Trapp v. Roden

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SJC-11863
RANDALL TRAPP & another1 vs. GARY RODEN2 & others.3
Worcester. October 5, 2015. - November 23, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Commissioner of Correction. Imprisonment. Religion. Contract,
Settlement agreement, Performance and breach.
Civil action commenced in the Superior Court Department on
September 30, 2010.
The case was heard by Cornelius J. Moriarty, II, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Richard C. McFarland for the defendants.
1
Robert Ferreira.
2
Individually and in his official capacity as
superintendent of the Massachusetts Correctional Institution at
Norfolk (MCI-Norfolk).
3
Cynthia Sumner, individually and in her official capacity
as deputy superintendent of MCI-Norfolk, and Harold W. Clarke,
individually and in his official capacity as Commissioner of
Correction.
2
Jarrett M. Scarpaci for the plaintiffs.
The following submitted briefs for amici curiae:
Maggie Ellen Filler for Prisoners' Legal Services.
Joel West Williams, of Pennsylvania, & Gabriel S. Galanda,
of Washington, for Huy.
Yale Yechiel N. Robinson, pro se.
DUFFLY, J. Randall Trapp and Robert Ferreira, who are
adherents of Native American religious practices, are both
incarcerated at Department of Correction (DOC) facilities. In
2010, Trapp and Ferreira filed an amended complaint in the
Superior Court contending, among other things, that the DOC's
closure of the purification lodge4 at the Souza-Baranowski
Correctional Center (SBCC) violates the Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc-1 et
seq. (2012) (RLUIPA); art. 2 of the Massachusetts Declaration of
Rights; and a settlement agreement reached in 2003 to resolve a
prior lawsuit brought by Trapp against the DOC. The complaint
named Gary Roden, Commissioner of Correction, and two DOC
employees at the Massachusetts Correctional Institution at
Norfolk (MCI-Norfolk) as defendants. After a jury-waived trial
in July, 2012, a Superior Court judge concluded that the closure
of the lodge at SBCC violated the plaintiffs' rights under all
three asserted theories, and entered a declaratory judgment in
4
The parties use the term "purification lodge," while the
term "sweat lodge" also is used by other Native American
practitioners. For simplicity, we use the more general term
"lodge" to encompass all such structures.
3
favor of the plaintiffs on those claims.5 The DOC appealed, and
we transferred the case to this court on our own motion. We
conclude that the closure of the lodge at SBCC violates RLUIPA
and the settlement agreement. Accordingly, we do not reach the
constitutional question.6
Background. The dispute at the crux of this case dates
back two decades. In 1995, Trapp and four other inmates
(Ferreira was not among them) filed a complaint in the Superior
Court asserting that the DOC had violated their rights to
exercise their religion. After extensive litigation over a
number of years, in 2003 the parties entered into a settlement
5
The plaintiffs' amended complaint asserted seven claims
against the Department of Correction (DOC), among them State and
Federal constitutional claims and several statutory claims
arising out of the closure of lodges at MCI-Norfolk and the
Souza-Baranowski Correctional Center (SBCC); the DOC's refusal
to permit the plaintiffs to use kinnick-kinnick, which includes
tobacco as an ingredient; and the DOC's refusal to permit the
plaintiffs to use prayer beads of the color of their choice.
With respect to the claims regarding SBCC, the Superior
Court judge entered declarations for the plaintiffs on the
constitutional claim under art. 2 of the Massachusetts
Declaration of Rights, the statutory claim under the Religious
Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§§ 2000cc-1 et seq. (2012) (RLUIPA), and the contract claim for
breach of the settlement agreement. The judge entered
declarations in favor of the defendants on all the other claims
in the complaint; the plaintiffs have not filed cross appeals on
those counts. Thus, the issues before us concern only the DOC's
closure of the lodge at SBCC.
6
We acknowledge the amicus briefs of Huy and Prisoners'
Legal Services on behalf of the plaintiffs, and the amicus brief
of Attorney Yale Yechiel N. Robinson.
