42. Mr. Tyler has also registered for Halal meals through Ms. Elliot’s office but Ms. Elliot refused to process his request.
43. On information and belief, the DOC offers vegetarian meals originally designed to meet the religious needs of Seventh-Day Adventists.
44. In his letter to Ms. Elliot dated January 2, 2001, Mr. Hudson requested a menu and a list of ingredients used in preparing the DOC’s vegetarian meals so as to ensure that none of the meals contained Haram ingredients.
45. In a letter to Peter A. Pepe, former Superintendent of MCI-Cedar Junction, dated January 8, 2001, Mr. Hudson repeated his request to view a menu and a list of ingredients used in preparing the DOC’s vegetarian meals so as to ensure that none of the meals contained Haram ingredients.
46. Mr. Hudson’s request to see a menu and a list of ingredients was denied in a memorandum from Ms. Elliot dated January 8, 2001 and a letter from Mr. Pepe dated February 9, 2001.
DOC Denied Plaintiffs Access to Prayer Rugs 47. Between 1980 and approximately 1993, the DOC permitted Muslim inmates to keep prayer rugs in their cells in order to make their five daily Salats (prayers) as mandated by the Qur’an. The daily Salats constitute the second of the five pillars of Islam.
7

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 8 of 16
48. In or around the year 1993, the DOC changed its policy and rescinded the right of Muslim inmates to keep prayer rugs.
49. The DOC has offered no valid reason for this change in its prayer rug policy. 50. Mr. Hudson and Mr. Tyler sincerely believe that a Muslim must place himself in the state and condition of Tahara before making a Salat. 51. The prayer rug is an integral part of this process. The rug must be used only for prayer, kept clean, and not placed on a dirty floor. 52. Mr. Hudson and Mr. Tyler have no access to prayer rugs. 53. In response to complaints about the DOC’s refusal to permit them access to prayer rugs, the DOC issued Mr. Hudson and Mr. Tyler an extra bath towel to use in lieu of a prayer rug. 54. Mr. Hudson and Mr. Tyler sincerely believe that the “prayer towel” provided by the DOC does not conform with Islamic tradition. 55. DOC Prison guards have desecrated Mr. Hudson’s “prayer towels” during routine cell searches. On different occasions, Mr. Hudson’s “prayer towel” had footprints on it, was dropped on the floor and was confiscated for being over the DOC’s two towel per inmate limit. 56. On each occasion, the DOC told Mr. Hudson that the “prayer towel” was mistaken for a regular towel. 57. Mr. Hudson and Mr. Tyler are presently without either a prayer towel or a prayer rug. 58. On or about July 12, 2001, Mr. Hudson filed a request to purchase a prayer rug or to arrange a donation of prayer rugs to the prison with Ms. Elliot.
8

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 9 of 16
59. On or about July 18, 2001, Ms. Elliot denied Mr. Hudson’s request with no stated rationale.
60. On or about July 26, 2001, Mr. Hudson filed a request to purchase a prayer rug or to arrange a donation of prayer rugs to the prison with Peter Allen, former Superintendent of MCI-Cedar Junction.
61. On or about August 15, 2001, Mr. Allen denied Mr. Hudson’s request with no stated rationale.
62. On or about August 8, 2001, Mr. Tyler filed a request to purchase a prayer rug or to arrange a donation of prayer rugs to the prison with Ms. Elliot.
63. On or about August 16, 2001, Ms. Elliot denied Mr. Tyler’s request with no stated rationale.
64. The DOC’s refusal to permit Mr. Hudson and Mr. Tyler to keep prayer rugs in their cells places a substantial burden on the exercise of their religion by interfering with their ability to perform the five daily Salats.
The DOC Denies Plaintiffs Access to Jumah Services 65. Jumah, literally meaning 'Friday,' is the day when Muslims congregate to perform the Midday Salat (prayer) and listen to the Khutbah. The Khutbah is a religious sermon given by an Imam prior to performing Salat on Fridays. The Khutbah is considered a part of the Salat itself. 66. Mr. Hudson and Mr. Tyler sincerely believe that Islamic law mandates all Muslims to listen to or attend Jumah services as part of a community, as mandated by Islamic law.
9

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 10 of 16
67. Mr. Hudson and Mr. Tyler are presently held in a segregated unit at MCI-Cedar Junction. While segregated, Mr. Hudson and Mr. Tyler are denied the right to attend mandatory Jumah services.
68. Prisoners with televisions may participate in the prison’s Jumah services, which are broadcast via closed-circuit televisions.
69. MCI-Cedar Junction has not made arrangements for prisoners without televisions to participate in Jumah prayer.
70. The DOC presently denies Mr. Hudson and Mr. Tyler access to a television and, therefore, access to Jumah services.
71. In a letter dated July 11, 2001, Mr. Hudson informed Ms. Elliot that he does not have access to a television and, therefore, cannot participate in Jumah services.
72. Mr. Hudson and Mr. Tyler sincerely believe that reciting the Khutbah amid fewer than three people is not permissible. According to Islamic law, at least three people have to be present to perform the Khutbah or the Jumah services will be invalid.
73. On or about July 11, 2001, Mr. Hudson submitted a request to Ms. Elliot asking that the Inner Perimeter Security Office approve one person to make rounds with the Imam in order to allow segregated prisoners to hear the Khutbah and fulfill Jumah. Mr. Hudson’s July 11th request was denied by Ms. Elliot.
74. The DOC’s refusal to permit Mr. Hudson and Mr. Tyler to participate in Jumah services while housed in a segregation unit places a substantial burden on the exercise of their religion.
10

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 11 of 16
The DOC Places Burdens on the Exercise of Islam that It Does Not Place on Other Religions
75. The DOC requires Muslim inmates, including Mr. Hudson and Mr. Tyler, to register with MCI-Cedar Junction officials prior to attending Islamic prayers and rituals in the Mosque.
76. If their name is not on the list, Muslim inmates, including Mr. Hudson and Mr. Tyler, are denied the opportunity to worship with the Muslim community.
77. MCI-Cedar Junction does not require Christian or Catholic inmates to register prior to attending religious services.
78. The DOC has never identified any rational state interest to account for the registration policy and the disparate treatment of Muslim inmates, including Mr. Hudson and Mr. Tyler.
79. The DOC offers inmates of Jewish faith special Kosher meals to accommodate their religious dietary restrictions.
80. The DOC purchases these special Kosher meals from an outside vendor. 81. The DOC refuses to provide special Halal meals from an outside vendor.
COUNT I Violations of the Religious Land Use and Institutionalized Persons Act of 2000
(42 U.S.C. § 2000cc et seq.) 82. Paragraphs 1 through 81 are incorporated by reference as if set forth fully herein. 83. Defendant has imposed and continues to impose substantial burdens on the religious exercise of the plaintiffs in violation of 42 U.S.C. § 2000cc-1(a) by: (a) failing to provide Plaintiffs with nutritionally adequate meals that conform to their sincere religious
11

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 12 of 16
beliefs; (b) denying Plaintiffs access to prayer rugs; and (c) preventing Plaintiffs from participating in Jumah services.
84. These substantial burdens are not imposed in furtherance of any compelling governmental interest nor are they the least restrictive means of furthering any governmental interest.
COUNT II Violations of the First and Fourteenth Amendments to the United States Constitution
“Free Exercise of Religion” (42 U.S.C. § 1983)
85. Paragraphs 1 through 84 are incorporated by reference as if set forth fully herein. 86. Defendant, under color of state law, has deprived and continues to deprive Plaintiffs of their right to free exercise of religion, as secured by the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, by: (a) failing to provide Plaintiffs with nutritionally adequate meals that conform to their sincere religious beliefs; (b) denying Plaintiffs access to prayer rugs; and (c) preventing Plaintiffs from participating in Jumah services.
COUNT III Violations of the Fourteenth Amendment to the United States Constitution
“Equal Protection” (42 U.S.C. § 1983) 87. Paragraphs 1 through 86 are incorporated by reference as if set forth fully herein. 88. Defendant, under color of state law, has deprived and continues to deprive Plaintiffs of their right to equal protection of the laws, as secured by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, by placing restrictions on the exercise of
12

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 13 of 16
Islam that are not placed on the exercise of other religions and thereby discriminating against Plaintiffs on the basis of their religion.
89. Defendant’s disparate treatment of Plaintiffs is based on Plaintiffs’ religion and is motivated by discrimination.
COUNT IV Violations of Article II of the Massachusetts Declaration of Rights and Article XLVI of the Articles of Amendment to the Massachusetts Constitution
“Religious Freedom” (M.G.L. ch. 12, § 11I) 90. Paragraphs 1 through 89 are incorporated by reference as if set forth fully herein. 91. Defendant has deprived and continues to deprive Plaintiffs of their religious freedoms, as secured by Article II of the Massachusetts Declaration of Rights, Article XLVI of the Articles of Amendment to the Massachusetts Constitution and M.G.L. ch. 12, § 11I, by: (a) failing to provide Plaintiffs with nutritionally adequate meals that conform to their sincere religious beliefs; (b) denying Plaintiffs access to prayer rugs; and (c) preventing Plaintiffs from participating in Jumah services.
COUNT V Violations of Article I of the Massachusetts Declaration of Rights
“Massachusetts Equal Protection” (M.G.L. ch. 12, § 11I)
92. Paragraphs 1 through 91 are incorporated by reference as if set forth fully herein. 93. Defendant has deprived and continues to deprive Plaintiffs of their right to equal protection of the laws, as secured by Article I of the Massachusetts Declaration of Rights and M.G.L. ch. 12, § 11I , by not providing Plaintiffs access to meals that conform to their religious beliefs while providing members of other faiths access to meals that conform to their beliefs and thereby discriminating against Plaintiffs on the basis of their religion.
13

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 14 of 16
94. Defendant has deprived and continues to deprive Plaintiffs of their right to equal protection of the laws, as secured by Article I of the Massachusetts Declaration of Rights and M.G.L. ch. 12, § 11I, by burdening Plaintiffs’ access to religious services while allowing members of other faiths access to religious services and thereby discriminating against Plaintiffs on the basis of their religion.
95. Defendant’s disparate treatment of Plaintiffs is based on Plaintiffs’ religion and, therefore, is purposeful and motivated by discrimination.
96. The defendant’s interference with Plaintiffs’ rights secured by Article I of the Massachusetts Declaration of Rights has been accomplished by threats, intimidation or coercion in violation of M.G.L. ch. 12, § 11I.
COUNT VI Violations of M.G.L. ch. 127, § 88 and 103 C.M.R. 471.07 and 471.09(5)
“Prisoners’ Religious Freedom” (M.G.L. ch. 12, § 11I)
97. Paragraphs 1 through 96 are incorporated by reference as if set forth fully herein. 98. The Defendant’s actions are in direct violation the DOC’s regulations codified at 103 C.M.R. 471.07 and 471.09(5) and interfere with Plaintiff’s rights under M.G.L. ch. 127, § 88 by: (a) failing to provide Plaintiffs with nutritionally adequate meals that conform to their sincere religious beliefs; (b) denying Plaintiffs access to prayer rugs; and (c) preventing Plaintiffs from participating in Jumah services. 99. The defendant’s interference with Plaintiffs’ rights secured by 103 C.M.R. 471.07 and 471.09 and M.G.L. ch. 127, § 88 has been accomplished by threats, intimidation or coercion in violation of M.G.L. ch. 12, § 11I.
PRAYER FOR RELIEF 14

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 15 of 16
WHEREFORE, Plaintiffs respectfully request that this Court: (a) Enter judgment for the Plaintiff and against the Defendant on all counts of this
Complaint; (b) Declare the practice of denying Plaintiffs adequate meals that conform to their
sincere religious beliefs unconstitutional and/or in violation of state and/or federal law; (c) Declare the practice of denying Plaintiffs the right to have and use prayer rugs unconstitutional and/or in violation of state and/or federal law; (d) Declare the practice of denying Plaintiffs access to religous services unconstitutional and/or in violation of state and/or federal law; (e) Enter a permanent injunction ordering the Defendant to provide the Plaintiffs with a nutritionally adequate diet that fully conforms to their religious beliefs; (f) Enter a permanent injunction ordering the Defendant to provide, in advance of each addition to a menu, access to a list of ingredients in the newly added food item(s) so that the Plaintiffs may ensure the meal conforms to their religious beliefs; (g) Enter a permanent injunction ordering Defendant to provide Plaintiffs with prayer rugs or, in the alternative, to permit Plaintiffs to procure prayer rugs for themselves; (h) Enter a permanent injunction ordering Defendant to allow Plaintiffs to attend religious services without first having to register and allow Plaintiff to attend all Jumah services either in person or via closed-circuit television;
15

Case 1:01-cv-12145-RGS Document 56 Filed 05/26/05 Page 16 of 16
(i) Award the Plaintiff reasonable costs and attorney’s fees pursuant to 42 U.S.C. § 1988; and
(j) Grant such other relief as the court deems just and proper. Respectfully Submitted MAC S. HUDSON and DERRICK TYLER By their Attorneys, /s/ Benjamin A. Goldberger Michael D. Kendall (BBO#544866) Benjamin A. Goldberger (BBO#654357) McDermott Will & Emery LLP 28 State Street Boston, MA 02109-1775 617.535.4000 (phone) 617.535.3800 (fax)
BST99 1435274-4.009962.0179
16

 
 Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 1 of 13

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

______________________________________ )

)

MAC S. HUDSON and

)

DERICK TYLER,

)

)

Plaintiffs,

)

CIVIL ACTION

v.

)

NO. 01-12145-RGS

)

KATHLEEN DENNEHY, in her official

)

capacity as Commissioner of the

)

Massachusetts Department of

)

Corrections,

)

)

Defendant.

)

______________________________________ )

PLAINTIFFS’ TRIAL BRIEF

Plaintiffs Mac Hudson and Derick Tyler hereby submit this Trial Brief to outline the legal

framework applicable to the three aspects of their religious exercise for which they seek relief

and address some of the evidentiary issues that are likely to be raised at trial.

I. PARTIES AND FACTUAL BACKGROUND The Plaintiffs, Mac Hudson and Derick Tyler, are seeking declaratory and injunctive

relief in this civil rights action against the defendant, Kathleen Dennehy, the Commissioner of

the Massachusetts Department of Corrections (the “DOC”). Messrs. Hudson and Tyler are

adherents to the Islamic Faith, followers of the Quran and members of the Nation of Islam. They

are also prisoners incarcerated by the Defendant at MCI-Cedar Junction, a state prison.

As part of their religious practice, Messrs. Hudson and Tyler must observe a set of

dietary laws prescribed by Islamic law. Islamic law requires every Muslim to eat only foods that

are “Halal,” which is an Arabic word that translates to “lawful” or “permissible.” A Muslim

must refrain from eating food that is “Haram,” or forbidden, and any food which contains

ingredients that are Haram or which contains unknown or questionable ingredients.

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 2 of 13
Another part of Islamic religious practice is prayer, one of the five pillars of Islam. Messrs. Hudson and Tyler must pray five times daily, using a prayer rug. The Friday afternoon prayer must be performed as part of a community of Muslims. This prayer service, called “Jum’ah,” includes a “Khutbah,” which is similar to a sermon, and must be delivered by an Imam.
The DOC prevents the Plaintiffs from practicing these three requirements of Islam. The DOC does not provide the Plaintiffs with Halal food, and prohibits the Plaintiffs from possessing prayer rugs in their cells. The DOC has prevented the Plaintiffs, while in a special management unit (“SMU”), from participating in Jum’ah services, either in person or by viewing a broadcast of Jum’ah services over the prison’s closed-circuit television network. Inmates in other units are permitted to view such religious broadcasts.1 II. LEGAL FRAMEWORK
The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) provides the legal framework under which the Court should analyze the evidence presented at trial RLUIPA prohibits the DOC from:
impos[ing] a substantial burden on the religious exercise of [the Plaintiffs], even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a).
1 While in general population, Plaintiffs are permitted to attend communal Jum’ah services. However, the DOC does not provide an Imam to perform these services each and every Friday, and Plaintiffs and other inmates are often without an Imam to give the Khutbah.
- 2 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 3 of 13
The question of whether the DOC’s policies impose a substantial burden on the Plaintiffs’ religious exercise depends primarily on what the Plaintiffs’ sincerely held religious beliefs are. The Court will hear testimony from Messrs. Hudson and Tyler on this issue. Once the Plaintiffs establish that the DOC’s policies impose a substantial burden on their religious exercise, the burden shifts to the DOC to prove that its policies are the least restrictive means of furthering a compelling governmental interest.
As this Court wrote in its July 23, 2004 Memorandum and Order, “[t]he issue in free exercise cases, however, is not whether an adherent has correctly divined the religious commands of his faith, but whether his understanding of what his religion requires, however unorthodox, is based on a sincerely held religious belief. Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 834 (1989).” July 23, 2004 Mem. & Order at 5 n.3; accord Int’l Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441 (2d Cir. 1981) (“Sincerity analysis seeks to determine the subjective good faith of an adherent.”). “Intrafaith differences . . . are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses . . . The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.” Gordon v. Pepe, No. 00-10453-RWZ, 2004 U.S. Dist. LEXIS 16807, at *7–*8 (D. Mass. Aug. 24, 2004) (quoting Thomas v. Review Bd. of Indiana Employment Sec., 450 U.S. 707, 715–16 (1981), ellipses in original).
“The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphasis added). The Plaintiffs contend, and the DOC appears to agree, that the DOC has imposed a substantial burden on the Plaintiffs’ religious exercise if a DOC “policy has a tendency to coerce
- 3 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 4 of 13
the [Plaintiffs] into acting contrary to [their] religious beliefs.” See Defendant’s Mem. in Support of Motion for Summary Judgment at 7.
The plain text of the statute mandates that the Court apply strict scrutiny to any DOC policy that imposes a substantial burden on the Plaintiffs’ religious exercise. See Eagle Ins. Co v. Bankvest Capital Corp. (In re Bankvest Capital Corp.), 360 F.3d 291, 297 (1st Cir. 2004) (“[I]n any statutory interpretation case, we start with the text of the statute”). The language Congress chose—“compelling governmental interest” and “least restrictive means”—are terms of art that have well-established meanings in the law.
[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them. Morrisette v. United States, 342 U.S. 246, 263 (1952). If the text of the statute leaves any doubt as to whether this Court should apply strict scrutiny, the Court must resolve that doubt in favor of the Plaintiffs. RLUIPA provides that it “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). Finally, other courts have recognized that RLUIPA means what it says, stating that “RLUIPA applies strict scrutiny to government actions that substantially burden the religious exercise of institutionalized persons.” Benning v. Ga., 391 F.3d 1299, 1304 (11th Cir. 2004).2 Compelling
2 See also Warsoldier v. Woodford, 418 F.3d 989, 1001 n.13 (9th Cir. 2005) (“[U]nder RLUIPA, CDC’s regulations must survive strict scrutiny analysis.”); Ragland v. Angelone, No. 7:02-cv00786, 2006 U.S. Dist. LEXIS 10277, at *6 (W.D. Va. March 15, 2006) (“RLUIPA returns the strict scrutiny test to prison litigation.”); cf. Grace United Methodist Church v. City of Cheyenne,
- 4 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 5 of 13
governmental interests in the prison context are “discipline, order, safety, and security.” Cutter, 544 U.S. at 723. Cost is not a compelling governmental interest.
A. The DOC’s Failure to Provide Halal Meals to the Plaintiffs Violates RLUIPA The DOC’s refusal to provide Muslim inmates with Halal meals is exactly the sort of unjustified burden on religious exercise that Congress sought to outlaw when enacting RLUIPA. In Cutter v. Wilkinson, 544 U.S. 709, 716 n.5 (2005), the Supreme Court quoted the following excerpt from a Congressional hearing: “A State Prison in Ohio refused to provide Moslems with Hallal food, even though it provided Kosher food. It claimed Kosher food was available and Hallal food was not . . . . But, in fact, one firm produces TV dinners religiously acceptable to both Jews and Moslems. Had there been a way to force consideration of this product, the result in the case should have been different.” (citing Hearing on Protecting Religious Freedom After Boerne v. Flores, before the Subcommittee on the Constitution of the House Committee on the Judiciary [hereinafter, “Protecting Religious Freedom”], 105th Cong., 2d Sess., pt. 3, p. 11, n. 1 (1998)). The DOC marshals two arguments in support of its refusal to provide Halal meals. Neither is persuasive. First, the DOC contends that the alternative/vegetarian diet provided by the DOC should be acceptable to Muslims because it is meat-free. The evidence will show, however, that the Plaintiffs do not believe that the alternative/vegetarian diet is Halal under Islamic law, and that the DOC has failed to obtain Halal certification for its food supplies, kitchens, and meal preparation process. Moreover, the Plaintiffs will present expert testimony from a leading scholar in the area of Islamic dietary law, providing the Court with the context in
427 F.3d 775, 794 (10th Cir. 2005) (holding that parallel provisions relating to land use in 42 U.S.C. § 2000cc(a) established strict scrutiny test).
- 5 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 6 of 13
which the Plaintiffs formed their religious beliefs regarding Islamic dietary law. This expert testimony will demonstrate that the DOC’s repeated claims about what Muslims may and may not eat are borne of willful ignorance. Second, the DOC asserts that security and logistical concerns prevent it from providing the Plaintiffs with Halal meals. These concerns are directly at odds with the fact that the DOC provides other inmates with Kosher meals and other prison systems, including the Federal Bureau of Prisons, provide inmates with Halal meals. As noted in RLUIPA’s legislative history, “while one still encounters claims by prison officials that they cannot possibly run a secure prison system and provide religiously acceptable diets, it is strange that a variety of other prison systems manage just that.” Protecting Religious Freedom, 105th Cong., 2d Sess., pt. 3, p. 11. The evidence will demonstrate that the DOC’s claimed security concerns are a pretext for the real reason it does not provide Halal meals: they are more expensive than the meals that the DOC serves.
B. The DOC’s Ban on Inmates Possessing Prayer Rugs in Their Cells Violates RLUIPA
At some point in the 1990s, the DOC changed its policy so that any inmate who did not yet have a prayer rug in his cell would not be permitted to obtain one. Prayer rugs are an important part of a Muslim’s daily prayers, and have been a part of Islamic tradition from the time of Muhammad. The DOC’s change in policy places a substantial burden on the Plaintiffs, as it prevents them from performing their five daily prayers in accordance with Islamic religious practice.
The DOC attempts to minimize this aspect of Islamic religious practice by suggesting that all that is required for prayer is a clean surface. This argument misses the mark in view of the expansive definition of “religious exercise” that Congress and the President adopted in enacting RLUIPA. “The term ‘religious exercise’ includes any exercise of religion, whether or
- 6 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 7 of 13
not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphasis added). Thus, the use of prayer rugs is a religious exercise, and the burden that the DOC places on the Plaintiffs’ use of prayer rugs is more than substantial: it is total. DOC staff enforce the DOC prayer rug ban, backed up by the power to impose disciplinary sanctions on the Plaintiffs, in the most coercive environment imaginable.3
The DOC cannot meet its burden of demonstrating that a policy preventing inmates from possessing prayer rugs in their cells is the least restrictive means of furthering a compelling governmental interest. The Bureau of Prisons allows inmates to possess prayer rugs. One of the DOC’s vendors, the Keefe Group, provides a ready source of prayer rugs for sale to inmates. Any alleged security concerns can be addressed by the thorough procedures that the DOC has in place for searching inmate property, including items that are significantly larger and/or bulkier than prayer rugs, including blankets, mattresses, bathrobes and winter coats. In fact, the DOC’s own witnesses will testify that any contraband hidden in a prayer rug could be discovered by careful searches.
C. The DOC’s Failure to Provide Inmates Assigned to Segregated Units an Opportunity to Participate in Jum’ah Services Violates RLUIPA
The DOC does not appear to dispute that the Plaintiffs sincerely believe that, as Muslims, they must participate in Jum’ah services as a community every Friday afternoon. Nor does the DOC dispute that, when the Plaintiffs were confined to the Special Management Unit at Cedar Junction (the “SMU” or “Ten Block”), the Plaintiffs were unable to participate in Jum’ah services.
3 The Defendant has filed a motion in limine relating to the Plaintiffs’ claims for access to prayer rugs. For the reasons described in the Plaintiffs’ Opposition to that motion, the Plaintiffs are not subject to any form of collateral estoppel relating to this issue.
- 7 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 8 of 13
For the reasons set forth in the Plaintiffs’ Motion in Limine Regarding Jum’ah Services, the DOC is estopped from taking the position that denying Muslim inmates access to weekly Jum’ah services does not constitute a substantial burden on their free exercise of religion. The DOC has litigated, and lost, this exact issue in another case. Thus, the only genuine dispute with respect to the Plaintiffs’ access to Jum’ah services is whether the DOC’s policy is the least restrictive means of furthering a compelling governmental interest. However, the DOC’s policies governing the Departmental Disciplinary Unit (the “DDU”) and the DOC’s past policies for the SMU reveal that the DOC’s policy is not the least restrictive one possible.
Initially, the DOC attempted to justify its policy by submitting an affidavit from Sherry Elliot claiming that “10 Block is not wired for access to the prison’s closed circuit television system.” Second Affidavit of Sherry Elliot, ¶ 3. This evidence at trial, including the testimony of the Deputy Superintendent in charge of the SMU at MCI-Cedar Junction, will confirm that this statement is not true. In fact, when the DOC was forced to shut the DDU for repairs and housed some DDU inmates in the Ten Block building, those inmates were able to have televisions in their cells.
The DOC’s new justification is that “[b]ecause SMU custody is designed to be short term and inmates may only possess limited amounts of personal property in their cells, SMU inmates are not permitted to have televisions.” Def.’s Mem. in Support of Motion for Summary Judgment at 20. This justification cannot stand in view of the DOC’s policy for the DDU, which permits inmates to possess televisions after a period of good behavior. Like the SMU, the DDU is not intended to serve as permanent housing for inmates, but rather for temporary terms of confinement between three months and ten years. Mitchell Aff. ¶ 4.
- 8 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 9 of 13
In response to the Plaintiffs’ discovery requests, the DOC produced a report giving basic information, including date of discharge if applicable, for the 1,178 times that the DOC sent an inmate to the DDU for the period from April 1, 1992 to the time that the report was generated. See Departmental Disciplinary Unit Commitments and Releases, Marked Item I.4 Of the 950 DDU commitments that had resulted in discharges at the time the DOC generated the report, 115 inmates (12.1%) left the DDU in fewer than 90 days, 310 inmates (32.6%) left the DDU in fewer than 180 days and 573 inmates (60.3%) left in less than one year. The DOC was unable to generate a comparable report for the SMU. However, the evidence will show that the average length of time that an inmate is confined to the SMU is approximately ninety days and that a number of inmates, including both of the Plaintiffs, were confined to the SMU for periods well in excess of 180 days.
Thus, there is no legitimate basis for the DOC’s decision to allow televisions in the DDU, but not the SMU. Moreover, inmates in the SMU were permitted in the past to have televisions. In view of the past policy for the SMU and the current policy for the DDU, the Court should find that the DOC’s policy is not the least restrictive means of furthering a compelling governmental interest. III. TESTIMONY OF RANDY MUHAMMAD
The Plaintiffs have filed a motion in limine seeking to preclude the Defendant from calling Randy Muhammad as a witness. The Defendant has filed an opposition.
4 The Defendant has objected to the admission of this document, arguing that it is irrelevant. For the reasons set forth in this paragraph, the document is relevant, and the Court should admit it as evidence.
- 9 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 10 of 13
IV. EVIDENTIARY ISSUES A. Documents Concerning Requests from Other Inmates Are Relevant to the Claims in This Case Marked Items J through Q are relevant to two issues before the Court. First, they are
relevant to show that the Plaintiffs’ believe that, as Muslims, they must observe Islamic dietary law and consume only Halal food and that the alternative/vegetarian diet is not Halal. Second, they are relevant to show that the DOC’s purported security concerns are insubstantial and are a pretext for the real reason that the DOC refuses to provide Halal meals: cost.
These eight Marked Items contain 141 separate documents detailing the religious services requests of inmates other than the Plaintiffs.5 All but one of these requests seeks a Halal diet.6
The Defendant has repeatedly argued that the DOC’s alternative/vegetarian meals are adequate according to Islamic practices and suggested that the Plaintiffs’ requests for Halal meals are somehow outside the mainstream of Islam. The sheer volume of requests by other Muslim inmates, however, suggests otherwise. Since RLUIPA was enacted, at least forty separate Muslim prisoners within the DOC have requested Halal meals, expressing their belief that the current meals offered by the DOC do not meet their religious needs. These requests are directly relevant to the Plaintiffs’ position that: (a) Halal meals are required by Islam; (b) the alternative/vegetarian meals are not Halal, and (c) the DOC regularly denies requests for Halal meals.
5 With one exception, the Defendant has stipulated to the authenticity of these documents and is willing to stipulate that they are records kept by the DOC in the ordinary course of its business. The Defendant has reserved objections as to authenticity and hearsay only with respect Marked Item L, which is a group of five documents that are not Department of Corrections forms or memoranda, but rather are letters from inmates making requests for Halal meals. 6 One request is for Jum’ah services.
- 10 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 11 of 13
Moreover these documents also show that, in each case, the inmate’s request was denied by the Commissioner, but often for reasons that contradict the Defendant’s assertions to the Court. For example, one DOC form has a space for the requesting inmate’s Superintendent to recommend whether to approve or deny the inmate’s religious services request and to state the security reasons behind the recommendation. See Superintendent Recommendation Forms, Marked Item J. Multiple Superintendents have made recommendations to deny Halal meals but either: (a) stated that security concerns were “N/A” or not applicable, (b) left the security concerns section blank, or (c) stated that the request for Halal meals should be denied because the meals are “not cost effective.” See id. Even more revealing is the fact that the Superintendent of MCI-Norfolk repeatedly recommended that the RSRC approve Halal meals because there are “no security concerns” associated with the request. See id. Thus, the eighteen forms that make up Marked Item J are highly probative of the DOC’s motivation for denying Halal meals and directly contradict the Defendant’s claimed rationale of security concerns.
Marked Item M contains additional documents showing that, for some requests for Halal meals, the Superintendent of MCI-Norfolk recommended approval and saw “no security concerns,” but the RSRC ultimately denied those requests. See Marked Item M. Another document indicates that the reason for denying requests for Halal meals is that the “department provides a pork-free diet that is supported by case law.” See id. This demonstrates that: (a) the DOC has remained willfully ignorant of the fact that “Halal” is not the same as “pork-free” and (b) the DOC is relying on pre-RLUIPA case law to make its decisions about religious requests. Likewise, Marked Items O through Q indicate that the DOC denied requests for Halal meals because the DOC decision-makers believe that both the pork-free main-line meal and the alternative/vegetarian meal meet the dietary needs of Muslims.
- 11 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 12 of 13
The DOC’s willful blindness to the requirements of Islam, as expressed to them by numerous practitioners of the religion, is directly relevant to the Defendant’s claim that its policy of refusing to provide Halal meals is the least restrictive means of achieving a safe and secure prison environment. Marked Items J through Q illustrate this willful blindness, and are therefore relevant and admissible.
B. The Bureau of Prisons Program Statements Are Admissible Counsel for the Defendant has stated that the Defendant will stipulate to the authenticity of Marked Items G and H, which counsel for the Plaintiffs obtained from the Bureau of Prisons web site (http://www.bop.gov/). However, the Defendant contends that these program statements are inadmissible as hearsay and, in any event, irrelevant. The Defendant is incorrect. A Bureau of Prisons (“BOP”) program statement is admissible to prove what the BOP’s policies and programs are. It is a public record, admissible under Federal Rule of Evidence 803(8)(A), which provides, in pertinent part: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . . (8) . . . statements . . . of public offices or agencies, setting forth (A) the activities of the office or agency . . . . A cursory review of the BOP program statements reveals that they set forth the activities of the BOP, a public agency. The BOP’s policies and programs are directly relevant to whether the DOC’s policies and programs are the least restrictive means of furthering a compelling governmental interest. The fact that the BOP is able to run a safe, secure system of prisons while feeding inmates Halal food and permitting inmates to possess prayer rugs under its “less restrictive” personal property policy is strong evidence that the DOC’s policy is not the least restrictive means of furthering the DOC’s interest in a safe and secure system of prisons. Cf. Cutter, 544 U.S. at 725–26 (noting
- 12 -

Case 1:01-cv-12145-RGS Document 92 Filed 01/07/07 Page 13 of 13

that BOP policies burdening religious exercise have been subject to strict scrutiny for years without compromising safety and security).
Respectfully Submitted, MAC S. HUDSON and DERICK TYLER, By their attorneys,

Dated: January 7, 2007

/s/ Benjamin A. Goldberger Michael Kendall (BBO#544866) Benjamin A. Goldberger (BBO#654357) Neal E. Minahan (BBO#661371) McDermott Will & Emery LLP 28 State Street Boston, MA 02109-1775 (617) 535-4000

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system and all attachments will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on January 8, 2006.
/s/ Benjamin A. Goldberger Benjamin A. Goldberger

BST99 1527614-4.009962.0179

- 13 -

 
 Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 1 of 19
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 01-CV-12145-RGS MAC HUDSON AND DERRICK TYLER v.
KATHLEEN DENNEHY, in her official capacity as Commissioner of the
Massachusetts Department of Correction FINDINGS OF FACT, RULINGS OF LAW, AND ORDER AFTER A NON-JURY TRIAL
March 5, 2008 STEARNS, D.J.
On May 4, 2001, state prison inmates Mac Hudson and Derick Tyler, who adhere to the religious teachings of Elijah Muhammed and the Nation of Islam, brought this civil rights suit against Kathleen Dennehy, the Commissioner of the Massachusetts Department of Correction (DOC), and other DOC defendants, seeking money damages and declaratory and injunctive relief. Hudson and Tyler are incarcerated at the Massachusetts Correctional Institution – Cedar Junction (MCI-CJ), a maximum security prison in Walpole, Massachusetts. The Complaint as originally filed alleged an abridgment of plaintiffs’ rights under the Free Exercise Clause of the First and Fourteenth Amendments, as well as violations of 103 CMR 471.00 et seq. Plaintiffs claimed that the DOC had violated their religious rights by refusing to provide Muslim inmates with halal meals,1 by requiring
1Halal means that which is authorized by Islamic law (fiqh). The halal dietary restrictions at issue in this case principally involve the slaughtering of animals for consumption. An Islamic website, eat-halal.com, describes the Halal slaughter ritual as follows.

