LeBaron v. Spencer

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 12-1688

NATHAN MARQUIS LEBARON,

Plaintiff, Appellant,

v.

LUIS S. SPENCER, Commissioner, ET AL.,

Defendants, Appellees,
____________________

HAROLD W. CLARKE, ET AL.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.

Nathan Marquis LeBaron on brief pro se.
Nancy Ankers White, Special Assistant Attorney General and
Joan T. Kennedy, on brief for appellees.

July 22, 2013
 Per Curiam. Appellant Nathan Marquis LeBaron, an

inmate in the custody of the Massachusetts Department of

Correction (DOC), filed an action against various prison

officials concerning his attempts to practice his religion

while incarcerated. The district court granted summary

judgment for the appellees on the ground that the parties had

settled the matter. This is wrong, as the district court

eventually realized. That is, it is clear from the record that

no such agreement ever existed, and the appellees, in fact,

have never argued that the case had been settled.

Despite the lack of factual findings or legal

analysis, we nonetheless conclude that summary judgment can be

affirmed on three of the five claims that appellant pursues on

appeal: (1) a 42 U.S.C. § 1983 retaliation claim; (2) a § 1983

equal protection claim; and (3) a due process conspiracy claim

under §§ 1983 and 1985. However, because there are questions

of fact regarding appellant's claims under the Religious Land

Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1(a)

(RLUIPA), and under the First Amendment, the matter must be

remanded for further proceedings.

I. Background

According to DOC policy, an inmate who wishes

religious accommodation must make a written request to the

superintendent of the prison in which the inmate is housed, and

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the request is then sent to the Religious Services Review

Committee. The Committee, in turn, reviews the request and

forwards a recommendation to the Commissioner of the DOC.

Appellant, following this policy, filed such a request on

January 25, 2010, and he asked therein (1) that he be

recognized as a Messianic Jew, (2) that he be provided with a

Kosher diet, and (3) that a separate space be dedicated for

Messianic Jewish worship and study.

The Committee, on March 18, 2010, recommended

granting the first two requests. Shortly thereafter, on March

26, appellee Sherry Elliott, the Director of Classification and

Acting Director of Treatment, conducted a sincerity interview

with appellant; she concluded that appellant was sincere in his

faith, and he began receiving a Kosher diet that evening. As

for appellant's request for dedicated space for weekly worship

and study, the Committee deferred action and directed him to

resubmit his religious request with more information.

Appellant complied, and, on April 30, 2010, he

submitted another request to appellee Gary Roden, the

Superintendent of MCI Norfolk. In this request, appellant

explained that he needed a Messianic synagogue for daily prayer

and singing, as well as for the celebration of Jewish and

Christian holidays; claimant emphasized that, even if such

synagogue were not used for group activities, he would make use

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of it for his own study and prayer. Appellant also stated that

he needed (1) religious books and materials (unspecified), (2)

items of religious clothing (unspecified), and (3) a TV, a DVD

player, a CD player, and CDs (unspecified). Roden responded on

May 5, 2010, informing appellant that his religious request was

being forwarded to Elliott for processing. The Committee,

however, apparently never considered this request, and the

reason for this omission remains a mystery due to appellees'

silence on the matter. The instant action ensued.

Eventually, the appellees moved for summary judgment,

and, shortly thereafter, their attorney submitted a

Notification to the Court. In this pleading, counsel informed

the court that appellant had agreed to submit another religious

request, which request would be considered at the Committee's

April 2012 meeting. Although the Notification said nothing

about an agreement to dismiss any of appellant's claims, the

district court nonetheless granted summary judgment to the

appellees on ground that the matter had been settled.

The Committee then considered appellant's requests

for religious accommodation and made the following

recommendations. First, the Committee recommended that

appellant’s request for group study and prayer be denied as

there was not yet a Messianic Jewish volunteer to lead such

activity, and the DOC does not permit inmates to lead worship

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services; the Committee noted, however, that it was in the

process of looking for a volunteer. Next, the Committee

reported that personal religious items such as skull caps,

prayer shawls, and tzizits could be purchased from the DOC’s

designated vendor. Last, and as for appellant's request for a

personalized Kosher diet, the Committee denied such request

essentially because the Kosher diet that appellant already was

receiving was not, as he had alleged, nutritionally inadequate.