4
agreement that required the DOC to construct a lodge at SBCC and
another facility not at issue in this appeal.7 Under the terms
of the agreement, the named plaintiffs and others who
participate in Native American religious practices were promised
the right to participate in ceremonies that were to be conducted
at the lodges once each month. The settlement agreement
contained protocols setting forth the manner in which the lodges
were to be constructed and the ceremonies conducted, all based
on the traditions of the Wampanoag Tribe. Further, the
settlement agreement provided that the protocols could be
altered if necessary as security needs dictated, but that such
changes were to be made in consultation with the Massachusetts
Commission on Indian Affairs.
Under the protocols set forth in the settlement agreement,
a lodge is constructed of sixteen saplings arranged in a circle
and then bent and joined together to form a dome, which is
covered by blankets or canvas. A pit is dug in the ground in
the middle of a lodge, to make space for rocks that are placed
in it after they have been heated by a wood fire outside the
lodge. During a ceremony, water is poured onto the heated rocks
to create the steam and heat necessary for the ceremony. The
settlement agreement required the lodges to be constructed
7
The settlement agreement also required the DOC to
construct a lodge at MCI-Norfolk.
5
within a secured perimeter inaccessible to the general inmate
population.
The DOC built a lodge at SBCC in 2004 Within six months,
however, it halted all ceremonies at the SBCC lodge, citing
health concerns that resulted from smoke filtering into the main
building from the wood fires used to heat the rocks. According
to the DOC, the SBCC facility has a closed ventilation system
that does not permit windows to be opened; rather, air is pumped
into the building in accordance with the amount of air required
per person by law. The DOC maintains that asthmatics working or
residing within the facility complained of respiratory distress,
compelling closure of the lodge.
Trapp commenced this action in September, 2010; Ferreira
was added as a plaintiff in November of that year. At all times
relevant to this litigation, Trapp has been incarcerated at MCI-
Norfolk. Ferreira was incarcerated at MCI-Norfolk until
February, 2012, when he was transferred to SBCC.
In January, 2011, a Superior Court judge,8 ruling on the
DOC's motion to dismiss, determined that because Ferreira was
not a party to the 2003 settlement agreement he could not pursue
any contract-based claims against the DOC based on breach of
that agreement. The motion judge also concluded that the
8
The motion to dismiss and the ultimate merits of the
action were decided by different Superior Court judges.
6
plaintiffs could not recover damages because they had failed to
exhaust their administrative remedies, and that therefore they
could seek only equitable relief. A jury-waived trial was held
on the merits of the plaintiffs' statutory, constitutional, and
contract claims in July, 2012; the trial involved numerous
claims not at issue here. The trial judge issued his decision in
September, 2012. As relevant to the DOC's appeal, the trial
judge concluded that the closure of the lodge at SBCC violated
RLUIPA, the settlement agreement, and art 2.
The trial judge rested his conclusions on two findings of
fact. First, the judge found the closure of the lodge at SBCC
was not based on security-related concerns but, rather, "on
unconvincing references to health concerns" that "consisted of
hearsay statements, which themselves offered dubious self-
diagnoses, such as asthma, without any medical foundation."
Second, the judge found that the DOC "provided no reason to
believe that the only feasible means of remedying the smoke
inhalation problem was . . . by stopping the purification
ceremonies altogether." Specifically, the judge found that the
DOC "said nothing to explain" why filtering the air inside the
building or placing the lodge in a location that would disperse
the smoke were not reasonable alternatives.9
9
The DOC has provided a sparse record on appeal. It is
thus unclear how, if at all, the DOC responded to these
7
Discussion. The DOC challenges the trial judge's factual
findings that it failed to provide adequate evidence in support
of its asserted health concerns as the basis for closing the
lodge. The DOC also argues that the trial judge erred in
concluding that the DOC failed to meet its burden, under 42
U.S.C. §§ 2000cc-1(a), to show that closing the lodge was in
furtherance of a compelling government interest and was the
least restrictive means possible. Finally, the DOC argues that
the trial judge erred when he concluded that the DOC committed a
breach of the 2003 settlement agreement by closing the lodge.