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 2 of 19
Muslim inmates to use a prayer “towel” rather than a traditional prayer rug while performing
salat,2 and by refusing to allow Muslim inmates confined in the Special Management Unit
(SMU)3 to participate in Jum’ah4 services. Plaintiffs also argued that the DOC’s policy of
accommodating the dietary requirements of Jewish, Seventh Day Adventist, Buddhist, and
other observant prisoners, while denying a similar accommodation to Muslim inmates,
violated the Equal Protection Clause of the Fourteenth Amendment.5
Animals such as cows, sheep, goats, deer, moose, chickens, ducks, game birds, etc., are also Halal, but they must be Zabihah (slaughtered according to Islamic Rites) in order to be suitable for consumption. The procedure is as follows: the animal must be slaughtered by a Muslim (or a Jew or Christian). The animal should be put down on the ground (or held if it is small) and its throat should be slit with a very sharp knife to make sure that the 3 main blood vessels are cut. While cutting the throat of the animal (without severing it) the person must pronounce the name of Allah or recite a blessing which contains the name of Allah, such as “Bismillah Allah-u-Akbar.”
While the method bears striking similarities to Kosher slaughter rituals, what is Kosher is not Halal, and vice-versa, in the Jewish and Muslim traditions.
2Salat (or namaz) is the ritual prayer performed five times daily by an observant Muslim.
3The Special Management Unit (SMU) is defined in 103 CMR 423.06 as “[a] separate housing area from general population within institutions in which inmates may be confined for reasons of administrative segregation, protective custody, or disciplinary detention.” Inmates typically stay less than three months in the SMU, but detentions for as long as a year are not unheard of. The SMU at MCI-CJ is often referred to as “Ten Block.”
4Jum’ah is a Friday group prayer that is obligatory for Muslims.
5The Complaint also alleged that plaintiffs’ religious beliefs were affronted by having to eat food prepared and served by non-Muslim inmates. The Complaint sought an injunctive order requiring that only Muslim inmates be permitted to prepare meals for other Muslim inmates. The court denied the request for injunctive relief, noting that the DOC’s policy of assigning kitchen jobs on a nondiscriminatory basis served the compelling State
2

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 3 of 19
BACKGROUND
This action began with a pro se complaint filed in 2001 by inmates Hudson, Tyler,
Antwan Crawford, Darrick Wilson, and Anthony Tucker.6 Named as defendants were
Michael Maloney, the Commission of the DOC; Peter Allen, Superintendent of MCI-CJ;
Peter Pepe, former Superintendent of MCI-CJ; Andrea Emodi, former Director of Program
interest of maintaining institutional harmony and order.
[P]laintiffs’ demand, that only Muslim inmates be permitted to prepare meals for other Muslim inmates, would not under any circumstances pass the test of Turner, 482 U.S. at 89, as affirmed in a First Amendment context by Estate of Shabazz, 482 U.S. at 350-353. Under the Turner test, a prison regulation, or practice that impinges on an inmate’s constitutional rights, passes muster if it is reasonably related to a legitimate penological interest. As the court [has previously] observed . . . “any special selection of inmates for food service positions based on their religious affiliation would violate the Department of Correction’s policy of assigning jobs on a nondiscriminatory basis and [would] expose it to potential litigation, as well as resentment on the part of other inmates at the special treatment accorded to plaintiffs.” Moreover, the Department’s food service employment policy does not impinge on any constitutional right of the plaintiffs. As the Rahim affidavit explains, the Qu’ran specifically permits Muslims to consume food prepared by non-Muslims. Plaintiffs do not maintain that their desire to be served by Muslim food service workers is based on any Islamic teaching, but appears to have as its basis an expression of solidarity with Muslim [inmate] coreligionists.
Hudson v. Maloney, 326 F. Supp. 2d 206, 212 n.5 (D. Mass. 2004). The court does not understand plaintiffs to press this issue further. Plaintiffs’ expert on Muslim dietary laws, Mohammad Mazhar Hussaini, testified at trial that no Islamic teaching enjoins Muslims from eating Halal food prepared and served by non-Muslims so long as it is prepared in conformity with Islamic dietary laws. Hudson could not identify any religious basis for his beliefs about non-Muslim kitchen workers. Tyler, in his testimony at trial, did not appear to share Hudson’s aversion to being served meals prepared by non-Muslims.
6On October 18, 2002, the court dismissed the claims of Tucker and Wilson for want of prosecution pursuant to Fed. R. Civ. P. 41(b). Antawn Crawford was released from DOC custody on January 16, 2003, and was terminated as a party on March 29, 2004.
3

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 4 of 19
Services; and Sherry Elliot, Director of Treatment at MCI-CJ. On March 29, 2004, the court entered an order denying plaintiffs’ request for interim injunctive relief. On May 12, 2004, defendants filed a motion for summary judgment.7 On July 23, 2004, the court issued a Memorandum and Order finding defendants exempted by qualified and official immunity from any claims for monetary damages. Hudson, 326 F. Supp. 2d at 214. The court further determined that under the test of Turner v. Safley, 482 U.S. 78 (1987),8 plaintiffs were not entitled to relief as a matter of law with regard to the DOC’s ban on prayer rugs or its policy of assigning prisoners to kitchen service jobs on a nondiscriminatory basis. However, the court found that a triable issue of fact existed as to whether the DOC’s refusal to provide Halal meals to Muslim inmates constituted an undue burden on plaintiffs’ exercise of their religious beliefs. The court did not address plaintiffs’ claims regarding Jum’ah services. The court then appointed counsel to represent plaintiffs.9 Newly appointed counsel thereafter, on May 26, 2005, filed an Amended Complaint.10
7No opposition to the motion was filed by plaintiffs. They instead filed a motion on May 25, 2004, seeking to stay a decision on defendants’ motion until the completion of discovery.
8Under Turner, a prison regulation or practice that impinges on an inmate’s constitutional rights must be reasonably related to a legitimate penological interest.
9The court commends plaintiffs’ counsel, the law firm of McDermott Will & Emery, for agreeing to take on this important case without any assurance of being compensated for its efforts.
10The Amended Complaint dismissed all individual defendants with the exception of Commissioner Dennehy, who is named in her official capacity only.
4

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 5 of 19
The Amended Complaint, in addition to First and Fourteenth Amendment free exercise and equal protection claims, pled new causes of action under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1(a) (RLUIPA), the State Civil Rights Act, Mass. Gen. Laws ch. 12, § 11, and the Inmate Right of Worship Statute, Mass. Gen. Laws ch. 127, § 88, and related regulations. Discovery then proceeded.
On April 14, 2006, plaintiffs filed a motion urging the court to revisit the prayer rug issue based on “newly discovered” evidence. After a hearing, on August 31, 2006, the court granted plaintiffs’ motion for reconsideration, thereby framing the three issues to be decided at trial: whether the DOC’s refusal to provide regular Halal meals, its ban on traditional prayer rugs, and its refusal to permit inmates in the SMU to participate in Jum’ah services, substantially and unjustifiably burdened plaintiffs’ exercise of their religious rights. In January of 2007, a six-day non-jury trial was held. Final arguments were heard in February of 2007. The parties were then given leave to file further pleadings.
Defendant’s Motion for Judgment on Partial Findings At the close of plaintiffs’ case, Commissioner Dennehy filed a “motion for judgment on partial findings,” arguing that all but one (the Halal meal issue) of plaintiffs’ three claims were barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e) (PLRA). The Commissioner contended that plaintiffs had failed to exhaust their administrative remedies as required by the PLRA. More specifically, she claimed that plaintiffs had failed to make a direct presentment of their religious grievances to the DOC’s Religious Services Review Committee (RSRC) (they filed their grievances instead with the Superintendent of MCI-CJ),
5

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 6 of 19
and had failed to use the proper Religious Service Request Form (RSRF) (they used the standard prisoner grievance form instead). The Commisioner argued that these procedures are mandated by the DOC’s Religious Services Handbook (Handbook). The Handbook contemplates a process by which a request regarding the accommodation of a religious practice is first considered by the RSRC, which then forwards a recommendation to the Commissioner for a final determination. The court provisionally denied the motion, but deferred a final ruling until after the close of evidence and an opportunity for plaintiffs to reply to the newly asserted jurisdictional claim.
The Commisioner’s exhaustion argument is unpersuasive. She does not dispute that Hudson and Tyler submitted repeated grievances regarding Halal meals, prayer rugs, and access to Jum’ah services. She also concedes that the DOC never distributed the Handbook to inmates, and moreover, that the Handbook was created to give guidance to prison administrators and not to inmates seeking to file grievances. Finally, the record shows that Dennehy’s predecessor, Commissioner Michael Maloney, denied Hudson’s and Tyler’s three requests for accommodation, even though two of the requests were never formally reviewed by the RSRC. If the Commissioner failed to follow the procedures outlined in the Handbook, it is difficult to fault plaintiffs for failing to do better. See Shaheed-Muhammad v. DiPaolo, 393 F. Supp. 2d 80, 96-97 (D. Mass. 2005). Consequently, the Commissioner’s motion for judgment on partial findings will be DENIED.
FINDINGS OF FACT The following findings of fact are drawn from the evidence and testimony adduced at trial as well as from the stipulations entered prior to trial by the parties.
6

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 7 of 19
1. Plaintiff Mac S. Hudson is serving a lengthy custodial sentence at MCI-CJ. At various times, Hudson has been confined in the SMU.
2. Plaintiff Derick Tyler is serving a lengthy custodial sentence at MCI-CJ. At various times, Tyler has been confined in the SMU.
3. Defendant Kathleen Dennehy was at the time of the filing of the Amended Complaint the Commissioner of the DOC.11
4. MCI-CJ is a maximum security prison owned and managed by the DOC, a department of the Commonwealth of Massachusetts. The prison is located in South Walpole, Massachusetts.
5. The DOC receives federal financial assistance. 6. Plaintiffs Hudson and Tyler belong to the Nation of Islam12 and regard themselves as members of the worldwide Muslim community (umma). They subscribe to the teachings of the Qur’an as revealed by the Prophet Muhammad and by Elijah Muhammed. These teachings include dietary laws specifying the foods that a Muslim is
11Dennehy has since been succeeded as Commissioner by Harold W. Clarke. 12The Nation of Islam was founded in 1930 in Detroit, Michigan, by Wallace Fard Muhammad. Elijah Muhammad was an early convert who came to preach that W. Fard Muhammed was God (Allah) incarnate. The Nation of Islam adheres to the Five Pillars of orthodox Muslim practice: Shahada (the profession of faith), salat, zakat (charitable tithing), the observance of Ramadan, and for those who are able, the duty to make Hajj (the pilgrimage to Mecca). The Nation of Islam also subscribes to Islamic dietary restrictions, including the ban on consumption of pork and alcohol. The Nation of Islam differs from orthodox Islam in, among other beliefs, its championing of the racial superiority of blacks, its belief that Allah manifested himself in the person of W. Fard Muhammad, and its belief that Elijah Muhammad succeeded the Prophet Muhammad as the messenger of Allah.
7

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 8 of 19
permitted to eat (Halal) and those that are forbidden (haram).13 Plaintiffs also believe that traditional prayer rugs should be used in performing salat and that they are obligated to participate in the weekly Jum’ah services. The court has previously found that plaintiffs’ beliefs, while deviating from those of orthodox Islam, are sincerely held. The Commissioner does not challenge this finding.
7. The DOC permits Muslim inmates to fast during the month of Ramadan,14 to celebrate the two annual feasts of Eid,15 to pray five times daily (salat) using a “prayer towel,”16 to wear a kufi (skull cap), and to possess prayer beads, prayer oil, and a Qur’an. The DOC provides Halal meat for the Eid feasts.
8. The DOC houses over 10,000 inmates who are served three meals daily. The DOC offers four basic menus: the regular menu, which does not include pork or pork
13There are six basic categories of food that Islam defines as haram: alcohol, blood, carnivorous animals and birds of prey, carrion, animals sacrificed to a deity other than Allah, and swine. Plaintiffs to differing degrees subscribe to the additional dietary restrictions espoused by Elijah Muhammad. These include a ban on the consumption of wheat, corn, large beans, and any fish that weighs in excess of fifty pounds. While Hudson testified that he believes it “sinful” for a Muslim not to eat meat, he could articulate no religious basis for this conviction. Tyler is a vegetarian and does not eat meat of any kind.
14During Ramadan (the ninth month of the Islamic lunar calendar), Muslims are required to abstain from eating, drinking, or smoking from before sunrise until after sunset.
15Eid is an Arabic word meaning festival. The Feast of Eid al-Fitr marks the end of Ramadan. The Feast of Eid al-Adha celebrates the end of the Hajj pilgrimage and is the holiest of Muslim religious holidays.
16The “prayer towel” is a 22" by 43" white cotton bath towel issued by the DOC with the word “PRAYER” inscribed on its fringe in black marker ink.
8

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 9 of 19
by-products; an alternative vegetarian menu;17 a Kosher menu; and a medical menu (which requires a doctor’s prescription). All of the menus, including the alternative vegetarian menu, are served in twenty-one day cycles. Pork products are not permitted in any of the DOC’s institutional kitchens.
9. The meals comprising the four menus are prepared under the supervision of a registered dietician. They meet the Recommended Dietary Allowance (RDA) standards of the Food and Nutrition Board, the National Academy of Sciences, the National Resource Council, and the American Correctional Association. The alternative vegetarian menu contains meatless items made of wheat, soy, and other vegetable products that provide RDA nutritional values comparable to those of the meat-inclusive menus.18
10. The DOC offers daily Kosher meals, including meat, to Jewish inmates who request a Kosher diet. The DOC provides the alternative vegetarian diet to Muslim inmates who request it. The DOC does not offer Muslim inmates a strictly Halal diet. The DOC provides Muslim inmates with Halal meat during the Feasts of Eid.
17The alternative vegetarian menu was introduced by the DOC in 2000 to accommodate inmates who for religious or personal reasons eschew meat. It was not specifically designed to meet the dietary needs of Muslim inmates.
18Plaintiffs do not challenge the nutritional sufficiency of the four menu offerings. Plaintiffs’ expert, Mohammad Mazhar Hussaini, testified that the menus, including the vegetarian alternative, are nutritionally adequate. He also agreed that nothing in Islam requires a Muslim to eat meat. He testified, however, that a vegetarian diet is not necessarily Halal, as certain non-meat products, such as peanut butter and yoghurt, are processed with non-Halal additives.
9

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 10 of 19
11. The number of Muslims in the Massachusetts prison population far exceeds the number of Jewish inmates. At present, there are no Jewish inmates at MCI-CJ who are served Kosher meals.
12. Jewish dietary laws require that Kosher food be prepared using dedicated pots, pans, plates, bowls, and utensils. Different sets of cookware must be used to prepare meat dishes and dairy products.
13. Muslim dietary laws have similar rules intended to prevent the “crosscontamination” of food.
14. Former Commissioner Michael Maloney denied Tyler’s and Hudson’s requests to be served Halal meals after receiving a negative recommendation from the RSRC.
15. Pre-prepared Halal meals are commercially available, although at three times the cost of Kosher meals and at five to ten times the cost of the regular prison menu or the vegetarian alternative. However, the DOC’s decision not to offer Halal meals was not influenced by considerations of price. According to Deputy Superintendent Timothy Hall, the sole basis for the decision was a concern that non-Muslim inmates might resent any special treatment accorded to Muslim inmates.19
16. Other prison systems, including the Federal Bureau of Prisons, provide Halal meals to Muslim inmates. The DOC presented no evidence that these prison systems have experienced disruption or conflict among inmates as a result.
19Deputy Superintendent Hall testified that friction resulted from the DOC’s decision to offer Kosher meals to Jewish prisoners, but he could recall only one actual incident during his many years at the DOC.
10

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 11 of 19
17. DOC regulations prohibit inmates confined in a SMU from participating personally in group religious services or other group activities.
18. The DOC does not broadcast Jum’ah services over closed-circuit television to SMU inmates on Ten Block at MCI-CJ. There are no technical obstacles that prevent the DOC from doing so.
19. The Departmental Disciplinary Unit (DDU) at MCI-CJ is defined in 103 CMR 430.06 as a segregated unit in a restricted area designated by the Commissioner in which an inmate who has received a sentence recommended by a Special Hearing Officer after a disciplinary hearing is confined.
20. The DOC broadcasts Jum’ah services over closed-circuit television to inmates confined in the DDU at MCI-CJ.
21. DOC property regulations, 103 CMR 403.00 et seq., place strict limits on the types of personal property that inmates may keep in their cells. The DOC does not permit inmates to possess prayer rugs because of a concern that their bulk and decorative fringes might facilitate the concealment of weapons and other contraband.
22. Neither the DOC’s ban on traditional prayer rugs, nor its requirement that inmates use prayer towels as a substitute, has prevented Hudson and Tyler from performing salat.
RULINGS OF LAW 1. RLUIPA provides that [n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general
11

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 12 of 19
applicability, unless the government demonstrates that imposition of the burden on that person –
(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a) 2. As the First Circuit explained in Spratt v. Rhode Island Dep’t of Corrs., 482 F.3d 33 (1st. Cir. 2007), “[a] claim under RLUIPA includes four elements. On the first two elements, (1) that an institutionalized person’s religious exercise has been burdened and (2) that the burden is substantial, the plaintiff bears the burden of proof. . . . Once a plaintiff has established that his religious exercise has been substantially burdened, the onus shifts to the government to show (3) that the burden furthers a compelling governmental interest and (4) that the burden is the least restrictive means of achieving that compelling interest.” Id. at 38. 3. RLUIPA should be applied with particular sensitivity when security concerns are legitimately at issue. “It bears repetition . . . that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area.” Spratt, 482 F.3d at 39, quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005). See also Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir. 2007); Washington v. Klem, 497 F.3d 272, 283 (3d Cir. 2007). Cf. Johnson v. California, 543 U.S. 499 (2005) (“necessities of prison security and discipline” are a compelling government interest in justifying narrowly tailored racial classifications).
12

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 13 of 19
4. RLUIPA does not confer “privileged status on any particular sect, and singles out
no bona fide faith for disadvantageous treatment.” Cutter, 544 U.S. at 724. The statute
does not permit a court to determine whether the belief or practice in question is
“compelled by, or central to, a system of religious belief.” A plaintiff, however, must
establish that the exercise forms a legitimate part of his or her profession of faith. 42
U.S.C. § 2000cc-5(7)(a). The statute in this regard does not preclude a court from
inquiring into the sincerity of an inmate’s professed beliefs. Cutter, 544 U.S. at 725 n.13.
5. The statute does not define “substantial burden.” However, Supreme Court
precedent identifies the existence of such a burden when government puts “substantial
pressure on an adherent to modify his behavior and to violate his beliefs . . . .” Thomas
v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 718 (1981); see Spratt, 482
F.3d at 38 (assuming, arguendo, that the Thomas standard is generally applicable).20
20The First Circuit has yet to offer a conclusive definition of a “substantial burden.” Other circuits have adopted formulations of the Thomas standard or the slightly stricter standard suggested in Sherbert v. Verner, 374 U.S. 398, 404 (1963) (a substantial burden exists when an adherent is forced “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept [a benefit], on the other hand.”). See Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (a substantial burden “occurs when a state or local government, through act or omission, ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”), quoting Thomas, 450 U.S. at 718; Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (“[A] substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct.”); Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004) (“[A] government action or regulation creates a ‘substantial burden’ on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs. . . . [A] government action or regulation is significant when it either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and, on the other hand, following his religious beliefs.”). In practice, it is not clear that the decisional nuances in defining a substantial
13

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 14 of 19
“[I]ncidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs,” are not affected by this standard. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988).
6. Once the prisoner demonstrates a substantial burden, the government must show that the disputed policy is the least restrictive means of furthering a compelling State interest.
7. A compelling State interest must be more than a colorable interest, or an interest serving the convenience of the State. “Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation . . . .” Sherbert, 374 U.S. at 406, quoting Thomas v. Collins, 323 U.S. 516, 530 (1945). “‘Context matters’ in the application of that standard.” Cutter, 544 U.S. at 723, quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003). While it is beyond cavil that maintaining prison security is a compelling State interest deserving of scrupulous deference by the courts, “merely stating [that there is] a compelling interest does not fully satisfy [the government’s] burden on this element of RLUIPA.” Spratt, 482 F.3d at 39. Rather, prison authorities must provide some basis for their concern and the policy at issue must be narrowly tailored to further this interest by the least restrictive means possible. Klem, 497 F.3d at 283, citing Spratt, 482 F.3d at 39.
8. A “least restrictive means” is one that does not sweep “more broadly than necessary to promote the government’s interest. That consideration . . . cannot be done without some evaluation of the alternative measures put in issue by the parties.” Casey
burden have any practical significance. 14

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 15 of 19
v. City of Newport, 308 F.3d 106, 114 (1st Cir. 2002). Prison authorities, in other words, must consider and reject other plausible means before determining that the policy they implement is the least restrictive means of furthering a compelling State interest. Spratt, 482 F.3d at 41, citing Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005). Although RLUIPA does not “require prison administrators to refute every conceivable option to satisfy the least restrictive means prong . . . their rejection [of competing alternatives] should generally be accompanied by some measure of explanation.” Spratt, 482 F.3d at 41 n.11 (internal quotations and citations omitted).
9. Evidence that the Federal Bureau of Prisons allows a religious practice that is not permitted by a state prison system is relevant to the inquiry of whether the State has chosen the least restrictive means of achieving a compelling State interest. Spratt, 482 F.3d at 42 (“[E]vidence of policies at one prison is not conclusive proof that the same policies would work at another institution. However, in the absence of any explanation by [defendant] of significant differences between [its policies] and a federal prison that would render the federal policy unworkable, the Federal Bureau of Prisons policy suggests that [the banned conduct] could be permissible without disturbing prison security.”).
ULTIMATE CONCLUSIONS OF FACT AND LAW 1. Plaintiffs’ desire to observe a Halal diet that conforms to the teachings of the Qur’an and the Nation of Islam is a “religious exercise” within the meaning of RLUIPA. 2. The DOC’s refusal to provide a daily Halal menu to Muslim inmates substantially burdens plaintiffs’ exercise of their religious beliefs by creating pressure on plaintiffs to
15

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 16 of 19
consume meals that do not conform with their understanding of the requirements of Islamic
law.21
3. The DOC has failed to satisfy its burden of showing that its refusal to provide
regular Halal meals furthers a compelling State interest. The DOC concedes that the
added costs of providing Muslim inmates with Halal meals did not factor in its decision to
refuse plaintiffs’ requests. Defendant produced little if any evidence validating its
assertion that serving Halal meals to Muslim inmates would ignite inmate conflict. (The
Federal Bureau of Prisons has allowed inmate access to certified, pre-packaged Halal
meals since 1996 without incident). If anything, the DOC’s long standing practice of
providing dietary accommodations to Jewish, Buddhist, and Seventh Day Adventist
inmates, among others, with only one anecdotal instance of resulting friction, proves the
opposite of the DOC’s assertion.22
21The court recognizes that other courts have reached a different conclusion. See, e.g., Allah v. Jordan-Luster, No. 04-1083, 2007 WL 2582199 (C.D. Ill. Aug. 3, 2007) (no accommodation required for a Halal diet including “ritualistically-slaughtered” meat where plaintiff acknowledged that a vegetarian diet was an adequate alternative and would not violate his faith); Spruel v. Clarke, No. C06-5021RJB, 2007 WL 1577729 (W.D. Wash. May 31, 2007) (denial of Halal meat did not burden plaintiff’s religious exercise); Pratt v. Corrs. Corp. of Am., No. 03-3259, 2006 WL 2375656 (D. Minn. Aug. 16, 2006) (“Plaintiff has failed to present any evidence that he must receive all foods that are Halal in order to fulfill his religion or that receiving [H]alal meat is a central tenet of his religion.”). RLUIPA, however, specifically bars inquiry into whether a particular religious exercise is “compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(a). While not perhaps a compelling distinction, these cases focused on plaintiffs’ desire to be provided with Halal meat. Plaintiffs’ Amended Complaint is focused more on obtaining a Halal menu consistent with their beliefs, than with demands for specific items of food, like meat.
22It is worth noting that Congress has already identified a prison’s refusal to provide a Halal diet as an “egregious and unnecessary” restriction on an inmate’s religious liberty. Cutter, 544 U.S. at 716. “The hearings held by Congress revealed, for a typical example, that ‘a state prison in Ohio refused to provide Moslems with Halal food, even though it
16

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 17 of 19
4. The “alternative vegetarian” diet is not a satisfactory substitute as it does not in many significant respects conform to plaintiffs’ sincerely held religious beliefs.
5. As with Kosher foods, there are available vendors willing and able to provide pre-packaged Halal-certified meals in quantities sufficient to serve the 50 to 90 Muslim inmates at MCI-CJ that Acting Superintendent Marshall estimated might request such meals.
6. Although prayer rugs are often used in the Muslim prayer ritual, Hudson and Tyler have failed to establish that the use of a prayer towel substantially burdens their ability to perform salat. Moreover, this issue has been definitively and authoritatively addressed by the Massachusetts Supreme Judicial Court. See Rasheed v. Comm’r of Corr., 446 Mass. 463, 473-474 (2005) (the DOC’s policy of providing inmates with a prayer towel rather than permitting the use of a prayer rug does not violate an inmate’s rights under the Free Exercise Clause of art. 16 of the Massachusetts Declaration of Rights); Ahmad v. Dep’t of Corr., 446 Mass. 479, 486 (2005) (same, First Amendment and RLUIPA).23 “The purpose of the prayer rug is to ensure that [its user] is not in direct contact with the impurities of the floor when he prays. The record establishes that purpose is satisfied by the use of a prayer towel that is comparable in size, other than thickness (an
provided Kosher food.’” Id. at 716 n.5. 23Other courts have reached the same conclusion. See, e.g., Mohammad v. Beard,
No. 05-580, 2007 WL 1439051, at *10 (W.D. Pa. May 16, 2007) (“Here, the court finds that Plaintiff has not met his burden to demonstrate that denial of a prayer rug imposes a substantial burden on his religious belief. . . . [A] prayer rug is not essential to Plaintiff praying, rather, the essential requirement for Plaintiff to pray is that the area on which he prays be clean. Hence, a clean towel or linen can suffice or even a cleaned floor. Nor has Plaintiff shown that this is not the case.”) (internal citations omitted).
17

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 18 of 19
irrelevant characteristic) to a prayer rug.” Rasheed, 446 Mass. at 473. This court is fully in agreement with the Supreme Judicial Court on this issue.
8. Participating in the Jum’ah service is a religious exercise within the meaning of RLUIPA.
9. The DOC’s ban on participation in Jum’ah services by inmates confined in the SMU (Ten Block) substantially burdens plaintiffs’ practice of a core tenet of their faith.
10. The DOC’s ban on personal participation in Jum’ah services by inmates confined in Ten Block serves the compelling State interest of rehabilitating prisoners and promoting good order. Inducing prisoners to comply with prison rules by limiting certain liberties is consistent with this interest. Cutter, 544 U.S. at 722-723 (“While [RLUIPA] adopts a compelling governmental interest standard, context matters in the application of that standard. Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions.”) (internal quotations and citations omitted).
11. The ban on participation by Ten Block inmates in Jum’ah services by closedcircuit television is not the least restrictive means of vindicating the compelling State interest at issue. To the extent that the State seeks to promote order through discipline, denial of the privilege of personal participation in Jum’ah services adequately serves that interest. Moreover, the DOC has not suggested any meaningful distinction between inmates confined in the DDU, who are permitted closed-circuit access to Jum’ah services, and inmates in the SMU, who are not.24
24As previously indicated, the DOC does not contend that there is any technical reason that prevents the broadcast of Jum’ah services by closed-circuit television to Muslim inmates in Ten Block.
18

Case 1:01-cv-12145-RGS Document 105 Filed 03/05/08 Page 19 of 19
ORDER For the foregoing reasons, the court will enter judgment in part for plaintiffs. The Commissioner’s motion for judgment on partial findings is DENIED. The court will grant plaintiffs’ prayers for declaratory judgment on the issues of Halal meals and closed-circuit television access to Jum’ah services while confined in Ten Block. Judgment will enter for defendant on the prayer rug issue.25 No money damages are awarded. Plaintiffs will within ten (10) days of date of the entry of this Order file a Proposed Form of Final Judgment. Defendant will have seven (7) days thereafter to comment. On entry of Final Judgment, the Clerk may close the case. The court will, however, retain jurisdiction to oversee the implementation of any remedial aspects of the Judgment.26
SO ORDERED. /s/ Richard G. Stearns _______________________________ UNITED STATES DISTRICT JUDGE
25The Amended Complaint also seeks a declaration enjoining the DOC from requiring plaintiffs to register their Muslim religious faith prior to attending or witnessing Jum’ah services. No evidence that the DOC in fact imposes such a requirement was offered by plaintiffs at trial.
26Plaintiffs’ counsel may submit a petition for an award of attorneys’ fees in due course properly segregating compensable from noncompensable claims and supported by appropriately documented billing records. See Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984).
19

 
 Case 1:01-cv-12145-RGS Document 110 Filed 04/11/08 Page 1 of 5
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 01-12145-RGS MAC S. HUDSON and DERICK TYLER v. KATHLEEN DENNEHY, in her official capacity as Commissioner of the Massachusetts Department of Corrections April 11, 2008 FINAL JUDGMENT
It is hereby ORDERED, ADJUDGED, AND DECREED as follows: JURISDICTION
1. The Court has jurisdiction over the subject matter and the parties in this action. APPLICABILITY
2. This Final Judgment applies to the named Defendant in her official capacity as Commissioner of the Massachusetts Department of Corrections (the “DOC”) and shall be equally binding on her successors, agents, officials, employees, representatives, and assigns, including, Harold W. Clarke, in his official capacity as the current Commissioner of the DOC.
DEFINITIONS 3. “DOC” shall mean the Massachusetts Department of Corrections. 4. “Halal meals” shall mean meals and food products, whether meat or vegetarian, whose ingredients, processing, preparation, and packaging meet the dietary requirements

Case 1:01-cv-12145-RGS Document 110 Filed 04/11/08 Page 2 of 5
of Islam and have been certified by a reputable Halal-certifying organization such as the Islamic Food and Nutrition Council of America or the Islamic Society of North America.
5. “Pre-packaged Halal meals” shall mean self-contained Halal meals that have been packaged and sealed by the meal’s manufacturer and which require only opening and heating before serving.
6. “Jum’ah Services” shall mean the Friday Islamic prayer service conducted by an Imam on behalf of a community of Muslims.
7. “Closed Circuit Television” shall mean a television that is connected to a closed circuit or internal broadcast system and that is capable of displaying live television feeds, including sound and images, from another location within the system.
8. “Special Management Units” shall mean separate housing areas apart from the general population within DOC institutions in which inmates are confined for reasons of administrative segregation, protective custody, or disciplinary detention.
9. “Ten Block” is the name commonly used to describe the Special Management Unit at the DOC’s MCI-Cedar Junction facility.
10. “Prayer Towel” shall mean a towel designated by the DOC solely for use by Muslim inmates in performing ritual daily prayers.
DECLARATORY AND PROSPECTIVE PROVISIONS 11. The Court declares that Defendant’s failure to provide Plaintiffs with daily Halal meals: (i) creates a substantial burden on Plaintiffs’ sincere religious beliefs; (ii) is not justified by a compelling governmental interest; and (iii) is in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1(a).
2

Case 1:01-cv-12145-RGS Document 110 Filed 04/11/08 Page 3 of 5
12. The Court declares that Defendant's refusal to provide Plaintiffs with Halal meals that are prepared and served exclusively by Muslim food workers does not violate RLUIPA, 42 U.S.C. § 2000cc-1(a), as: (i) Plaintiffs have failed to satisfy their burden of showing that the preparation and service of Halal meals by non-Muslims burdens any legitimate Islamic religious exercise; and (ii) Defendant has demonstrated that the policy of assigning kitchen jobs on a nondiscriminatory basis serves a compelling governmental interest in maintaining institutional harmony and order.
13. The Court declares that Plaintiffs have not met their burden of showing that Islamic dietary rules require the consumption of Halal meat and that any failure by DOC to offer a choice of Halal meat with every meal would not violate RLUIPA, 42 U.S.C. § 2000cc-1(a).
14. The Court declares that Defendant’s refusal to permit Plaintiffs to participate personally in weekly Jum’ah Services while confined in the Special Management Unit serves a compelling governmental interest in rehabilitating inmates and promoting order and does not therefore violate RLUIPA, 42 U.S.C. § 2000cc-1(a).
15. The Court declares that Defendant’s refusal to provide Plaintiffs with access to weekly Jum’ah services via closed circuit television while confined in Ten Block is not the least restrictive means of serving any compelling governmental interest, and therefore violates RLUIPA, 42 U.S.C. § 2000cc-1(a).
16. The Court declares that DOC’s practice of providing Plaintiffs with prayer towels in lieu of prayer rugs does not create a substantial burden on Plaintiffs’ religious beliefs, and therefore does not violate RLUIPA, 42 U.S.C. § 2000cc-1(a).
3

Case 1:01-cv-12145-RGS Document 110 Filed 04/11/08 Page 4 of 5
17. Within ninety (90) days of the date of entry of this Judgment, Defendant shall (i) procure pre-packaged Halal meals that have been certified by a reputable Halalcertifying organization, such as the Islamic Food and Nutrition Council of America or the Islamic Society of North America; and (ii) thereafter provide such pre-packaged Halal meals to Plaintiffs at each regularly-scheduled meal for the duration of their incarceration; or (iii) shall implement an alternative method of providing daily Halal meals to Plaintiffs, including the preparation of such meals in DOC kitchens using Halal products and procedures certified by a reputable Halal-certifying organization such as the Islamic Food and Nutrition Council of America or the Islamic Society of North America.
18. Whenever Plaintiffs are housed in the Special Management Unit, Defendant shall provide access to a closed circuit television set that displays, through sound and images, a live broadcast of such communal Jum’ah services as are regularly held on each and every Friday for the duration of their incarceration (absent a legitimate emergency or the unavailability of an authorized Imam, in which case Defendant may broadcast prerecorded Jum’ah services). Defendant will have thirty (30) days from the date of entry of this Judgment to comply with this provision.
18. Within ninety (90) days of the date of entry of this Judgment, Defendant shall establish policies, practices, and procedures to bring the DOC into full compliance with this Judgment.
19. Within ninety (90) days of the entry of this Judgment, Defendant shall certify to this Court that the DOC has complied with all provisions of this Judgment and shall describe each remedial action taken.
4

Case 1:01-cv-12145-RGS Document 110 Filed 04/11/08 Page 5 of 5 RETENTION OF JURISDICTION
20. This Court shall retain jurisdiction over this matter for the purpose of enabling any party to this Judgment to apply to the Court for: (i) such further orders or directions as may be necessary or appropriate for the interpretation or implementation of this Judgment; (ii) for the modification of the injunctive provisions of this Judgment; and (iii) for Plaintiffs to apply to the Court for the enforcement of any provision or the punishment of any violation of this Judgment.
21. This Judgment shall take effect immediately upon its entry. 22. The Clerk is ordered to enter this Judgment forthwith.
SO ORDERED. /s/ Richard G. Stearns _______________________________ UNITED STATES DISTRICT JUDGE
5

 
 Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 1 of 16
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 01-12145-RGS MAC S. HUDSON and DERICK TYLER v. KATHLEEN DENNEHY, in her official capacity as Commissioner of
the Massachusetts Department of Corrections MEMORANDUM AND ORDER ON
PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS July 25, 2008
STEARNS, D.J. Plaintiffs Mac Hudson and Derick Tyler, state prison inmates, prevailed on a civil
rights claim against Kathleen Dennehy, the Commissioner of the Massachusetts Department of Correction (DOC). After a six-day non-jury trial, the court entered partial judgment for the plaintiffs and ordered defendant to provide plaintiffs with Halal meals and access to Jum’ah services while confined in the Special Management Unit (SMU) at MCICedar Junction1 or any other similarly situated facility. Hudson and Tyler were represented by the law firm McDermott Will & Emery (McDermott), which pursuant to 42 U.S.C. § 1988 has petitioned for an award for attorneys’ fees and costs.
BACKGROUND
1The SMU at MCI-Cedar Junction is colloquially known as Ten Block.

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 2 of 16
This case has an extensive procedural history, which is laid out in the court’s March 5, 2008 Order After a Non-Jury Trial. Hudson v. Dennehy, 538 F. Supp 2d. 400, 403-405 (D. Mass. 2008). The essentials are recited below.
Hudson and Tyler originally brought this action pro se in 2001. The wide-ranging Complaint named several prison officials as defendants and alleged violations of the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and 103 CMR 471.00 et seq. In addition to prospective and declaratory relief, plaintiffs sought money damages. The case languished for some three years, until McDermott offered to serve as plaintiffs’ counsel on a pro bono basis.2 The firm was appointed on November 9, 2004.
Within months, plaintiffs filed a motion to amend the Complaint, which was allowed on May 5, 2005. The Amended Complaint challenged three DOC institutional practices: (1) a refusal to provide Halal3 meals; (2) a ban on traditional prayer rugs; and (3) a refusal to provide access to weekly Jum’ah4 services to inmates confined in SMUs. Six causes of action were asserted: (1) violations of the Religious Land Use and Institutionalized
2The case briefly came to life in mid-2003, when plaintiffs moved for a preliminary injunction, which the court denied. A few months later, defendants filed a motion for summary judgment, which the court partially allowed. The court found that the defendants were exempt from any claims of monetary damages under qualified immunity. Hudson v. Maloney, 326 F. Supp. 2d 206, 214 (D. Mass. 2004). The court further determined that under the test of Turner v. Safley, 482 U.S. 78 (1987), plaintiffs were not entitled to relief as a matter of law with regard to the DOC’s ban on prayer rugs or its policy of assigning prisoners to kitchen service jobs on a nondiscriminatory basis.
3Halal means that which is authorized by Islamic law (fiqh). At issue in this case is food from animals slaughtered according to certain Muslim rituals.
4Jum’ah is a Friday group prayer that is obligatory for Muslims. 2

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 3 of 16
Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq. (RLUIPA); (2) a free exercise claim under the First Amendment and 42 U.S.C. § 1983; (3) an equal protection claim under the Fourteenth Amendment and 42 U.S.C. § 1983;5 (4) a religious freedom claim under art. 2 of the Massachusetts Declaration of Rights and Article XLVI of the Articles of Amendment to the Massachusetts Constitution; (5) an equal protection claim under art. 1 of the Declaration of Rights; and (6) violations of the Inmate Right of Worship Statute under Mass. Gen. Laws ch. 127, § 88, and its attendant regulations.
In light of the newly asserted counts (particularly under RLUIPA, which was not in effect at the time the original Complaint was filed), plaintiffs filed a motion seeking to resuscitate the claims relating to access to prayer rugs. Defendant opposed that motion and filed for summary judgment on May 13, 2006. On August 31, 2006, the court issued an order granting plaintiffs’ motion and denying defendant’s motion for summary judgment. The case proceeded to trial on three issues: plaintiffs’ access to Halal meals, prayer rugs, and Jum’ah services (while confined in the SMU).
A six-day bench trial began on January 8, 2007, and was completed on February 1, 2007. The court issued its decision on March 5, 2008. Hudson v. Dennehy, supra. The court determined that plaintiffs’ rights under RLUIPA had been violated with regard to access to Halal meals and access to Jum’ah services.6 Id. at 411-412. The court also
5The equal protection claim concerned the DOC’s alleged willingness to serve Kosher meals to Jewish inmates while refusing to make a similar accommodation for Muslim inmates.
6The court’s finding that plaintiffs’ rights were violated under RLUIPA obviated the need to reach the federal and state constitutional questions raised by the Amended Complaint and the discrimination theories advanced under Massachusetts statutes and
3

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 4 of 16

found that plaintiffs had failed to establish that using a prayer towel instead of a prayer rug

substantially burdened their right to free religious exercise.7 Id.

Final Judgment issued on April 11, 2008. Defendant was ordered to

(i) procure pre-packaged Halal meals that have been certified by a reputable

Halal-certifying organization, such as the Islamic Food and Nutrition Council

of America or the Islamic Society of North America; and (ii) thereafter

provide such pre-packaged Halal meals to Plaintiffs at each

regularly-scheduled meal for the duration of their incarceration; or (iii) shall

implement an alternative method of providing daily Halal meals to Plaintiffs,

including the preparation of such meals in DOC kitchens using Halal

products and

procedures certified by a

reputable Halal-certifying

organization such as the Islamic

Food and Nutrition Council of

America or the Islamic Society of

North America.