Meanwhile, appellant filed his own motion for summary

judgment, along with several other motions pointing out that

the matter had not been settled. When the district court

realized its mistake, it did not change its disposition, but,

rather, affirmed on the merits on the ground that the

appellees' actions had been "reasonable." This appeal ensued.

II. RLUIPA

RLUIPA, in relevant part, prohibits prisons that

receive federal funds from imposing a “substantial burden” on

an inmate's “religious exercise” unless prison officials can

demonstrate that the imposition of such a burden "(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). RLUIPA

defines the term "religious exercise" very broadly, and the

term includes "any exercise of religion, whether or not

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compelled by, or central to, a system of religious belief." §

200cc-5(7)(A). Thus, “[a]lthough RLUIPA bars inquiry into

whether a particular belief or practice is 'central' to a

prisoner's religion, the Act does not preclude inquiry into the

sincerity of a prisoner's professed religiosity.” Cutter v.

Wilkinson, 544 U.S. 709, 725 n. 13 (2005). As a result, a

RLUIPA plaintiff bears the burden of demonstrating that he or

she wishes to engage in “(1) a religious exercise (2) motivated

by a sincerely held belief, which exercise (3) is subject to a

substantial burden imposed by the government.” Abdulhaseeb v.

Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010). See also Koger

v. Bryan, 523 F.3d 789, 797-98 (7th Cir. 2008) (same).

We view appellant as complaining about essentially

four categories of “religious exercises”: (1) appellees failed

to provide a Messianic synagogue; (2) appellees refused to

permit appellant to engage in group worship; (3) appellees

failed to timely provide appellant with a Kosher diet and the

diet that he is now receiving is nutritionally inadequate; and

(4) appellees deprived appellant of various religious

materials, including clothing, books, a TV, a DVD player, a CD

player, and CDs. Appellees have not addressed the question

whether the foregoing qualify as “religious exercises” nor have

they argued that appellant is not sincere in believing that he

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needs to engage in such exercises in order to practice his

religion.

Rather, the only argument that the appellees have

made is that appellant has not shown a substantial burden to

the practice of his Messianic Judaism. Although we have not

yet defined the term "substantial burden," we accepted, in

Spratt v. Rhode Island Dept. of Corrections, 482 F.3d 33 (1st

Cir. 2007), the definition used by the district court in that

case – i.e., such a burden is one that puts "substantial

pressure on an adherent to modify his behavior and to violate

his beliefs." Id. at 38 (internal quotation marks and citation

omitted). Since the parties do not suggest otherwise, we will

use this definition in the following discussion.

A. Messianic Synagogue

“Courts have little difficulty in concluding that an

outright ban on a particular religious exercise is a

substantial burden on that . . . exercise.” Cryer v.

Massachusetts Dept. of Correction, 763 F. Supp. 2d 237, 247 (D.

Mass. 2011) (finding a question of fact regarding whether a

complete ban on the use of ceremonial tobacco in Native

American ceremonies placed a substantial burden on the inmate's

religious exercise; internal quotation marks and citation

omitted). See also Spratt, 482 F.3d at 38 (finding that a

prison policy forbidding an inmate from ever preaching to other

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inmates placed a substantial burden on that inmate's religious

exercise); Crawford v. Clarke, 578 F.3d 39, 44 (1st Cir. 2009)

(stating that the plaintiffs had shown a substantial burden to

their religious exercise because they were prohibited from

participating in any weekly, group religious services). Since

appellant is completely barred from praying in a Messianic

Synagogue, an exercise that he sincerely believes is necessary

for the practice of his religion, it is arguable that he has

been forced “to modify his behavior and to violate his

beliefs." Spratt, supra, 482 F.3d at 38. Given this, and

given that appellees have not addressed the issue, we find that

material questions of fact exist concerning whether appellant's

religious exercise has been substantially burdened.

B. Group Prayer

As with access to a Messianic Synagogue, appellant

has been completely barred from engaging in group prayer, a

burden we found substantial in Crawford, 578 F.3d at 44.

Appellees, in support of summary judgment on this issue, have

cited one case from this circuit, Bader v. Wrenn, 675 F.3d 95

(1st Cir. 2012), and two cases from the Fifth Circuit,

Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007), and Adkins v.

