Derek Sincere Black Wolf Cryer v. Spencer

934 F.Supp.2d 323

Derek Sincere Black Wolf CRYER, Plaintiff

v.Luis SPENCER, et al., Defendants.

Civil Action No. 11–11953–PBS.

United States District Court, D. Massachusetts.

March 21, 2013.

Derek Sincere Black Wolf Cryer, Shirley, MA, pro se.

Richard C. McFarland Commonwealth of Massachusetts, Department of Correction, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

SARIS, Chief Judge.

I. Introduction

On October 31, 2011, plaintiff Derek Sincere Black Wolf Cryer (“Cryer”), a state prisoner at the Souza–Baranowski Correctional Center (“SBCC”),¹ filed a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging first amendment violations in connection with his free exercise of religion, and violations of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc. Additionally, Cryer asserted supplemental jurisdiction over his claims raised under Articles 2 and 18 of the Massachusetts Constitution, and over his claims asserted under Massachusetts General Law ch. 127, § 88.

Cryer originally identified two defendants in this action: Luis Spencer (“Spencer”), the Commissioner of the Department of Correction, and Christopher Mitchell (“Mitchell”), the Director of the Religious Services Review Committee.

In his original complaint, Cryer claimed to be partially of Native American descent. He described certain aspects of the Native American cultural and spiritual tradition, with a large part of the complaint focused on the alleged importance of language and oral tradition in Native American culture. He further alleged that SBCC did not have any clergy members who could teach the Abenaki, Blackfoot, or Mohican languages and that he had very limited access to Native American services through weekly “Talking Circle Ceremonies,” Compl. at ¶ 9. Additionally, Cryer alleged that, although the defendants allowed him to have a cassette player and Native American audiotapes, he has been denied the use of these items in the “cell and yard.” Id. at ¶ 12. Cryer claimed that the defendants' actions “abridged and prohibited” him from learning his cultural, spiritual, and ceremonial languages, in violation of his right to free exercise of religion. Id. at ¶ 19.

On May 11, 2012, the defendants filed a Motion to Dismiss the complaint (Docket No. 10) and a Memorandum in support (Docket No. 11). On May 23, 2012, Cryer filed a proposed amended complaint with attached exhibits (Docket No. 13). The amended complaint included the two defendants named in the original complaint ( i.e., Spencer and Mitchell), and added as a third defendant, Thomas Dickhaut (“Dickhaut”),the ex-Superintendent of SBCC (and now the Acting Assistant Deputy Commissioner). Am. Compl. at ¶ 4.

Cryer's claims are essentially twofold: (1) he has been denied access to a cassette player and Native American audiotapes for use in the cell and yard; and (2) he has been denied access to a Native American clergy member or a Native American volunteer.

A. Claims Regarding Access to Cassette Player and Native American Audiotapes

Cryer's chief complaint is that he has been denied access to a cassette player and Native American audiotapes for use in his cell and in the yard. He claims that his access to these materials is unduly limited. He alleges that (former) Commissioner Clarke and Dickhaut initially had approved his request to use a cassette player (and Native American audiocassette tapes). In support, he attaches a letter from Dickhaut, dated April 24, 2009 indicating that, based on the recommendation of the Religious Services Review Committee, his request for a cassette player and cassette tapes featuring Native American music had been approved. Significantly, there were no limitations to the approval included in the letter from Dickhaut. See Exhibit B (Docket No. 13–2).

Thereafter, Cryer did not receive this property as he expected, and he filed an administrative grievance. On August 10, 2009, the Inmate Grievance Coordinator, Pamela O'Dell, partially approved Cryer's grievance, authorizing him to secure the tape player that was held in the Native American storage unit. The cassette player would be brought to Cryer for use in the Native American Circle. See Exhibit C (Docket No. 13–3). Cryer appealed that decision, and on September 29, 2009, Dickhaut concurred with the decision which gave only “partial” approval to Cryer's request. He was permitted to secure the tape player in the Native American storage unit and bring it up with him to the Native American Circle. See Exhibit D (Docket No. 13–4).