Defendant also was required to “provide access to a closed circuit television set that

displays, through sound and images, a live broadcast of such communal Jum’ah services

as are regularly held on each and every Friday for the duration of their incarceration

(absent a legitimate emergency or the unavailability of an authorized Imam, in which case

Defendant may broadcast prerecorded Jum’ah services).” On July 17, 2008, Dennehy

certified compliance with the Final Judgment.8

regulations.
7As RLUIPA accords a prisoner’s choice of religious exercise a heightened degree of protection from government intrusion, it was not necessary for the court to address the prayer rug issue under a constitutional reasonableness and balancing test. See Turner v. Safley, 482 U.S. 78 (1987).
8On the same day, Dennehy filed a notice of appeal. Dennehy challenges the Final Judgment to the extent that it requires the DOC to provide plaintiffs access to closed-circuit television broadcasts of Jum’ah services while confined in SMUs other than Ten Block.
4

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 5 of 16
DISCUSSION
Section 1988(b) provides that “[i]n any action or proceeding to enforce a provision
of . . . the Religious Land Use and Institutionalized Persons Act of 2000, . . . the court, in
its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). The court’s discretion to grant
attorney’s fees is, however, somewhat narrowed if plaintiff prevails on any significant issue
in the litigation. See Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1300 (1st Cir. 1997)
(a statutory presumption “absent unusual situations”). A “prevailing party” is one who
secures a “judicially sanctioned change in the legal relationship of the parties.”
Buckhannon Board & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.
598, 605 (2001). See also Farrar v. Hobby, 506 U.S. 103, 111-112 (1992) (“A plaintiff
prevails when actual relief on the merits of his claim materially alters the legal relationship
between the parties by modifying the defendant’s behavior in a way that directly benefits
the plaintiff.”).
When awarding fees to a prevailing party
a trial court generally should employ the lodestar method to calculate fees. Under this method, a court usually should begin with the attorneys’ contemporaneous billing records. Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001). The court should then subtract hours that are duplicative, unproductive or excessive and multiply the reasonable hours billed by the prevailing attorney rate in the community. Id.; Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992). The resulting amount constitutes the lodestar. After calculating the lodestar, the court may then adjust the award further for any of several reasons, including the quantum of success achieved in the litigation. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 n.3 (1st Cir. 1997).
Bogan v. City of Boston, 489 F.3d 417, 426 (1st Cir. 2007).
5

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 6 of 16
Time spent on unsuccessful claims, unless woven into the successful claim by a “common core of facts,” is not compensated. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). “Hensley makes clear that where multiple claims are interrelated, and a plaintiff has achieved only limited success, awarding her the entire lodestar amount would ordinarily be excessive. Hensley, therefore, counsels that, while ‘there is no precise formula for making these determinations,’ a court ‘may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.’” Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir. 1996) (upholding trial court’s reduction of attorneys’ fees where plaintiff prevailed on only one of five claims and three of the claims were frivolous). See also Diaz-Rivera v. RiveraRodriguez, 377 F.3d 119, 126 (1st Cir. 2004) (affirming a 33 percent reduction in the lodestar because of plaintiff’s limited success). Cf. Lipsett v. Blanco, 975 F.2d 934, 940941 (1st Cir. 1992) (“[W]here it would be an ‘exercise in futility’ to separate out the legal services rendered for each claim, the fee should simply be determined as a function of degree of success.”).
On the other hand, [w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters. Hensley, 461 U.S. at 435 (internal citation omitted).
6

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 7 of 16
Because the plaintiffs in this case are prisoners, their attorneys’ fee petition is further subject to the fee provision of the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(d) (PLRA), which imposes special limitations on prisoner awards.9 To recover fees, the prisoner must be a prevailing party under 42 U.S.C. § 1988, and the fees must be directly and reasonably incurred in proving an actual violation of the prisoner’s rights. Further, the fee must be proportionately related to the court-ordered relief for the violation, or directly and reasonably incurred in enforcing the relief ordered. See 42 U.S.C. § 1997e(d)(1)(A) and (B). Finally, the hourly rate for the fee recovery must be no more than 150 percent of the hourly rate established under the Criminal Justice Act, 18 U.S.C. § 3006A (CJA), for payment of court-appointed counsel. See 42 U.S.C. § 1997e(d)(3). See also Martin v. Hadix, 527 U.S. 343 (1999) (reducing a fee award in accordance with the PLRA’s hourly cap); Boivin v. Black, 225 F.3d 36, 46 (1st Cir. 2000) (the PLRA’s fee cap does not violate the Due Process Clause of the Fifth Amendment).
Plaintiffs seek fees in the amount of $324,632.63 and costs of $13,630.17,10 for a total of $338,262.80.11 In support of the petition, plaintiffs have submitted itemized and
9Congress clearly anticipated that the PLRA would apply to RLUIPA claims: “Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).” 42 U.S.C. § 2000cc-2(e).
10The costs break down to $1,681.73 for expert expenses, $107.44 for telephone/facsimile charges, $425.15 for postage/courier, $748.26 for transportation, $6,134.24 for copying, and $4,533.35 for court reporters and transcripts. Defendant does not contest the reasonableness of these costs.
11The court notes that McDermott partners do not profit personally from an award of attorneys’ fees in pro bono matters. Under the firm’s policy, if fees are ultimately recovered, the firm only compensates itself for out-of-pocket expenses. The remainder of the fee award is placed in the firm’s general pro bono account to be used for contributions
7

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 8 of 16
detailed contemporaneous time records and cost entries, as well as an affidavit from attorney Neal Minahan attesting to the reasonableness of the requested fees and costs. As is typical at large firms like McDermott, a number of attorneys and staff worked on the case, including summer associates and paralegals. In the fee petition, however, McDermott has submitted only those fees and costs that are associated with the core members of the litigation team (attorneys Michael Kendall,12 Benjamin Goldberger,13 and Minahan, and paralegals Lauren Muenzberger and Elizabeth Mueller).14 Counsel also excluded costs and fees associated with computer research services such as Westlaw and LexisNexis.15
According to attorney Minahan, counsel reviewed all of the time charged to the case and eliminated all charges spent exclusively on claims that were not successful at trial. Counsel also eliminated duplicative time. Because the majority of the billing records do not distinguish between time spent on specific issues (i.e., Halal meals, prayer rugs, or
to charitable organizations or to fund other pro bono cases. 12Kendall, a partner in McDermott’s trial department, is a former Assistant United
States Attorney who has practiced law in Boston for over twenty years. He took the supervisory role in this litigation.
13Goldberger was a third-year associate at McDermott when the firm assumed the case in 2004. He left the firm in August of 2007 to join the Suffolk County District Attorney’s office. He and Minahan, who was a first-year associate in 2004, conducted the bulk of the litigation, including the trial.
14Mueller and Muenzberg shared paralegal responsibilities in the period leading up to and during trial. Mueller also aided with the preparation of the fee petition.
15Electronic research fees are ordinarily recoverable. See InvesSys, Inc. v. McGraw-Hill Cos., Ltd., 369 F.3d 16, 22-23 (1st Cir. 2004). Counsel estimates that this non-charge reduced the petition by approximately $10,000.00.
8

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 9 of 16
Jum’ah services) counsel reduced the total number of billed hours by 15 percent to reflect the estimated amount of time spent on the unsuccessful prayer rug issue.
Defendant challenges two aspects of the petition: First, the billing for work that was not directly and reasonably related to the relief awarded in the Final Judgment, and second, the billing at hourly rates in excess of PLRA limits. I will address each in turn.
Defendant maintains that plaintiffs’ petition overstates their success at trial. Plaintiffs prevailed on one of the five causes of action asserted in the Amended Complaint (the RLUIPA claim) and two of the three issues for which they originally sought relief (Halal meals and Jum’ah services).16 Defendant contends that the 15 percent reduction is too conservative to account for the role the prayer rug issue played in the litigation. For support, defendant cites the amount of discovery that plaintiffs devoted to prayer rugs, including the number of interrogatories, requests for production of documents, and requests for admissions. Defendant also points to the trial, where plaintiffs testified at length to their religious beliefs regarding prayer rugs while several prison officials testified regarding related safety and security concerns. While all of this may be true, I view the record differently.
After reviewing McDermott’s time sheets and the billing descriptions, I find them sufficiently detailed, proportional, and directly related to the relief ordered. The records show that McDermott seeks recompense only for work related to the RLUIPA claims. Time
16Defendant counts four issues for which plaintiffs sought relief by including plaintiffs’ desire to have access to Halal meals prepared by Muslims. I do not agree with defendant’s math. The food-prepared-by-Muslims theory was simply one of two theories advanced by plaintiffs to get to the same result – access to Halal meals.
9

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 10 of 16
exclusively spent on the prayer rug issue has been identified and eliminated from the fees requested. The additional 15 percent reduction to account for any excess time that counsel may have expended on the prayer rug issue that became intertwined with the Halal meals or Jum’ah services issues seems generous. Moreover, it is not clear that such entwinement actually occurred. Although the three issues shared a common legal theory – RLUIPA – the factual bases underlying each were distinct. In other words, there was no common core of facts that plaintiffs (or defendant) had to prove in order to prevail on the prayer rug issue as opposed to the issue of Halal meals or access to Jum’ah services. Further, I perceive the Halal issue to have been at the heart of this litigation from the outset. Considerably more time was spent developing this issue at trial, and it was the only issue that required expert testimony. Accordingly, I find the 15 percent reduction to be reasonable and an accurate reflection of plaintiffs’ success in the case.
In addition, defendant’s suggestion that plaintiffs’ success was limited because the court granted judgment only with respect to the RLUIPA claim is without merit. The other causes of action in the Amended Complaint were alternative theories for plaintiffs to obtain the same relief – access to Halal meals, prayer rugs, and Jum’ah services. That the court adjudged the case exclusively on RLUIPA grounds is no reflection on the extent of plaintiffs’ success. It simply was unnecessary for the court to go any further. RLUIPA imposes strict scrutiny review of restrictions on a prisoner’s exercise of religion. If plaintiffs could not prevail under RLUIPA, they would not have prevailed on the other constitutional and statutory causes of action, all of which were clustered under a more defendant-friendly standard. Therefore, I will make no further adjustment to the fee petition on this basis.
10

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 11 of 16

Defendant’s second objection relates to the cap on fees imposed by the PLRA. The PLRA limits the hourly rate to no “greater than 150 percent of the hourly rate established under [the CJA] for payment of court-appointed counsel.” 42 U.S.C. § 1997e(d)(3). The hourly rate for work on CJA cases in the District of Massachusetts performed between May 1, 2002, and December 31, 2005, was $90.00; from January 1, 2006, to May 19, 2007, was $92.00; from May 20, 2007, to December 31, 2007, was $94.00; and after January 1, 2008, is $100.00. McDermott’s hourly rates exceed those amounts.17
At first glance, this would appear to settle the matter – the court should cap McDermott’s fees at 150 percent of the rates listed above because those rates are what was actually paid to court-appointed lawyers in CJA cases. But the statute is not written in terms of what was actually paid. Rather, the PLRA caps fees at 150 percent of the hourly rate established for payment of court-appointed counsel. Hourly rates for CJA cases are set by the Judicial Conference. The amount authorized by the Judicial Conference under the CJA is an hourly rate of $113 (as of September 19, 2002). Accordingly, the amounts actually paid to court-appointed counsel are not the rates “established” by the Judicial Conference; rather, they reflect a lack of adequate funding

17Over the course of the litigation, the attorneys’ billable rates were as follows:

Minahan Goldberger Kendall

10/1/04 9/30/05 $210 $260 $530

10/1/05 9/30/06 $235 $295 $560

10/1/069/30/07 $275 $335 $585

10/1/07 9/30/08 $325 N/A $635

11

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 12 of 16
by Congress. The CJA delegates to the Judicial Conference exclusive domain over the
hourly rates to be paid. 18 U.S.C. § 3006A(d)(1) (“The Judicial Conference shall develop
guidelines for determining the maximum hourly rates for each circuit . . . with variations by
district, where appropriate, taking into account such factors as the minimum range of the
prevailing hourly rates for qualified attorneys in the district in which the representation is
provided and the recommendations of the judicial councils of the circuits.”).
The issue is one of statutory construction that the First Circuit has yet to address.18
As the Sixth Circuit has explained,
[t]he statute contains no reference to congressional appropriations or to rates of compensation that are actually paid to court-appointed counsel. While congressional appropriations may place a practical limitation on the amount actually paid to court-appointed counsel, there is no language in § 3006A that expressly limits the Judicial Conference’s discretion to set rates based on budgetary constraints. If Congress had wanted attorney fees under the PLRA to be based on the amount of money budgeted for payment of court-appointed counsel, it could easily have used such language rather than cross-referencing § 3006A.
Moreover, in the absence of express statutory language, there is no inherent reason why attorney fees under the PLRA should be limited by the amount budgeted to pay court-appointed counsel under the CJA. Attorney fee awards in prisoner civil rights litigation are paid from the pockets of unsuccessful defendants whether they be private individuals or government entities; such fees are not paid from funds set aside by Congress to compensate court-appointed counsel under the CJA. There is no logical reason to limit fee awards in such cases to the amount of money set aside to fund the CJA.
18The court has found only two decisions in this Circuit awarding attorneys’ fees under the PLRA. See Surprenant v. Rivas, 2004 WL 1858316 (D.N.H. Aug. 17, 2004); Boivin v. Merrill, 66 F. Supp. 2d 50 (D. Me. 1999), vacated, Boivin v. Black, 225 F.3d 36 (1st Cir. 2000). Those opinions, however, concerned the provision of the PLRA that caps an attorneys’ fee award at 150 percent of any monetary judgment. See id. at 41 n.4. There were no money damages awarded in this case.
12

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 13 of 16
Hadix v. Johnson, 398 F.3d 863, 867 (6th Cir. 2005). The few Circuits to have squarely
addressed the issue are divided. Joining the Sixth Circuit is the Ninth Circuit, see Webb
v. Ada County, 285 F.3d 829, 838-839 (9th Cir. 2002).19 The Third Circuit stands alone
in adopting the defendant’s approach. See Hernandez v. Kalinowski, 146 F.3d 196, 201
(3d Cir. 1998) (PLRA limits attorneys’ fees to the hourly rate actually paid, not the rate set
by the Judicial Conference).20
I find Hadix to be the most extensive and persuasive exposition of the issue.21
Accordingly, this court follows the Sixth and Ninth Circuits in holding that the maximum
hourly rate available to plaintiffs’ counsel pursuant to the PLRA is 150 percent of the
Judicial Conference’s rate of $113, or $169.50 per hour.22
19District court opinions in other circuits adopting this approach include Laube v. Allen, 506 F. Supp. 2d 969, 987 (M.D. Ala. 2007).
20District court opinions in other circuits following this approach include Skinner v. Uphoff, 324 F. Supp. 2d 1278, 1282 (D. Wyo. 2004).
21The Seventh Circuit has left open whether the appropriate fee is the rate authorized or the rate actually paid. See, e.g., Johnson v. Daley, 339 F.3d 582, 584 n.† (7th Cir. 2003) (“To facilitate exposition, we use throughout the opinion the $90 CJA funded rate, which implies a maximum of $135 per hour under the PLRA. By employing this figure, we do not imply any view on the question whether it is the right one, or whether instead $169.50 (150% of $113) is today’s cap.”).
22In Boivin v. Black, supra, the First Circuit stated that “[i]n a case in which the court orders non-monetary redress (say an injunction) along with a monetary judgment, the fee cap contained in section 1997e(d)(2) would not restrict the total amount of attorneys’ fees that the court could award. In such a ‘hybrid’ case, the court would be free to take into account all the provisions of section 1997e(d).” 225 F.3d at 41 n.4. Some may read the footnote to mean that the PLRA’s restrictions on fee awards do not apply at all to nonmonetary redress. That would be incorrect. Section 1997e(d)(2) caps attorneys’ fees incurred for the sole purpose of securing monetary judgments. In contrast, as Boivin makes clear, whenever equitable relief is obtained, the district court is free to grant an attorneys’ fee proportionally related to that relief, so long as it is within the confines of
13

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 14 of 16
Paralegal work is remunerable under 42 U.S.C. § 1988. See Missouri v. Jenkins, 491 U.S. 274, 285 (1989) (the term “attorney’s fee” in § 1988 “cannot have been meant to compensate only work performed personally by members of the bar.”). Muenzberger billed at $185 per hour from October 1, 2006, to September 30, 2007. During that same period, Mueller billed $160 per hour, and $170 per hour from October 1, 2007, to September 30, 2008. The PLRA is silent on paralegal rates. However, it would be odd to award paralegal’s fees at a rate higher than attorneys’ fees. Accordingly, the court reads the PLRA to prohibit paralegal rates in excess of $169.50, but to permit whatever lesser rate would be considered reasonable under 42 U.S.C. § 1988(b). Taking into account the prevailing market rates and prior paralegal rates approved by this court, I will award $100 per hour. See, e.g., Access 4 All, Inc. v. Delancey Clinton Assocs., L.P., 2007 WL 118940, at *3 (D. Mass. Jan. 8, 2007) (awarding paralegal rate of $90 per hour); Rolland v. Romney, 292 F. Supp. 2d 268, 275 (D. Mass. 2003) ($75 per hour for work done from 2001 - 2002); Arthur D. Little Int’l, Inc. v. Dooyang Corp., 995 F. Supp. 217, 225 (D. Mass. 1998) ($65 per hour for work done from 1994 - 1998).
This was an important and complex case that presented an issue of first impression in this Circuit. The action had been pending for nearly three years before McDermott agreed to serve as plaintiffs’ counsel pro bono. Prisoner cases are notoriously unpopular among the private bar as pro bono candidates. McDermott’s agreement to take this case and the commensurate risk of receiving no payment at all is commendable. Counsel had
section 1997e(d)(3), that is, no more than 150 percent of the hourly rate established under the CJA.
14

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 15 of 16
to research RLUIPA (at the time in its nascent stage), petition the court to re-open part of the case, conduct discovery, defend against a summary judgment motion, and conduct a six-day trial. The Final Judgment was a solid result for the plaintiffs. Although the case was not brought as a class action, it involved challenges to institutional practices that are likely to impact future cases.
ORDER For the foregoing reasons, plaintiffs’ petition for attorneys’ fees and costs is ALLOWED in part. McDermott is awarded fees of $237,299.25 and costs of $13,630.17.23
SO ORDERED. /s/ Richard G. Stearns ________________________________ UNITED STATES DISTRICT JUDGE

23The fees are awarded as follows:

Benjamin Goldberger, Esq Neal Minahan, Esq. Michael Kendall, Esq. Lauren Muenzberger Elizabeth Mueller

Total Hours 433 887 41.5 31.75 33.50

Hourly Rate $169.50 $169.50 $169.50 $100.00 $100.00 Total

Total Fees $73,393.50 $150,346.50 $7,034.25 $3,175.00 $3,350.00 $237,299.25

15

Case 1:01-cv-12145-RGS Document 125 Filed 07/25/08 Page 16 of 16 16

 
 Case: 08-2100 Document: 00112453377 Page: 1 Date Filed: 02/03/2009 Entry ID: 5314892

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
___________________________________
No. 08-2100
ANTWAN CRAWFORD; DARRICK WILSON; ANTHONY TUCKER
Plaintiffs
MAC S. HUDSON; DERRICK TYLER,
Plaintiffs-Appellees,
v.
HAROLD W. CLARKE, Commissioner of the Massachusetts Department of Correction
Defendant-Appellant,
KATHLEEN M. DENNEHY
Defendant. ___________________________________
ON APPEAL FROM A DECISION OF THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS ___________________________________

BRIEF OF DEFENDANT-APPELLANT HAROLD W. CLARKE ___________________________________

January 20, 2009

NANCY ANKERS WHITE Special Assistant Attorney General
Richard C. McFarland (#41993) Legal Division Department of Correction 70 Franklin Street, Suite 600 Boston, MA 02110-1300 (617) 727-3300, ext. 132

Case: 08-2100 Document: 00112453377 Page: 2 Date Filed: 02/03/2009 Entry ID: 5314892
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . ii JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . 1 ISSUE PRESENTED FOR REVIEW . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 7 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . 9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 10
I. THE DISTRICT COURT ERRED IN FAILING TO LIMIT PROSPECTIVE RELIEF REGARDING PLAINTIFFS’ ACCESS TO CLOSED-CIRCUIT TELEVISION BROADCASTS OF JUM’AH SERVICES TO THE SMU AT MCI-CEDAR JUNCTION. . . . . . . . . . . . . . . . . . . . . . 10 A. The Order For Prospective Relief Failed To Meet The Requirements Of The PLRA. . . . . 11 B. The Order For Prospective Relief Failed To Meet The Requirements of RLUIPA. . . . . . 18
II. THE DISTRICT COURT ERRED IN DENYING DEFENDANT’S MOTION FOR RECONSIDERATION BASED ON A LACK OF RIPENESS. . . . . . . . . . . . . . . . . . . . . . 22
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 28 ADDENDUM

Case: 08-2100 Document: 00112453377 Page: 3 Date Filed: 02/03/2009 Entry ID: 5314892
TABLE OF AUTHORITIES
Page Abbott Labs v. Gardner, 387 U.S. 136, 148 (1967). . . . . . . . . . . . . . 22, 23
Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007). . . . . . . . 19, 20, 22
Cutter v. Wilkinson, 544 U.S. 709, 723 (2005). . . . . . . . . . . . 19, 20, 22
Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 82 (1978). . . . . . . . . . . . . . . 23, 25
Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995). . . . . . . . . . . 23, 24
Feliciano v. Rullan, 378 F.3d 42, 50-51 (1st Cir. 2004) . . . . . . . . . . . 11
Gilmore v. California, 220 F.3d 987, 999 (9th Cir. 2000). . . . . . . . . . . . 12
Gun Owners’ Action League v. Swift, 284 F.3d 198, 205 (1st Cir. 2002), cert. denied 537 U.S. 827 (2002). . . . . . . . . . . . 22
Ketzner v. Williams, 2008 WL 4534020 (W.D. Mich.) (Sept. 30, 2008). . . . . . 21
Lake Carriers’ Association v. MacMullan, 406 U.S. 498, 506 (1972). . . . . . . . . . . . . . . . 22
Linehan v. Crosby, 2008 WL 3889604 (N.D. Fla.)(Aug. 20, 2008). . . . . . . 21
Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006). . . . . . . . . . . . 21
McInnis-Misenor v. Maine Medical Center, 319 F.3d 63, 70 (1st Cir. 2003). . . . . . . . . . . 23, 24
Miller v. French, 530 U.S. 327, 333 (2000). . . . . . . . . . . . . . . . 11
ii

Case: 08-2100 Document: 00112453377 Page: 4 Date Filed: 02/03/2009 Entry ID: 5314892
Nelson v. Commissioner of Correction, 390 Mass. 379, 397 (1983). . . . . . . . . . . . . . 19, 26 Oluwa v. Gomez, 133 F.3d 1239 (9th Cir. 1998). . . . . . . . . . . . . . 11 Stern v. U.S. District Court, 214 F.3d 4, 10 (1st Cir. 2000). . . . . . . . . . . . . . 23
Statutes 18 U.S.C. § 3626(a)(1). . . . . . . . . 10, 11, 12, 14, 18 18 U.S.C. § 3626(b)(2). . . . . . . . . . . . . . . 13, 18 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000cc . . . . . . . . . . . . 1, 3, 18, 19, 22 M.G.L. c. 127, § 97. . . . . . . . . . . . . . . 17, 19, 26
Regulations 103 Code Mass. Regs. 423.00 . . . . . . . . . . . 8, 9, 26
Rules Of Court Federal Rules of Civil Procedure, 25(d). . . . . . . . . 3 Federal Rules of Civil Procedure, 59(e) . . . . . . . . . 1
iii

Case: 08-2100 Document: 00112453377 Page: 5 Date Filed: 02/03/2009 Entry ID: 5314892

JURISDICTIONAL STATEMENT

The District Court has subject matter jurisdiction

over the claims arising under the United States

Constitution, 42 U.S.C. § 1983, and 42 U.S.C. § 2000cc

pursuant to 28 U.S.C. §§ 1331, 2201, and 2202. The

jurisdiction of the Court of Appeals arises under 28 U.S.C.

§ 1291.

The Final Judgment was entered by the District Court

on April 11, 2008.

Defendant filed a Motion for

Clarification of the Final Judgment, pursuant to Fed. R.

Civ. P. 59(e), on April 16, 2008. The District Court

entered its Order for Clarification of Final Judgment on

April 28, 2008. On May 12, 2008, defendant filed a Motion

for Reconsideration of Final Judgment, pursuant to Fed. R.

Civ. P. 59(e). The District Court denied Defendant’s

Motion for Reconsideration on June 19, 2008. On July 17,

2008, defendant filed a Notice of Appeal.

Defendant’s appeal is from a final order of the

District Court that disposed of the claims of all the

parties.

ISSUE PRESENTED FOR REVIEW

Whether the District Court erred in failing to limit

prospective relief with respect to plaintiffs’ access to

1

Case: 08-2100 Document: 00112453377 Page: 6 Date Filed: 02/03/2009 Entry ID: 5314892
closed-circuit television broadcasts of Jum’ah services to the Special Management Unit of MCI-Cedar Junction.
STATEMENT OF THE CASE Inmates Mac Hudson, Derrick Tyler, Antwan Crawford, Darrick Wilson, and Anthony Tucker filed their pro se complaint on December 5, 2001, alleging violations of their right to free exercise of religion under the United States Constitution and Department of Correction (“DOC”) regulations. RA 4.1 2 The Complaint requested injunctive and declaratory relief and damages. Named as defendants were the Commissioner of Correction, Michael T. Maloney; Peter Allen, Superintendent of MCI-Cedar Junction; Peter Pepe, former Superintendent of MCI-Cedar Junction; Andrea Emodi, former Director of Program Services; and Sherry Elliot, MCI-Cedar Junction Director of Treatment. An Answer to the Complaint was filed on January 27, 2003. RA 6. On March 29, 2004, the District Court denied plaintiffs’ request for injunctive relief. RA 7. On May 12, 2004, defendants filed a Motion for Summary Judgment. RA 7. On
1 References to the Record Appendix are designated as “RA.” References to the trial transcript are designated as “Tr.” followed by the volume/page number. 2 Plaintiffs Darrick Wilson and Anthony Tucker were dismissed from the lawsuit on October 18, 2002 for want of prosecution. Plaintiff Antwan Crawford was dismissed from the lawsuit on March 29, 2004.
2

Case: 08-2100 Document: 00112453377 Page: 7 Date Filed: 02/03/2009 Entry ID: 5314892
July 23, 2004, the District Court issued a Memorandum and Order determining that the defendants were entitled to qualified immunity as to plaintiffs’ claims for money damages. RA 7. The District Court also determined that defendants’ policies of providing Muslim inmates with access to prayer towels in lieu of prayer rugs and assigning kitchen jobs to inmates without regard to religion did not violate plaintiffs’ constitutional rights. RA 7. The District Court denied the Motion for Summary Judgment regarding the claim for access to Halal meals, finding that the claim raised an issue for trial. RA 7.
On November 9, 2004, the District Court appointed counsel to represent plaintiffs. RA 8. On May 5, 2005, the District Court allowed plaintiffs’ Motion to Amend the Complaint. RA 9. Plaintiffs filed their Amended Complaint on May 26, 2006. RA 10. The Amended Complaint raised new claims under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc, as well as several state laws. Commissioner of Correction Kathleen M. Dennehy was named as the sole defendant. RA 10.3
3 Pursuant to Fed. R. Civ. P. 25(d), Harold W. Clarke, Commissioner of the Massachusetts Department of Correction, effective November 26, 2007, has been substituted for former Commissioner Kathleen M. Dennehy as defendantappellant. RA 28.
3

Case: 08-2100 Document: 00112453377 Page: 8 Date Filed: 02/03/2009 Entry ID: 5314892
Defendant filed an Answer to the Amended Complaint on June 13, 2005. RA 10. On April 14, 2006, plaintiffs filed a Motion for Reconsideration seeking to renew their claim for access to prayer rugs. On May 13, 2006, defendant filed an Opposition to Plaintiffs’ Motion for Reconsideration and a renewed Motion for Summary Judgment. RA 11. Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment was filed on June 2, 2006. RA 12. On August 31, 2006, the District Court entered its orders granting plaintiffs’ Motion for Reconsideration and denying defendant’s Motion for Summary Judgment. RA 12. The District Court scheduled a non-jury trial to commence on January 8, 2007. RA 12. The six-day jury-waived trial commenced on January 8, 2007 and concluded on February 1, 2007. RA 14.
On March 5, 2008, the District Court entered its Findings of Fact, Rulings of Law and Order after a Non-Jury Trial, stating, in part:
For the foregoing reasons, the court will enter judgment in part for plaintiffs. The Commissioner’s motion for partial findings is DENIED. The court will grant plaintiffs’ prayers for declaratory judgment on the issues of Halal meals and closedcircuit television access to Jum’ah services while confined to Ten Block. Judgment will enter for defendant on prayer rug issue. No money damages are awarded. Plaintiffs will
4

Case: 08-2100 Document: 00112453377 Page: 9 Date Filed: 02/03/2009 Entry ID: 5314892
within ten (10) days of entry this Order file a Proposed Form of Final Judgment. Defendant will have seven (7) days thereafter to comment. On entry of Final Judgment, the Clerk may close the case. The court will, however, retain jurisdiction to oversee the implementation of any remedial aspects of the judgment. RA 22-40. On April 11, 2008, the District Court entered Final Judgment, setting out injunctive and declaratory relief with regard to plaintiffs’ access to closed-circuit television broadcasts of Jum’ah services and access to Halal meals. RA 41. On April 16, 2008, defendant filed a Request for Clarification of Final Judgment with regard to whether the final judgment limited plaintiffs’ access to closed-circuit broadcasts of Jum’ah services to MCI-Cedar Junction’s Special Management Unit (“SMU”), also known as Ten Block. RA 46. On April 28, 2008, the District Court entered a Clarification of Final Judgment, indicating that the final order regarding plaintiffs’ access to closedcircuit television broadcasts of Jum’ah services applied to any SMU in which plaintiffs may be confined in the future. RA 51. On May 12, 2008, defendant filed a Motion for Reconsideration of Final Judgment With Regard to Broadcast of Jum’ah Services in Special Management Units Other Than Ten Block. RA 53. Attached to defendant’s Motion for Reconsideration was the affidavit of Jeffrey Quick, the
5

Case: 08-2100 Document: 00112453377 Page: 10 Date Filed: 02/03/2009 Entry ID: 5314892

DOC’s Director of Resource Management. RA 61. Director

Quick’s affidavit outlined the significant technical,

operational, physical plant, and cost impediments to

providing closed-circuit television broadcasts to the SMUs

located at prisons other than MCI-Cedar Junction. RA 61.

Defendant also filed a Motion to Stay Execution of Final

Judgment with Regard to Broadcasts of Jum’ah Services in

Special Management Units Other than Ten Block. RA 17. On

May 13, 2008, the District Court entered an Order granting

defendant’s Motion to Stay Final Judgment on the limited

issue of plaintiffs’ access to closed-circuit television

broadcasts of Jum’ah services. RA 17.

A hearing on defendant’s Motion for Reconsideration

was convened on June 19, 2008. RA 73-86. On June 19, 2008,

the District Court denied defendant’s Motion for

Reconsideration of Final Judgment, stating:

After hearing, the motion is denied

without prejudice.

Plaintiff Hudson is

currently confined in general population at

the Old Colony Correctional Facility.

Accordingly, there is no actual controversy

appropriate for judicial resolution. The

stay on the Final Judgment is hereby lifted.

RA 87.

On July 17, 2008, defendant filed a Notice of Appeal

and a Motion to Stay Final Judgment on Issue of Plaintiffs’

Access to Closed-Circuit Television Broadcasts of Jum’ah 6

Case: 08-2100 Document: 00112453377 Page: 11 Date Filed: 02/03/2009 Entry ID: 5314892
Services Pending Appeal. RA 18. On August 18, 2008, the District Court denied defendant’s motion to stay. RA 19.
STATEMENT OF THE FACTS Mac Hudson and Derrick Tyler are inmates within the custody of the Massachusetts Department of Correction. At all times relevant to the non-jury trial, Hudson and Tyler were incarcerated at MCI-Cedar Junction. RA 28. Subsequent to the conclusion of the trial, Hudson was transferred from MCI-Cedar Junction to the Old Colony Correctional Center (“OCCC”) at Bridgewater, MA, a medium security prison. Hudson is housed in OCCC’s general population. RA 61. MCI-Cedar Junction is a maximum security prison located in Walpole, MA. In addition to numerous housing blocks for inmates, MCI-Cedar Junction maintains two specialized housing units: an SMU (Ten Block), and the Departmental Disciplinary Unit (“DDU”). Ten Block is a restrictive housing unit consisting of two (2) floors and four (4) tiers, with fifteen (15) inmates on each tier for a capacity of 60 inmates. [Tr. V/81]. Pursuant to DOC regulations, 103 Code Mass. Regs. 423.00 et seq., Special Management Units, an SMU is a housing unit separate from the general population of the prison “in which inmates may be confined for reasons of administrative segregation,
7

Case: 08-2100 Document: 00112453377 Page: 12 Date Filed: 02/03/2009 Entry ID: 5314892
protective custody, or disciplinary detention.” 103 Code Mass. Regs 423.06. RA 91. Administrative segregation is defined as:
temporary separation from general population used when the continued presence of the inmate in the general population would pose a serious threat to life, property, self, staff or other inmates, or to the security or orderly running of the institution, e.g. inmates pending investigation for a disciplinary or criminal offense or pending transfer may be placed in administrative segregation.” Id. Typically, the average length of stay in Ten Block is from three (3) to nine (9) months. [Tr. V/84]. Pursuant to 103 Code Mass. Regs. 423.06, Ten Block houses inmates who are separated from other prison housing while awaiting action for disciplinary infractions. [Tr. V/82]. Confinement in Ten Block on awaiting action status for a disciplinary infraction may be lengthened based on the nature of the investigation into an alleged disciplinary infraction, or if the inmate requests legal representation or the production of evidence in his disciplinary proceeding. [Tr. V/85]. Due to the fact that confinement in any SMU is designed to be temporary, inmates housed in an SMU are not permitted to possess televisions, but may possess a radio. [Tr. V/94-97] Ten Block is wired for closed-circuit television and there are no operational,
8

Case: 08-2100 Document: 00112453377 Page: 13 Date Filed: 02/03/2009 Entry ID: 5314892
technical or physical plant barriers to providing inmates confined to Ten Block with access to closed-circuit television broadcasts. [Tr. V/117].
The DDU is a separate housing unit within the grounds of MCI-Cedar Junction that houses up to 124 inmates. Inmates are confined to the DDU as a sanction for the most serious disciplinary offenses, e.g., murder of another inmate, an escape attempt, assaulting staff or another inmate, etc. A sanction to the DDU can range from four (4) months to ten (10) years. [Tr. V/102-106]. Due to the potential length of time in which inmates may be sentenced to the DDU, DDU inmates may earn certain privileges, including access to a radio after thirty (30) days of good behavior and access to a television after sixty (60) days of good behavior. [Tr. V/107]. The DDU is wired for closed-circuit television and DDU inmates with access to televisions can watch educational, vocational, and religious services. [Tr. V/109].
SUMMARY OF THE ARGUMENT The District Court erred in failing to limit prospective relief providing plaintiffs with access to closed-circuit television broadcasts of Jum’ah services to MCI-Cedar Junction’s SMU. The District Court’s prospective
9

Case: 08-2100 Document: 00112453377 Page: 14 Date Filed: 02/03/2009 Entry ID: 5314892
relief violates the Prison Litigation Reform Act (“PLRA”) where it “is not narrowly drawn, is not the least intrusive means necessary to remedy the violation of a Federal right,” and failed to give substantial weight to the potential adverse impact upon the DOC caused by the relief. 18 U.S.C. § 3626. In particular, the prospective relief improperly restricts defendant’s ability to transfer plaintiffs to other prisons as circumstances warrant, raising operational and security concerns. (pp. 11-18)
The prospective relief violates RLUIPA where it constrains defendant’s ability to provide institutional order and discipline by limiting his authority to transfer plaintiffs between prisons as circumstances require. Nor did the District Court consider the impact upon the DOC in terms of the significant costs of the relief. (pp. 18-22)
The issues pertaining to the prospective relief’s violation of the PLRA and RLUIPA are ripe for judicial review. (pp. 22-28)
ARGUMENT I. THE DISTRICT COURT ERRED IN FAILING TO LIMIT
PROSPECTIVE RELIEF REGARDING PLAINTIFFS’ ACCESS TO CLOSED-CIRCUIT TELEVISION BROADCASTS OF JUM’AH SERVICES TO THE SMU AT MCI-CEDAR JUNCTION.__________
The District Court’s Final Judgment requiring the defendant to provide plaintiffs with access to closed-
10

Case: 08-2100 Document: 00112453377 Page: 15 Date Filed: 02/03/2009 Entry ID: 5314892
circuit television broadcasts of weekly Jum’ah services should they be confined in any SMU failed to comply with the requirements of the PLRA, 18 U.S.C. § 3626, and RLUIPA.
A. The Order For Prospective Relief Failed To Meet The Requirements Of The PLRA.____________________
As noted by this Court in the case of Feliciano v. Rullan, 378 F.3d 42, 50-51 (1st Cir. 2004), “Congress enacted the PLRA, partially in effort to curb the federal judiciary in day-to-day prison management.” (citations omitted). “The PLRA establishes standards for the entry and termination of all prospective relief in civil actions challenging prison conditions.” Id. (citing Miller v. French, 530 U.S. 327, 333 (2000)).
The PLRA, in pertinent part, provides that: [t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
18 U.S.C. § 3626(a)(1). The PLRA further requires that when entering an order for prospective relief, a court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Id. See Feliciano, 378 F.3d at 50-51; Oluwa v. Gomez, 133 F.3d 1239
11

Case: 08-2100 Document: 00112453377 Page: 16 Date Filed: 02/03/2009 Entry ID: 5314892
(9th Cir. 1998); Gilmore v. California, 220 F.3d 987, 999 (9th Cir. 2000).
When entering an order for prospective relief, a court must make the specific findings that the prospective relief “is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(b)(2).
In the instant case, it is clear that, with the exception of MCI-Cedar Junction’s Ten Block unit, the prospective relief requiring defendant to provide plaintiffs with access to closed-circuit television broadcasts of Jum’ah services at any SMU in which plaintiffs may be confined has failed to meet the requirements of 18 U.S.C. §§ 3626(a)(1) & (b)(2).
It appears that the District Court has made the findings required under 18 U.S.C. §§ 3626(a)(1) & (b)(2) with regard to the prospective relief providing plaintiffs with access to closed-circuit television broadcasts of Jum’ah services in MCI-Cedar Junction’s Ten Block unit. In determining that the ban on participation in Jum’ah services in Ten Block via closed-circuit television was not the least restrictive alternative, the District Court
12

Case: 08-2100 Document: 00112453377 Page: 17 Date Filed: 02/03/2009 Entry ID: 5314892
relied on the testimony of MCI-Cedar Junction Deputy
Superintendent Lisa Mitchell, who stated that there were no
technical or physical plant obstacles to providing closed-
circuit television broadcasts of Jum’ah services in MCI-
Cedar Junction’s Ten Block unit and that closed-circuit
television broadcasts of Jum’ah services were already
available to DDU inmates. RA 39. [Tr. V/117].
The numerous references to the lack of technical
obstacles to providing access to closed-circuit television
broadcasts in the Ten Block unit found in the March 5, 2008
decision underscore the significance of this factor in the
District Court’s determination that the prospective relief
was the least intrusive means necessary to correct the
RLUIPA violation. RA 22.4
4 Paragraph 18 of the Findings of Fact of the March 5, 2008 decision states that “[T]he DOC does not broadcast Jum’ah services over closed-circuit television to SMU inmates on Ten Block at MCI-Cedar Junction. There are no technical obstacles that prevent the DOC from doing so.” Paragraph 21 of the Findings of Facts states that “[T]he DOC broadcasts Jum’ah services over closed-circuit television to inmates confined in the DDU [Departmental Disciplinary Unit] at MCI-CJ.” In paragraph 11 of the Ultimate Conclusions of Fact and Law in the March 5, 2008 decision, the District Court states that “the DOC has not suggested any meaningful distinction between inmates confined in the DDU, who are permitted closed-circuit access to Jum’ah services and inmates in the SMU [Ten Block], who are not.” RA . Finally, in a footnote to paragraph 11 of the Ultimate Conclusions of Fact and Law, the District Court stated, “[A]s previously indicated, the DOC does not
13

Case: 08-2100 Document: 00112453377 Page: 18 Date Filed: 02/03/2009 Entry ID: 5314892
However, with regard to prospective relief requiring that plaintiffs be provided with access to closed-circuit television broadcasts of Jum’ah services in any other SMU in which they may be confined, it is clear that the District Court did not and could not make the findings that the prospective relief is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right” as required under the PLRA. 18 U.S.C. §§ 3626(a)(1) & (b)(2).
Unlike the discussion of MCI-Cedar Junction’s Ten Block, there is nothing in the March 5, 2008 decision that demonstrates that the District Court considered the existence of technical or other obstacles to providing plaintiffs with access to closed-circuit television broadcasts of Jum’ah services in any other SMU. As described above, the March 5, 2008 decision refers only to MCI-Cedar Junction when discussing plaintiffs’ access to closed-circuit television broadcasts.5 The District Court
contend that there is any technical reason that prevents the broadcast of Jum’ah services by closed-circuit television to Muslim inmates in Ten Block.” RA . 5 The testimony at trial regarding SMU confinement and access to closed-circuit television broadcasts focused entirely on MCI-Cedar Junction’s Ten Block unit. See e.g., Tr. 2/12-13, 84-86; 5/81-88, 100-105, 117. Nor did
14

Case: 08-2100 Document: 00112453377 Page: 19 Date Filed: 02/03/2009 Entry ID: 5314892
has failed to make the required findings because it had not taken any evidence regarding the other SMUs and the existence of any technical, operational, or physical plant obstacles that may impede the installation of closedcircuit television broadcast systems.
In response to the District Court’s Order for Clarification of the Final Judgment indicating that the prospective relief regarding plaintiff’s access to closedcircuit television broadcasts of Jum’ah services pertained to any SMU plaintiffs may be confined, defendant filed a Motion for Reconsideration advising the District Court of the significant impediments that exist with regard to compliance with the prospective relief. In support of the motion, defendant provided the affidavit of Jeffrey Quick, the DOC’s Director of Resource Management. Director Quick’s affidavit outlined the significant costs and operational, technical, and physical plant barriers confronting the DOC with regard to the prospective relief. In particular, Director Quick stated that of the DOC’s nine (9) SMUs, only MCI-Cedar Junction’s Ten Block unit had cable access to the prison building where religious services were held. RA 61. Director Quick stated that in
plaintiffs seek class action status on this issue. 15

Case: 08-2100 Document: 00112453377 Page: 20 Date Filed: 02/03/2009 Entry ID: 5314892
one prison the distance between the SMU and the building where religious programs are held was several hundred yards. RA 64. Director Quick stated that because some of the SMUs were constructed many years ago and have no cables installed, “installing new cables into the SMU cells will be very difficult, time consuming, and disruptive to the operations of the SMUs and prisons in general.” RA 62. For example, the walls of MCI-Norfolk’s SMU are made of steel, making drilling costly and time consuming, and would require that the SMU be closed during the wiring process. RA 63. However, the District Court declined to consider the new information concerning the significant obstacles to the prospective relief, citing a lack of ripeness. RA 87.
Accordingly, because the District Court’s order for prospective relief requiring the DOC to provide closedcircuit television broadcast systems in any SMU (except MCI-Cedar Junction) confining plaintiffs was made without consideration of its possible adverse impact upon the DOC, it is clear that the District Court has failed to make the required findings as to whether the relief is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right and is the least intrusive means necessary to correct the violation of the Federal
16

Case: 08-2100 Document: 00112453377 Page: 21 Date Filed: 02/03/2009 Entry ID: 5314892

right.” See 18 U.S.C. §§ 3626(a)(1)& (b)(2).