Kaspar, 393 F.3d 559 (5th Cir. 2004). However, appellees do

not discuss the cases or provide any explanation for why they

believe that the instant situation is governed by these cases.

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Thus, the argument has been waived. See Medina-Rivera v. MVM,

Inc., 713 F.3d 132, 140-41 (1st Cir. 2013) (“developing a

sustained argument out of . . . legal precedents” is a party's

job, and when the party presents only "undeveloped arguments,"

they will be deemed waived; internal quotation marks and

citation omitted).

We nonetheless conclude that while these cases

concern regulations, as here, requiring that group services be

led by qualified persons, they are distinguishable. That is,

the prison officials in those cases had submitted evidence

describing in detail how the volunteer policies had been

applied to each plaintiff, and this evidence showed that prison

officials had, in fact, made efforts to locate persons to lead

group services. Here, in contrast, there is no such evidence,

and we therefore cannot say, as a matter of law, that

appellant's religious exercise has not been substantially

burdened by the lack of any opportunities to engage in group

prayer. See id. at 136 ("we will affirm the grant of summary

judgment if (but only if) the record evidence . . . reveals

that there is no genuine dispute as to any material fact and

that [the moving party] is entitled to judgment as a matter of

law”; internal punctuation, quotation marks, and citation

omitted).

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 C. Kosher Diet

Although appellees do not raise any arguments on

appeal regarding the provision of a Kosher diet, they argued

below that since appellant had received such a diet on March

26, 2010, the same day as his sincerity interview with Elliott,

he cannot show that his religious exercise has been

substantially burdened. This is correct as far as it goes.

However, appellant went without Kosher food for roughly two

months -- the period of time between January 25, 2010, when he

first requested a Kosher diet, and March 26, when he began

receiving the diet. Since the ban was total, there is a

question of fact regarding whether appellant's religious

exercise had been substantially burdened during this time, and

summary judgment on this claim cannot stand. See Ramsey v.

Goord, 661 F. Supp. 2d 370, 396-97 (W.D.N.Y. 2009) (rejecting

the defendants' argument that going 30 days without Kosher food

constituted “no more than a de minimus interference” with the

inmate’s religious practice and noting that missing even one

religious meal can be a substantial burden if the inmate

sincerely believes that participation in the meal is necessary

for the practice of his religion; internal quotation marks

omitted).

As for the adequacy of the Kosher diet, it has been

held that "a prisoner's religious dietary practice [will be

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found to be] substantially burdened when the prison forces him

to choose between his religious practice and adequate

nutrition." Nelson v. Miller, 570 F.3d 868, 879 (7th Cir.

2009). Appellant, in this regard, has alleged that (1) the

Kosher meal portions are too small and do not meet the

Recommended Daily Allowance (RDA) set out by the Food and

Nutrition Board of the National Academy of Sciences, (2) the

meals contain rotten fruit and items that are not Kosher, (3)

the diet is too high in sodium, and (4) there is not enough

meat. The appellees, in response to these allegations, have

submitted the affidavit of William Bates, the Director of Food

Services at MCI Norfolk.

Bates explains, in relevant part, (1) that all of

Norfolk’s inmate menus are analyzed by an independent,

registered dietician who certifies that the menus meet the RDA,

(2) that the Kosher menu provides an average of 2,450 calories

per day, (3) that there is a sufficient amount of protein in

the diet, and (4) that the sodium level of the meals is within

the RDA for adult men. In light of the foregoing, we think

that appellant, in order to create a question of fact, was

required to have provided more detail regarding the allegedly

small meal portions and high sodium levels. In other words,

his allegations are too conclusory to create a question of fact

regarding these issues. This leaves appellant’s allegations

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concerning the lack of meat and the provision of rotten fruit

and food that is not Kosher, and these allegations also are

conclusory. That is, appellant does not provide any further

information such as why the menu needs more meat or what kind

of rotten fruit and non-Kosher food he has received. In the

absence of this kind of detail, we conclude that appellant has

not established questions of fact regarding the adequacy of the

Kosher diet. Summary judgment in favor of appellees on this

issue therefore was appropriate.

D. Various Religious Materials

Beginning with appellant's request for a TV, a DVD

player, a CD player, and CDs, he does not claim that these

items have any religious significance in and of themselves.