We conclude that the trial judge's findings of fact were
not clearly erroneous, see Sheriff of Suffolk County v. Jail
Officers & Employees of Suffolk County, 465 Mass. 584, 588
(2013), and that the judge was correct in determining that the
closure of the lodge violates RLUIPA and the settlement
agreement.
1. Whether the DOC's closure of the SBCC lodge violates
RLUIPA. The parties agree that only Ferreira's rights are
implicated under RLUIPA because he was the only plaintiff who,
at the time of trial, was incarcerated at SBCC and, thus, could
be burdened by the closure of the lodge. Under RLUIPA's well-
established burden-shifting analysis, Ferreira bore the initial
alternatives in the proceedings in the Superior Court. On
appeal, the DOC offers no comment on whether these alternatives
discussed by the trial judge are reasonable.
8
burden to prove that DOC's closure of the lodge at SBCC
"substantially burdens" his religious exercise. See Holt v.
Hobbs, 135 S. Ct. 853, 862 (2015) (Holt). Once he met this
initial burden, the burden shifted to the DOC to show that its
closure of the lodge was "in furtherance of a compelling
governmental interest" and was "the least restrictive means of
furthering that compelling governmental interest." Id. at 863,
quoting 42 U.S.C. § 2000cc-1(a).
There is no dispute that Ferreira met his burden to
establish that participation in Native American ceremonies at
the lodge constitutes religious exercise as defined by the
statute. RLUIPA protects "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), as long as the exercise is based on
"a sincerely held religious belief." Holt, supra at 862, citing
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
The DOC does not challenge the sincerity of Ferreira's exercise
or belief.
Rather, the DOC argues that Ferreira has failed to prove
that the inability to use the lodge for ceremonies is a
substantial burden on his religious exercise because he still
has alternative ways of "engaging in Native American practices."
9
Specifically, the DOC points to the availability of smudging10
and pipe ceremonies at SBCC, along with other ceremonies such as
"talking circles, singing, chanting, and the playing of musical
instruments, including drums, rattles and a flute."
Additionally, the DOC asserts that Ferreira has access to Native
American "ceremonial items" to facilitate the exercise of his
religion, including a headband, prayer beads, and a pipe. In
short, the DOC contends that it has not substantially burdened
Ferreira's exercise of religion by closing the lodge because he
has other ways to practice his religion.
The United States Supreme Court's recent decision in Holt,
supra at 862, forecloses the DOC's argument, as counsel conceded
during argument before us. In Holt, the petitioner, a devout
Muslim inmate, challenged a decision of the Arkansas Department
of Correction refusing to grant him an exception to its no-beard
policy by permitting him to grow a one-half inch beard in
accordance with his religious beliefs. Id. at 859. The United
States District Court for the Eastern District of Arkansas
concluded that the no-beard policy did not substantially burden
Holt's exercise of religion because he had been given a prayer
rug and a list of distributors of Islamic material, he was
10
According to a DOC religious services handbook, smudging
"is a process of using smoke to clear away negative energies and
to attract positive energies," using sage, sweetgrass, and other
plants to produce smoke.
10
permitted to correspond with a religious advisor, and he was
permitted to observe holidays and maintain his desired diet.
Id. at 862. Rejecting the District Court's analysis, the United
States Supreme Court explained that "RLUIPA's 'substantial
burden' inquiry asks whether the government has substantially
burdened religious exercise . . . , not whether the RLUIPA
claimant is able to engage in other forms of religious
exercise." Id.
Here, as in Holt, the alternate means Ferreira may have to
practice his religion are irrelevant to the analysis of whether
the DOC's closure of the lodge substantially burdens his
religious exercise. The DOC offers no additional argument in
support of its position. Thus, we have no trouble concluding
that the DOC's absolute closure of the lodge at SBCC
substantially burdens Ferreira's exercise of religion. See
Cutter v. Wilkinson, 544 U.S. 709, 721 (2005) ("RLUIPA . . .
protects institutionalized persons who are unable freely to
attend to their religious needs and are therefore dependent on
the government's permission and accommodation for exercise of
their religion").