Furthermore, in ordering prospective relief requiring

the DOC to provide plaintiffs with access to closed-circuit

television broadcasts of Jum’ah services in any SMU, the

District Court has failed to “give substantial weight to

any adverse impact on public safety or the operation of a

criminal justice system caused by the relief,” as required

under the PLRA. Id. As described above, defendant’s Motion

for Reconsideration outlined the significant operational,

technical, and physical plant barriers that obstruct the

installation of closed-circuit television broadcasting

systems in the DOC’s SMUs.

Because of the significant obstacles to providing

closed-circuit television broadcasts of Jum’ah services to

the other SMUs, the prospective relief interferes with the

Commissioner’s discretionary authority to transfer

plaintiffs to other correctional facilities, whether for

disciplinary or administration sequestration or

classification or protective custody purposes, when

circumstances warrant.

State statutes provide the

Commissioner with the discretionary authority to transfer

inmates between prisons within the state correctional

system. See M.G.L. c. 127, § 97. However, by requiring

17

Case: 08-2100 Document: 00112453377 Page: 22 Date Filed: 02/03/2009 Entry ID: 5314892

that plaintiffs have access to closed-circuit broadcasts of

Jum’ah services when confined to an SMU, the prospective

relief ties the Commissioner’s hands by severely limiting

the prisons to which plaintiffs can be transferred. The

prospective relief requires the Commissioner to choose

between placing plaintiffs in prisons that are the most

appropriate for purposes of safety and security or placing

them in a prison that meets the requirements of the

prospective relief. The prospective relief amounts to an

undue interference with the operation of the prison system.

Here, the District Court’s failure to consider the

adverse impact of the prospective relief upon the DOC and

give substantial weight to the DOC’s operational and

security concerns constitutes a violation of the PLRA.

B. The Order For Prospective Relief Failed To Meet The Requirements of RLUIPA._____________

The District Court’s order for prospective relief

requiring the DOC to provide plaintiffs with access to

closed-circuit television broadcasts of Jum’ah services in

any SMU in which they may be confined also violates RLUIPA,

42 U.S.C. § 2000cc.

It is a violation of RLUIPA to grant prospective

relief without considering the impact of the relief upon

the DOC.

In enacting RLUIPA, Congress “anticipated that 18

Case: 08-2100 Document: 00112453377 Page: 23 Date Filed: 02/03/2009 Entry ID: 5314892
courts would apply the Act’s standard with ‘due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.’” Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (quoting S. Rep. No. 103-111, at 10 (1993), 1993 U.S. Code Cong. & Admin. News 1892, 1899). The Supreme Court stated:
We do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests. Cutter, 544 U.S. at 722. The order for prospective relief places the accommodation of plaintiffs’ religious observances over the compelling interests of the DOC to maintain safety and institutional order. The ability to transfer any inmate, including plaintiffs, to an appropriate security level prison for purposes of discipline or administration sequestration or classification or protective custody is an essential component in maintaining institutional order and safety. See M.G.L. c. 127, § 97; Nelson v. Commissioner of Correction, 390 Mass. 379, 397 (1983). However, the
19

Case: 08-2100 Document: 00112453377 Page: 24 Date Filed: 02/03/2009 Entry ID: 5314892

significant obstacles to providing closed-circuit

television broadcasts of Jum’ah services to the SMUs

restrict the ability of the Commissioner to transfer

plaintiffs to other correctional facilities as

circumstances may warrant.

Far from providing “due

deference to the experience and expertise of prison

administrators,” the District Court’s prospective relief

actually diminishes the defendant’s ability to maintain

“good order, security and discipline.” See Cutter, 544 U.S.

at 723.

Further, relying on Cutter, id., other Circuit Courts

have determined that the compelling governmental interest

standard includes a consideration of the cost of the

religious accommodation and the government’s limited resources. In Baranowski v. Hart, 486 F.3d 112, 125 (5th

Cir. 2007) the Fifth Circuit determined that the prison met

the compelling interest standard where the prison budget

was not adequate to cover the significant expenses required

to provide Kosher meals or a Kosher kitchen and to meet the

increased demand for specialized religious diets for other

inmates. The Baranowski Court stated, “[B]ased on the

record before us, we hold that this policy is related to

maintaining good order and controlling costs and, as such,

20

Case: 08-2100 Document: 00112453377 Page: 25 Date Filed: 02/03/2009 Entry ID: 5314892
involves compelling government interests.” Baranowski, 486 F.3d at 125. See also Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006) (compelling interest standard under RLUIPA includes such considerations as safety, security, and cost); Linehan v. Crosby, 2008 WL 3889604 *11 (N.D. Fla.)(Aug. 20, 2008)(excessive cost for special religious diet was a factor in finding a compelling governmental interest under RLUIPA); Ketzner v. Williams, 2008 WL 4534020 **23, 25-27 (W.D. Mich.) (Sept. 30, 2008)(concern for prison costs constitutes compelling government interest under RLUIPA).
According to the affidavit of Jeffrey Quick, installing closed-circuit television systems to broadcast Jum’ah services to the SMUs would necessitate major capital improvement projects requiring the expenditure of substantial sums of money, cause significant disruptions to the prisons, including closing down the SMUs during the installation process, and would likely take many months to complete. RA 61-67.
The District Court’s failure to consider the impact of the prospective relief upon the DOC’s compelling interests in maintaining safety and security and institutional order, as well as the significant costs to the DOC associated with
21

Case: 08-2100 Document: 00112453377 Page: 26 Date Filed: 02/03/2009 Entry ID: 5314892
compliance with the prospective relief constitutes a violation of RLUIPA. See Cutter, 544 U.S. at 722; Baranowski, 486 F.3d at 125. II. THE DISTRICT COURT ERRED IN DENYING DEFENDANT’S
MOTION FOR RECONSIDERATION BASED ON A LACK OF RIPENESS.________________________________________ In denying the Motion for Reconsideration, the District Court found that there was no actual controversy appropriate for judicial resolution since plaintiff Hudson was not currently confined in OCCC’s SMU. RA 87. “[T]he doctrine of ripeness … asks whether an injury that has not yet happened is sufficiently likely to happen to warrant judicial review.” Gun Owners’ Action League v. Swift, 284 F.3d 198, 205 (1st Cir. 2002), cert. denied, 537 U.S. 827 (2002). The ripeness doctrine looks at whether “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy to warrant the issuance of a declaratory judgment.” Lake Carriers’ Association v. MacMullan, 406 U.S. 498, 506 (1972). The ripeness doctrine also seeks “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs v. Gardner, 387 U.S. 136, 148 (1967). “Determining ripeness involves a dual inquiry: evaluation of ‘both the
22

Case: 08-2100 Document: 00112453377 Page: 27 Date Filed: 02/03/2009 Entry ID: 5314892
fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’” McInnis-Misenor v. Maine Medical Center, 319 F.3d 63, 70 (1st Cir. 2003) (quoting Abbott Labs, 387 U.S. at 149). “Both prongs of the test ordinarily must be satisfied, although a very strong showing on one axis may compensate for a relatively weak showing on the other.” Stern v. U.S. Dist. Court, 214 F.3d 4, 10 (1st Cir. 2000).
“In the fitness inquiry, both constitutional and prudential concerns operate, with prudential concerns focusing on the policy of judicial restraint from unnecessary decisions. The fitness inquiry ‘typically involves subsidiary queries concerning finality, definiteness, and the extent to which resolution of the challenge depends on facts that may not yet be sufficiently developed.’” Id. (quoting Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995)). The baseline question concerning fitness for review is whether allowing more time for development of events would “significantly advance [the court’s] ability to deal with the legal issues presented [or] aid in their resolution.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 82 (1978). “The fact that an event has not
23

Case: 08-2100 Document: 00112453377 Page: 28 Date Filed: 02/03/2009 Entry ID: 5314892
occurred can be counterbalanced in this analysis by the fact that a case turns on legal issues not likely to be significantly affected by further factual development.” Ernst & Young, 45 F.3d at 535. “[T]he question of fitness does not pivot solely on whether a court is capable of resolving a claim intelligently, but also involves an assessment of whether it is appropriate for the court to undertake the task.” Id. at 537.
The hardship prong is entirely prudential and evaluates “the extent to which withholding judgment will impose hardship – an inquiry that typically turns upon whether the challenged action creates a ‘direct and immediate’ dilemma for the parties.” McInnis-Misenor, 319 F.3d at 70 (quoting Stern, 214 F.3d at 10.
In the case at bar, it is apparent that the issue concerning the impact of the prospective relief upon the defendant is ripe for judicial determination. It is clear that the issue is not an abstract matter, but constitutes a substantial controversy between the parties. Despite the fact that neither plaintiff was confined in the SMU at or near the time of trial, the District Court determined that the issue of plaintiffs’ access to Jum’ah services should
24

Case: 08-2100 Document: 00112453377 Page: 29 Date Filed: 02/03/2009 Entry ID: 5314892
they be confined to the Ten Block unit in the future was ripe for judicial review. RA 28.
The issue of the adverse impact of the prospective relief upon the defendant is fit for judicial review where the resolution of the issue does not depend upon facts that are not sufficiently developed. As the affidavit of Director Quick demonstrates, the technical, physical plant, and operational obstacles to installing closed-circuit television systems in the SMUs are readily known and do not depend on the timing of plaintiffs’ confinement in an SMU. RA 61-67. Further delay in addressing this issue will not significantly advance the court’s ability to address the issue or aid in its eventual resolution. See Duke Power Co., 438 U.S. at 82.
Judicial review is appropriate and necessary due to the adverse impact of the prospective relief upon the DOC’s compelling interests in maintaining institutional order and security. The ability to transfer inmates within the state correctional system for purposes of discipline, protective custody, administrative sequestration, or classification is fundamental to the management of a correctional system. As a result of the substantial impediments to providing the prospective relief ordered by the District Court, the
25

Case: 08-2100 Document: 00112453377 Page: 30 Date Filed: 02/03/2009 Entry ID: 5314892
Commissioner’s ability to transfer plaintiffs to other prisons has been severely limited. It is sufficiently likely that one or both of the plaintiffs will be confined in an SMU other than Ten Block for administrative or disciplinary reasons in the near future. Presently, Hudson is incarcerated at OCCC. Transfers between prisons are done administratively and may take place at any time, for any reason. See M.G.L. c. 127, § 97; Nelson, 390 Mass. at 397. Plaintiffs are subject to being placed in an SMU for a variety of administrative reasons, including on awaiting action status for a disciplinary matter. See 103 Code Mass. Regs. 423.08. RA 92. Both plaintiffs have been previously confined in SMUs during their present terms of incarceration. RA 28.
It is also appropriate for the court to resolve the issue of the adverse impact of the prospective relief upon the defendant as soon as possible rather than waiting for one of the plaintiffs to be placed in an SMU other than Ten Block and addressing the adverse impact of the prospective relief prison by prison. It is in the interests of judicial economy to resolve the issue of whether the prospective relief violates the requirements of the PLRA
26

Case: 08-2100 Document: 00112453377 Page: 31 Date Filed: 02/03/2009 Entry ID: 5314892
and RLUIPA as a whole rather than to take a piecemeal approach.
The hardship prong of the ripeness inquiry also favors a prompt resolution of the issue of the adverse impact of the prospective relief upon the defendant. Postponing the resolution of this issue until such time as one of the plaintiffs is confined to an SMU other than Ten Block presents a hardship for the defendant. As described above, the prospective relief raises safety and security concerns where it interferes with the Commissioner’s discretionary authority to transfer plaintiffs between prisons. Certainly, circumstances, both foreseen and unforeseen, may develop at any time which will require that one or both of the plaintiffs be transferred to another prison. Where the prospective relief compromises the Commissioner’s ability to manage plaintiffs’ placement within the prison system, this issue must be resolved as soon as possible.
Further, in order to meet the requirements of the prospective relief, the DOC must begin the time-consuming and costly process of engaging outside contractors to develop designs for each SMU and prepare cost estimates. Next, the DOC will have to prepare and submit capital requests to the Massachusetts Division of Capital Asset
27

Case: 08-2100 Document: 00112453377 Page: 32 Date Filed: 02/03/2009 Entry ID: 5314892
Management and Maintenance for the necessary funding. RA 67. Whether some or all of the requests for capital improvements to the SMUs will be approved and funding made available is difficult to predict. RA 67. Delaying the start of this very time consuming process until a plaintiff is confined in an SMU other than Ten Block and the District Court completes its review of the evidence concerning the particular SMU and the adverse impact upon defendant, will only serve to increase the costs of complying with the prospective relief should it be determined after review that the relief does not violate the PLRA or RLUIPA.
During the time it takes to complete the judicial review and the capital improvement process, the plaintiff confined in the SMU may be unable to participate in weekly Jum’ah services. Accordingly, delaying the resolution of this issue will impose hardships on both defendant and plaintiffs.
CONCLUSION For the foregoing reasons, defendant-appellant Clarke requests that the District Court’s Final Judgment be reversed with respect to prospective relief providing plaintiffs with access to closed-circuit television broadcasts of Jum’ah services in any Special Management
28

Case: 08-2100 Document: 00112453377 Page: 33 Date Filed: 02/03/2009 Entry ID: 5314892

Unit other than the Ten Block unit of MCI-Cedar Junction. In the alternative, defendant-appellant Clarke requests that this issue be remanded to the District Court for further proceedings regarding the impact of the prospective relief requiring plaintiffs’ access to closed-circuit television broadcasts of Jum’ah services in any Special Management Unit other than the Ten Block unit of MCI-Cedar Junction upon him.
Respectfully submitted, NANCY ANKERS WHITE Special Assistant Attorney General

January 20, 2009

__________________________________ Richard C. McFarland (#41993) Legal Division Department of Correction 70 Franklin Street, Suite 600 Boston, MA 02110-1300 (617) 727-3300, ext. 132

29

Case: 08-2100 Document: 00112453377 Page: 34 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 35 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 36 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 37 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 38 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 39 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 40 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 41 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 42 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 43 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 44 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 45 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 46 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 47 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 48 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 49 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 50 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 51 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 52 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 53 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 54 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 55 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 56 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 57 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 58 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 59 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 60 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 61 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 62 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 63 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 64 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 65 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 66 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 67 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 68 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 69 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 70 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 71 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 72 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 73 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 74 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 75 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 76 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 77 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 78 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 79 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 80 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 81 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 82 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 83 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 84 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 85 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 86 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 87 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 88 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 89 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 90 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 91 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 92 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 93 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 94 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 95 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 96 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 97 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 98 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 99 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 100 Date Filed: 02/03/2009 Entry ID: 5314892

Case: 08-2100 Document: 00112453377 Page: 101 Date Filed: 02/03/2009 Entry ID: 5314892

 
 Case: 08-2100 Document: 00113553603 Page: 1 Date Filed: 02/23/2009 Entry ID: 5320817
Case No. 08-2100 United States Court of Appeals for the First Circuit
ANTWAN CRAWFORD; DARRICK WILSON; ANTHONY TUCKER Plaintiffs
MAC S. HUDSON; DERRICK TYLER Plaintiffs-Appellees v.
HAROLD W. CLARKE, Commissioner of the Massachusetts Department of Correction Defendant-Appellant
MICHAEL MALONEY; KATHLEEN DENNEHY Defendants
On Appeal From the United States District Court for the District of Massachusetts
BRIEF OF PLAINTIFFS-APPELLEES MAC S. HUDSON AND DERRICK TYLER
Michael Kendall (# 12581) Neal E. Minahan (# 1129948) David Quinn Gacioch (# 1131853) MCDERMOTT WILL & EMERY LLP
28 State Street Boston, Massachusetts 02109
(617) 535-4000

Case: 08-2100 Document: 00113553603 Page: 2 Date Filed: 02/23/2009 Entry ID: 5320817
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................iv REASONS WHY ORAL ARGUMENT SHOULD BE HEARD ......................... vii JURISDICTIONAL STATEMENT ........................................................................1 STATEMENT OF THE ISSUE PRESENTED .......................................................2 STATEMENT OF THE CASE ...............................................................................2 STATEMENT OF THE FACTS.............................................................................8 SUMMARY OF THE ARGUMENT ....................................................................10 ARGUMENT........................................................................................................15 I. The Commissioner’s Appeal is Limited to the District Court’s June
19th Denial of Reconsideration Because This Court Lacks Jurisdiction Over Any Challenge to the District Court’s April 11th Final Judgment. ...................................................................................................15 A. Appellate Rule 3 Precludes Jurisdiction Over the April 11th
Final Judgment Because the Commissioner’s Notice of Appeal Referenced Only the June 19th Denial of Reconsideration................16 B. Appellate Rule 4 Also Denies This Court Jurisdiction Over the April 11th Final Judgment Because the Commissioner’s Notice of Appeal Was Not Timely As To That Judgment...............................18
-ii-

Case: 08-2100 Document: 00113553603 Page: 3 Date Filed: 02/23/2009 Entry ID: 5320817
II. Even if This Court Finds Jurisdiction Over the April 11th Final Judgment, That Judgment Stands Because the Commissioner Has Effectively Conceded That the District Court Did Not Abuse Its Discretion on the Record Then Before It.....................................................22
A. The Commissioner’s Assignments of Error on Appeal Do Not Implicate the April 11th Final Judgment Because They Rely Entirely On Facts and Argument that the Commissioner Introduced Only After That Judgment Entered..................................26
B. The District Court Did Not Abuse Its Discretion Because Its April 11th Injunction Complied With Both RLUIPA and the PLRA on the Evidentiary Record Then Before It ...............................29
III. The District Court Acted Well Within Its Considerable Discretion When It Denied the Commissioner’s Motion for Reconsideration ..............30
A. The District Court Was Well Within Its Discretion in Deciding that the Commissioner’s Attempt to Narrow the Scope of the Permanent Injunction Was Not Ripe For Adjudication .....................32
B. The District Court Would Have Been Justified to Deny the Commissioner’s Motion With Prejudice as He Improperly Sought to Raise Points That He Knew About But Withheld During Trial......................................................................................38
C. The Commissioner Has Waived Any Argument Based Upon the PLRA ................................................................................................46
IV. Equity Demands That This Court Not Narrow the District Court’s Injunction as Any Such Narrowing Would Preclude Effective Relief .........48
CONCLUSION ....................................................................................................50 CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 32(A) .............52 CERTIFICATE OF SERVICE..............................................................................53 ADDENDUM
-iii-

Case: 08-2100 Document: 00113553603 Page: 4 Date Filed: 02/23/2009 Entry ID: 5320817
TABLE OF AUTHORITIES Statutes 18 U.S.C. § 3626....................................................................... 7, 14, 29, 30, 46, 47 28 U.S.C. § 1291.....................................................................................................1 28 U.S.C. § 1331.....................................................................................................1 28 U.S.C. § 1343(a)(4)............................................................................................1 42 U.S.C. § 1983.....................................................................................................1 42 U.S.C. § 2000cc, et seq. .................................................................................. vii 42 U.S.C. § 2000cc-1.............................................................................. 1, 4, 22–24 Mass. Gen. Laws c. 127, § 97 .....................................................................9, 36, 41
Regulations 193 Mass. Code Regs. 423.06 (1995)......................................................................4
Rules Federal Rule of Appellate Procedure 3.................................................. 1, 12, 16–18 Federal Rule of Appellate Procedure 4............................................ 1, 13, 16, 18–22 Federal Rule of Civil Procedure 59 ..............................13, 14, 18–22, 30, 31, 38, 39 Federal Rule of Civil Procedure 60 .......................................................................20 Federal Rule of Civil Procedure 65 .................................................................29, 30
-iv-

Case: 08-2100 Document: 00113553603 Page: 5 Date Filed: 02/23/2009 Entry ID: 5320817
Cases A.W. Chesterton Co. v. Chesterton, 128 F.3d 1 (1st Cir. 1997).............................29 Airline Pilots Ass’n v. Precision Valley Aviation, Inc., 26 F.3d 220 (1st Cir. 1994)........................................................................................... 20, 22, 31 Aybar v. Crispin-Reyes, 118 F.3d 10 (1st Cir. 1997) ................................ 14, 21, 39 Borrero v. City of Chicago, 456 F.3d 698 (7th Cir. 2006) .....................................21 Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007) .........19 Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003)...............................................23 City of Fall River, Mass. v. FERC, 507 F.3d 1 (1st Cir. 2007)..............................34 Constructora Andrade Gutiérrez, S.A. v. American Int’l Ins. Co. of Puerto Rico, 467 F.3d 38 (1st Cir. 2006).........................................................16, 17 Doe v. Bush, 323 F.3d 133 (1st Cir. 2003)......................................................32–37 Esso Std. Oil Co. (Puerto Rico) v. Lopez-Freytes, 522 F.3d 136 (1st Cir. 2008) ...29 FDIC v. World Univ. Inc., 978 F.2d 10 (1st Cir. 1992).........................................39 Fragoso v. Lopez, 991 F.2d 878 (1st Cir. 1993) ....................................................31 García-Velázquez v. Frito Lay Snacks Caribbean, 358 F.3d 6 (1st Cir. 2004).......21 Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001), cert. denied, 534 U.S. 1066, 122 S. Ct. 667, 151 L. Ed. 2d 581 (2001) ....................................................30 Hills v. Gautreaux, 425 U.S. 284, 96 S. Ct. 1538, 47 L. Ed. 2d 792 (1976)...........48 In re Perry Hollow Mgmt. Co., 297 F.3d 34 (1st Cir. 2002) ..................................19 Johnson v. Teamsters Local 559, 102 F.3d 21 (1st Cir. 1996) ...............................21 Jorge Rivera Surillo & Co. v. Falconer Glass Indus., Inc., 37 F.3d 25 (1st Cir. 1994).................................................................................................12, 39 Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1 (1st Cir. 1991) .................................18
-v-

Case: 08-2100 Document: 00113553603 Page: 6 Date Filed: 02/23/2009 Entry ID: 5320817
Marks 3-Zet-Ernst Marks GMBH & Co. KG v. Presstek, Inc., 455 F.3d 7 (1st Cir. 2006).................................................................................................39, 46 McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13 (1st Cir. 1991) ..............46, 47 McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63 (1st Cir. 2003) .................32–36 Morales Feliciano v. Calderon Serra, 300 F. Supp. 2d 321 (D.P.R. 2004), aff’d sub nom. Morales Feliciano v. Rullán, 378 F.3d 42 (1st Cir. 2004) ..............30 Morales Feliciano v. Rullán, 378 F.3d 42 (1st Cir. 2004), cert. denied, 543 U.S. 1054, 125 S. Ct. 910, 160 L. Ed. 2d 776 (2005) ......................... 29, 46, 48 Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26 (1st Cir. 1999).................................................................................................33, 36 Robinson v. Watts Detective Agency, Inc., 685 F.2d 729 (1st Cir. 1982)..............30 Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1 (1st Cir. 1989) ...22 Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963)...........28 Smith v. Arkansas Dep’t of Corr., 103 F.3d 637 (8th Cir. 1996) ...........................30 Smith v. Barry, 502 U.S. 244, 112 S. Ct. 678, 116 L. Ed. 2d 678 (1992) ..............16 Spratt v. Rhode Island Dep’t of Corrs., 482 F.3d 33 (1st Cir. 2007)............................................................................... 11, 23, 24, 28, 40 Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S. Ct. 2405, 101 L. Ed. 2d 285 (1988) ......................................................................................16 United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) ......................................46, 48 Vasapolli v. Rostoff, 39 F.3d 27 (1st Cir. 1994)....................................................31 Washington Mobilization Comm. v. Jefferson, 617 F.2d 848 (D.C. Cir. 1980) .....31
Secondary Materials 12 James Wm. Moore, Moore's Federal Practice (3d ed. 2008).............................31
-vi-

Case: 08-2100 Document: 00113553603 Page: 7 Date Filed: 02/23/2009 Entry ID: 5320817
REASONS WHY ORAL ARGUMENT SHOULD BE HEARD Plaintiffs-Appellees Mac Hudson and Derrick Tyler (“Plaintiffs”) respectfully request that this Court hear oral argument as this appeal concerns the scope of a permanent injunction aimed at remedying Defendant-Appellant Harold W. Clarke (“the Commissioner”)’s established violation of Plaintiffs’ rights. Moreover, while Plaintiffs disagree for reasons set forth below, the Commissioner claims that this appeal concerns the proper application of the Religious Land Use and Institutionalized Persons Act of 20001—an important but relatively new civil rights statute on which little caselaw exists in this circuit. Plaintiffs further request oral argument in order to answer any questions that the Court may have and to address any new points that the Commissioner may raise in reply to this brief.
1 42 U.S.C. §§ 2000cc, et seq.
-vii-

Case: 08-2100 Document: 00113553603 Page: 8 Date Filed: 02/23/2009 Entry ID: 5320817
JURISDICTIONAL STATEMENT The District Court has subject matter jurisdiction over this civil action pursuant to 28 U.S.C. § 1331 because Plaintiffs-Appellees Mac Hudson and Derrick Tyler (“Plaintiffs”) brought the action under, inter alia, the First and Fourteenth Amendments to the United States Constitution as well as 42 U.S.C. §§ 1983 and 2000cc-1. The District Court also has subject matter jurisdiction pursuant to 28 U.S.C. § 1343(a)(4) because 42 U.S.C. §§ 1983 and 2000cc-1 are Acts of Congress providing for the protection of civil rights.
This Court has subject matter jurisdiction over Defendant-Appellant Harold W. Clarke (“the Commissioner”)’s appeal of the District Court’s June 19, 2008, Order denying his motion for reconsideration, pursuant to 28 U.S.C. § 1291. However, as set forth below (pp. 15–22), pursuant to Federal Rules of Appellate Procedure 3 and 4,2 this Court lacks jurisdiction to consider the Commissioner’s apparent challenge to the initial validity of the permanent injunction set forth in the District Court’s April 11, 2008, Final Judgment. The Commissioner’s jurisdictional statement correctly sets forth the relevant filing dates.3
2 The text of this brief shall refer to Federal Rules of Appellate Procedure as “Appellate Rule [rule number]” and Federal Rules of Civil Procedure as “Civil Rule [rule number].” 3 See Brief of the Appellant (“App. Br.”) at 1
- 1 -

Case: 08-2100 Document: 00113553603 Page: 9 Date Filed: 02/23/2009 Entry ID: 5320817
STATEMENT OF THE ISSUE PRESENTED After a six-day trial, the District Court entered an injunction tailored to the violation of federal law that it found. The Commissioner then sought reconsideration of the injunction’s scope based upon facts and legal argument known to him during trial but never submitted to the District Court before it entered judgment. Did the District Court act within its considerable discretion when it denied reconsideration?
STATEMENT OF THE CASE Messrs. Hudson and Tyler, along with three other Massachusetts Department of Correction (“DOC”) inmates, filed this case pro se in late 2001.4 They did so seeking to remedy the DOC’s denial to them of, inter alia, three core components of the exercise of their Muslim religious faith: (1) Halal meals, (2) rugs on which to perform their five daily Salats (prayers), and (3) access to weekly Jum’ah services5 as part of a community of Muslims even when confined to segregated units within DOC facilities. 6 Prior to filing, Plaintiffs spent at least one and one-
4 See RA 4, 22 5 Jum’ah services are “the Friday Islamic prayer services conducted by an imam on behalf of a community of Muslims.” RA 42, ¶ 6. Such services are obligatory for Muslims. RA 23 n.4. 6 See RA 22–25
- 2 -

Case: 08-2100 Document: 00113553603 Page: 10 Date Filed: 02/23/2009 Entry ID: 5320817
half years attempting to remedy these denials through the DOC’s internal grievance processes.7
Plaintiffs generally are satisfied with the Commissioner’s recounting of the procedural history of this case from inception through the District Court’s August 31, 2006, Order that granted their motion for reconsideration, denied the Commissioner’s motion for summary judgment, and scheduled trial.8 They only add that their May 26, 2005, First Amended Complaint, like its predecessor, stated claims and sought declaratory and injunctive relief that applied to the DOC system as a whole; they did not limit the scope of their claims or their prayers for relief to the Massachusetts Correctional Institution at (“MCI-”) Cedar Junction, where they happened to be housed at the time.9
The District Court heard evidence and argument over the course of a six-day bench trial that began on January 8, 2007, and concluded on February 1, 2007.10 The evidence received at trial was not limited to MCI-Cedar Junction; both parties also submitted evidence of system-wide DOC policies and practices as well as
7 See RA 27 8 See App. Br. at 2–4 9 See Supplemental Record Appendix of Appellees (“Supp. RA”) 15 10 See RA 14–15
- 3 -

Case: 08-2100 Document: 00113553603 Page: 11 Date Filed: 02/23/2009 Entry ID: 5320817
matters specific to other DOC facilities.11 The District Court issued its Findings of Fact, Rulings of Law, and Order After a Non-Jury Trial on March 5, 2008, concluding that, inter alia, the DOC’s denial of inmate access to Jum’ah services via closed-circuit television (“CCTV”) violated the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).12
The District Court’s March 5th Order directed Messrs. Hudson and Tyler to submit a Proposed Form of Judgment.13 They did so on March 17, 2008, using language that made it clear that the RLUIPA violation that the District Court had found with respect to Jum’ah service access, and thus the declaratory and injunctive relief that the District Court was awarding, extended beyond MCI-Cedar Junction: “Whenever Plaintiffs are housed in Special Management Units, including Ten Block,[14] Defendant shall provide Plaintiffs with closed circuit television sets that shall display, through sound and images, a live broadcast of communal Jum’ah
11 See, e.g., Hall Testimony, Supp. RA 22–30 [Tr. III/54-59, 65-67]; Marshall Testimony, Supp. RA 31–32 [Tr. III/87–88]; Hallett Testimony, Supp. RA 34–47 [Tr. IV/68-77; 80-82]; Mitchell Testimony, Supp. RA 55 [Tr. V/122] 12 42 U.S.C. § 2000cc-1; see RA 39–40 13 See RA 40 14 Special Management Units (“SMUs”) are “separate housing area[s] from general population within [DOC] institutions in which inmates may be confined for reasons of administrative segregation, protective custody, or disciplinary detention.” 193 Mass. Code Regs. 423.06 (1995); see RA 91. The SMU at MCICedar Junction is colloquially known as “Ten Block.” See RA 23, n.3.
- 4 -

Case: 08-2100 Document: 00113553603 Page: 12 Date Filed: 02/23/2009 Entry ID: 5320817
services … .”15 On March 24, 2008, the Commissioner counter-proposed language
that expressly limited the District Court’s declaratory and injunctive relief to Ten
Block at MCI-Cedar Junction: “Whenever Plaintiffs are housed in the Ten Block
Special Management Unit at MCI-Cedar Junction, Defendant shall provide
Plaintiffs with closed circuit broadcasts via sound and images, of a live broadcast of communal Jum’ah services … .”16 Both Plaintiffs and the Commissioner then
submitted memoranda in support of their respective proposals, each expressly arguing the scope of relief issue.17
The District Court issued its Final Judgment on April 11, 2008, rejecting the
Commissioner’s proposed narrow construction of permanent injunctive relief:
8. “Special Management Units” shall mean separate housing areas apart from the general population within DOC institutions in which inmates are confined for reasons of administrative segregation, protective custody, or disciplinary detention. 9. “Ten Block” is the name commonly used to describe the Special Management Unit at the DOC’s MCI-Cedar Junction facility. … 18. Whenever Plaintiffs are housed in the Special Management Unit, Defendant shall provide access to a closed circuit television set that displays, through sound and images, a live broadcast of such
15 See Supp. RA 85, ¶ 13 16 See Supp. RA 92, ¶ 17 17 See Supp. RA 94–99 (Plaintiffs’ Memorandum); Supp. RA 100–109 (Defendant’s Memorandum)
- 5 -

Case: 08-2100 Document: 00113553603 Page: 13 Date Filed: 02/23/2009 Entry ID: 5320817
communal Jum’ah services as are regularly held on each and every Friday for the duration of their incarceration (absent a legitimate emergency or the unavailability of an authorized Imam, in which case Defendant may broadcast prerecorded Jum’ah services). Defendant will have thirty (30) days from the date of entry of this Judgment to comply with this provision.18 On April 16, 2008, the Commissioner filed what he titled a “Request for Clarification of Final Judgment” in which he asked the District Court to add the words “in Ten Block” after the phrase “the Special Management Unit” in paragraph 18 to limit that paragraph’s reach accordingly.19 After Plaintiffs filed an opposition to the Commissioner’s request, the District Court responded on April 28, 2008, by confirming that paragraph 18 of its Final Judgment applied to any SMU to which the Commissioner might assign either Plaintiff during the remainder of his sentence.20
On May 12, 2008, the Commissioner filed a motion for reconsideration of Final Judgment, again renewing his request that the District Court limit the scope of its Jum’ah service injunction to Ten Block at MCI-Cedar Junction.21 The Commissioner attached to his motion a six and one-half page affidavit signed by the DOC’s Director of Resource Management that raised purported cost, delay, and
18 RA 41–45 19 See RA 46–47 20 See RA 51 21 See RA 53–60
- 6 -