Thus, and even though appellees do not argue the issue, we do

not think that the possession of such items can be considered

to be a “religious exercise.” Further, and even assuming that

appellant intends to use such items for the study of his

religion, he does not explain how not having them has forced

him to violate any of his religious beliefs. See Spratt, 482

F.3d at 38. Thus, we do not think that appellant has raised a

question of fact regarding the substantial burdening of his

religious exercise. See Van Whye v. Reisch, 581 F.3d 639, 657

(8th Cir. 2009) (stating that "RLUIPA does not require the

prison to permit an inmate to possess every tangential item of

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property that could aid the inmate's religious exercise or

learning" and that "[d]epriving [the plaintiff] of a tape

player in his cell does not significantly inhibit his religious

expression [or] meaningfully curtail his ability to adhere to

his faith").

Turning to appellant's request for books and other

religious materials, he does not specify what books he needs or

explain what the other religious "materials" consist of. The

same is true of appellant's request for items of religious

clothing. He does not explain exactly what items he needs to

wear nor does he address the fact that personal religious items

such as skull caps, prayer shawls, and tzizits are already

available. Given this, we do not think that appellant has

submitted enough evidence to create a question of fact

regarding how the absence of the foregoing religious materials

forces him to modify or to violate his religious beliefs. See

Cryer v. Clarke, No. 09-10238, 2012 WL 6800791, at *9 (D. Mass.

September 7, 2012) (where the prison had not completely banned

the possession of Native American artifacts, and the inmate

failed to explain how using the presently available artifacts

forced him to modify his religious beliefs, summary judgment

for the defendants was proper). Summary judgment on this claim

in favor of the appellees therefore was appropriate.

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 III. The First Amendment

As we have explained, “[a] prison regulation which

restricts an inmate's First Amendment [free exercise] rights is

permissible if it is reasonably related to legitimate

penological interests.” Kuperman v. Wrenn, 645 F.3d 69, 74 (1st

Cir. 2011) (internal quotation marks and citation omitted).

Four factors are relevant in making this determination: "(1)

whether there is a valid, rational connection between the

regulation and the legitimate government interest put forward

to justify it; (2) whether alternative means to exercise the

right exist; (3) the impact that accommodating the right will

have on prison resources; and (4) the absence of alternatives

to the prison regulation." Id. at 74. The appellees' argument

regarding these factors is limited to the completely conclusory

assertion that, since appellant has been allowed to practice

his religion, his First Amendment claim must fail.

The fact that appellant has some means of exercising

his religion is, of course, one of the relevant factors.

However, appellees do not address the particular religious

exercises in which appellant wishes to engage nor do they

specify, much less discuss, the legitimate government interests

justifying the impingement on each of these exercises. Given

this, as well as appellees' failure to have addressed the other

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relevant factors, summary judgment in their favor on

appellant's First Amendment claim must be reversed.

IV. Retaliation

It is well-settled that "retaliation against a

prisoner's exercise of constitutional rights is actionable"

under § 1983. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.

2011). However, because "running a prison system is a

difficult enterprise" and because prisoner claims of

retaliation are “easily fabricated and pose a substantial risk

of unwarranted judicial intrusion into matters of general

prison administration,” such claims must be based on facts, not

on "gossamer strands of speculation and surmise." Id.

(internal punctuation, quotation marks, and citation omitted).

Importantly, a plaintiff must allege facts that show that he or

she engaged in a protected activity and, because of this

activity, adverse action resulted. Id. at 48.

In this regard, appellant claims that, in retaliation

for his efforts to practice his religion, the appellees engaged

in the following actions: (1) bringing false disciplinary

charges; (2) moving him to different blocks at Norfolk as

sanctions for these disciplinary infractions; (3) not providing

an adequate Kosher diet; (4) poisoning him; and (5)

transferring him to a maximum security prison. While we assume

that appellant's practice of his religion is a protected

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activity and that the appellees' actions were adverse,

appellant's allegations regarding a causal connection between

his assertion of his free exercise rights and the adverse

actions taken against him are essentially conclusory. Hannon,

645 F.3d at 48 ("[c]onclusory allegations and rank speculation,

even if couched in pejorative language, will not suffice to

defeat . . . summary judgment" on the issue of a causal

connection). Indeed, the only specific evidence of a

retaliatory motive that appellant offers is the allegation that

an unnamed transportation officer had mentioned to appellant

that an unidentified person had told the officer that appellant

was trying to start his own religious cult. This kind of

hearsay, however, is insufficient to create a question of fact

for purposes of defeating summary judgment. Id. at 49 ("[i]t

is black-letter law that hearsay evidence cannot be considered

on summary judgment for the truth of the matter asserted";

internal quotation marks and citation omitted). Thus, we

affirm the grant of such judgment to the appellees on

appellant's retaliation claim.