The DOC contends that even if the closure of the lodge at
SBCC substantially burdens Ferreira's exercise of religion, it
still should prevail because the closure was in furtherance of a
compelling governmental interest and was the least restrictive
11
means of furthering that interest.
The DOC has not identified evidence in the record to
counter the trial judge's factual finding that the DOC failed to
provide credible evidence in support of its asserted health
justification. Rather, the DOC emphasizes, as it did at trial,
the statements of two witnesses, each of whom provided testimony
in support of the health concerns on which the DOC's argument
relies. The first witness, Lynn Chernesky, a DOC employee,
testified that, as a result of smoke from the wood fires used
for the lodge ceremonies entering the building, "all our
asthmatic staff and inmates became in distress." Chernesky's
testimony does not explain how she came to know of the supposed
distress of the "asthmatic staff and inmates," such as whether
they complained directly to her, whether she read complaints
they had filed with someone else, or whether some third source
relayed the information to her. The DOC fails to point to any
evidence in the record to support Chernesky's conclusory
generalizations or counter the factual finding that her
testimony was unpersuasive. Further, we note in this regard
that the DOC did not call a single inmate or DOC employee to
testify about any distress, even minor, he or she may have
personally experienced as a result of the wood fires burning
outside during the monthly ceremonies.
The second witness whose testimony the DOC identifies in
12
support of the compelling nature of its health interest is Todd
Gunglach, a DOC engineer, whose expertise is in heating and
ventilation systems. Gunglach testified to the operation of the
closed ventilation system at SBCC. When asked whether he was
familiar with the attempts to operate the lodge at SBCC,
Gunglach responded that he was only familiar with a report
commissioned by the DOC that, he stated, had concluded that it
was "virtually impossible" to operate the lodge without smoke
from the wood fires entering the facility. The report Gunglach
referenced was not introduced in evidence, and is not part of
the record before us. In any event, the DOC fails to identify
any portions of Gunglach's testimony that support the contention
that the smoke from the fires caused health concerns. Rather,
when asked whether he knew of any physical harm to people's
health caused by indoor smoking at SBCC, not the wood fires
burned outside, Gunglach responded, "Well, I'm not a
physiologist. I mean, we hear oftentimes about second-hand
smoke and its effects on people. So just from basic knowledge
of the news and media reports of second-hand smoke, that's what
I would be aware of."
Based on the testimony of Chernesky and Gunglach, who
provided the sole support for the DOC's argument, the trial
judge concluded that the DOC's evidence supporting any
compelling interest of health concerns was unpersuasive. We
13
cannot conclude that this finding was clearly erroneous. We
agree that the DOC has failed to meet its burden by
demonstrating that its decision to close the lodge at SBCC was
motivated by a compelling government interest.
We do not, however, read the trial judge's opinion to have
concluded that health concerns may never serve as a compelling
government interest under RLUIPA, as the DOC maintains it does.
It is uncontroverted that the DOC has an interest in caring for
the health of inmates in its custody. See, e.g., Helling v.
McKinney, 509 U.S. 25, 33 (1993) ("We have great difficulty
agreeing that prison authorities may . . . ignore a condition of
confinement that is sure or very likely to cause serious illness
and needless suffering the next week or month or year"); Good v.
Commissioner of Correction, 417 Mass. 329, 335 (1994)
("Recognizing that prison inmates are entitled to safe drinking
water, the Department of Public Health requires that
correctional facilities in the Commonwealth must provide at all
times safe and sanitary drinking water"); Cryer v. Massachusetts
Department of Correction, 763 F. Supp. 2d 237, 243 (D. Mass.
2011) (prison ban on smoking in cells furthers compelling
government interest of health and safety).
The fatal flaw in the DOC's position is not that its
asserted interest falls under the banner of health rather than
security. Rather, in this case, the DOC cannot prevail because
14
it failed to meet its burden to show that the claimed compelling
interest was actual rather than speculative. Prison officials
may not "declare a compelling governmental interest by fiat."