Case: 08-2100 Document: 00113553603 Page: 14 Date Filed: 02/23/2009 Entry ID: 5320817
administrative difficulty obstacles associated with providing CCTV access to Jum’ah services to inmates in SMUs other than Ten Block—none of which he had submitted at trial or at any time prior to Final Judgment.22 In his motion, the Commissioner argued that the District Court’s permanent injunction violated RLUIPA insofar as it extended beyond Ten Block because the District Court had not considered the additional concerns raised in the director’s May 12th affidavit.23 The Commissioner simultaneously filed a motion to stay enforcement of the permanent injunction with respect to units other than Ten Block, which the District Court granted the following day.24
Plaintiffs filed an opposition to the Commissioner’s motion for reconsideration on May 23, 2008,25 and the District Court heard argument on June 19, 2008.26 Immediately following the hearing, the District Court issued an electronic Order denying, without prejudice, the Commissioner’s motion for
22 See RA 61–68 23 See RA 55–60. The Commissioner also hinted at, but did not develop, an argument that the District Court’s injunction might violate the Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626, (“the PLRA”) for the same reason. See RA 58–59; see also infra at 46–48 (arguing that the Commissioner’s perfunctory mention of the PLRA in his motion for reconsideration was insufficient to preserve the argument for this appeal). 24 See RA 17 25 See RA 69–72 26 See RA 17–18, 73–86, 87
- 7 -

Case: 08-2100 Document: 00113553603 Page: 15 Date Filed: 02/23/2009 Entry ID: 5320817
reconsideration: “Denied without prejudice. Hudson is currently confined in general population at the Old Colony Correctional Facility. Accordingly, there is no actual controversy appropriate for judicial resolution. The stay on the Final Judgment is lifted.”27
The Commissioner filed his Notice of Appeal on July 17, 2008, appealing only “from the Order denying Defendant’s Motion for Reconsideration of Final Judgment with Regard to Broadcast of Jum’ah Services in Special Management Units Other Than Ten Block, entered in this action on June 19, 2008.”28 The Commissioner also filed a motion to further stay enforcement of the District Court’s permanent injunction with respect to units other than Ten Block pending the appeal, which the District Court denied on August 18, 2008.29
STATEMENT OF THE FACTS Messrs. Hudson and Tyler were at the time of trial, and still are, “serving lengthy custodial sentence[s]” in the custody of DOC.30 The DOC has the unbridled discretion to transfer them between its facilities at any time and for any
27 See RA 18, 87 28 See Supp. RA 103 29 See RA 18–19 (Docket Nos. 131, 133) 30 RA 28, ¶¶ 1–2
- 8 -

Case: 08-2100 Document: 00113553603 Page: 16 Date Filed: 02/23/2009 Entry ID: 5320817
reason.31 The DOC enjoys similarly broad discretion to transfer Messrs. Hudson and Tyler into and out of segregated units within those facilities, including SMUs.32
At the time of the trial, Mr. Hudson had been incarcerated for approximately seventeen years of a life sentence, during which the DOC had transferred him between Souza-Baranowski Correctional Center in Shirley, Massachusetts, and MCI-Cedar Junction in Walpole, Massachusetts, among other facilities.33 The DOC has since transferred Mr. Hudson to Old Colony Correctional Center in Bridgewater, Massachusetts, where he now resides.34
At the time of trial, Mr. Tyler had been incarcerated for approximately seventeen years of a life sentence, during which the DOC had transferred him between Old Colony Correctional Center in Bridgewater, Massachusetts; MCINorfolk in Norfolk, Massachusetts; MCI-Shirley in Shirley, Massachusetts; North Central Correctional Institution in Gardner, Massachusetts; and MCI-Cedar
31 See Mass. Gen. Laws c. 127, § 97; see also App. Br. at 17 32 RA 89–96 33 Supp. RA 18 [Tr. II/14–15] 34 RA 69
- 9 -

Case: 08-2100 Document: 00113553603 Page: 17 Date Filed: 02/23/2009 Entry ID: 5320817
Junction in Walpole, Massachusetts.35 Mr. Tyler now resides at MCI-Cedar Junction.36
At various times during their incarceration, the DOC has confined both Mr. Hudson and Mr. Tyler to segregated units within its facilities.37 While they were confined in such units, the DOC denied Messrs. Hudson and Tyler access to and participation in weekly Jum’ah services, both in-person and via CCTV.38 Both Mr. Hudson and Mr. Tyler sincerely believe that participation in such services as part of a community of Muslims is required by their religious faith.39
SUMMARY OF THE ARGUMENT The District Court was correct to deny the Commissioner’s motion for reconsideration of the scope of its permanent injunction and certainly did not clearly abuse its discretion in so doing. Through that motion, the Commissioner improperly sought a second bite at the apple to introduce evidence and arguments that he had known about, but had chosen not to submit, at trial.
35 Supp. RA 19–20 [Tr. II/69–70]. 36 RA 69 37 RA 28, ¶¶ 1–2 38 RA 32, ¶¶ 17–18 39 RA 28–29, ¶ 6
- 10 -

Case: 08-2100 Document: 00113553603 Page: 18 Date Filed: 02/23/2009 Entry ID: 5320817
During the six-day bench trial, Messrs. Hudson and Tyler met their RLUIPA-imposed burden of proving that the DOC’s policy denying them live access to weekly Jum’ah services while they were housed in segregated units substantially burdened the exercise of their sincerely-held religious belief that participation in such services as part of a community of Muslims is obligatory. The Commissioner presented evidence aimed at countering that showing but, at least with respect to access via CCTV broadcasts, he ultimately failed to carry his RLUIPA-imposed burden of proving that his department’s policy was the least restrictive means of furthering any compelling governmental interest.40 Neither Plaintiffs’ Amended Complaint nor the evidence presented at trial was limited in scope to the SMU at MCI-Cedar Junction known as Ten Block where they had been housed at the time of the violation. Thus, the District Court correctly found that denying Plaintiffs access to Jum’ah services via live CCTV violated RLUIPA no matter where the Commissioner chose to house them, and it tailored its permanent injunction accordingly.
40 See Spratt v. Rhode Island Dep’t of Corrs., 482 F.3d 33, 38 (1st Cir. 2007) (once a RLUIPA plaintiff proves that a prison policy substantially burdens the exercise of his sincerely-held religious belief, an institutional defendant must prove that the policy is the least restrictive means of achieving a compelling governmental interest to avoid a ruling that the policy violates RLUIPA)
- 11 -

Case: 08-2100 Document: 00113553603 Page: 19 Date Filed: 02/23/2009 Entry ID: 5320817
After the District Court issued its Final Judgment, the Commissioner repeatedly sought to narrow the scope of the permanent injunction. He based his third and final attempt (his May 12th motion for reconsideration) on facts and legal arguments that he had known about, but chosen not to submit, at trial or anytime prior to the entry of judgment. These facts and arguments focused on supposed financial, technical, and administrative obstacles to providing CCTV access to Jum’ah services to nine segregated units located in DOC facilities other than MCICedar Junction. The District Court could have flatly rejected the Commissioner’s attempt at supplementation as untimely because a motion for reconsideration “is not appropriately used to present new issues or evidence.”41 Instead, the District Court simply ruled that no actual controversy existed as to the specifics of such other DOC units that was ripe for judicial review because neither Mr. Hudson nor Mr. Tyler was, or imminently would be, housed in any of those units.
The Commissioner now tries to challenge both the validity ab initio of the District Court’s permanent injunction and the propriety of the District Court’s denial of his motion to reconsider that injunction’s scope. Only the latter is truly and properly before this Court. Appellate Rule 3 denies this Court jurisdiction
41 Jorge Rivera Surillo & Co. v. Falconer Glass Indus., Inc., 37 F.3d 25, 29 (1st Cir. 1994) (declining to consider arguments raised for the first time on a Civil Rule 59(e) motion to alter or amend judgment)
- 12 -

Case: 08-2100 Document: 00113553603 Page: 20 Date Filed: 02/23/2009 Entry ID: 5320817
over any challenge to the April 11th Final Judgment because the Commissioner specifically limited his Notice of Appeal to the June 19th Order denying reconsideration (see infra pp. 16–18). Appellate Rule 4 also denies this Court jurisdiction over any assault on the April 11th Final Judgment because the Commissioner did not file his Notice of Appeal until more than ninety days after the District Court entered that judgment, and his two intervening motions (both of which he now characterizes as arising under Civil Rule 59(e)) did not toll Appellate Rule 4’s thirty-day deadline long enough to excuse his late filing (pp. 18–22).
Even if this Court rules that it has jurisdiction over the April 11th Final Judgment, that Order was not an abuse of the District Court’s discretion. The Commissioner now claims that the District Court erred only by failing to include in its analysis facts and argument that were not even in the record until his May 12th motion for reconsideration—more than a month later. Thus, they cannot be the basis for any challenge to the propriety or validity of the April 11th Final Judgment (pp. 26–28). On the record then before it, the District Court properly applied RLUIPA and, in so doing, met the PLRA’s requirements (pp. 29–30).
As to the June 19th Order denying reconsideration of the injunction’s scope, which is properly before this Court, the Commissioner cannot establish that the
- 13 -

Case: 08-2100 Document: 00113553603 Page: 21 Date Filed: 02/23/2009 Entry ID: 5320817
District Court clearly abused its discretion. The District Court’s stated basis for that decision—lack of a case or controversy that was ripe for review—was supportable given that the Commissioner’s supplemental offering consisted of facts specific to facilities at which neither Mr. Hudson nor Mr. Tyler was, or imminently would be, housed (pp. 32–38). Moreover, the Commissioner has waived any argument under the PLRA because he never developed it before the District Court (pp. 46–48). Finally, and most importantly, the Commissioner had no right to reconsideration based on additional facts and argument aimed at the compelling governmental interest/least restrictive means portion of the RLUIPA analysis when he had the burden of proof on those issues at trial and simply chose not to introduce such facts and argument (pp. 38–46). Civil Rule 59(e) “does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment.”42
In sum, the District Court issued an injunction that was just broad enough to remedy the RLUIPA violation that it found—to “correct the violation of the Federal right” at issue, as the PLRA requires.43 The Commissioner’s proposed
42 Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997) (quoting Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)) 43 See 18 U.S.C. § 3626(a)(1)(A)
- 14 -

Case: 08-2100 Document: 00113553603 Page: 22 Date Filed: 02/23/2009 Entry ID: 5320817
narrowing—to cover only MCI-Cedar Junction—would render the injunction toothless. The Commissioner has the unbridled discretion to transfer Mr. Hudson and Mr. Tyler between DOC facilities and units whenever he chooses (and, indeed, already has done so with Mr. Hudson). Under the Commissioner’s proposal, he could free himself from the District Court’s injunction at will simply by making such a transfer and thereby forcing Mr. Hudson and/or Mr. Tyler to start the administrative grievance and litigation process anew despite their success in this case. Neither RLUIPA, nor the PLRA, nor basic principles of equity would countenance (much less require) such a result (pp. 48–50). The District Court did not clearly abuse its discretion by avoiding such an outcome when it declined to narrow the injunction’s scope.
ARGUMENT I. The Commissioner’s Appeal is Limited to the District Court’s June 19th
Denial of Reconsideration Because This Court Lacks Jurisdiction Over Any Challenge to the District Court’s April 11th Final Judgment. The Commissioner frames the issue before this Court as “[w]hether the District Court erred in failing to limit prospective relief with respect to plaintiffs’ access to closed-circuit television broadcasts of Jum’ah services to the Special Management Unit of MCI-Cedar Junction”44 and begins his argument by stating that “[t]he District Court’s Final Judgment … failed to comply with the 44 App. Br. at 1–2
- 15 -

Case: 08-2100 Document: 00113553603 Page: 23 Date Filed: 02/23/2009 Entry ID: 5320817
requirements of the PLRA … and RLUIPA.”45 But the District Court’s April 11th Final Judgment is not actually before this Court—only its June 19th Order denying reconsideration is. That is because: (1) the Commissioner identified only the June 19th Order in his Notice of Appeal,46 and (2) that Notice of Appeal was untimely as to the April 11th Final Judgment.47
A. Appellate Rule 3 Precludes Jurisdiction Over the April 11th Final Judgment Because the Commissioner’s Notice of Appeal Referenced Only the June 19th Denial of Reconsideration.
Appellate Rule 3(c)(1)(B) provides that “[t]he notice of appeal must … designate the judgment, order, or part thereof being appealed.” The Supreme Court has held that, while somewhat flexible, this requirement ultimately is “jurisdictional in nature” and “noncompliance is fatal to an appeal.”48 This Court has enforced that rule by refusing to consider challenges to district court orders that appellants failed to identify within their notices of appeal.49
45 App. Br. at 10–11 46 See Fed. R. App. P. 3(c)(1)(B) 47 See Fed. R. App. P. 4(a)(1)(A) 48 Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct. 678, 682, 116 L. Ed. 2d 678, 685 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315–18, 108 S. Ct. 2405, 2408–09, 101 L. Ed. 2d 285, 290–91 (1988) (superseded on other grounds as stated in, e.g. Flaherty v. Gas Research Inst., 31 F.3d 451, 458 (7th Cir. 1994)) 49 See, e.g., Constructora Andrade Gutiérrez, S.A. v. American Int’l Ins. Co. of Puerto Rico, 467 F.3d 38, 43–45 (1st Cir. 2006)
- 16 -

Case: 08-2100 Document: 00113553603 Page: 24 Date Filed: 02/23/2009 Entry ID: 5320817
As set forth above, the District Court entered Final Judgment on April 11, 2008. After seeking and receiving confirmation that the permanent injunction contained within that judgment was not restricted to Ten Block at MCI-Cedar Junction, the Commissioner moved for reconsideration of the Final Judgment on May 12, 2008, based on additional evidence that he had declined to submit at trial. The District Court denied that motion on June 19, 2008, and the Commissioner filed his Notice of Appeal on July 17, 2008.
But the Commissioner’s Notice of Appeal never mentions the District Court’s April 11th Final Judgment. 50 Instead, it specifically confines itself to “the Order denying [the Commissioner’s] Motion for Reconsideration of Final Judgment with Regard to Broadcast of Jum’ah Services in Special Management Units Other Than Ten Block, entered in this action on June 19, 2008.” 51 In this circuit and others, “[t]he general rule is that ‘[i]f an appellant … chooses to designate specific determinations in his notice of appeal—rather than simply appealing from the entire judgment—only the specified issues may be raised on appeal.’”52 In particular, this Court has held that “an appeal from the denial of a
50 See Supp. RA 103 51 Supp. RA 103 52 Constructora Andrade Gutiérrez, 467 F.3d at 43 (quoting United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir. 1999))
- 17 -

Case: 08-2100 Document: 00113553603 Page: 25 Date Filed: 02/23/2009 Entry ID: 5320817
[Civil] Rule 59(e) motion is not an appeal from the underlying judgment.”53 Thus, pursuant to Appellate Rule 3, this Court lacks jurisdiction to consider the Commissioner’s challenge to the initial validity of the April 11th permanent injunction and should confine its review to the District Court’s June 19th denial of reconsideration.
B. Appellate Rule 4 Also Denies This Court Jurisdiction Over the April 11th Final Judgment Because the Commissioner’s Notice of Appeal Was Not Timely As To That Judgment.
This Court also lacks jurisdiction over the Commissioner’s arguments that the District Court’s injunction was void ab initio because the Commissioner failed to appeal that injunction within the required timeframe. Appellate Rule 4(a)(1)(A) provides that, “[i]n a civil case, except as provided in [Appellate] Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by [Appellate] Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.” It is well settled that Appellate Rule 4’s deadlines are mandatory and
53 Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir. 1991) (finding no jurisdiction to review underlying judgment dismissing complaint because appellants limited their notice of appeal to district court’s denial of motion to set aside that judgment)
- 18 -

Case: 08-2100 Document: 00113553603 Page: 26 Date Filed: 02/23/2009 Entry ID: 5320817
jurisdictional54—an appellant’s failure to abide by them requires dismissal even if no party so requests.55
The District Court entered its Final Judgment on April 11, 2008. Thus, unless one of the specified exceptions to Appellate Rule 4(a)(1)(A) applies, the Commissioner’s notice of appeal challenging any aspect of that judgment was due no later than May 11, 2008, and his July 17, 2008, Notice of Appeal was more than two months too late to do so.
The only arguably-applicable exception to Appellate Rule 4(a)(1)(A) covers certain post-judgment motions filed in the district court, including Civil Rule 59(e) motions to alter or amend judgment.56 The Commissioner filed a request for clarification of the District Court’s Final Judgment on April 16, 2008, and a motion for reconsideration of that judgment on May 12, 2008. The Commissioner now
54 Bowles v. Russell, 551 U.S. 205, ---, ---, 127 S. Ct. 2360, 2363, 2366, 168 L. Ed. 2d 96, 102, 105 (2007) 55 In re Perry Hollow Mgmt. Co., 297 F.3d 34, 38 (1st Cir. 2002) (citing AcevedoVillalobos v. Hernandez, 22 F.3d 384, 387 (1st Cir. 1994), for the proposition that this Court “lacks jurisdiction over late appeals”) 56 See Fed. R. App. P. 4(a)(4)(A)(iv)
- 19 -

Case: 08-2100 Document: 00113553603 Page: 27 Date Filed: 02/23/2009 Entry ID: 5320817
characterizes both as Civil Rule 59(e) motions and argues that each one reset Appellate Rule 4(a)(1)(A)’s thirty-day clock.57
Even assuming that the Commissioner is correct to characterize both as motions arising under Civil Rule 59(e) (as opposed to non-motion requests or motions under Civil Rule 60(b)), he is incorrect as to their tolling effect. His April 16th request for clarification resulted in no change to the District Court’s Final Judgment—the District Court simply confirmed that it had indeed meant what it had already said when it resolved the parties’ dispute over the form of judgment and defined the scope of its permanent injunction to include SMUs generally, not just Ten Block. A court-issued clarification of judgment does not suspend or restart Appellate Rule 4’s clock unless it “alters matters of substance or resolves some genuine ambiguity.”58 Moreover, the District Court issued that clarification on April 28, 2008. Thus, even if the Commissioner’s April 16th request did extend the Appellate Rule 4 deadline, it did so to no later than May 28, 2008, rendering the July 17th Notice of Appeal still more than fifty days late.
57 The Commissioner filed his request for clarification as a “letter/request” and not as a motion pursuant to Civil Rule 59(e). RA 16 (Docket No. 111); see RA 46–47. Only now does the Commissioner attempt to re-categorize it as a Civil Rule 59(e) motion, in an attempt to rescue his untimely appeal. 58 See Airline Pilots Ass’n v. Precision Valley Aviation, Inc., 26 F.3d 220, 223 n.2 (1st Cir. 1994)
- 20 -

Case: 08-2100 Document: 00113553603 Page: 28 Date Filed: 02/23/2009 Entry ID: 5320817
The Commissioner’s May 12th motion had no effect on the Appellate Rule 4 clock for two reasons. First, it was untimely. Civil Rule 59(e) provides that “a motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment.”59 The Commissioner filed his May 12th motion more than thirty days after the District Court entered Final Judgment. Such an untimely Civil Rule 59(e) motion does not toll Appellate Rule 4.60
Second, the Commissioner characterizes the May 12th Civil Rule 59(e) motion as his second such filing (counting the April 16th request for clarification as his first). “[O]nly the first [Civil] Rule 59(e) motion tolls the time to appeal from the judgment, unless the judgment is subsequently altered … [o]therwise a litigant could extend the time to appeal indefinitely simply by filing successive [Civil] Rule 59(e) motions.”61 Therefore, the Commissioner’s May 12th motion did not toll Appellate Rule 4 even if it was timely.
59 (Emphasis added) 60 See García-Velázquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 8–9 (1st Cir. 2004) (dismissing appeal as untimely because Civil Rule 59(e) motion filed one day beyond ten-day time limit did not toll Appellate Rule 4). 61 Borrero v. City of Chicago, 456 F.3d 698, 700–01 (7th Cir. 2006) (Posner, J.) (internal citations omitted); accord Aybar, 118 F.3d at 13–15 (finding no jurisdiction to review district court’s original judgment because appellant relied on successive Civil Rule 59(e) motions to toll Appellate Rule 4 filing deadline); accord Johnson v. Teamsters Local 559, 102 F.3d 21, 29–30 (1st Cir. 1996) (same)
- 21 -

Case: 08-2100 Document: 00113553603 Page: 29 Date Filed: 02/23/2009 Entry ID: 5320817
This Court has explained that “a timely appeal from an order denying a motion for reconsideration brought other than in conformity with [Civil] Rule 59(e) does not resurrect the appellant’s expired right to contest the merits of the underlying judgment, nor bring the judgment itself before the court of appeals for review.”62 In short, while the Commissioner’s Notice of Appeal was timely as to the decision at which he expressly targeted it—the District Court’s June 19th denial of his motion for reconsideration—it was untimely as to the underlying Final Judgment that he only now attempts to impugn. Accordingly, this Court lacks jurisdiction over that aspect of the Commissioner’s challenge.
II. Even if This Court Finds Jurisdiction Over the April 11th Final Judgment, That Judgment Stands Because the Commissioner Has Effectively Conceded That the District Court Did Not Abuse Its Discretion on the Record Then Before It. Should this Court rule, despite the arguments set forth above, that it has
jurisdiction over the District Court’s April 11th Final Judgment, there still is no basis on which to upset that judgment. The District Court based its judgment and injunction on a RLUIPA analysis.63 Enacted pursuant to Congress’s Spending Clause authority, RLUIPA requires, inter alia, that government institutions that
62 Airline Pilots Ass’n, 26 F.3d at 223–24 (internal quotation marks and original brackets omitted); accord Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989) 63 See, e.g., RA 36–39
- 22 -

Case: 08-2100 Document: 00113553603 Page: 30 Date Filed: 02/23/2009 Entry ID: 5320817
accept federal money to help fund correctional operations (such as the DOC) must be more scrupulous in protecting inmate religious exercise than the United States Constitution would otherwise demand.64 More specifically, RLUIPA provides, inter alia, that:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to [a state or local correctional] institution … even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.65
The resulting test for a RLUIPA violation requires the institutionalized plaintiff to prove a substantial burden on the exercise of his or her sincerely-held religious belief, after which the burden shifts to the government defendant to show that that burden (1) furthers a compelling governmental interest and (2) is the least restrictive means of doing so.66 “Mere[] assert[ion]” of a compelling interest will not suffice—this Court has held that, once a RLUIPA plaintiff has made the required substantial burden/sincerely-held belief showing, “[a] prison ‘cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually
64 See Spratt, 482 F.3d at 41 n.12; see Charles v. Verhagen, 348 F.3d 601, 606–09 (7th Cir. 2003) 65 42 U.S.C. § 2000cc-1(a) 66 Spratt, 482 F.3d at 38
- 23 -

Case: 08-2100 Document: 00113553603 Page: 31 Date Filed: 02/23/2009 Entry ID: 5320817
considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.’”67
Over the course of a six-day trial, Messrs. Hudson and Tyler proved that the DOC’s policy of denying them live access to Jum’ah services whenever it confined them in segregated units substantially burdened the exercise of their sincerely-held religious belief.68 The District Court then (appropriately) shifted the burden to the Commissioner.69 The Commissioner attempted to counter Plaintiffs’ showing by relying solely on DOC policies and practices that denied inmate access to televisions while confined in SMUs and the reasons underlying those policies (the temporary nature of SMU detention, purported security risks associated with having a television in an inmate’s cell, and the desire to avoid any incentive for inmates to seek SMU detention).70 He offered no other evidence in support of his burden to show a compelling governmental interest and the least restrictive means of furthering it.
67 Spratt, 482 F.3d at 39, 41 (quoting Murphy v. Missouri Dep’t of Corrs., 372 F.3d 979, 988 (8th Cir. 2004) and Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005)) (emphasis added) 68 RA 39, ¶¶ 8–9 69 RA 39, ¶¶ 10–11 70 See Supp. RA 50–54 [Tr. V/94–99]
- 24 -

Case: 08-2100 Document: 00113553603 Page: 32 Date Filed: 02/23/2009 Entry ID: 5320817
The District Court ruled that, while the Commissioner had met his burden to show that denying Messrs. Hudson and Tyler in-person attendance at Jum’ah services while they were confined in SMUs was the least restrictive means to promote the compelling interests of prison discipline and security, he had failed to meet his burden with respect to denying them participation by means of live CCTV.71 Accordingly, the District Court found that denial of live CCTV access to Jum’ah services constituted a RLUIPA violation and entered judgment enjoining such access.72 Because the Plaintiffs’ showing applied with equal force no matter where they were housed and the Commissioner offered no evidence that his countervailing concerns differed across facilities, the District Court did not so limit the scope of its injunction.73
The Commissioner now claims to attack the validity of the District Court’s April 11th Final Judgment, but the points set forth in his brief do not actually do so. They are premised entirely on facts and argument that he knew of at the time of trial but declined to present to the District Court until his May 12th motion for reconsideration—more than a month after judgment entered.74 Thus, the
71 See RA 39, ¶¶ 10–11 72 See RA 43, ¶ 15 73 See RA 43, ¶ 18; RA 51 74 See RA 53–68
- 25 -

Case: 08-2100 Document: 00113553603 Page: 33 Date Filed: 02/23/2009 Entry ID: 5320817
Commissioner implicitly concedes that the District Court did not abuse its discretion in crafting its Final Judgment on the record that was before it on April 11th.
A. The Commissioner’s Assignments of Error on Appeal Do Not Implicate the April 11th Final Judgment Because They Rely Entirely On Facts and Argument that the Commissioner Introduced Only After That Judgment Entered.
In his May 12th motion for reconsideration, the Commissioner submitted additional facts that he had chosen not to submit at trial.75 These focused on additional purported obstacles to providing CCTV access to Jum’ah services that were specific to segregated units in DOC facilities other than MCI-Cedar Junction.76
The Commissioner’s arguments on appeal rely exclusively on those “new” facts. Boiled down to its basics, his argument proceeds as follows:
(1) Wiring segregated units in DOC facilities other than MCI-Cedar Junction for CCTV access to Jum’ah services would take time, cost money, and cause construction-related administrative disruption.77
(2) Because the DOC does not wish to spend the time and money or endure the administrative disruption that would be required, the
75 See RA 53–68 76 See RA 53–68 77 See App. Br. at 16
- 26 -

Case: 08-2100 Document: 00113553603 Page: 34 Date Filed: 02/23/2009 Entry ID: 5320817
Commissioner’s ability to transfer Messrs. Hudson and Tyler between facilities for safety or other reasons is circumscribed.78 (3) The District Court failed to sufficiently consider these cost, disruption, and security concerns in its RLUIPA analysis before it defined the scope of the RLUIPA violation (and, thus, its permanent injunction) to extend beyond MCI-Cedar Junction.79 (4) Therefore, the District Court’s injunction is broader than either RLUIPA or the PLRA allow to the extent that it extends beyond MCICedar Junction.80
For that reason, the Commissioner’s arguments on appeal do not even implicate the validity of the District Court’s April 11th Final Judgment. None of the supposed evidence of cost, delay, administrative disruption, or threats to institutional safety on which the Commissioner bases his arguments to this Court was in the record as of April 11th because the Commissioner, by his own admission, chose not to submit any of it at trial.81 Thus, even if this Court finds that it has jurisdiction over the April 11th Final Judgment, it cannot adopt any of
78 See App. Br. at 17–18 79 See App. Br. at 18–22 80 See App. Br. at 11, 18–19 81 See RA 57
- 27 -

Case: 08-2100 Document: 00113553603 Page: 35 Date Filed: 02/23/2009 Entry ID: 5320817
the Commissioner’s PLRA or RLUIPA arguments that purport to challenge that judgment without making an untenable ruling: that the District Court abused its discretion by failing to consider evidence that the party who had the burden of proof declined to put before it prior to its ruling.82
82 To be clear, Messrs. Hudson and Tyler do not concede that cost, delay, administrative disruption, or purported security concerns arising therefrom constitute compelling governmental interests for purposes of RLUIPA. To the contrary, to count any of those as a sufficient basis on which to impose substantial burdens upon inmates’ sincerely-held religious beliefs would render RLUIPA a nullity—the First Amendment already prescribed rational basis review of burdens on inmate free exercise of religion and RLUIPA was designed to provide more robust protection at those facilities that receive federal funds. See Spratt, 482 F.3d at 41 n.12; see also Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795, 10 L. Ed. 2d 965, 972 (1963) (to demonstrate a compelling governmental interest, “no showing merely of a rational relationship to some colorable state interest would suffice … [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation [of the established right]”) (quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S. Ct. 315, 323, 89 L. Ed. 430 (1945)) (overruled on related, but separate, grounds as stated in, e.g. Terrell v. Montalbano, C.A. No. 7:07-cv-00518, 2008 U.S. Dist. LEXIS 84260, at *21 n.2, 2008 WL 4679540, at *8 n.2 (W.D. Va. Oct. 21, 2008))
- 28 -

Case: 08-2100 Document: 00113553603 Page: 36 Date Filed: 02/23/2009 Entry ID: 5320817
B. The District Court Did Not Abuse Its Discretion Because Its April 11th Injunction Complied With Both RLUIPA and the PLRA on the Evidentiary Record Then Before It.
Even were this Court to review the scope of the District Court’s April 11th Final Judgment, it should do so only for abuse of discretion.83 There was no such abuse of discretion.
First, the Commissioner has waived any PLRA-based challenge to the Final Judgment. He made no suggestion that the scope of the District Court’s Jum’ah service access injunction violated the PLRA until his May 12th motion for reconsideration (and even then, only in perfunctory fashion insufficient to preserve the issue for appeal, as discussed below at pp. 46–48).84
Moreover, on the record then before it, the District Court appropriately conducted the RLUIPA analysis and, through that analysis, made the “neednarrowness-intrusiveness” findings that both the PLRA and Civil Rule 65
83 See Esso Std. Oil Co. (Puerto Rico) v. Lopez-Freytes, 522 F.3d 136, 142–43 (1st Cir. 2008) (“the scope of [a permanent] injunction is reviewed for abuse of discretion”); see A.W. Chesterton Co. v. Chesterton, 128 F.3d 1, 5 (1st Cir. 1997) (“We review the district court’s grant of a permanent injunction for abuse of discretion”) 84 See Morales Feliciano v. Rullán, 378 F.3d 42, 49 (1st Cir. 2004) (“It is a bedrock rule that when a party has not presented an argument to the district court, [he] may not unveil it in the court of appeals.”) (quoting United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992)), cert. denied, 543 U.S. 1054, 125 S. Ct. 910, 160 L. Ed. 2d 776 (2005)
- 29 -

Case: 08-2100 Document: 00113553603 Page: 37 Date Filed: 02/23/2009 Entry ID: 5320817
require.85 The Commissioner admits as much when he concedes that the District Court made the required PLRA findings with respect to CCTV access to Jum’ah services in Ten Block.86 If the District Court’s findings were sufficient as to Ten Block, they were sufficient as to the entire DOC system because the
Commissioner, whose burden it was to do so, put nothing into the evidentiary record that would differentiate other facilities from Ten Block on the issues of compelling governmental interest and least restrictive means. Thus, the District Court’s findings and the Commissioner’s concession apply equally to all DOC facilities and the District Court did not abuse its discretion.
III. The District Court Acted Well Within Its Considerable Discretion When It Denied the Commissioner’s Motion for Reconsideration. The Commissioner faces a near-insurmountable task in challenging the
District Court’s June 19, 2008, Order denying his motion for reconsideration. A Civil Rule 59 motion “is addressed to the discretion of the district court,”87 and
85 See Morales Feliciano v. Calderon Serra, 300 F. Supp. 2d 321, 332 (D.P.R. 2004) (PLRA basically mimics longstanding Civil Rule 65 requirement of “neednarrowness-intrusiveness” findings before issuing injunctive relief), aff’d sub nom. Morales Feliciano v. Rullán, 378 F.3d 42; accord Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001) (“[T]he [PLRA] merely codifies existing law and does not change the standards for determining whether to grant an injunction.”), cert. denied, 534 U.S. 1066, 122 S. Ct. 667, 151 L. Ed. 2d 581 (2001); accord Smith v. Arkansas Dep’t of Corr., 103 F.3d 637, 647 (8th Cir. 1996) (same) 86 See App. Br. at 12 87 Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 743 (1st Cir. 1982)
- 30 -

Case: 08-2100 Document: 00113553603 Page: 38 Date Filed: 02/23/2009 Entry ID: 5320817
courts and leading commentators have called that discretion “broad” and “considerable.”88 Presumably for that very reason, this Court “will overturn a district court’s denial of a motion for reconsideration only if the record evinces a clear abuse of discretion.”89
On the record before this Court, the Commissioner cannot establish anything approaching such a failure on the District Court’s part. The District Court’s stated reason for its ruling—lack of ripeness—was justifiable. Moreover, other independently-sufficient bases, such as the Commissioner’s misuse of a Civil Rule 59(e) motion to introduce facts and argument that he chose to omit at trial, also supported the District Court’s decision.
88 E.g. Washington Mobilization Comm. v. Jefferson, 617 F.2d 848, 850 (D.C. Cir. 1980) (discussing Civil Rule 59(a) motion); e.g. 12 James Wm. Moore, Moore's Federal Practice § 59.30[4] (3d ed. 2008) (going on to note that reconsideration “is an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources”) (citing, inter alia, Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355–56 (5th Cir. 1993)) 89 Airline Pilots Ass’n, 26 F.3d at 227 (describing the required showing as a “steep climb” for the appellant); accord Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st Cir. 1994) (“We review a trial court’s decision denying a Rule 59(e) motion to alter or amend a judgment for manifest abuse of discretion”); accord Fragoso v. Lopez, 991 F.2d 878, 888 (1st Cir. 1993)
- 31 -

Case: 08-2100 Document: 00113553603 Page: 39 Date Filed: 02/23/2009 Entry ID: 5320817
A. The District Court Was Well Within Its Discretion in Deciding that the Commissioner’s Attempt to Narrow the Scope of the Permanent Injunction Was Not Ripe For Adjudication.
The District Court ruled that the Commissioner’s attempt to narrow the scope of the injunction presented no actual controversy that was ripe for review.90 The Commissioner had sought to narrow the injunction’s scope through the presentation of facility-specific evidence concerning segregated units in which neither Mr. Hudson nor Mr. Tyler then was, nor imminently would be, housed.91 The District Court did not clearly abuse its discretion because neither factor in the ripeness analysis—(1) fitness for judicial review and (2) hardship to the parties if such review is withheld—favored the Commissioner.92 To have any hope of establishing that the District Court clearly abused its discretion, the Commissioner
90 See RA 87 91 See RA 53–68 92 See Doe v. Bush, 323 F.3d 133, 138 (1st Cir. 2003) (describing mechanics of ripeness inquiry) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)); see McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003) (same)
- 32 -

Case: 08-2100 Document: 00113553603 Page: 40 Date Filed: 02/23/2009 Entry ID: 5320817
must demonstrate that both factors weigh in favor of immediate adjudication of his challenge.93 He cannot do so.94
The fitness prong of the ripeness doctrine amply supports the District Court’s decision. This Court has explained that the “basic function” of the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.”95 The District Court’s ruling serves this purpose because the Commissioner may never transfer Mr. Hudson or Mr. Tyler to a special management unit other than Ten Block. Even if the Commissioner does do so, one cannot predict now which particular unit(s) may be involved.
Had the District Court permitted the Commissioner a second bite at the apple to show that denying Plaintiffs access to televised Jum’ah services is the least restrictive means to further a compelling government interest in at least certain DOC facilities, the Commissioner would have had to litigate physical and
93 Doe, 323 F.3d at 138; McInnis-Misenor, 319 F.3d at 70 94 While this Court should apply the clear abuse of discretion standard of review to the District Court’s denial of reconsideration generally, the District Court’s decision will pass muster even if this Court reviews its ripeness determination de novo. See, e.g., Doe, 323 F.3d at 138. 95 Doe, 323 F.3d at 138 (quoting Abbott Labs., 387 U.S. at 148, 87 S. Ct. 1507, 18 L. Ed. 2d 681); Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 33–34 (1st Cir. 1999) (quoting same)
- 33 -

Case: 08-2100 Document: 00113553603 Page: 41 Date Filed: 02/23/2009 Entry ID: 5320817
financial constraints unique to as many as nine other SMUs.96 Messrs. Hudson and
Tyler almost certainly will not ever be assigned to all of those SMUs and may
never be assigned to even one of them. This Court has clearly explained that the
fact “[t]hat the future event may never come to pass augurs against a finding of fitness.”97
Another basis for the fitness prong of the ripeness doctrine is “the
recognition that, by waiting until a case is fully developed before deciding it, courts benefit from a focus sharpened by particular facts.”98 The District Court’s
decision is well-supported on this ground as well. Should the Commissioner
assign either Mr. Hudson or Mr. Tyler to an SMU other than Ten Block during the
remainder of his sentence, one simply cannot predict at this point which SMU that
might be, when that assignment might take place, or what physical or financial
circumstances might then exist.
96 See RA 61, ¶ 3 97 McInnis-Misenor, 319 F.3d at 72; see also id. at 70 (“The critical question concerning fitness for review is whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all.”) (quoting Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995)); accord, e.g., City of Fall River, Mass. v. FERC, 507 F.3d 1, 6 (1st Cir. 2007) (“the prospect of entangling ourselves in a challenge to a decision whose effects may never be felt in a concrete way by the challenging parties is an especially troublesome one”) (internal quotation marks and citation omitted) 98 Doe, 323 F.3d at 138 (citing Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 736, 118 S. Ct. 1665, 140 L. Ed. 2d 921 (1998))
- 34 -

Case: 08-2100 Document: 00113553603 Page: 42 Date Filed: 02/23/2009 Entry ID: 5320817
This Court has stated that “[t]he baseline [fitness] question is whether allowing more time for development of events would ‘significantly advance our ability to deal with the legal issues presented [or] aid us in their resolution.’”99 Here, no need to revisit the RLUIPA analysis based upon the specific circumstances of other SMUs may ever arise and, as this Court has explained, “Federal courts cannot—and should not—spend their scarce resources on what amounts to shadow boxing.”100 Even if the Commissioner uses his total control of inmate transfers to engineer such an event, one cannot predict now which SMU will be involved or trust that the factual circumstances surrounding that SMU then will be the same as now. Since the Commissioner’s argument “depends on future events that may never come to pass, or that may not occur in the form forecasted,” his request to present further evidence in an attempt to narrow the injunction is unripe.101 Thus, the District Court did not clearly abuse its discretion as to the fitness prong of the ripeness test.
99 Doe, 323 F.3d at 138 (quoting Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 82, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978); additional citations omitted) 100 McInnis-Misenor, 319 F.3d at 72 (quoting Ernst & Young, 45 F.3d at 537) 101 See id. (quoting Ernst & Young, 45 F.3d at 537)
- 35 -