V. Equal Protection

Appellant must establish, in order to set out an

equal protection claim, that compared with other similarly

situated inmates, he "was treated differently because of an

improper consideration, such as his religion." Kuperman, 645

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F.3d at 77-78. Appellant claims, in this regard, that Muslims

and Jews have dedicated spaces for worship and access to such

in order to pray, while Messianic Jews do not have such space.

However, this is all that appellant says, and, as we explained,

"[o]n issues for which [appellant] would bear the burden of

proof at trial, he ha[s] to introduce definite, competent

evidence to survive summary judgment." Id. at 74. Thus, even

though appellant plainly is implying that he was denied the

same accommodation because of his Messianic Judaism, this is

not enough. Summary judgment on appellant's equal protection

claim in favor of appellees therefore is affirmed.

VI. Conspiracy

Appellant’s claim in this regard is that the

appellees conspired to prevent him from practicing his religion

and that, as part of this conspiracy, Roden and Elliott made

sure that the Religious Review Committee never considered his

religious requests. “Section 1985(3) prohibits two or more

persons in any State or Territory from conspiring to deprive

any person or class of persons of the equal protection of the

laws.” Perez-Sanchez v. Public Building Auth., 531 F.3d 104,

107 (1st Cir. 2008) (internal punctuation, quotation marks, and

citation omitted). As we have explained, a claim under §

1985(3) has four elements: “First, the plaintiff must allege

a conspiracy; second, he must allege a conspiratorial purpose

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to deprive the plaintiff of the equal protection of the laws;

third, he must identify an overt act in furtherance of the

conspiracy; and finally, he must show either injury to person

or property, or a deprivation of a constitutionally protected

right.” Id. at 107. As for the second requirement, we will

assume, without deciding, that discrimination based on religion

constitutes a deprivation of the equal protection of the laws.

Id. at 109 (citing Brown v. Reardon, 770 F.2d 896, 906 (10th

Cir. 1985), which so holds). However, appellant has submitted

insufficient evidence of a conspiracy.

"A civil rights conspiracy as commonly defined is a

combination of two or more persons acting in concert to commit

an unlawful act . . . the principal element of which is an

agreement between the parties to inflict a wrong against or

injury upon another." Estate of Bennett v. Wainwright, 548

F.3d 155, 178 (1st Cir. 2008) (internal quotation marks and

citation omitted). While "conspiracy is a matter of inference,

summary judgment may still be appropriate on a conspiracy claim

where the nonmoving party rests merely on conclusory

allegations." Id. Here, the only evidence that appellant

points to in support of the existence of a conspiracy is the

fact that the Religious Review Committed failed to act on his

April 30, 2010 religious request.

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 We do not think that this is sufficient evidence,

standing alone, from which a reasonable jury could infer the

existence of an agreement among the appellees to prevent

appellant from practicing his Messianic Judaism. Indeed, the

record shows that the Religious Services Review Committee had,

in fact, acted on two of appellant's previous religious

requests, and, in relation to the January 25, 2010 request,

granted appellant a Kosher diet. Further, the Committee, in

considering appellant's most recent request, listed the efforts

that would be made to accommodate appellant -- looking for

library books on Messianic Judaism and for a volunteer to

conduct group services. Given this, summary judgment in favor

of the appellees can be affirmed.

VII. Conclusion

In sum, then, we vacate the grant of summary judgment

on (1) appellant's RLUIPA claims concerning the denial of a

synagogue, group prayer, and a Kosher diet between January 25

and March 26, 2010 and (2) on his claim under the First

Amendment, and we remand for further proceedings. The summary

judgment is affirmed on the remainder of appellant's claims.

We only note, in closing, that we have not addressed the issues

of immunity and what kind of relief is available to appellant,

should he prevail on any of the remaining claims. All pending

motions are denied as moot.

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