Yellowbear v. Lampert, 741 F.3d 48, 59 (10th Cir. 2014). The
DOC was obligated to put forth something more than conclusory
assertions regarding health concerns, and it failed to do so.
The trial judge concluded that, on this record, a wood fire that
burned outdoors once a month, near a facility that has a closed
ventilation system, was not shown to pose a risk to the health
of anyone within the facility. The record supports this
conclusion. In reaching this result, we do not determine that
the risk does not exist. We conclude only that the evidence
here was lacking and thus falls short of what RLUIPA requires.
See Holt, supra at 867 (Sotomayor, J., concurring), quoting 106
Cong. Rec. 16699 (2000) ("Indeed, prison policies 'grounded on
mere speculation' are exactly the ones that motivated Congress
to enact RLUIPA").
Finally, even if we were to conclude that the DOC's
asserted health concerns constituted a compelling government
interest in these circumstances, the DOC must prove that it used
the least restrictive means to further that interest. This is
an "exceptionally demanding" standard that requires the DOC to
demonstrate "that it lacks other means of achieving its desired
goal without a substantial burden" on Ferreira's religious
15
exercise. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751, 2780 (2014). "A prison cannot meet its burden to prove
least restrictive means unless it demonstrates that it has
actually considered and rejected the efficacy of less
restrictive measures before adopting the challenged practice"
(quotation and citation omitted). Spratt v. Rhode Island Dep't
of Corrections, 482 F.3d 33, 41 (1st Cir. 2007).
The DOC argues that it tested three different locations at
SBCC to determine whether there was a location in the yard from
which smoke would not enter the ventilation system, "but without
success." Chernesky's testimony supports the DOC's assertion
that it conducted three test fires, but omits any credible
explanation of how she knew smoke entered the building. Rather,
when asked what happened to the staff and inmates when the test
fires were conducted, Chernesky repeated her conclusory refrain
that "asthmatics became in distress," leading her to conclude
that "we could not have a purification lodge."
Assuming that the DOC had some reliable method to determine
whether smoke entered the facility following the test fires in a
quantity sufficient to cause adverse health consequences to
those inside, this isolated effort fails to satisfy its burden.
As the trial judge found, the DOC failed to consider whether it
could filter the air within the facility, or whether it could
disperse the air outside to prevent smoke from entering the
16
facility. The DOC offers no explanation why neither of these
alternatives was considered, or if they were considered, why
they were rejected. See Spratt v. Rhode Island Dep't of
Corrections, supra at 41 n.11 ("[T]o meet the least restrictive
means test, prison administrators generally ought to explore at
least some alternatives, and their rejection should generally be
accompanied by some measure of explanation"). See also
Yellowbear v. Lampert, 741 F.3d at 63.
For all of the foregoing reasons, we conclude that the
DOC's closure of the lodge at SBCC was impermissible under
RLUIPA.
2. Whether the closure of the SBCC lodge violates the 2003
settlement agreement. As an initial matter, we consider the
DOC's argument that the claim is not properly before us because
both Trapp and Ferreira lacked standing to pursue a breach of
contract claim based on the 2003 settlement agreement, and the
plaintiffs failed to amend their complaint expressly to include
a claim relating to the closure of the lodge at SBCC.
The DOC argued in its motion to dismiss that Ferreira
lacked standing to enforce the 2003 settlement agreement because
he was not a party to it. The motion judge agreed. Because
Ferreira has not raised this issue in a cross-appeal, we have no
occasion to review it.
The DOC argues that Trapp lacks standing to enforce the
17
settlement agreement with respect to the closure of the lodge at
SBCC because he has never been, and was not at the time of
trial, confined to that facility. This argument fails. "A
settlement agreement is a contract and its enforceability is
determined by applying general contract law."11 Sparrow v.