Case: 08-2100 Document: 00113553603 Page: 43 Date Filed: 02/23/2009 Entry ID: 5320817
The hardship inquiry requires even less analysis. Hardship “typically turns upon whether the challenged action creates a direct and immediate dilemma for the parties.”102 There is no such dilemma here.
First, it is not as if the Commissioner must choose between complying with the District Court’s injunction or exercising some fundamental civil right that he possesses.103 He is merely seeking a second chance to put in additional evidence and argument concerning the compelling interest and least restrictive means elements of RLUIPA that he chose not to submit at trial.
Second, it is the Commissioner, not Messrs. Hudson or Tyler or anyone else, that has sole control over Messrs. Hudson’s and Tyler’s unit placements.104 The Commissioner will only find himself in a position to have to comply with the District Court’s injunction outside of Ten Block if and when he chooses to create that situation. He certainly does not “lack a realistic opportunity to secure
102 McInnis-Misenor, 319 F.3d at 70 (citations and internal quotation marks omitted); Rhode Island Ass’n of Realtors, 199 F.3d at 33 (same) 103 Cf., e.g., Rhode Island Ass’n of Realtors, 199 F.3d at 34 (finding hardship where plaintiff association had to choose between complying with state law and engaging in Constitutionally-protected expression) 104 See Mass. Gen. Laws c. 127, § 97; see also App. Br. at 17
- 36 -

Case: 08-2100 Document: 00113553603 Page: 44 Date Filed: 02/23/2009 Entry ID: 5320817
comparable relief by bringing [his request] at a later time” when he alone controls the timeline.105
The Commissioner argues that the hardship prong favors present adjudication of his motion to narrow the injunction because his department will have to undertake a “time-consuming and costly process” to put itself in a position to provide closed-circuit television access to Jum’ah services in SMUs other than Ten Block.106 But the time and cost required presumably differs markedly from facility to facility. To re-adjudicate the issue now, after a full trial on the merits, the District Court would have to take new evidence specific to each and every SMU within the DOC system to which Mr. Hudson or Mr. Tyler possibly ever could be assigned. The District Court prudently chose not to entertain this evidence now and instead to deal with specific issues—if any—as they arise.
In sum, the District Court correctly ruled that any post hoc attempt by the Commissioner to narrow the injunction based on unit-specific facts that he neglected to adduce at trial is unripe until such time, if any, as a particular SMU other than Ten Block becomes an issue. If such an event does occur—a contingency completely within the Commissioner’s control—he remains free to
105 Cf. Doe, 323 F.3d at 138 106 App. Br. at 27
- 37 -

Case: 08-2100 Document: 00113553603 Page: 45 Date Filed: 02/23/2009 Entry ID: 5320817
seek relief from the District Court’s injunction at that time, when the specific unit (and purported constraints) at issue are known. To be clear, as argued in the next subsection, Messrs. Hudson and Tyler maintain that the Commissioner should not get a second bite at the evidentiary apple even at that point unless it is strictly limited to evidence not available to him at the time of trial. But regardless of how the District Court rules on that issue, there certainly is no pressing need to consider any additional evidence before such time as a controversy actually arises. Accordingly, the District Court’s decision to deny the Commissioner’s motion for reconsideration was eminently reasonable; the District Court did not clearly abuse its discretion.
B. The District Court Would Have Been Justified to Deny the Commissioner’s Motion With Prejudice as He Improperly Sought to Raise Points That He Knew About But Withheld During Trial.
The Commissioner used his Civil Rule 59(e) motion for reconsideration to bring before the District Court, for the first time, facts and argument that he knew about, but decided not to raise, prior to the entry of Final Judgment. This Court has clearly and repeatedly held that Civil Rule 59(e) “does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have
- 38 -

Case: 08-2100 Document: 00113553603 Page: 46 Date Filed: 02/23/2009 Entry ID: 5320817
been presented to the district court prior to the judgment.”107 Where a party makes a “strategic choice” to rely on some evidence or arguments and omit others, “it must live with the consequences of that choice” rather than getting a second bite at the apple through reconsideration.108 Thus, the Commissioner actually got better than what he deserved in the District Court’s denial of his motion without prejudice on ripeness grounds—the District Court could have (and, in Plaintiffs’ view, should have) denied the Commissioner’s motion with prejudice for misuse of Civil Rule 59(e).
In his Motion for Reconsideration, the Commissioner countered that he did not realize that segregated units other than MCI-Cedar Junction’s Ten Block were
107 Aybar, 118 F.3d at 16 (quoting Moro, 91 F.3d at 876); accord, e.g., Jorge Rivera Surillo, 37 F.3d at 29 (declining to consider arguments raised for the first time on a Civil Rule 59(e) motion to alter or amend judgment because such a motion “is not appropriately used to present new issues or evidence”); accord, e.g., FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992) (same) 108 Marks 3-Zet-Ernst Marks GMBH & Co. KG v. Presstek, Inc., 455 F.3d 7, 17– 18 (1st Cir. 2006)
- 39 -

Case: 08-2100 Document: 00113553603 Page: 47 Date Filed: 02/23/2009 Entry ID: 5320817
at issue in this case until after trial.109 That argument was disingenuous for three reasons.
First, Messrs. Hudson and Tyler have, since the beginning of this litigation, sought system-wide relief to remedy the DOC’s violations of their RLUIPA rights. In their Amended Complaint, they requested that the District Court:
Enter a permanent injunction ordering Defendant to allow plaintiffs to attend religious services without first having to register and allow plaintiffs to attend all Jumah services either in person or via closedcircuit television. 110 There was no geographic limitation to their request. While Plaintiffs were housed at MCI-Cedar Junction at the time they amended their complaint, the DOC has transferred them to various other facilities throughout the course of this litigation— a fact that the Commissioner never suggested altered the scope of the requested relief. 111 Furthermore, Messrs. Hudson and Tyler named the Commissioner of the DOC, not the Superintendent of MCI-Cedar Junction, as the defendant in their
109 See RA 55. Not surprisingly, the Commissioner has toned down that contention on appeal, simply hinting that only Ten Block was at issue during trial and faulting the District Court for not considering facts about other facilities that were not in evidence. See, e.g., App. Br. at 12–15 and nn.4 & 5. He still offers no justification for his own failure to submit such evidence at trial when RLUIPA placed the burden of doing so on him. See Spratt, 482 F.3d at 38. 110 Supp. RA 15 111 See Supp. RA 18, 20 [Tr. II/15, 70]
- 40 -

Case: 08-2100 Document: 00113553603 Page: 48 Date Filed: 02/23/2009 Entry ID: 5320817
Amended Complaint.112 That fact, too, should have alerted the Commissioner that more was at issue than just a single facility.
Second, as the Commissioner himself points out repeatedly, he is in complete control over inmate transfers and such transfers are quite common. 113 He explains that “circumstances, both foreseen and unforeseen, may develop at any time which will require that one or both Plaintiffs be transferred to another prison.” 114 At trial, Messrs. Hudson and Tyler each testified that he had experienced such transfers already during his incarceration, 115 and the DOC again transferred Mr. Hudson shortly after trial. The Commissioner was well aware at all times during this litigation that his department might change either Plaintiff’s facility assignment at any time, and that he had the sole power to effect such changes. Thus, the Commissioner argues that Messrs. Hudson and Tyler sought only relief that they knew he could completely avoid at any time simply by transferring them.
Finally, the Commissioner’s feigned ignorance is belied by the fact that he himself submitted at trial system-wide evidence concerning both denial of Jum’ah service access and denial of access to Halal meals (the second of three burdened
112 See Supp. RA 2, ¶6 113 See App. Br. at 19, 27 (citing Mass. Gen. Laws c. 127, § 97) 114 App. Br. at 27 115 Supp. RA 18, 20 [Tr. II/15, 70]
- 41 -

Case: 08-2100 Document: 00113553603 Page: 49 Date Filed: 02/23/2009 Entry ID: 5320817
religious beliefs on which Messrs. Hudson and Tyler brought their RLUIPA claim). Concerning Jum’ah service access, the Commissioner presented two key witnesses: Lisa Mitchell and Timothy Hall, the latter a deputy commissioner overseeing multiple DOC facilities. Both Mr. Hall’s and Ms. Mitchell’s direct testimony focused not on features unique to MCI-Cedar Junction but rather on the DOC’s system-wide policy banning televisions in SMUs and the reasons therefor: (1) the temporary nature of SMU detention, (2) the security risks associated with having a television in an inmate’s cell, and (3) the DOC’s desire to avoid any incentive for inmates to seek SMU detention.116 Ms. Mitchell also testified specifically to the SMU practices regarding televisions at Old Colony Correctional Center (“OCCC”).117 John Marshall, the Assistant Deputy Commissioner of the DOC, also testified as to SMU practices in different facilities, including Souza– Baranowski Correctional Center and OCCC.118 Mr. Marshall testified that, as Assistant Deputy Commissioner, he helped create a universal SMU policy to alleviate any differences in SMU policies among various facilities.119 Thus, the testimony regarding SMU policy at the DOC applied equally to all SMUs; it was not limited to Ten Block. 116 See Supp. RA 50–54 [Tr. V/94–98]; Supp. RA 28–30 [Tr. III/65–67]. 117 See Supp. RA 55 [Tr. V/122] 118 See Supp. RA 31–32 [Tr. III/87–88] 119 See Supp. RA 31–32 [Tr. III/87–88]
- 42 -

Case: 08-2100 Document: 00113553603 Page: 50 Date Filed: 02/23/2009 Entry ID: 5320817
The same is true with respect to the Commissioner’s evidence concerning access to Halal meals. In an (unsuccessful) effort to satisfy RLUIPA’s compelling interest/least restrictive means test, the Commissioner offered the testimony of DOC food services coordinator Christopher Gendreau. Mr. Gendreau testified about kitchen conditions and staffing at Southeastern Correctional Center (“SECC”) in Bridgewater, Massachusetts—a facility at which neither Mr. Hudson nor Mr. Tyler then was housed.120 Mr. Hall also testified on direct examination about his experiences with food preparation at MCI-Norfolk and the ability of that facility to accommodate Halal meals.121 The Commissioner also submitted testimony concerning its system-wide policy to deny Halal meals to inmates and its system-wide religious services review process, which evaluates all inmate religious services claims regardless of facility. (Curiously, the Commissioner does not dispute that the District Court’s injunction commanding the provision of Halal meals—arising from the same Amended Complaint, based on evidence from the same trial, and set forth in the same Final Judgment as the injunction addressing Jum’ah service access—covers facilities other than MCI-Cedar Junction.)
Messrs. Hudson and Tyler also introduced substantial evidence concerning facilities other than MCI-Cedar Junction. On cross examination, Allison Hallett, 120 Supp. RA 48–49 [Tr. V/22–3] 121 Supp. RA 22–27 [Tr. III/54–59]
- 43 -

Case: 08-2100 Document: 00113553603 Page: 51 Date Filed: 02/23/2009 Entry ID: 5320817
the chairperson of the DOC’s systemwide Religious Services Review Committee (“RSRC”), testified as to that committee’s decision to deny Halal meals to inmates at OCCC, SECC, MCI-Norfolk, and MCI-Shirley.122 Plaintiffs also introduced exhibit numbers 52 and 53, which covered five different facilities. These exhibits documented various requests from inmates seeking Halal meals, as well as the recommendations of various superintendents on those requests.123 Plaintiffs introduced these documents to show that several superintendents from different facilities could not identify any security reasons for prohibiting Halal meals to inmates at their facilities.124 The Commissioner’s suggestion that he had no notice that other facilities might be included in the District Court’s analysis is directly contradicted by the substantial evidence relating to other facilities that both parties presented at trial.
In his brief, the Commissioner relies heavily on the District Court’s finding that both the Departmental Disciplinary Unit (“DDU”) and SMU at MCI-Cedar Junction were pre-wired for CCTV to suggest that the District Court focused only
122 Supp. RA 34–46 [Tr. IV/68–77, 80–82] 123 Supp. RA 56–81 124 Supp. RA 56–81
- 44 -

Case: 08-2100 Document: 00113553603 Page: 52 Date Filed: 02/23/2009 Entry ID: 5320817
on facts specific to MCI-Cedar Junction in reaching its decision.125 It was Plaintiffs, however, that introduced this evidence regarding the wiring at MCICedar Junction in an attempt to refute the Commissioner’s argument that he had a compelling security reason for banning televisions in SMUs generally. The juxtaposition of the DDU policy allowing televisions and the SMU policy barring televisions demonstrated a gaping hole in the Commissioner’s policy rationales. As the District Court stated in finding for Plaintiffs, “the DOC has not suggested any meaningful distinction between inmates confined in the DDU, who are permitted closed-circuit access to Jum’ah services, and inmates in the SMU, who are not.” 126 Thus, the inclusion of such Ten Block-specific evidence in the record does not support the Commissioner’s argument that the entire case concerned nothing but Ten Block. It should not be surprising that Messrs. Hudson and Tyler submitted some evidence specific to MCI-Cedar Junction during trial—both were confined there at that time.
For all of these reasons, the Commissioner cannot now stick his head into the sand and claim that he never had an opportunity to present countervailing evidence concerning facilities other than MCI-Cedar Junction. Neither Mr. 125 See App. Br. at 13 (citing only one page of Plaintiffs’ cross-examination of Lisa Mitchell to support the Commissioner’s contention that all of the trial evidence was limited to MCI-Cedar Junction) 126 RA 39, ¶ 11
- 45 -

Case: 08-2100 Document: 00113553603 Page: 53 Date Filed: 02/23/2009 Entry ID: 5320817
Hudson nor Mr. Tyler nor the District Court prevented him from presenting such evidence. He simply chose not to do so and now must live with the consequences of that decision.127
C. The Commissioner Has Waived Any Argument Based Upon the PLRA.
In his brief, the Commissioner relies heavily on the PLRA, arguing that the District Court failed to make required findings and to give due regard to certain considerations.128 But he made only fleeting reference to the PLRA before the District Court. This Court has explained that “[i]t is a bedrock rule that when a party has not presented an argument to the district court, [he] may not unveil it in the court of appeals.”129 Moreover, even where mentioned,
issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.130
127 See Marks, 455 F.3d at 17–18 128 See App. Br. 11–18 129 Morales Feliciano v. Rullán, 378 F.3d at 49 (quoting Slade, 980 F.2d at 30) 130 United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (internal citations omitted); accord, e.g., Morales Feliciano v. Rullán, 378 F.3d at 49 n.4; accord, e.g., McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) (“It is hornbook law that theories not raised squarely in the district court cannot be surfaced for the first time on appeal.”)
- 46 -

Case: 08-2100 Document: 00113553603 Page: 54 Date Filed: 02/23/2009 Entry ID: 5320817
The Commissioner’s sole mention of the PLRA in his motion for
reconsideration consisted of just the sort of perfunctory reference that this Court
has condemned: two sentences that did nothing more than quote the language of the statute and cite two cases confirming that language.131 The Commissioner’s
PLRA “argument” reads (in full):
Furthermore, the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626 holds that “[t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Id. See Feliciano v. Rullan, 378 F.3d 42, 50–51 (1st Cir. 2004); Oluwa v. Gomez, 133 F.3d 1239 (9th Cir. 1998) (“before granting prospective injunctive relief, the trial court must make the findings mandated by the PLRA”). 132 The Commissioner never once even argued that the District Court had not made
the required findings with respect to any portion of its injunction—he simply
referenced the statute’s language, string-cited two cases applying it, and moved on.
His perfunctory, off-hand reference to the PLRA left the District Court to do his
131 See RA 58–59; see, e.g., McCoy, 950 F.2d at 22 (ruling that party’s “passing mention” of argument in the district court that consisted of two sentences and one citation was “the merest of skeletons” and insufficient to preserve the argument for appeal) 132 RA 58–59
- 47 -

Case: 08-2100 Document: 00113553603 Page: 55 Date Filed: 02/23/2009 Entry ID: 5320817
work—to “create the ossature for the argument, and put flesh on its bones.”133 Accordingly, the Commissioner has waived his PLRA argument.134
IV. Equity Demands That This Court Not Narrow the District Court’s Injunction as Any Such Narrowing Would Preclude Effective Relief. The Supreme Court has held that, “[o]nce a right and a violation have been
shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”135 District
courts have been vested with broad equitable power to remedy wrongs, and the
Commissioner’s proposed narrowing of the permanent injunction would strip the
District Court of that power in this case.
133 See Zannino, 895 F.2d at 17 134 To the extent that this Court deems the Commissioner to have forfeited rather than waived his PLRA argument, and thus reviews for plain error, the District Court committed no such “clear or obvious” error that “seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” See Morales Feliciano v. Rullán, 378 F.3d at 49 (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). It correctly based the findings supporting its Final Judgment on the record then before it, and it appropriately (perhaps too gently) rejected the Commissioner’s attempt to shoehorn additional facts into the evidentiary mix through his motion for reconsideration. 135 Hills v. Gautreaux, 425 U.S. 284, 297, 96 S. Ct. 1538, 1546, 47 L. Ed. 2d 792, 803 (1976) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S. Ct. 1267, 1276, 28 L. Ed. 2d 554, 566 (1971)); accord Morales Feliciano v. Rullán, 378 F.3d at 50 (“equity is flexible and … the boundaries of permissible relief are broad”) (citing Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc., 527 U.S. 308, 322, 119 S. Ct. 1961, 144 L. Ed. 2d 319 (1999))
- 48 -

Case: 08-2100 Document: 00113553603 Page: 56 Date Filed: 02/23/2009 Entry ID: 5320817
The District Court declared that the DOC’s refusal to provide live broadcasts of Jum’ah services to inmates housed in SMUs constitutes a substantial burden on Plaintiffs’ sincerely-held religious beliefs.136 The same burden exists whether Plaintiffs are in an SMU at MCI-Cedar Junction or at another DOC facility. It was the Commissioner’s burden to present countervailing evidence of compelling governmental interest/least restrictive means. The evidence that he chose to present was insufficient to rebut or limit the effect of Plaintiffs’ showing.137 Thus, when it issued an injunction that applied system-wide, the District Court appropriately used its equitable power to remedy the RLUIPA violation that the record evidence established.
If this Court were to accept the Commissioner’s invitation and limit the injunction to the SMU at MCI-Cedar Junction, it already would be ineffectual as to Mr. Hudson. Since trial, the Commissioner has transferred him from MCI-Cedar Junction to a different facility (OCCC), which also has an SMU.138 Moreover, the Commissioner could completely free himself from the injunction and continue to violate Mr. Tyler’s RLUIPA rights by similarly transferring him from MCI-Cedar Junction to any other DOC facility if and when the Commissioner wished to place
136 See RA 43, ¶ 15 137 See RA 39, ¶ 11 138 See RA 69–70
- 49 -

Case: 08-2100 Document: 00113553603 Page: 57 Date Filed: 02/23/2009 Entry ID: 5320817
him a segregated unit. Each Plaintiff would then be forced to commence a new, multi-year administrative and litigation process to vindicate his RLUIPA rights, after which the Commissioner could simply order further transfers. That result would not comport with the inherent equitable power of the District Court and, if allowed, would render the District Court’s remedy ineffective to correct the violation it found. Equity demands otherwise.
CONCLUSION The Commissioner asks this Court to rule that the District Court clearly abused its discretion when it merely ruled unripe his attempt to reopen the evidentiary record generated by a six-day bench trial so that he could add evidence that he had known about, but declined to submit, previously. Despite his failure to create jurisdiction to do so, he asks this Court to rule that the District Court also abused its discretion by crafting injunctive relief for his violation of federal law without considering evidence that he had chosen to withhold from its consideration despite his burden of proof on the issues in question. In sum, he asks this Court to limit the scope of Plaintiffs’ remedy for his violation of federal law enough to allow him to avoid it completely, should he so choose. There can be but one reasonable response to these requests—to flatly reject them.
Messrs. Hudson and Tyler respectfully request that this Court affirm the
- 50 -

Case: 08-2100 Document: 00113553603 Page: 58 Date Filed: 02/23/2009 Entry ID: 5320817
District Court’s June 19, 2008, Order denying the Commissioner’s motion for reconsideration and rule that it lacks jurisdiction over any challenge to the District Court’s April 11, 2008, Final Judgment. Should this Court instead rule that it does have jurisdiction over the April 11, 2008, Final Judgment, Messrs. Hudson and Tyler respectfully request that it affirm that judgment as well.

Dated: February 23, 2009

Respectfully submitted,
MAC S. HUDSON and DERRICK TYLER
By their attorneys,
/s/ Neal E. Minahan [original hand-signed] Michael Kendall (# 12581) Neal E. Minahan (# 1129948) David Quinn Gacioch (# 1131853) MCDERMOTT WILL & EMERY LLP 28 State Street Boston, Massachusetts 02109 Tel: (617) 535-4000 Fax: (617) 535-3800 mkendall@mwe.com nminahan@mwe.com dgacioch@mwe.com

- 51 -

Case: 08-2100 Document: 00113553603 Page: 59 Date Filed: 02/23/2009 Entry ID: 5320817

CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 32(a) I hereby certify that:
1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 11,516 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). In accordance with Fed. R. App. P. 32(a)(7)(C)(i), I have relied upon Microsoft Office Word 2003’s word count utility in making this certification.
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally-spaced typeface that contains serifs (fourteen point Times New Roman font), using Microsoft Office Word 2003.

Dated: February 23, 2009

/s/ David Quinn Gacioch [original hand-signed] David Quinn Gacioch (# 1131853)
Attorney for Plaintiffs-Appellees Mac S. Hudson and Derrick Tyler

- 52 -

Case: 08-2100 Document: 00113553603 Page: 60 Date Filed: 02/23/2009 Entry ID: 5320817

CERTIFICATE OF SERVICE I hereby certify that, on this date, I personally served two copies of the Brief of Plaintiffs-Appellees Mac S. Hudson and Derrick Tyler as well as two copies of the Supplemental Record Appendix prepared by Plaintiffs-Appellees Mac S. Hudson and Derrick Tyler, on Richard C. McFarland, Esquire, counsel for DefendantAppellant Harold W. Clarke, by hand delivering them to [paper copy to be completed upon service], a responsible person working at Mr. McFarland’s office at 70 Franklin Street, Suite 600, Boston, Massachusetts 02110-1300.

Dated: February 23, 2009

[original to be hand-signed upon service]_ David Quinn Gacioch (# 1131853)
Attorney for Plaintiffs-Appellees Mac S. Hudson and Derrick Tyler

- 53 -

Case: 08-2100 Document: 00113553603 Page: 61 Date Filed: 02/23/2009 Entry ID: 5320817
ADDENDUM 42 U.S.C. § 2000cc-1...........................................................................................A1 Federal Rule of Appellate Procedure 3.................................................................A2 Federal Rule of Appellate Procedure 4.................................................................A5 Federal Rule of Civil Procedure 59 ......................................................................A9 Notice of Appeal (July 17, 2008, Docket No. 122) ............................................ A12
BST99 1612201-10.099705.0011

Case: 08-2100 Document: 00113553603 Page: 62 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 63 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 64 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 65 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 66 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 67 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 68 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 69 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 70 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 71 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 72 Date Filed: 02/23/2009 Entry ID: 5320817

Case: 08-2100 Document: 00113553603 Page: 73 Date Filed: 02/23/2009 Entry ID: 5320817

 
 Case: 08-2100 Document: 00115937724 Page: 1 Date Filed: 08/24/2009 Entry ID: 5370180
United States Court of Appeals
For the First Circuit
No. 08-2100 ANTWAN CRAWFORD; DARRICK WILSON; ANTHONY TUCKER, Plaintiffs, MAC S. HUDSON; DERRICK TYLER, Plaintiffs, Appellees, v. HAROLD W. CLARKE, Commissioner of the Massachusetts Department of Correction, Defendant, Appellant, KATHLEEN DENNEHY, Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before Torruella, and Selya, Circuit Judges,
and Tashima,* Senior Circuit Judge.
Richard C. McFarland, Legal Division, Department of Correction, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief for appellant Harold W. Clarke.
Michael Kendall, with whom Neal E. Minahan, David Quinn Gacioch, and McDermott Will & Emery LLP, were on brief for appellees Hudson and Tyler.
August 24, 2009
* Of the Ninth Circuit, sitting by designation.

Case: 08-2100 Document: 00115937724 Page: 2 Date Filed: 08/24/2009 Entry ID: 5370180
TORRUELLA, Circuit Judge. The Commissioner of the Massachusetts Department of Correction (the "DOC") appeals an injunction entered in favor of the plaintiffs-appellees Mac S. Hudson and Derrick Tyler (together, the "Plaintiffs"). After careful consideration, we affirm.
The Plaintiffs are Muslim inmates in the custody of the DOC. In 2001, they filed a non-class action complaint, later amended, asserting that the Commissioner violated their right to freely exercise their religion.
At issue in this appeal is the ability to participate in Jum'ah, which is "a Friday group prayer that is obligatory for Muslims." Hudson v. Dennehy, 538 F. Supp. 2d 400, 404 n.4 (D. Mass. 2008). At the time of the filing of their Amended Complaint, the Plaintiffs were housed in an special management unit ("SMU") at MCI-Cedar Junction known as "Ten Block." SMUs are housing units separate from the general population of the prison "in which inmates may be confined for reasons of administrative segregation, protective custody, or disciplinary detention." 103 Mass. Code Regs. 423.06. Plaintiffs alleged that, "[w]hile segregated, [they] are denied the right to attend mandatory Jumah services." They further alleged that "[p]risoners with televisions may participate in the prison's Jumah services, which are broadcast via closedcircuit televisions," but that "[t]he DOC presently denies [the Plaintiffs] access to a television and, therefore, access to Jumah
-2-

Case: 08-2100 Document: 00115937724 Page: 3 Date Filed: 08/24/2009 Entry ID: 5370180
services." In their prayer for relief, the Plaintiffs sought "a
permanent injunction ordering Defendant . . . to allow Plaintiff to
attend all Jumah services either in person or via closed-circuit
television."
The district court conducted a six-day bench trial concerning Plaintiffs' claims.1 After trial, the district court
applied the Religious Land Use and Institutionalized Persons Act
("RLUIPA"), which provides that:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in [42 U.S.C. § 1997], even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). The district court ruled that "[t]he
DOC's ban on personal participation in Jum'ah services by inmates
confined in Ten Block serves the compelling State interest of
rehabilitating prisoners and promoting good order." Hudson, 538 F.
Supp. 2d at 412. However, the court further ruled that "[t]he ban
on participation by Ten Block inmates in Jum'ah services by
1 The trial encompassed other religious freedom claims as well, but the district court's resolution of those claims is not challenged on appeal.
-3-

Case: 08-2100 Document: 00115937724 Page: 4 Date Filed: 08/24/2009 Entry ID: 5370180
closed-circuit television is not the least restrictive means of vindicating" the compelling state interests of the DOC, noting that "the DOC does not contend that there is any technical reason that prevents the broadcast of Jum'ah services by closed-circuit television to Muslim inmates in Ten Block." Id. at 412 & n.24.
The district court later entered an injunction requiring closed-circuit broadcasting of Jum'ah "[w]henever Plaintiffs are housed in the Special Management Unit,"2 not limiting its injunction to the SMU at MCI-Cedar Junction. When the Commissioner sought clarification, the district court confirmed that the injunction required closed circuit television broadcasts of Jum'ah services in any SMU in which Plaintiffs may be housed in the future.
The Commissioner then moved for reconsideration, attaching the affidavit of Jeffrey Quick, the DOC's Director of Resource Management (the "Quick Affidavit"). The Quick Affidavit outlined the significant technical, operational, physical plant, and cost impediments to providing closed-circuit television broadcasts to certain SMUs located at prisons other than MCI-Cedar
2 The injunction states in relevant part: Whenever Plaintiffs are housed in the Special Management Unit, Defendant shall provide access to a closed circuit television set that displays, through sound and images, a live broadcast of such communal Jum'ah services as are regularly held on each and every Friday for the duration of their incarceration . . . . -4-

Case: 08-2100 Document: 00115937724 Page: 5 Date Filed: 08/24/2009 Entry ID: 5370180
Junction. The Quick Affidavit further noted that Tyler was "presently incarcerated in the general population of MCI-Cedar Junction," and that Hudson was "presently incarcerated at [Old Colony Correctional Center] and is housed in the general population."
That same day, the district court denied the motion for reconsideration, stating:
After hearing, the motion is denied without prejudice. Plaintiff Hudson is currently confined in general population at the Old Colony Correctional Facility. Accordingly, there is no actual controversy appropriate for judicial resolution. The Commissioner subsequently filed a notice of appeal that listed only the denial of the motion for reconsideration. As an initial matter, the Plaintiffs contend that the only decision on appeal is the district court's denial of the Commissioner's motion for reconsideration. They point out that Federal Rule of Appellate Procedure 3 provides that "[t]he notice of appeal must . . . designate the judgment, order, or part thereof being appealed," Fed. R. App. P. 3(c)(1)(B), and the notice of appeal here only lists the denial of the motion for reconsideration.3 Indeed, "an appeal from an order denying such a
3 The notice states in full: Notice is hereby given that Harold W. Clarke, Commissioner of the Massachusetts Department of Correction, defendant in the above named case, hereby appeals to the United States Court of Appeals for the -5-

Case: 08-2100 Document: 00115937724 Page: 6 Date Filed: 08/24/2009 Entry ID: 5370180
motion is generally not considered to be an appeal from the underlying judgment." Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 3 (1st Cir. 2002) (discussing a motion for reconsideration).
However, "our precedents encourage us to construe notices of appeal liberally and examine them in the context of the record as a whole." Id. Although the notice of appeal only lists the denial of the motion for reconsideration, it references the "Final Judgment with Regard to Broadcast of Jum'ah Services in Special Management Units Other Than Ten Block." "Read in context, this reference is consistent with a desire to have this court review the propriety of the" injunction with respect to Jum'ah services. Id. at 4 (noting that notice of appeal only listing denial of motion for reconsideration also referenced dismissal for want of prosecution, which reflected an intent to reach the dismissal). Moreover, "both sides have fully briefed the merits, and undertaking appellate review of the original order . . . would not unfairly prejudice" the Plaintiffs. See id. Although we recognize that "rescue missions are not automatic, and litigants will do well to draft notices of appeal with care," we will give the
First Circuit from the Order denying Defendant's Motion for Reconsideration of Final Judgment with Regard to Broadcast of Jum'ah Services in Special Management Units Other Than Ten Block, entered in this action on June 19, 2008.
-6-

Case: 08-2100 Document: 00115937724 Page: 7 Date Filed: 08/24/2009 Entry ID: 5370180

Commissioner the benefit of the doubt and treat the injunction

itself as properly before us. Id. at 3.

"[T]he scope of [an] injunction is reviewed for abuse of

discretion." Esso Standard Oil Co. v. López-Freytes, 522 F.3d 136,

142-43 (1st Cir. 2008). The Commissioner contends that the

district court erred by entering a prospective injunction that

applies to all SMUs without making findings as to whether SMUs

other than Ten Block are suitable for closed circuit television

broadcasts of Ju'mah services.

Thus, according to the

Commissioner, the prospective injunction violates the Prison

Litigation Reform Act (the "PLRA"), which requires "prospective

relief" to be "narrowly drawn, extend[] no further than necessary

to correct the violation of the Federal right, and [be] the least

intrusive means necessary to correct the violation of the Federal

right." 18 U.S.C. § 3626(a)(1)(A). The Commissioner also relies

on RLUIPA, contending that the DOC can demonstrate that it has a

"compelling governmental interest" in not providing closed circuit

broadcasting of Ju'mah services to SMUs other than Ten Block given

the high cost of providing such services, see Baranowski v. Hart,

486 F.3d 112, 125 (5th Cir. 2007) (compelling interest standard met

under RLUIPA when prison budget not adequate to cover Kosher

meals), and the resultant imposition such a requirement would put

on the Commissioner's discretion to assign the Plaintiffs to

different facilities.

-7-

Case: 08-2100 Document: 00115937724 Page: 8 Date Filed: 08/24/2009 Entry ID: 5370180
We conclude that the district court did not abuse its discretion. Although the Plaintiffs' allegations in their Amended Complaint focused on the lack of closed-circuit broadcasting in Ten Block, their prayer for relief was not limited to Ten Block. Plaintiffs plainly sought system-wide relief. Despite being on notice of this claim for relief, the Commissioner did not present during the bench trial any of the evidence contained in the Quick Affidavit, despite having the "onus" to show that the burden it placed on the Plaintiffs' religious exercise "furthers a compelling governmental interest and . . . that the burden is the least restrictive means of achieving that compelling interest." Spratt v. R.I. Dep't of Corrs., 482 F.3d 33, 38 (1st Cir. 2007) (holding that, under RLUIPA, once a plaintiff establishes a substantial burden on the exercise of his or her religion, the "onus shifts to the government"). Instead, the Commissioner provided evidence that the DOC's system-wide policy banning televisions in SMUs was due to (1) the temporary nature of SMU detention; (2) the security risks associated with having a television in an inmate's cell; and (3) the DOC's desire to avoid any incentive for inmates to seek SMU detention. A witness, MCI-Cedar Junction Deputy Superintendent Lisa Mitchell, testified that there was no technical reason that prevents the broadcast of Jum'ah services by closed-circuit television to Muslim inmates in Ten Block, but the Commissioner did not provide evidence that this was not the case for other
-8-

Case: 08-2100 Document: 00115937724 Page: 9 Date Filed: 08/24/2009 Entry ID: 5370180
facilities. In fact, the Commissioner provided testimony, through its Acting Deputy Commissioner, John Marshall, that the DOC sought to create a universal SMU policy to alleviate any differences in SMU policies among various facilities.
Given the record before it, the district court tailored an injunction that was consistent with the PLRA's directive that all "prospective relief" be "narrowly drawn," "extend[] no further than necessary to correct the violation of the Federal right," and be the "least intrusive means necessary to remedy the violation of a Federal right." 18 U.S.C. § 3626(a)(1)(A). The Plaintiffs established a substantial burden on the exercise of their religion, and, in evaluating whether to enable Plaintiffs to participate in Jum'ah services in person or provide closed-circuit broadcasting of such services, the district court found that providing closedcircuit broadcasting was the least intrusive means to alleviate that burden on the Plaintiffs. See Hudson, 538 F. Supp. 2d at 412. The Commissioner put nothing in the record to differentiate facilities other than Ten Block on the issues of compelling governmental interest or least restrictive means. Moreover, under RLUIPA, the Commissioner had the burden to put forward his additional evidence at trial and failed to do so. See Spratt, 482 F.3d at 38. The district court is not a mind reader, and, given the Commissioner's failure to provide the additional evidence
-9-

Case: 08-2100 Document: 00115937724 Page: 10 Date Filed: 08/24/2009 Entry ID: 5370180
contained in the Quick Affidavit at trial, we conclude that no abuse of discretion occurred in framing the injunction.
For substantially the same reasons, the district court did not abuse its discretion in denying the Commissioner's motion for reconsideration. "We review a trial court's decision denying a Rule 59(e) motion to alter or amend a judgment for manifest abuse of discretion." Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st Cir. 1994). We have emphasized that Rule 59(e) "does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment." Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997). As the Commissioner sought to introduce evidence that he could have advanced at trial but chose not to, the district court's denial of the motion for reconsideration did not amount to an abuse of discretion.
We conclude by emphasizing that, under Federal Rule of Civil Procedure 60(b)(5), the Commissioner is free to move for relief from the injunction when "applying it prospectively is no longer equitable." Fed. R. Civ. P. 60(b)(5); see also Esso, 522 F.3d at 149-50 (rejecting claim that "the scope of [the] injunction was overly broad because it lacks an express provision for termination of the injunction," noting the availability of Rule 60(b)(5)). Moreover, under the final judgment entered in this
-10-

Case: 08-2100 Document: 00115937724 Page: 11 Date Filed: 08/24/2009 Entry ID: 5370180 case, the district court retained jurisdiction "for the purpose of enabling any party to this Judgment to apply to the Court for . . . the modification of the injunctive provisions of this Judgment." In fact, the district court, in its denial of the Commissioner's motion for reconsideration, demonstrated a willingness to address the injunction should circumstances require it, that is, if the Plaintiffs (or either of them) are about to be housed in an SMU other than Ten Block. Thus, if and when the time comes, the Commissioner will have an avenue to press its concerns. For the foregoing reasons, the entry of the injunction in this case is affirmed. AFFIRMED.
-11-

 
 Ol!26/0i 12:3C7asFAeX1_ :01_ -cv_-12145-RGS Document 98 Filed 01/18/07 Page 1 of 12

raJ 003

UNITED STATES DISTRICf COURT DISTRICT OF MASSACHUSETTS

)

MAC S. HUDSON aDd

)

DERICK TYLER.

)

)

PlaiDtiffs,

)

v.

)

)

KATIILEEN DENNEHY, in her offkial )

capacity as Commissioner ofthe

)

Massachusetts Department of

)

Correcdon,

)

)

Defendant.

)

)

CIVIL ACTION NO. 01-12145-RGS

MEMORANDUM OF LAW IN SUPPORT OF PEFENJ)ANT'S MOTION FOR JUDGMENT ON PARTIAL FINDINGS

Detimdant Kathleen M. DenD.ehy, the Commissioner of the Massachusetts Department of

Correction ("DOC',). hereby moves, pursuant to Fed. R. Civ. P. Rule 52(0), that this Court en1er

judgment on partial findings for her as a matter of law on all claims. Plaintiffs have been fully

heard on the claims raised and have not shown that, as a matter of law, they are entitled to

judgment.

ARGUMENT

L PLAINTIFFS HAVE FAlLED TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES PRIOR TO FILING COMPLAINT AS REQ1U1RED UNDER THE PLRA.
Defendant is entitled to judgment as a matter of law on the following claims brought by

plaintiffs under federal law:

1. Plaintiff Derick Tyler's claim reg<Urling Halal meals; 2. PlaintiffDerick Tyler's claim regarding access to a pmyer rug; 3. PlaintiffDeriok Tyler's claim re&arding access to Jum'ah services; 4. PlaintiffMac Hudson's claim regarding access to a prayer rug; and 5. PlaintiffMac Hudson's claim regarding access to Jum'ah seJVices.

01126/07 12: 3C7ase 1:01-cv-12145-RGS Document 98 Filed 01/18/07 Page 2 of 12

I4J 004

The only claim in which there was an exhaustion ofavailable administrative remedies as required under the Prison Litigation Refonn Act ("PLRA"), 42 U.S.C. 1997e(a), is p1aintiffMac Hudson's claim regarding his request for Halal meals. Plaintiffs have been fully heard on the issue of their exhaustion of available administrative remedies and they have not shown that they exhausted their administrative remedies prior to initiating this civil action, as is required by the PLRA.
The Prison Litigation Refoml Act ("PLRA") imposes an exhaustion requirement with
respc:ct to all federal claims made by prisoners, providing:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other cotrectional facility until such administrative remedies as are available are ex:hausted. 42 U.S.C. §1997e(a). The PLRA's <mhaustion requirement applies to plainti.ffS' claims under federal law. See Portq v. Nussle, 534 U.S. 516, 532 (2002) (holding that ''the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve gc:neral circumstances or particnlar episodes, and whether they allege excessive force or some Othl:n: wrong"). Exhaustion of administrative remedies is a requirement, or condition precedent., under the PLRA, which must be met before a prisoner'is cause of action under fOOeml law can accrue, regardless of whether the claim is brought in federal court or state court. ~;..g" Martin v. Ohio Dep't of Rebab. & Corr., 749 N.E. 2d 787 (2001). The First Circuit bas found, in Casanova, et aI. y. DuBois, et al, 289 F.3d 142 (I>f Cir. 2002). that dismissal for failure to oomply with the exhaustion requirements of the PLRA is mandatory. In C!!Sanova. the First Circuit squawly
to addressed the consequence of a plaintiff's failure exhaust.. and held that "[u]n1ess appellants
2

_-,0-=1-,/26/07 12: 3C8asFAeX1:01-cv-12145-RGS Document 98 Filed 01/18/07 Page 3 of 12

141005

have satisfied the PLRA's exhaustion requirement, their cases must be dismissed." 289 F.3d at
147 (emphasis added). The PLRA mandates complete administrative review of all claims before an ironate may
th
bring a § 1983 action. Brown v. Toombs, 139 F.3d 1102, 1104 (6 Crr.. 1998) (plaintiffs must
allege and show that they have exhausted all available state adminislmtive remedies and the
district courts should enforce exhaustion requirement sua sponte if not, raised by defendant).
Policy considerations support a plaintiff-inmale's compliance with the applicable administmtive
process before filing suit. The District Court for the Southern District of New York articulated
these considerations in stating the following:
There are a number of important reasons which SUPPOl1 exhaustion of administrative remedies.. First, an exhaustion requirement better serves the policy of granting an agency the opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court. Second, an exhaustion requirement better avoids the possibility that frequent and deliberate flouting of prison admini$trative processes could weaken the effectiveness of those prisons by encouraging people to ignore their procedures. Third, an exhaustion requirement promotes judicial efficiency. Fourth, eVI~n if no relief is
granted, a prisoner's resort to the administrative process is not filtile, but allows
grievances to be heard and a record to be created for review in any subsequent proceeding.
Beatty v. Goord, 210 F.Supp. 2d 250, 254 (S.D.N.Y. 2000) (citations omitted)(dismissing
plaintiff's complaint for failure to exhaust available administrative remedies pursuant to the
PLRA). The Sup£eme Court has concluded that the PLRA requires "proper exhaustion," that is,
a prisoner must comply with an agency's deadlines and procedural rules. Woodfurd v. Ngo, 126
S.Ct. 2378,2386 (2006).
The DOC's Religious Services Review Committee ("RSRC") is the administrative
review body charged with review of all inmate religious services requests, both now and at the time of the filing of the complaint. In order to process and fairly accommodate the multitude of
3

_--=01126/07 12: 3C8asFAe.l{1:01-cv-12145-RGS Document 98 Filed 01/18/07 Page 4 of 12

~006

practices and religious property item requests from inniates, the DOC developed a Religious Services Handbook,. ("RSH") in April 1999 as a rere.ence tool to assist adm;ni5b'a1Ors when evaluating inmate religious requests. Rasheed v. Commissioner of Correction, 446 Mass. 463. 467-468, n 5 (2006). The RSH lists the fifteen religious groups iliat inmates most commonly
identify with, including Islam, as well as the commonly accepted practices for these groups, including religious holidays and items used in corporate and individual worship. If IlIl inmate seeks a religious item or feast that is not listed in the RSH, a copy of which is available to all inmates in ilie inmate law IibrlllY, ilie RSH contains information as to how an inmate is to submit
his request fur a religious item, feast or other ritual. This is dOne by a Religious Services
Request Fonn (URSRF"), with suppOrting documentation" made to ilie Superintendent or his designee, and the Superintendent will forward the information, along with his or her
recommendation, to the Religious Services Review Committee ("RSRC"). Rasheed, 446 Mass.
at 468, n.6.; See also 103 CMR 403.09(9). The RSRC will review the request and make a
formal recommendation'to the Commissioner for her final deeision. Id. at 476. The RSRC may seek further information regarding the request from a variety of sources, including the Department's chaplains, and outside religious groups. The RSRC is comprised of three Associate Deputy Commissioners who, as former Superintendents at seveml DOC :facilities, represent the Department of Correction's pennltimate security concerus, and the Director of Pcogram Services, who functions as chairperson ofthe committee. Rasheed at 468, n. 6.
In the case at bar, it is indisputable that Plaintiff Derick Tyler failed to bring forth the issues of his claim for Halal meals, prayer rugs, and access to ]um'ah services while in segregation and that plaintiff Hudson failed to bring forth the issues of bis claim for prayer rugs and access to Iron'00 services while in segregation with the RSRC by melWS of an RSRF to the
4

_ _-,-0=:1/-=2:.::61 07 12 : C39a.s.,.eF""1A:X0"1,--_cv-12145-RGS Document 98 Filed 01/18/07 Page 5 of 12

Ii!I 007

Superintendem or his designee. Plaintiffs have failed to put forth any evidence at trial
demonstrating that they submitted RSRFs regarding these c1ainls. Moreover, the DOC's
Director of Program Services, 11 witness called by plaintiffs, testified that her department had no
record of receiving RSRFs from the plaintiffs, except for Hudson's RSRF for Halal meals. See
Rasheed at 475-477 (Supreme Judicial Court finds that RSH is valid and in accord with relevant statutory and regulatory authority). For this reason, plaintiffs &iled to exhaust their
administrative remedies with regard to these claims to the de~ required by controlling caselaw, and, as such, the Court should enter judgment as a matter of law against them on the following claims: 1) Plaintiff Derick Tyler's clainls regarding halal meals; 2) Plaintiff Derick Tyler's cJainls regarding prayer towels; 3) Plaintiff Derick Tyler's claims regarding access to Jumaah services; 4) PlaintiffMac Hudson's claims regarding prayer towels; and S) PlaintiffMac Hudson's clainls regarding access to Jumaah services, leaving only Plaintiff Mac Hudson's claims regarding halal meals to be addressed by defendant in her case-i.n-'~hief. ll. :PLAINTIFFS HAVE FAILED TO SHOW, AS A MATT1P.:R OF LAW, TIlAT
THEY ARE ENTITLED TO PROSPECTIVE RELIEF ON THEIR CLAIMS. In order to succeed on a request for a permanem injunction, this Court must find: I)
plaintiffsprevat1 on the merits; 2) plaintiffs would suffer irreparable harm without an ~UDction; 3) the harm to plaintiffs would exceed the hann to defendant from the imposition of an injunction; and 4) .the public interest would not be adyersely affected by an injunction. See
Pagap v. Calderon. 284 F.3d 184, 191 (lSI eir. 2002): Injunctive reliefls "to be used sparingly, and only in a clear and plain case." Rizzo v. Goode, 423 U.s. 362.. 378 (1976). When a. .
government agency is involved, the requirement that the government be granted the "widest latitode in the dispatch of its own internal affairs" must be observed. !!;!. at 378·379. Such considerations are strengthened when a state agency is involved due to federalism concerns.
5

01/26/07 12,3C9as~e~~1:01-cv-12145-RGS Document 98 Filed 01/18/07 Page 6 of 12

@008

Q'Shea v. Littleton.. 414 U.S. 488, 499 (1974) ("proper balance in the concunent operation of federal and state courts counsels restraint against the issuance of injunctions against state officers").
Further, the Prison Litigation Refurm Act ("PLRA"), 18 U.s.C. § 3626, holds that "[t)he court sbalI. not grant or approve any prospective relief unless the court ftnds that such relief is narrowly drawn,. extends no further than necessmy to correct the violation of the Federal right, and is the least intrusive roeIlIlS necessary to correct the violation of the Federal right." IS U.S.C. § 3626(a)(1). A court must give "substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." Id. See Feliciano v. RullRI! 318 F.3d 42, 50-51 (1st Cu. 2004); Oluway. Gomez, 133 F.ld 1239 (9'" Cir. 1998).
A. The Vegetarian/Alternative Menu Available To Plaiutiffs Does Not Substantially Burden Their Religious Praetices Under RLUIPA.
Plaintiffs seek prospective relief in the form of an order requiring that they be provided with Halal meals prepared by Muslims in the state ofTabara. Judgment should be entered.in defendant's favor where plainti.ffs have failed to show that the vegetarian/alternative menu substantially burdens their religious practices.
Section 3 of RLUIPA prohibits state governments from placing a substantial burden on
the religious exercise of institutionalized persons unless the govermnent demonstrates that the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling interest. 42 U.S.C. § 2000cc-1(a).
An inmate's religious PIlICtiCIlS are substantially burdened whexe the state policy coerces the individual into acting contrmy to their religious beliefs. See Lyng v. Northeast Indian
Cemetery Protootiye Association. 485 U.S. 439, 450-451 (1988) ("Incidental effects which may make it mote difficult to practice certain religions, but which have no tendency to coerce
6

--«Ol/26/0i 12:3C9asFeAX1:01-cv-12145-RGS Document 98 Filed 01/18/07 Page 7 of 12

raJ 009

individuals into acting contrary to their religious beliefs [do not] require government to bring forward Ii compelling justification for its otherwise lawful actions."); ~herbert v. verner, 374 U.S. 398,404 (1963). However, no substantial burden results from a restriction of Il particular
accommodation ifthe inmate has ample alternative means to pursue his religion. Diaz v. Cgl1jnt
114 F.3d 69, 72 (6ib Cir. 1997) (restriction on Native American practitioner's wearing of Il medicine pouch and headband did not substantially burden religious beliefs); Rasheed. at 473 (under compelling interest test, plaintiff must establish that government restrictions impede ability to engage in religious practices).
In the instant case, plalntiffS have failed to meet tbeir burden of proof on this issue where their own expert in Islamic dietary laws, Mohammad Hussaini, testified that there was no basis in Warn for plaintiffs' claim. that a Halal diet must contain meat or that a Halal diet must be prepared only"by Muslims in the state ofTabara. Islamic dietary expert Hussaini testified at trial that a vegetarian menu that contains Halal ingredients was sufficient under Islamic dietary laws. Mr. Hussaini further testified that as long as the food was Halal, it collld be prepared by any individual, whether Muslim or non-Muslim. Further, plaintiffs' oWn testimony at trial reganiing the dietary practices of Islam and the Nation of Islam was contradictory, with plaintiff Hudson stating that vegetarian meuls were a violation of Islamic dietary laws and plaintiff Tyler stating that he was a vegetarian, wbich was lawful under dietary laws of Islam imd the Nation of Islam. Nor did Hudson cite to any Islamic dietary expert or to any portion of the Qu'tan or any other Islamic or Nation of Islam text or expert in support of his contention that his is required to consume meat on a regular basis. Where Hudson's beliefs regarding Islamic dietary laws are contradicted by his co-plaintiff and are not supported by plaintiffs' own expert witness nor aoy

7

01/26/07 12:3C9asFAeX1:01-cv-12145-RGS Document 98 Filed 01/18/07 Page 8 of 12

!ill 010

reUgious text, doctrin~ or practice, it is clear that plaintiffs cannot establish that access to the DOC's vegetarian/alternative menu substantially burdens their religions practices.
Moreover, plaintiffs are unable to establish the existence of a substantial burden where neither they nor their lBlamic dietary expert, Hussaini, could demonstrate that the DOC's vegetarian/alternative menu was not Halal. Expert Hnssaini testified that he was unable to
detennine without further research, as to whether the vegetarian/alternative mcrnl was or was not
Halal. In the absence of evidence that the DOC's vegetarian/alternative menu was not Halal,
plaintiffS have failed to demon.stratethe existence of a substantial burden to their religious practices and defendant is entitled to judgment as a matter oflaw.
B. DOC's Policy P.-oviding For Praye.- Towels Does Not Substantially Burden Plaintiff's Retigjem Practices Unde.- RLUIPA.
Here, plaintiffs have fiilled to demonstrate a substantial burden to their religious practices due to the DOC policy providing them with access to a prayer towel in lieu of a prayer rug. .First, the evidence at trial showed that pJ!rintiffs are able to observe the religious practices of the Nation of 1Blam such as the Ramadan fast, annual Bid feasts, prayin.g five (5) times daily, conduct ablution. possess a kufi, prayer beads, praye£ oil, a Qur'an and other religious books, and has access to a pork-free menu and a vegetarian alternative menu. Plaintiffs are in general population and have access to religious services conducted by a Nation of Islam chaplain, Plaintiffs will also have access to weekly Jum'ah services conducted by a Muslim chaplain.
Plaintiffs have not demonstrated that using a prayer towel inst~::ad of a prayer rug has substantially burdened their religious practices since the prayer towel provides a clean surface upon which to pray_ Nowhere have plaintiffS shown that the use of a prayer towel prevents them from conducting their daily prayers or is coercive in any way.

_-,-,,01=-/26107 12: C40asFeAX1:0_1-_ cv_ -12_145-RGS Document 98 Filed 01/18/07 Page 9 of 12

141011

Finally, the Massachusetts Supreme Judicial Court has reviewed the DOC policy providing inmates with prayer towels under the compelling interest test and detennined that the policy did not substantially burden the prisoner's exercise of religion where it did not limit his religious practices or coerce him into acting contrary to his religious beliefs. Rasheed, ~ at 473. Accordingly, defendant should be granted judgment as a matter of law where plaintiffs have failed to show that the DOC prayer towel policy coustitutes a substantial burden in violation ofRLUIPA.
C. Defendant Is Entitled To Jlldgment As A Matter Of Law On The Cla.Im Of Access To Jum'ah Services While CoDfined To MCI-Cedar Junction's
Segregation Unit. Plaintiffs have failed to show, as a matter of law, that the failure to provide them with access to weekly Jwnah services while confined in Cedar JlDlCtlon'S Special Management Unit ("SMUn ) or "Block 10," constitutes a substantial burden. to their religious practices lDlder RLUlPA. First, plaintiffs' claim fur prospective relief regarding their access to wcckly Jum'ah services fails as a matter of law, where plaintiffs have failed to demonstrnte that they fuce a "real and immediate threat of harm" regarding access to religious services while confined to Cedar Junction's SMU. City of Los Angeles v. Lyons, 461 U.S. 95, ] 09 (1983). It is undisputed that plaintiffs are presently housed on general population units in Cedar Junction and have access to separate weekly religious services conducted by a Nation of Islam chaplain and a Muslim chaplain. Plaintiffs failed to demonstrate that they f8ce a future possibility of being placed in Cedar Junction's SMU Nor have plaintiffs demonstrated that they will face a'substantial burden if temporarily housed on the Block: 10 wit while on awaiting action status where the evidence at trial
9

01/26/0j 12:C40asFeA1!:01-cv-12145-RGS Document 98 Filed 01/18/07 Page 10 of 12

IilJ012

demonstrated that they would have weekly access to a chaplain. as well as other religious practices.
D. Plaintiffs Are Not Denied Equal Protection WIth Regar<i To Their Meals. Plaintiffs allege that providing Jewish inmates with a Kosher diet, but denying plaintiffs II Halal diet violates their rights under the Equal Protection CJause. The S1tandard of review of an
u.s. equal protection claim is reasonableness test adopted in Tumer v. Safley. 482 78, 89 (1987).
In Tmner. ~ at 89, the Supreme Court held that U[w]hen II prison regulation impinges on inmates' constitutioual rights, the regulation is valid jf it is reasonably related to h:gitimate penological interests" and set out four factors to be considered in determining when a regulation is reasonably related to legitimate penological interests.
Second, in order to succeed on an eqUlll protection claim, II plaintiff must also show that a discriminatory purpose was the motivating factor in the defendants' decision not to provide them with a Hala! diet. See Washington v. Haroer, 426 US. 229 (1976); fu!!jth v. S1:ratusComputer. 1:0&.,40 F.3d 11, 17 (1" Cir. 1994), cert denied. 514 U.S. 1108 (1995) (t£~ prove equal protection violation. plaintiff must demonstrate that action taken with discriminatory intent.). However, there is no equal protection violation where diffi:rences result from reasonable effurts to accommodate the requirements of diffurent religions. Cruz v. Bcto. 405 U.S. 3I 9 (1972).
Defendant is entitled to judgment as a matter oflaw on plaintiffs' equal protection claim where
they have failed to demonstrate that the differences in the diets available: to Jewish inmates and
Muslim imnates are the result of a discri:minatory purpose. Plaintiffs may oot rely on Illete speculation or conjecture to meet their burden ofproofregarding the existence ofa
discriminatory purpose as the sole basis ofthel)OC policy to provide Jewish inmates with pre-
..........
packaged Kosher meals and to provide Muslim inmates with the vegetarian/alternative menu.
10

_-.!O~l,-l,26/07 12:C4a0seF",1A":0,X1~_ -cv_ -12_ 145-RGS Document 98 Filed 01/18/07 Page 11 of 12

~013

Moreover, the testimony ofplaintift"s expert on Islamic dietary laws failed to show that

Islamic dietary laws are similar to those ofJewish dietary laws. In particular, Mr. Hussaini

testified that Islamic dietary laws do not require that Halal food be prepa£1ed in separate kitchens

using separate cooking equipment. utensils and plates, as is required for Kosher food. Further,

plaintiffs have not demonStrated that the alternative/vegetarian menu available to them is not

Halal. Where the differences between the menus available to Jewish inmates and plaintitIS are

based on religious dietary diffenmces, plaintiffs are unable to demonstrate the discriminatory
intent necessary to support the claimed equal protection violation. See Abdul-MalIk v. Goord,
* 1997 WL 83402, 7-9 (S.D.N.Y. February 27, 1997) (prison policy proyiding a Kosher diet but

denying Muslhn inmates a Halal diet did not violate the Equal Protection Clause); Abdullah v.

~ 974 F. Supp. 1112, 1118 (N.D. Ohio 1997) (failure to provide Muslim hnnates with Halal

meals while providing Jewish inmates with Kosher meals did not violat.c the Equal Protection
v. Clause); Johnson Hom, ISO F.3d 276, 281·285 (3n! Cir. 1998) (no Equal Protection Clause .

violation where differences between the diets of Muslim and Jewish inmates were rationally
related to legirimate penological interests); Dehart y. Horn, 277 F.3d 47,61 (3td Cir. 2000);
Muhammad y, Warithu-Pcen Um!!T. 98 F. Supp.2d 337, 344-345 (W.D. N.Y, 2000); Defendant

is entitled to judgment as It matter oflaw on the claim brought under the Equal Protection Clause.

CONCLUSION

For the foregoing reasons, defendant requests that judgment on partial findings be entered

;n her favor on all elmrns, pursuant to Fed. R. Civ. P. 52(c),

Dated; January 18. 2007

Respectfully submitted.

NANCY ANKERS WHITE Special Assistant Attorney General

11

01/26/07 1~;C41asFeAX1:01-cv-12145-RGS Document 98 Filed 01/18/07 Page 12 of 12 141014 Richard C. Mcfarland, BBO# 542278 Charles Anderson, Jr., BBO# 635016 Legal Division Department ofCorrection 70 Franklin Street, Suite 600 Boston, MA 02110-]300 (617) 7?7-3300
12

 
 Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 1 of 16
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:01−cv−12145−RGS

CLOSED

Hudson, et al v. Maloney Assigned to: Judge Richard G. Stearns Demand: $0 Case in other court: First Circuit, 08−02100 Cause: 42:1983 Prisoner Civil Rights Plaintiff Mac S. Hudson
Plaintiff Derrick Tyler

Date Filed: 12/05/2001 Date Terminated: 03/07/2008 Jury Demand: Defendant Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: Federal Question
represented by Benjamin A. Goldberger Suffolk County District Attorney's Office 1 Bulfinch Place Boston, MA 02114 617−619−4000 Email: benjamin.goldberger@state.ma.us TERMINATED: 08/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Kendall McDermott, Will &Emery LLP 28 State Street Boston, MA 02109 617−535−4085 Fax: 617−535−3800 Email: mkendall@mwe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neal E. Minahan , Jr. McDermott Will &Emery LLP 28 State Street Boston, MA 02109−1775 617−535−4481 Fax: 617−535−3800 Email: nminahan@mwe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Q. Gacioch McDermott, Will &Emery LLP 28 State Street Boston, MA 02109 617−535−4478 Fax: 617−535−3800 Email: dgacioch@mwe.com ATTORNEY TO BE NOTICED
James J. Marcellino Murphy &King, PC One Beacon Street 21st Floor Boston, MA 02108−3107 617−423−0400 Email: jjm@murphyking.com ATTORNEY TO BE NOTICED
represented by

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 2 of 16

Benjamin A. Goldberger (See above for address) TERMINATED: 08/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Kendall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal E. Minahan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Q. Gacioch (See above for address) ATTORNEY TO BE NOTICED

James J. Marcellino (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Antwan Crawford TERMINATED: 03/29/2004

represented by Antwan Crawford MCI Cedar Junction PO Box 100 Walpole, MA 02071 PRO SE

Plaintiff
Darrick Wilson TERMINATED: 11/07/2002

represented by Darrick Wilson MCI Cedar Junction PO Box 100 Walpole, MA 02071 PRO SE

Plaintiff
Anthony Tucker TERMINATED: 11/07/2002

represented by Anthony Tucker MCI Cedar Junction PO Box 100 Walpole, MA 02071 PRO SE

V. Defendant Michael Maloney

represented by Mary C. Eiro−Bartevyan Koufman &Frederick, LLP 265 Essex Street Suite 301 Salem, MA 01970 978−745−2212 Fax: 978−745−9157 Email: mebartevyan@kflawyers.com TERMINATED: 08/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Ankers White Commonwealth of Massachusetts,

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 3 of 16

Department of Correction 70 Franklin Street Suite 600 Boston, MA 02110 617−727−3300 Fax: 617−727−7403 Email: legaldivision@doc.state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard C. McFarland Commonwealth of Massachusetts, Department of Correction 70 Franklin Street Suite 600 Boston, MA 02110 617−727−3300 X 132 Fax: 617−727−7403 Email: rcmcfarland@doc.state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Anderson , Jr. Department of Correction 70 Franklin Street Boston, MA 02110 617−727−3300 Fax: 617−727−7403 Email: cwanderson@doc.state.ma.us ATTORNEY TO BE NOTICED

Defendant Kathleen Dennehy

represented by Richard C. McFarland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles W. Anderson , Jr. (See above for address) ATTORNEY TO BE NOTICED

Defendant Harold W. Clarke

represented by Richard C. McFarland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Barry H. Spencer, Jr.

Date Filed 12/05/2001
07/25/2002
07/30/2002 07/30/2002

# Docket Text
1 Motion by Mac S. Hudson to proceed without prepayment of fees (in forma pauperis) . filed. (scj) (Entered: 12/05/2001)
Case reassigned from Judge Unassigned to Judge Richard G. Stearns . (scj) (Entered: 08/05/2002)
3 Motion by Mac S. Hudson for class certification . filed. (scj) (Entered: 08/05/2002)
4 Motion by Mac S. Hudson for appointment of counsel . filed. (scj) (Entered: 08/05/2002)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 4 of 16

07/30/2002 07/30/2002
07/30/2002
08/05/2002 08/14/2002 08/14/2002 10/15/2002 10/15/2002 10/15/2002 10/16/2002
10/18/2002
10/22/2002 11/14/2002 11/27/2002 11/27/2002 12/02/2002
12/24/2002 12/27/2002

5 Motion by Mac S. Hudson for service by US marshal . filed. (scj) (Entered: 08/05/2002)
6 Judge Richard G. Stearns . Memorandum and Order entered. If plaintiffs Derrick Tyler, Antwan Crawford, Darrick Wilson and Anthony Tucker wish to proceed with this action, they shall each file, within 42 days of the date of this Memornadum and Order, individual Applications to Proceed Without Payment of the Filing Fee or the $150.00 filing fee. Ordered denying [3−1] motion for class certification, denying [4−1] motion for appointment of counsel, granting [5−1] motion for service by US marshal. cc/ all pla with AO240 forms [EOD Date 8/5/02] (scj) Modified on 08/05/2002 (Entered: 08/05/2002)
2 Judge Richard G. Stearns . Order entered granting [1−1] motion to proceed without prepayment of fees (in forma pauperis) . Clerk is to issue summons and the US marshal is to serve process at the directives of the plaintiff with all costs to be advanced by the US marshal. cc/plas [EOD Date 8/5/02] (scj) (Entered: 08/05/2002)
7 Complaint filed in accordance with Order No. 2. Case assigned to Judge: Stearns. Fee Status: Prepayment Waived (scj) (Entered: 08/05/2002)
Mail sent to Darrick Wilson returned by Post Office because: Not here. (scj) (Entered: 08/14/2002)
Mail sent to Anthony Tucker returned by Post Office because: Not Here. (scj) (Entered: 08/14/2002)
8 Return of service executed as to Michael Maloney with service on 8/22/02 filed. (eaf) (Entered: 10/15/2002)
9 Motion by Michael Maloney for exemption from Local Rule 7.1(A)(2) requiring motion conference , filed. (eaf) (Entered: 10/15/2002)
10 Motion by Michael Maloney to extend time to 11/29/02 to respond to complaint , filed. (eaf) (Entered: 10/15/2002)
Judge Richard G. Stearns . Endorsed Order entered granting [10−1] motion to extend time to 11/29/02 to respond to complaint, granting [9−1] motion for exemption from Local Rule 7.1(A)(2) requiring motion conference . [EOD Date 10/16/02] cc: all counsel of record. (eaf) (Entered: 10/16/2002)
12 Judge Richard G. Stearns . Memorandum and Order entered. [EOD Date 11/7/02] "...claims of Mr. Tucker and Mr. Wilson are dismissed without prejudice for want of prosecution pursuant to Rule 41(b) of the F.R.Civ.P." cc: all counsel of record. (eaf) (Entered: 11/07/2002)
11 Motion by Mac S. Hudson for entry of default as to Michael Maloney , filed. (eaf) (Entered: 10/28/2002)
13 Motion by Derrick Tyler for leave to file motion to proceed in forma pauperis late , filed. (eaf) (Entered: 11/14/2002)
14 Motion by Michael Maloney to extend time to 12/27/02 to respond to complaint , filed. (eaf) (Entered: 11/27/2002)
Judge Richard G. Stearns . Endorsed Order entered granting [14−1] motion to extend time to 12/27/02 to respond to complaint . [EOD Date 12/2/02] cc: all counsel of record. (eaf) (Entered: 12/02/2002)
Terminated document: mooting [11−1] motion for entry of default as to Michael Maloney Requested by eaf. (the court having allowed deft's motion to extend time to file responsive pleading until 12/27/02) cc: all counsel of record. (eaf) (Entered: 12/02/2002)
15 Motion by Michael Maloney to extend time to 1/27/03 to respond to complaint , filed. (eaf) (Entered: 12/24/2002)
Judge Richard G. Stearns . Endorsed Order entered granting [15−1] motion to extend time to 1/27/03 to respond to complaint . [EOD Date 12/27/02] cc: all counsel of record. (eaf) (Entered: 12/27/2002)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 5 of 16

01/08/2003 01/27/2003 02/12/2003 02/12/2003 03/03/2003 03/03/2003
03/04/2003
04/25/2003 04/28/2003
05/16/2003 05/22/2003
06/02/2003
06/06/2003
06/23/2003 06/23/2003 07/07/2003 07/09/2003 08/27/2003 03/30/2004
05/12/2004 05/12/2004

16 Motion by Mac S. Hudson to modify 12/27/02 order , filed. on enlargement of time (eaf) (Entered: 01/09/2003)
17 Answer by Michael Maloney to complaint; jury demand, filed. (eaf) (Entered: 01/28/2003)
18 Motion/memo by Mac S. Hudson for preliminary judgment , filed. (eaf) (Entered: 02/12/2003)
19 Pltf's settlement proposal, filed. (eaf) (Entered: 02/12/2003)
20 Motion by Michael Maloney to extend time to 4/25/03 to rpnd to p/i , filed. (eaf) (Entered: 03/04/2003)
Judge Richard G. Stearns . Endorsed Order entered denying [16−1] motion to modify 12/27/02 order, denying [13−1] motion for leave to file motion to proceed in forma pauperis late . [EOD Date 3/4/03] cc: all counsel of record. (eaf) (Entered: 03/04/2003)
Judge Richard G. Stearns . Endorsed Order entered granting [20−1] motion to extend time to 4/25/03 to rpnd to p/i . [EOD Date 3/4/03] cc: all counsel of record. (eaf) (Entered: 03/04/2003)
21 Motion by Michael Maloney to extend time to 5/16/03 to respond to motion for preliminary injunction , filed. (eaf) (Entered: 04/28/2003)
Judge Richard G. Stearns . Endorsed Order entered granting [21−1] motion to extend time to 5/16/03 to respond to motion for preliminary injunction . [EOD Date 4/29/03] cc: all counsel of record. (eaf) (Entered: 04/29/2003)
22 MOTION for Extension of Time to 5/30/03 to respond to mtn for P/I by Michael Maloney.(Flaherty, Elaine) (Entered: 05/22/2003)
Judge Richard G. Stearns : Electronic ORDER entered granting 22 Motion for Extension of Time cc: all counsel of record. (Flaherty, Elaine) (Entered: 05/27/2003)
23 MOTION for Extension of Time to 6/20/03 to File Response/Reply as to 18 Motion for Preliminary Injunction by Michael Maloney.(Flaherty, Elaine) (Entered: 06/05/2003)
Judge Richard G. Stearns : Electronic ORDER entered granting 23 Motion for Extension of Time to File Response/Reply re 18 Motion for Preliminary Injunction. cc: all counsel of record. Responses due by 6/20/2003 (Flaherty, Elaine) (Entered: 06/06/2003)
24 RESPONSE to Motion re 18 Motion for Preliminary Injunction filed by Michael Maloney. (Flaherty, Elaine) (Entered: 06/25/2003)
25 MEMORANDUM in Opposition re 18 Motion for Preliminary Injunction/TRO filed by Mac S. Hudson. (Flaherty, Elaine) (Entered: 06/25/2003)
26 MOTION for Extension of Time to 7/25/03 to reply to response to mtn for P/I by Mac S. Hudson.Flaherty, Elaine) (Entered: 07/10/2003)
Judge Richard G. Stearns : ORDER entered granting 26 Motion for Extension of Time cc: ALL COUNSEL OF RECORD. (Flaherty, Elaine) (Entered: 07/10/2003)
27 NOTICE of Withdrawal of Appearance Attorney Mary C. Eiro−Bartevyan terminated. (Flaherty, Elaine) (Entered: 08/27/2003)
28 Judge Richard G. Stearns : ORDER entered MEMORANDUM AND ORDER on Plaintiffs' Motion for a Preliminary Injunction, ENTERED. "DENIED."(Flaherty, Elaine) (Entered: 03/29/2004)
29 MOTION for Summary Judgment by Michael Maloney.(Flaherty, Elaine) (Entered: 05/17/2004)
30 MEMORANDUM in Support re 29 MOTION for Summary Judgment filed by Michael Maloney. (Flaherty, Elaine) (Entered: 05/17/2004)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 6 of 16

05/12/2004 05/25/2004 05/28/2004 05/28/2004 05/28/2004 06/03/2004 06/04/2004 07/23/2004 08/02/2004 08/09/2004 11/09/2004
12/13/2004 12/13/2004
12/14/2004 01/21/2005 01/21/2005 01/21/2005 01/21/2005

31 NOTICE of Appearance by Richard C. McFarland on behalf of Michael Maloney (Flaherty, Elaine) (Entered: 05/17/2004)
32 MOTION to Stay defendant's summary judgment motion until the completion of discovery by Mac S. Hudson.(Flaherty, Elaine) (Entered: 05/26/2004)
33 MOTION for Protective Order by Michael Maloney.(McFarland, Richard) (Entered: 05/28/2004)
34 RESPONSE to Motion re 32 MOTION to Stay filed by Michael Maloney. (McFarland, Richard) (Entered: 05/28/2004)
35 CERTIFICATE OF SERVICE by Michael Maloney re 33 MOTION for Protective Order, 34 Response to Motion. (McFarland, Richard) (Entered: 05/28/2004)
36 MEMORANDUM in Support re 18 Motion for preliminary injunction/t.r.o Relief filed by Mac S. Hudson, Derrick Tyler. (Flaherty, Elaine) (Entered: 06/07/2004)
37 Opposition re 18 Motion for preliminary injunction Relief filed by Michael Maloney. (Flaherty, Elaine) (Entered: 06/07/2004)
38 Judge Richard G. Stearns : MEMORANDUM AND ORDER on Defendants' Motion for Summary Judgment, ENTERED.(Flaherty, Elaine) (Entered: 07/23/2004)
39 MOTION for Reconsideration re 38 Memorandum &ORDER by Michael Maloney.(McFarland, Richard) (Entered: 08/02/2004)
40 MOTION for Reconsideration re 38 Memorandum &ORDER by Mac S. Hudson.(Flaherty, Elaine) (Entered: 08/11/2004)
41 Judge Richard G. Stearns : ORDER FOR APPOINTMENT OF PRO BONO COUNSEL entered: There being sufficient cause to exercise the discretionary power of the Court to appoint counsel, it is ORDERED that McDermott Will &Emery LLP, 28 State Street, Boston, MA 02109 is appointed to represent plaintiffs Mac Hudson and Derrick Tyler under the provisions of the United States District Court Plan for the Appointment of Counsel For Indigent Parties in Civil Cases, unless this appointment is declined by written notice (copy to pro bono coordinator) within twenty−one (21) days from the date of this Order. (Morse, Barbara) (Entered: 11/09/2004)
42 Judge Richard G. Stearns : ORDER entered (Flaherty, Elaine) (Entered: 12/13/2004)
Motions terminated: 39 MOTION for Reconsideration re 38 Memorandum &ORDER filed by Michael Maloney, 40 MOTION for Reconsideration re 38 Memorandum &ORDER filed by Mac S. Hudson See order no.42 (Flaherty, Elaine) (Entered: 12/13/2004)
43 NOTICE of Appearance by Benjamin A. Goldberger on behalf of Mac S. Hudson, Derrick Tyler (Copy of Judge Stearns' most recent order mailed this day) (Flaherty, Elaine) (Entered: 12/15/2004)
44 MOTION to Amend the Complaint by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Proposed Amended Complaint)(Goldberger, Benjamin) (Entered: 01/21/2005)
45 Supplemental MOTION for Reconsideration by Mac S. Hudson, Derrick Tyler.(Goldberger, Benjamin) (Entered: 01/21/2005)
46 Opposition re 39 MOTION for Reconsideration re 38 Memorandum &ORDER filed by Mac S. Hudson, Derrick Tyler. (Goldberger, Benjamin) (Entered: 01/21/2005)
47 STATEMENT of facts As to Which There is a Genuine Dispute to Be Tried. (Attachments: # 1 Declaration of Mac S. Hudson# 2 Declaration of Derrick Tyler# 3 Declaration of Minister Don Muhammad)(Goldberger, Benjamin) (Entered: 01/21/2005)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 7 of 16

01/21/2005 02/04/2005 02/04/2005 02/18/2005 02/18/2005 02/23/2005 02/24/2005 03/17/2005 03/17/2005 03/17/2005 04/26/2005 05/04/2005
05/05/2005 05/05/2005
05/05/2005