Demonico, 461 Mass. 322, 327 (2012). When a party is a
signatory to a contractual agreement, a breach of contract is an
injury sufficient to confer standing. See Katz v. Pershing,
LLC, 672 F.3d 64, 72 (1st Cir. 2012) ("The invasion of a common-
law right [including a right conferred by contract] can
constitute an injury sufficient to create standing"). We
conclude that, as a signatory to the 2003 settlement agreement,
Trapp has a cognizable legal interest in ensuring that the DOC
uphold its end of the bargain to protect the religious exercise
of Native American inmates by providing a lodge for ceremonies
at SBCC. The DOC has pointed to no authority to support its
position that a party to a contract alleging a breach lacks
standing to pursue the claim. See id. ("when a plaintiff
11
The settlement agreement contains the following
provision:
"This Settlement Agreement shall survive this action
and be independently enforceable as a contract. All
parties acknowledge that if any party fails to comply with
said Settlement Agreement, it will be deemed a breach of
contract and will subject the non-complying part(ies) to
legal action . . . ."
18
generally alleges the existence of a contract, express or
implied, and a concomitant breach of that contract, her pleading
adequately shows an injury to her rights").
The DOC also contends that the breach of contract claim is
not properly before us because the plaintiffs failed to amend
their complaint expressly to include a claim arising from the
closure of the lodge at SBCC. While the amended complaint,
filed in November, 2010, does not refer specifically to the
closure of the lodge at SBCC, it does more generally assert that
the DOC has "breached [its] contract with the plaintiffs by not
allowing them to practice the Wampanoag traditions as stipulated
in the contract between the parties." Trapp asserts that the
construction of lodges according to the Wampanoag traditions at
three facilities, including SBCC, was a major component of the
settlement agreement and thus encompassed by the amended
complaint.
We need not resolve this issue because we conclude that the
DOC consented to the trial judge's consideration of the claim.
See Mass. R. Civ. P. 15 (b), 364 Mass. 761 (1974) ("When issues
not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings"). See Graham v.
Quincy Food Serv. Employees Ass'n & Hosp., Library, & Pub.
Employees Union, 407 Mass. 601, 615-616 (1990). Here, it is
19
undisputed that the trial judge considered the issue whether the
closure of the lodge at SBCC was lawful. The DOC does not
assert that it objected to Trapp's introduction of evidence
related to the closure of the lodge at SBCC.12 To the contrary,
the DOC introduced its own evidence, on which it now relies to
support its arguments before us. Indeed, the only excerpts of
trial testimony that the DOC has included in the record on
appeal B- the testimony of Chernesky and Gunglach concerning the
closure of the lodge at SBCC B- demonstrate its affirmative
litigation of the issue whether it was justified in closing the
lodge at SBCC. Under these circumstances, we conclude that the
DOC consented to litigating the closure of the lodge at SBCC,
and the claim is properly before us.
On the merits of the contract claim, the DOC argues that it
has not committed a breach of the settlement agreement because
the agreement contains a provision that permits altering its
terms in response to institutional security concerns.
12
The DOC claims that it objected to the introduction of
evidence at the motion to dismiss stage regarding the closure of
the lodge at SBCC in relation to its argument that Ferreira
lacked standing. But the DOC does not assert that it objected
to evidence on this issue at trial. Further, we note that the
DOC has not pointed to any statement in the record evidencing
its objection to the introduction of evidence on the closure of
SBCC, nor does the DOC contend that it raised the issue of the
failure to amend the complaint to the trial judge in its motion
for reconsideration. Issues not raised in the trial court are
considered waived on appeal. See Carey v. New England Organ
Bank, 446 Mass. 270, 285 (2006).
20
Specifically, the DOC contends that its health concerns,
discussed above, provide a sufficient security rationale to
justify the closure of the lodge.
This argument fails. First, as discussed supra, the trial
judge found that the DOC's claim that it closed the lodge at
SBCC for health reasons was unsupported by the evidence.
Therefore, even if the settlement agreement permitted the DOC to
close the lodge for health reasons, the DOC has failed to
establish a factual predicate that would have permitted closure.
Second, even if we were to conclude that the health
concerns were properly supported by evidence, the agreement
requires that the protocols may be altered "in consultation with
the Massachusetts Commission on Indian Affairs." It is
undisputed that the DOC failed to consult with the Commission on
Indian Affairs, and thus it has violated the settlement
agreement on this ground also.
Judgment affirmed.