48 MEMORANDUM in Support re 44 MOTION to Amend the Complaint, 45 Supplemental MOTION for Reconsideration and in Opposition to 39 Defendant's Motion for Reconsideration filed by Mac S. Hudson, Derrick Tyler. (Goldberger, Benjamin) (Entered: 01/21/2005)
49 MEMORANDUM in Opposition re 44 MOTION to Amend the Complaint filed by Michael Maloney. (Attachments: # 1 Affidavit # 2 Affidavit)(McFarland, Richard) (Entered: 02/04/2005)
50 Opposition re 45 Supplemental MOTION for Reconsideration filed by Michael Maloney. (McFarland, Richard) (Entered: 02/04/2005)
52 MOTION for Leave to File reply memorandum in support of their motion to amend the complaint and their substitute motion for reconsideration by Mac S. Hudson, Derrick Tyler.(Flaherty, Elaine) (Entered: 02/24/2005)
53 NOTICE of Appearance by Neal E. Minahan on behalf of Mac S. Hudson, Derrick Tyler (Flaherty, Elaine) (Entered: 02/24/2005)
51 NOTICE of Hearing on Motion 44 MOTION to Amend the Complaint, 45 Supplemental MOTION for Reconsideration: Motion Hearing set for 5/5/2005 02:30 PM in Courtroom 21 before Judge Richard G. Stearns. (Johnson, Mary) (Entered: 02/23/2005)
Judge Stearns : Electronic ORDER entered granting 52 Motion for Leave to File (Flaherty, Elaine) Modified on 2/28/2005 (Flaherty, Elaine). (Entered: 02/28/2005)
Civil Case Terminated. (Flaherty, Elaine) (Entered: 03/17/2005)
Case Reopened closed in error (Flaherty, Elaine) (Entered: 03/17/2005)
Notice of correction to docket made by Court staff. Correction: #54 corrected because: wrong civil action number (deleted wrong case) (Flaherty, Elaine) (Entered: 03/17/2005)
54 Letter/request (non−motion) from N. Minahan w/attachment, filed. (Flaherty, Elaine) (Entered: 04/26/2005)
55 MOTION for Leave to File Supplemental Materials Relating to Jumah Services by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Affidavit of Mac Hudson with Attached Letter from Timothy Hall# 2 Affidavit of Zachariah F. Ibrahim−Bush# 3 Affidavit of Michael Keohane# 4 Affidavit of Adam Rosier# 5 Affidavit of Orrin Simmons)(Goldberger, Benjamin) (Entered: 05/04/2005)
Judge Richard G. Stearns : ElectronicORDER entered allowing 55 Motion for Leave to File (Hamilton, Maria Raia) Modified on 5/6/2005 (Flaherty, Elaine). (Entered: 05/05/2005)
Judge Richard G. Stearns : Electronic ORDER entered. ELECTRONIC ENDORSEMENT re 39 MOTION for Reconsideration re 38 Memorandum &ORDER filed by Michael Maloney, 44 MOTION to Amend the Complaint filed by Mac S. Hudson, Derrick Tyler, 40 MOTION for Reconsideration re 38 Memorandum &ORDER filed by Mac S. Hudson, 45 Supplemental MOTION for Reconsideration filed by Mac S. Hudson, Derrick Tyler. Plaintiffs' motions for reconsideration are DENIED. Defendant's motion for reconsideration of the court's order regarding Halal meat is DENIED. The motion to amend the Complaint 44 is ALLOWED. In allowing the motion to amend the Complaint, the court is not reversing its prior ruling regarding inmate meal preparation or prayer rugs. The court will, however, allow discovery on all the issues advanced in the Complaint, including those two issues, and allow plaintiffs to seek leave to file a motion for reconsideration after the close of discovery. The parties have ninety days to complete written discovery. At that time, the parties may seek leave of court to conduct depositions. (Hamilton, Maria Raia) (Entered: 05/05/2005)
ElectronicClerk's Notes for proceedings held before Judge Richard G. Stearns : Motion Hearing held on 5/5/2005 re 39 MOTION for Reconsideration re 38 Memorandum &ORDER filed by Michael Maloney,. (Court Reporter Jmes Gibbons.) (Hamilton, Maria Raia) (Entered: 05/26/2005)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 8 of 16

05/26/2005 06/06/2005 06/13/2005 06/27/2005 08/02/2005 08/04/2005 08/09/2005 09/30/2005 10/17/2005
12/09/2005 12/15/2005 01/27/2006 01/30/2006 02/24/2006 03/31/2006 04/03/2006

56 AMENDED COMPLAINT against Kathleen Dennehy, filed by Mac S. Hudson, Derrick Tyler.(Goldberger, Benjamin) (Entered: 05/26/2005)
57 Judge Richard G. Stearns : ORDER, entered. "The parties are hereby INVITED to supplement pleadings...within twenty−one (21) days of the date of this Order..."(Flaherty, Elaine) (Entered: 06/06/2005)
58 ANSWER to Complaint with Jury Demand by Kathleen Dennehy.(McFarland, Richard) (Entered: 06/13/2005)
59 MEMORANDUM OF LAW by Mac S. Hudson, Derrick Tyler to 57 Order. (Attachments: # 1 Exhibit 1)(Minahan, Neal) (Entered: 06/27/2005)
Judge Richard G. Stearns : Electronic ORDER entered. ELECTRONIC ENDORSEMENT re 59 Memorandum of Law filed by Mac S. Hudson,, Derrick Tyler,"notd" (Flaherty, Elaine) (Entered: 08/03/2005)
60 Joint MOTION for Extension of Time to 9/2/2005 to Complete Discovery by Mac S. Hudson, Kathleen Dennehy, Derrick Tyler.(Goldberger, Benjamin) (Entered: 08/04/2005)
Judge Richard G. Stearns : Electronic ORDER entered granting 60 Motion for Extension of Time to Complete Discovery (Flaherty, Elaine) (Entered: 08/09/2005)
61 Joint MOTION for Discovery (Leave to Take Depositions) and Proposed Discovery Schedule by Mac S. Hudson, Kathleen Dennehy, Derrick Tyler.(Goldberger, Benjamin) (Entered: 09/30/2005)
Judge Richard G. Stearns : Electronic ORDER entered granting 61 Motion for Discovery : "Allowed, as proposed by counsel − all fact discovery to be completed by 12−20−05; each party shall, by 1−27−06, identify any expert witnesses who may offer testimony on issues for which that party has the burden of proof and provide opposing counsel with written expert(s) reports pursuant to Fed. R. Civ. P.26; each party shall, by 3−10−06, identify any expert witness who will offer testimony in rebuttal or opposition to any expert identified under paragraph 2 and provide opposing counsel with written expert(s) reports pursuant to Fed. R. Civ. P. 26; all dispositive motions shall be filed by 3−31−06; oppositions shall be filed 14 days later unless enlarged by the Court". (Johnson, Mary) Modified on 10/18/2005 (Johnson, Mary). (Entered: 10/18/2005)
62 Joint MOTION for Extension of Time to January 27, 2006 to Take Fact Depositions by Mac S. Hudson, Kathleen Dennehy, Derrick Tyler.(Goldberger, Benjamin) (Entered: 12/09/2005)
Judge Richard G. Stearns : Electronic ORDER entered granting 62 Motion for Extension of Time (Flaherty, Elaine) (Entered: 12/15/2005)
63 Joint MOTION for Extension of Time to 02/24/2006 to Complete Discovery (Extend Deadline for Expert Reports) by Mac S. Hudson, Kathleen Dennehy, Derrick Tyler.(Minahan, Neal) (Entered: 01/27/2006)
Judge Richard G. Stearns : Electronic ORDER entered granting 63 Motion for Extension of Time to Complete Discovery (Flaherty, Elaine) (Entered: 01/31/2006)
64 Disclosure pursuant to Rule 26 by Kathleen Dennehy. (Attachments: # 1)(McFarland, Richard) (Entered: 02/24/2006)
65 Joint MOTION for Extension of Time to April 14, 2006 to File Dispositive Motions by Kathleen Dennehy.(McFarland, Richard) (Entered: 03/31/2006)
Judge Richard G. Stearns : Electronic ORDER entered granting 65 Motion for Extension of Time: "pltfs. shall file a Motion for Reconsideration of the issues raised in the Court's 5−5−05 Order, by 4−14−06. Deft. to oppose pltfs' Motion for Reconsideration, and to file a Motion for Summary Judgment on remaining issues , by 5−12−06. Pltfs. to file their opposition to deft's Motion for Summary Judgment by 5−26−06. SO ORDERED." (Johnson, Mary) Modified on 4/3/2006 (Johnson, Mary). (Entered: 04/03/2006)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 9 of 16

04/10/2006
04/14/2006 04/14/2006
05/01/2006 05/13/2006 05/13/2006
05/13/2006 05/13/2006 05/23/2006 06/02/2006 06/02/2006 06/02/2006
06/15/2006 06/19/2006 08/31/2006

Judge Richard G. Stearns : Electronic ORDER entered. Counsel shall advise the court, within twenty−one days of the date of this order, as to what effect the Supreme Judicial Court's recent ruling in Rashad Rasheed vs. Comm. of Corrections, SJC−09617, April 7, 2006, has on plaintiff's causes of action.(Hamilton, Maria Raia) (Entered: 04/10/2006)
66 MOTION for Reconsideration re 38 Memorandum &ORDER by Mac S. Hudson, Derrick Tyler.(Minahan, Neal) (Entered: 04/14/2006)
67 MEMORANDUM in Support re 66 MOTION for Reconsideration re 38 Memorandum &ORDER filed by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Affidavit # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N)(Minahan, Neal) (Entered: 04/14/2006)
68 Response by Kathleen Dennehy to Order, of April 10, 2006. (McFarland, Richard) (Entered: 05/01/2006)
69 MOTION for Summary Judgment by Kathleen Dennehy.(McFarland, Richard) (Entered: 05/13/2006)
70 MEMORANDUM in Support re 69 MOTION for Summary Judgment filed by Kathleen Dennehy. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit)(McFarland, Richard) (Entered: 05/13/2006)
71 MOTION for Leave to File Excess Pages by Kathleen Dennehy.(McFarland, Richard) (Entered: 05/13/2006)
72 MEMORANDUM in Opposition re 66 MOTION for Reconsideration re 38 Memorandum &ORDER filed by Kathleen Dennehy. (McFarland, Richard) (Entered: 05/13/2006)
73 Assented to MOTION for Extension of Time to 6/2/2006 to File Response/Reply as to 69 MOTION for Summary Judgment by Mac S. Hudson, Derrick Tyler.(Goldberger, Benjamin) (Entered: 05/23/2006)
74 Assented to MOTION for Leave to File Excess Pages by Mac S. Hudson, Derrick Tyler.(Minahan, Neal) (Entered: 06/02/2006)
75 Counter Statement of Material Facts L.R. 56.1 re 69 MOTION for Summary Judgment filed by Mac S. Hudson, Derrick Tyler. (Minahan, Neal) (Entered: 06/02/2006)
76 Opposition re 69 MOTION for Summary Judgment, 71 MOTION for Leave to File Excess Pages filed by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Affidavit of Neal E. Minahan, Esq.# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P# 18 Exhibit Q# 19 Exhibit R# 20 Exhibit S# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W# 25 Exhibit X# 26 Exhibit Y# 27 Exhibit Z# 28 Exhibit AA# 29 Exhibit BB# 30 Exhibit CC)(Minahan, Neal) (Entered: 06/02/2006)
Judge Richard G. Stearns : Electronic ORDER entered granting 71 Motion for Leave to File Excess Pages, granting 73 Motion for Extension of Time to File Response/Reply, granting 74 Motion for Leave to File Excess Pages (Hamilton, Maria Raia) (Entered: 06/15/2006)
ELECTRONIC NOTICE of Hearing on Motion 66 MOTION for Reconsideration re 38 Memorandum &ORDER, 69 MOTION for Summary Judgment: Motion Hearing set for 8/31/2006 10:00 AM in Courtroom 21 before Judge Richard G. Stearns. (Johnson, Mary) (Entered: 06/19/2006)
Judge Richard G. Stearns : Electronic ORDER entered granting 66 Motion for Reconsideration and denying 69 Motion for Summary Judgment. A non−jury trial is hereby scheduled to commence on January 8, 2007, at 9:30 a.m. in Courtroom 21. Counsel shall notify the Courtroom Clerk within fourteen days of the date of this Order as to problems with witness availabilty. (Hamilton, Maria Raia)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 10 of 16

08/31/2006
10/25/2006
11/29/2006 12/07/2006 12/08/2006 12/15/2006 12/15/2006 12/18/2006 12/18/2006 12/22/2006 12/26/2006 12/29/2006 01/02/2007 01/04/2007 01/04/2007 01/04/2007 01/06/2007 01/06/2007 01/07/2007

(Entered: 08/31/2006)
ElectronicClerk's Notes for proceedings held before Judge Richard G. Stearns : Motion Hearing held on 8/31/2006 re 69 MOTION for Summary Judgment filed by Kathleen Dennehy, 66 and MOTION for Reconsideration re 38 Memorandum &ORDER filed by Mac S. Hudson, and Derrick Tyler,. (Court Reporter Marcia Patrisso.) (Hamilton, Maria Raia) (Entered: 08/31/2006)
77 Judge Richard G. Stearns : ORDER entered. PROCEDURAL ORDER re non−jury trial: Bench Trial set for 1/8/2007 at 09:30 AM in Courtroom 21 before Judge Richard G. Stearns. Trial Documents to be filed by 12−29−06. (Johnson, Mary) Modified on 10/25/2006 (Johnson, Mary). (Entered: 10/25/2006)
78 MOTION for Extension of Time to For Designation of Expert by Kathleen Dennehy. (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 11/29/2006)
79 Opposition re 78 MOTION for Extension of Time to For Designation of Expert filed by Mac S. Hudson, Derrick Tyler. (Minahan, Neal) (Entered: 12/07/2006)
Judge Richard G. Stearns : Electronic ORDER entered denying 78 Motion for Extension of Time. (Hamilton, Maria Raia) (Entered: 12/08/2006)
80 MOTION for Writ of Habeas Corpus ad testificandum (UNOPPOSED) by Mac S. Hudson, Derrick Tyler.(Goldberger, Benjamin) (Entered: 12/15/2006)
Judge Richard G. Stearns : Electronic ORDER entered granting 80 Motion for Writs of Habeas Corpus ad testificandum. (Johnson, Mary) (Entered: 12/15/2006)
81 WRIT of Habeas Corpus Ad Testificandum issued as toDerick Tyler. (Johnson, Mary) (Entered: 12/18/2006)
82 WRIT of of Habeas Corpus Ad Testificandum issued as toMac S. Hudson. (Johnson, Mary) (Entered: 12/18/2006)
83 MOTION in Limine Regarding Jum'ah Services by Mac S. Hudson, Derrick Tyler.(Goldberger, Benjamin) (Entered: 12/22/2006)
84 NOTICE of Appearance by Charles W. Anderson, Jr on behalf of all defendants (Anderson, Charles) (Entered: 12/26/2006)
85 Joint Pretrial Memorandum Joint Stipulation of Facts, Exhibit list and Witness List by Mac S. Hudson, Kathleen Dennehy, Derrick Tyler. (Minahan, Neal) Modified on 1/3/2007 (Flaherty, Elaine). (Entered: 12/29/2006)
86 MOTION in Limine to Preclude Testimony of Randy Muhammad by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Exhibit A − Interrogatories# 2 Exhibit B − Interrogatory Responses)(Goldberger, Benjamin) (Entered: 01/02/2007)
87 RESPONSE to Motion re 83 MOTION in Limine Regarding Jum'ah Services filed by Kathleen Dennehy. (McFarland, Richard) (Entered: 01/04/2007)
88 RESPONSE to Motion re 86 MOTION in Limine to Preclude Testimony of Randy Muhammad filed by Kathleen Dennehy. (McFarland, Richard) (Entered: 01/04/2007)
89 MOTION in Limine Regarding Access to a Prayer Rug by Kathleen Dennehy.(McFarland, Richard) (Entered: 01/04/2007)
90 MEMORANDUM in Opposition re 89 MOTION in Limine Regarding Access to a Prayer Rug filed by Mac S. Hudson, Derrick Tyler. (Goldberger, Benjamin) (Entered: 01/06/2007)
91 Assented to MOTION to Sequester Trial Witnesses by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Text of Proposed Order)(Goldberger, Benjamin) (Entered: 01/06/2007)
92 TRIAL BRIEF by Mac S. Hudson, Derrick Tyler. (Goldberger, Benjamin) (Entered: 01/07/2007)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 11 of 16

01/08/2007
01/08/2007 01/08/2007 01/09/2007
01/10/2007
01/12/2007
01/17/2007 01/17/2007 01/17/2007 01/18/2007
01/18/2007 01/18/2007 01/22/2007 01/25/2007 01/30/2007

Electronic Clerk's Notes for proceedings held before Judge Richard G. Stearns : Bench Trial held on 1/8/2007, Day 1. Attys. Goldberger, Minihan, Kendall present for the plaintiffs. Attys. McFarland and Anderson present for the defendant. Pltf's opening. Deft's opening. P−1 sworn. Direct. Cross. Re−direct. Excused. P−2 sworn. Direct. Adjourn 1:00 P.M. (Court Reporter James Gibbons.) (Johnson, Mary) Modified on 1/22/2007 (Johnson, Mary). (Entered: 01/22/2007)
Judge Richard G. Stearns : Electronic ORDER entered granting 91 Motion to Sequester. (Johnson, Mary) (Entered: 01/25/2007)
Judge Richard G. Stearns : Electronic ORDER entered denying 83 Motion in Limine, denying 86 Motion in Limine, denying 89 Motion in Limine. () (Entered: 01/25/2007)
Electronic Clerk's Notes for proceedings held before Judge Richard G. Stearns : Bench Trial held on 1/9/2007, Day 2. Direct of P−2 continues. Cross. Re−direct. Excused. P−3 sworn. Direct. Cross. Adjourn 12:45 P.M. (Court Reporter James Gibbons.) (Johnson, Mary) Modified on 1/22/2007 (Johnson, Mary). (Entered: 01/22/2007)
Electronic Clerk's Notes for proceedings held before Judge Richard G. Stearns : Bench Trial held on 1/10/2007, Day 3. Cross of P−3 continues. Re−direct. Excused. D−1 sworn out of turn. Direct. Cross. Re−direct. Excused. D−2 sworn out of turn. Direct. Cross. Excused. Adjourn 1:00 P.M. (Court Reporter Carol Scott.) (Johnson, Mary) Modified on 1/22/2007 (Johnson, Mary). (Entered: 01/22/2007)
Electronic Clerk's Notes for proceedings held before Judge Richard G. Stearns : Bench Trial held on 1/12/2007, Day 4. D−3 sworn out of turn. Direct. Cross. Re−direct. Excused. P−4 sworn. Direct. Cross. Re−direct. Excused. Trial continued to 1−18−07 at 9:30 a.m. Adjourn 1:00 P.M. (Court Reporter James Gibbons.) (Johnson, Mary) Modified on 1/22/2007 (Johnson, Mary). (Entered: 01/22/2007)
93 Writ of Habeas Corpus issued as to Mac Hudson. (Johnson, Mary) (Entered: 01/17/2007)
94 WRIT of Habeas Corpus issued as to Derick Tyler. (Johnson, Mary) (Entered: 01/17/2007)
95 NOTICE of Appearance by James J. Marcellino on behalf of all plaintiffs (Marcellino, James) (Entered: 01/17/2007)
Electronic Clerk's Notes for proceedings held before Judge Richard G. Stearns : Bench Trial held on 1/18/2007, Day 5. Plaintiffs rest. Deft. files Motion for Partial Findings after completion of Plaintiffs Case. The Court provisionally denies the motion until such time as all the evidence has been completed and plaintiffs have had a chance to respond to the motion. D−4 sworn. Direct. Cross. Re−direct. Excused. D−6 sworn. Direct. Cross. Re−direct. Re−cross. Excused. Defendant rests. Plaintiffs shall file their response to deft's motion within next week or so. Final Arguments will be held when parties agree to a mutually convenient time with the Court. Counsel will contact the clerk for dates and times. (Court Reporter James Gibbons.) (Johnson, Mary) Modified on 1/22/2007 (Johnson, Mary). Modified on 1/22/2007 (Johnson, Mary). (Entered: 01/22/2007)
97 MOTION for Judgment on Partial Findings by Michael Maloney, Kathleen Dennehy.(Flaherty, Elaine) (Entered: 01/26/2007)
98 MEMORANDUM in Support re 97 MOTION for Judgment on Partial Findings filed by Michael Maloney, Kathleen Dennehy. (Flaherty, Elaine) (Entered: 01/26/2007)
ELECTRONIC NOTICE of Hearing : "Final Arguments by the Court shall beheld on Thursday, February 1, 2007 at 10 a.m." (Johnson, Mary) (Entered: 01/22/2007)
96 MEMORANDUM OF LAW by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Minahan, Neal) (Entered: 01/25/2007)
99 WRIT of Habas Corpus issued as to Mac Hudson. (Johnson, Mary) (Entered: 01/30/2007)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 12 of 16

01/30/2007 02/01/2007
02/20/2007 04/10/2007 04/11/2007 08/06/2007 09/11/2007
09/11/2007 09/27/2007 03/05/2008
03/07/2008 03/17/2008 03/24/2008 04/02/2008 04/11/2008

100 WRIT of Habeas Corpus as to Derick Tyler, issued. (Johnson, Mary) (Entered: 01/30/2007)
ElectronicClerk's Notes for proceedings held before Judge Richard G. Stearns : Bench Trial held on 2/1/2007, Day 6. Attys. Goldberger, Minihan and Marcellino present for the plaintiffs. Attys. McFarland and Anderson present for the defts. Court hears final arguments by counsel. After hearing, the matter is taken "under advisement." (Court Reporter James Gibbons.) (Johnson, Mary) Modified on 2/1/2007 (Johnson, Mary). (Entered: 02/01/2007)
101 Proposed Findings of Fact by Kathleen Dennehy. (McFarland, Richard) (Entered: 02/20/2007)
102 NOTICE by Mac S. Hudson, Derrick Tyler of Supplemental Authority (Attachments: # 1 Supplement Spratt Decision)(Goldberger, Benjamin) (Entered: 04/10/2007)
103 Response by Kathleen Dennehy to Plaintiffs' Notice of Supplemental Authority. (McFarland, Richard) (Entered: 04/11/2007)
104 NOTICE of Withdrawal of Appearance by Benjamin A. Goldberger and James J. Marcellino (Goldberger, Benjamin) Additional attachment(s) added on 9/11/2007 (Flaherty, Elaine). (Entered: 08/06/2007)
Remark by Deputy Clerk Mary Johnson: "Attorney Benjamin Goldberger has filed a notice of withdrawal which appears on the instant docket. Note that the caption of the case is a Judge Woodlock case − CA 05−11576−DPW) and therefore it was filed in error in this case (Hudson v. Maloney)." Mary Johnson, Deputy Clerk. (Johnson, Mary) Modified on 9/11/2007 (Johnson, Mary). (Entered: 09/11/2007)
Notice of correction to docket made by Court staff. Correction: notice of withdrawal of appearance corrected because: to rreflect correct image and case number (Flaherty, Elaine) (Entered: 09/11/2007)
Judge Richard G. Stearns : Electronic ORDER entered denying 97 Motion for Judgment on Partial Findings. Ruled on at trial and consolidated with Findings, Rulings and Order. (Zierk, Marsha) (Entered: 09/27/2007)
105 Judge Richard G. Stearns: FINDINGS OF FACT, RULINGS OF LAW AND ORDER AFTER A NON−JURY TRIAL, ENTERED."...For the foregoing reasons, the court will enter judgment in part for plaintiffs. The Commissioner's motion for judgment on partial findings is DENIED. The court will grant plaintiffs' prayers for declaratory judgment on the issues of Halal meals and closed−circuit television access to Jum'ah services while confined in Ten Block. Judgment will enter for defendant on the prayer rug issue. No money damages are awarded. Plaintiffs will within ten (10) days of the entry of this Order file a Proposed Form of Final Judgment. Defendant will have seven (7) days thereafter to comment. On entry of Final Judgment, the Clerk may close the case. The court will, however, retain jurisdiction to oversee the implementation of any remedial aspects of the Judgment."(Flaherty, Elaine) (Entered: 03/05/2008)
Civil Case Terminated. (Flaherty, Elaine) (Entered: 03/07/2008)
106 MOTION for Order to Enter Proposed Final Judgment by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Exhibit 1)(Minahan, Neal) (Entered: 03/17/2008)
107 Response by Kathleen Dennehy to 106 MOTION for Order to Enter Proposed Final Judgment. (Attachments: # 1 Text of Proposed Order)(McFarland, Richard) (Entered: 03/24/2008)
108 MEMORANDUM in Support re 106 MOTION for Order to Enter Proposed Final Judgment and in Opposition to Defendant's Proposed Final Judgment filed by Mac S. Hudson, Derrick Tyler. (Minahan, Neal) (Entered: 04/02/2008)
109 Opposition re 106 MOTION for Order to Enter Proposed Final Judgment filed by Kathleen Dennehy. (Attachments: # 1 Affidavit)(McFarland, Richard) (Entered: 04/11/2008)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 13 of 16

04/11/2008 04/16/2008 04/17/2008 04/17/2008 04/28/2008 04/28/2008 05/02/2008 05/02/2008
05/12/2008 05/12/2008 05/13/2008 05/15/2008 05/15/2008 05/23/2008 06/06/2008
06/06/2008 06/19/2008
06/19/2008

110 Judge Richard G. Stearns: Final Judgment/Memorandum and Order entered Giannotti, Diane) Modified on 4/14/2008 (Johnson, Mary). (Entered: 04/11/2008)
111 Letter/request (non−motion) from Defendant. (McFarland, Richard) (Entered: 04/16/2008)
112 Assented to MOTION for Extension of Time to 5/2/2008 to File an Attorneys' Fees Petition and Bill of Costs by Mac S. Hudson, Derrick Tyler.(Minahan, Neal) (Entered: 04/17/2008)
113 Response by Mac S. Hudson, Derrick Tyler to 111 Letter/request (non−motion) for Clarification of Final Judgment. (Minahan, Neal) (Entered: 04/17/2008)
Judge Richard G. Stearns: Electronic ORDER entered granting 112 Motion for Extension of Time (Flaherty, Elaine) (Entered: 04/28/2008)
114 Judge Richard G. Stearns: ORDER − Clarification of Final Judgment, entered. (Flaherty, Elaine) (Entered: 04/28/2008)
115 MOTION for Attorney Fees and Costs by Mac S. Hudson, Derrick Tyler.(Minahan, Neal) (Entered: 05/02/2008)
116 MEMORANDUM in Support re 115 MOTION for Attorney Fees and Costs filed by Mac S. Hudson, Derrick Tyler. (Attachments: # 1 Affidavit of Neal E. Minahan, Esq., # 2 Exhibit A (Part I), # 3 Exhibit A (Part II), # 4 Exhibit A (Part III), # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F)(Minahan, Neal) (Entered: 05/02/2008)
117 MOTION to Stay re 110 Memorandum &ORDER by Kathleen Dennehy.(McFarland, Richard) (Entered: 05/12/2008)
118 MOTION for Reconsideration re 110 Memorandum &ORDER by Kathleen Dennehy. (Attachments: # 1 Affidavit)(McFarland, Richard) (Entered: 05/12/2008)
Judge Richard G. Stearns: Electronic ORDER entered granting 117 Motion to Stay (Flaherty, Elaine) (Entered: 05/14/2008)
119 Assented to MOTION for Extension of Time to June 6, 2008 to file Opposition to Plaintiffs' Petition for Attorneys' Fees and Bill of Costs by Kathleen Dennehy.(McFarland, Richard) (Entered: 05/15/2008)
Judge Richard G. Stearns: Electronic ORDER entered granting 119 Motion for Extension of Time (Flaherty, Elaine) (Entered: 05/15/2008)
120 Opposition re 118 MOTION for Reconsideration re 110 Memorandum &ORDER filed by Mac S. Hudson, Derrick Tyler. (Minahan, Neal) (Entered: 05/23/2008)
ELECTRONIC NOTICE of Hearing on Motion 118 MOTION for Reconsideration re 110 Memorandum &ORDER : Motion Hearing set for 6/19/2008 03:15 PM in Courtroom 21 before Judge Richard G. Stearns. (Johnson, Mary) (Entered: 06/06/2008)
121 Opposition re 115 MOTION for Attorney Fees and Costs filed by Kathleen Dennehy. (McFarland, Richard) (Entered: 06/06/2008)
Electronic Clerk's Notes for proceedings held before Judge Richard G. Stearns: Motion Hearing held on 6/19/2008 re 118 MOTION for Reconsideration re 110 Memorandum &ORDER. " After hearing, the motion is denied without prejudice. Plaintiff Hudson is currently confined in general population at the Old Colony Correctional Facility. Accordingly, there is no actual controversy appropriate for judicial resolution. The stay on the Final Judgment is hereby lifted." Richard G. Stearns, USDJ. (Court Reporter: James Gibbons.)(Attorneys present: Attys. Minahan and Kendall for pltfs; Atty. McFarland for defts.) (Johnson, Mary) . (Entered: 06/19/2008)
Judge Richard G. Stearns: Electronic ORDER entered denying 118 Motion for Reconsideration. "Denied without prejudice. Hudson is currently confined in general population at the Old Colony Correctional Facility. Accordingly, there is no actual controversy appropriate for judicial resolution. The stay on the Final Judgment is lifted." R. G. Stearns, USDJ. (Johnson, Mary). (Entered: 06/19/2008)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 14 of 16

07/17/2008
07/17/2008 07/17/2008 07/25/2008 07/28/2008 07/28/2008
07/28/2008 07/28/2008
07/29/2008 07/30/2008 08/08/2008 08/08/2008 08/13/2008 08/18/2008 08/27/2008 08/29/2008 09/11/2008 09/11/2008 09/23/2008 09/23/2008 09/26/2008

122 NOTICE OF APPEAL as to Order on Motion for Reconsideration, by Harold W. Clarke NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov/clerks/transcript.htm MUST be completed and submitted to the Court of Appeals. Appeal Record due by 8/6/2008. (McFarland, Richard) (Entered: 07/17/2008)
123 MOTION to Stay re 122 Notice of Appeal, by Harold W. Clarke.(McFarland, Richard) (Entered: 07/17/2008)
124 NOTICE by Harold W. Clarke of Compliance with Final Judgment (McFarland, Richard) (Entered: 07/17/2008)
125 Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER(Prussia, Kevin) (Entered: 07/25/2008)
126 MOTION to Intervene by Barry H. Spencer, Jr.. (Attachments: # 1 Affidavit)(Seelye, Terri) (Entered: 07/28/2008)
127 MOTION for Leave to Proceed in forma pauperis by Barry H. Spencer, Jr.. (Attachments: # 1 Inmate Transaction Report)(Seelye, Terri)(2nd page of application missing) (Entered: 07/28/2008)
128 NOTICE by Harold W. Clarke re 122 Notice of Appeal, (Attachments: # 1 Exhibit)(McFarland, Richard) (Entered: 07/28/2008)
129 Assented to MOTION for Extension of Time to August 8, 2008 to : (1) Respond to Defendant's Motion for Stay of Execution of Judgment (Dkt. No. 123) and (2) File Any Cross Notice of Appeal (Regarding Dkt. No. 122) by Mac S. Hudson, Derrick Tyler.(Kendall, Michael) (Entered: 07/28/2008)
Judge Richard G. Stearns: Electronic ORDER entered granting 129 Motion for Extension of Time (Prussia, Kevin) (Entered: 07/29/2008)
Filing fee/payment: $ 455.00, receipt number BST005041 for 122 Notice of Appeal, (Russo, Patricia) (Entered: 07/30/2008)
130 NOTICE of Appearance by David Q. Gacioch on behalf of Mac S. Hudson, Derrick Tyler (Gacioch, David) (Entered: 08/08/2008)
131 Opposition re 123 MOTION to Stay re 122 Notice of Appeal, filed by Mac S. Hudson, Derrick Tyler. (Minahan, Neal) (Entered: 08/08/2008)
132 Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER. (Prussia, Kevin) (Entered: 08/13/2008)
133 Judge Richard G. Stearns: ORDER entered denying 123 Motion to Stay (Flaherty, Elaine) (Entered: 08/18/2008)
134 Certified and Transmitted Record on Appeal to US Court of Appeals re 122 Notice of Appeal, (Attachments: # 1 docket sheet)(Ramos, Jeanette) (Entered: 08/27/2008)
135 USCA Case Number 08−2100 for 122 Notice of Appeal, filed by Harold W. Clarke. (Ramos, Jeanette) (Entered: 08/29/2008)
136 MOTION for reinstatement of the case or for New Trial by Barry H. Spencer, Jr.. (Attachments: # 1 exhibits)(Flaherty, Elaine) (Entered: 09/11/2008)
137 Letter/request (non−motion) from Nathaniel Bilal Ahmad. (Attachments: # 1 exhibits)(Flaherty, Elaine) (Entered: 09/11/2008)
Judge Judge Richard G. Stearns: ELECTRONIC ENDORSEMENT re 137 Letter/request (non−motion) "noted." (Flaherty, Elaine) (Entered: 09/23/2008)
138 Opposition re 136 MOTION for New Trial by Barry Spencer filed by Harold W. Clarke. (McFarland, Richard) (Entered: 09/23/2008)
139 Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER(Giannotti, Diane)re: motion to reinstate 136 Modified on 10/22/2008 (Flaherty, Elaine). Modified on 10/22/2008 (Flaherty, Elaine). (Entered:

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 15 of 16

11/12/2008 11/12/2008 11/12/2008 11/18/2008 11/18/2008 11/25/2008 11/25/2008 12/04/2008 12/04/2008 12/22/2008

09/26/2008)
140 Transcript of Bench Trial Day One held on January 8, 2007, before Judge Stearns. COA Case No. 08−2100. Court Reporter: James P. Gibbons at jmsgibbons@yahoo.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 12/1/2008. Redacted Transcript Deadline set for 12/10/2008. Release of Transcript Restriction set for 2/7/2009. (Scalfani, Deborah) (Entered: 11/12/2008)
141 Transcript of Bench Trial Day Two held on January 9, 2007, before Judge Stearns. COA Case No. 08−2100. Court Reporter: James P. Gibbons at jmsgibbons@yahoo.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 12/1/2008. Redacted Transcript Deadline set for 12/10/2008. Release of Transcript Restriction set for 2/7/2009. (Scalfani, Deborah) (Entered: 11/12/2008)
142 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 11/12/2008)
143 Transcript of Bench Trial Day Four held on January 12, 2007, before Judge Stearns. COA Case No. 08−2100. Court Reporter: James P. Gibbons at jmsgibbons@yahoo.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 12/8/2008. Redacted Transcript Deadline set for 12/16/2008. Release of Transcript Restriction set for 2/13/2009. (Scalfani, Deborah) (Entered: 11/18/2008)
144 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 11/18/2008)
145 Transcript of Bench Trial Day Five held on January 18, 2007, before Judge Stearns. COA Case No. 08−2100. Court Reporter: James P. Gibbons at jmsgibbons@yahoo.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 12/15/2008. Redacted Transcript Deadline set for 12/23/2008. Release of Transcript Restriction set for 2/20/2009. (Scalfani, Deborah) Modified on 12/4/2008 (Scalfani, Deborah). (Entered: 11/25/2008)
146 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 11/25/2008)
147 Transcript of Non Jury Trial Day Three held on January 10, 2007, before Judge Stearns. COA Case No. 08−2100. Court Reporter: Carol Lynn Scott at 617/330−1377. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 12/22/2008. Redacted Transcript Deadline set for 1/1/2009. Release of Transcript Restriction set for 3/1/2009. (Scalfani, Deborah) (Entered: 12/04/2008)
148 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 12/04/2008)
149 Letter/request (non−motion) from Abdul−Karim Muwakkil a prisoner at MCI Norfolk requesting certification of documentation re: compliance of the preparation of Halal Meals, filed. (Flaherty, Elaine) (Entered: 12/22/2008)

Case: 1:01-cv-12145 As of: 05/24/2011 11:00 AM EDT 16 of 16

01/07/2009
01/07/2009 01/26/2009 01/26/2009
02/10/2009 02/18/2009 02/20/2009 03/03/2009 04/07/2009 08/25/2009 08/25/2009
09/16/2009 09/16/2009 10/22/2009
10/22/2009

150 Transcript of Motion for Reconsideration held on June 19, 2008, before Judge Stearns. Court Reporter: James P. Gibbons at jmsgibbons@yahoo.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 1/26/2009. Redacted Transcript Deadline set for 2/4/2009. Release of Transcript Restriction set for 4/6/2009. (Scalfani, Deborah) (Entered: 01/07/2009)
151 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 01/07/2009)
152 MOTION of Raheem Rasheed Abubarbar to Intervene.(Flaherty, Elaine) (Entered: 01/27/2009)
Judge Richard G. Stearns: Electronic ORDER entered denying 152 Raheem Rasheed Abubardar Motion to Intervene "Denied. The case is closed. (01−12145−RGS)" All documents filed with this motion to be returned to Mr. Raheem Rasheed Abubardar per RGS. Copy of this Order and those documents mailed to Mr. Abubardar at 2 Clark Street, P.O. Box 43, Norfolk, MA 02056 this day. (Flaherty, Elaine) (Entered: 01/27/2009)
153 Supplemental Record on Appeal transmitted to US Court of Appeals re 122 Notice of Appeal, Documents included: 140−141 (Scalfani, Deborah) (Entered: 02/10/2009)
154 Supplemental Record on Appeal transmitted to US Court of Appeals re 122 Notice of Appeal, Documents included: 143 (Scalfani, Deborah) (Entered: 02/18/2009)
155 Supplemental Record on Appeal transmitted to US Court of Appeals re 122 Notice of Appeal, Documents included: 145 (Scalfani, Deborah) (Entered: 02/20/2009)
156 Supplemental Record on Appeal transmitted to US Court of Appeals re 122 Notice of Appeal, Documents included: 147 (Scalfani, Deborah) (Entered: 03/03/2009)
157 Supplemental Record on Appeal transmitted to US Court of Appeals re 122 Notice of Appeal, Documents included: 150 (Scalfani, Deborah) (Entered: 04/07/2009)
158 OPINION of USCA. Opinion issued in the USCA 8/24/2009 (Ramos, Jeanette) (Entered: 08/25/2009)
159 USCA Judgment as to 122 Notice of Appeal, filed by Harold W. Clarke. This cause came on to be heard on appeal from the United States District Court for the District of Massachusetts and was argued by counsel. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The district court's entry of the injunction is affirmed. Judgment issued in the USCA 8/24/2009 (Ramos, Jeanette) (Entered: 08/25/2009)
160 MANDATE of USCA as to 122 Notice of Appeal, filed by Harold W. Clarke. Appeal 122 Terminated. Mandate issued in the USCA 9/15/2009 (Ramos, Jeanette) (Entered: 09/16/2009)
Appeal Record Returned: 122 Notice of Appeal, (Ramos, Jeanette) (Entered: 09/16/2009)
161 Transcript of Bench Trial Day Six held on February 1, 2007, before Judge Stearns. Court Reporter: James P. Gibbons at jmsgibbons@yahoo.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 11/9/2009. Redacted Transcript Deadline set for 11/19/2009. Release of Transcript Restriction set for 1/19/2010. (Scalfani, Deborah) (Entered: 10/22/2009)
162 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 10/22/2009)