Cryer claims that both Spencer and Mitchell denied his request for access to the cassette player and audiotapes in the cell and yard. He alleges that by limiting his access to these materials, the defendants are restricting his ability to learn Native American languages by not providing him sufficient time for study. He further alleges that since 2009 (to the date of filing of the amended complaint), he had used the cassette player and audiotapes no more than 10 times because of the lack of access of time and available space. He contends that these restrictions substantially limit the availability for his use because he cannot use the cassette player and tapes except during three ceremonies: the “Talking Ceremony,” the “Smudge Ceremony,” and the “Pipe Ceremony.” However, he asserts that he cannot use the cassette player or audiotapes during the “Talking Ceremony” because this would disturb other members who are conducting that ceremony, and because this would mean he would not be able to participate in the Talking Ceremony. Similarly, Cryer claims that he cannot use the cassette player or tapes on the first Monday of each month outdoors, when the “Smudge and Pipe Ceremonies” are scheduled, because he would disturb those ceremonies, and would not be able to attend them.

Cryer's amended complaint again stresses the importance of Native American language and music, calling it “essential and necessary.” Am. Compl. at ¶¶ 25–30. He attaches several exhibits in support. Among those is Exhibit E, a typed document that describes various aspects of the Native American religious tradition. SeeExh. E (Docket No. 13–5 at 1–4).² Apparently, Cryer claims that the existence of this document establishes defendants' knowledge of the importance of the oral tradition of Native American culture and religion. Am. Compl. at ¶¶ 27–30. Additionally, Cryer asserts that he has been denied access to the cassette player and tapes during the regularly scheduled times for Native American Services, as those services had been canceled for the past 8 to 9 months. Finally, Cryer contends the defendants have no legitimate penological reason to deny him the use of the cassette player and audiotapes in the cell or in the yard.

B. Claims Regarding Access to Native American Clergy

In addition to his complaints about the restricted access to a cassette player and Native American audiotapes, Cryer alleges that the defendants have refused to hire contracted Native American Clergy, and, as a result, except for the first outdoor gathering on May 7, 2012, all Native American Services have been canceled for the past 8 to 9 months (since the filing of the amended complaint). Am. Compl. at ¶¶ 19–20. Moreover, Cryer contends that the defendants have refused to allow him to meet on Monday mornings under the watch of Pastor Johnston or to allow Native Americans to meet Monday mornings without a volunteer present; yet there are no Native American volunteers available.

As relief, Cryer seeks declaratory and/or injunctive relief, as well as nominal, compensatory, and punitive damages.

C. Motions Filed

On June 12, 2012, Cryer filed an ex parte Motion to Waive Service and for an Order to Defendants to Answer the Amended Complaint (Docket No. 15).

In addition to the earlier Motion to Dismiss, on July 24, 2012, defendants Dickhaut, Mitchell, and Spencer filed a Motion to Dismiss the Amended Complaint (Docket No. 17), along with a Memorandum in support (Docket No. 18). On August 6, 2012, Cryer filed an ex parte Motion to Answer Amended Complaint (Docket No. 19) again seeking an Order for the defendants to file an Answer to the Amended Complaint, but did not file an Opposition to the Motion to Dismiss.

II. Discussion

A. The Amended Complaint, the First Motion to Dismiss, the Motion to Waive Service and the Ex Parte Motion to Answer Amended Complaint

Cryer may amend his complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. SeeFed.R.Civ.P. 15(a). Accordingly, Cryer's Motion for Leave to File an Amended Complaint (contained in Docket No. 12) is ALLOWED.

In light of the filing of the amended complaint (and the subsequent filing of a Motion to Dismiss the Amended Complaint), Spencer and Mitchell's first Motion to Dismiss the original complaint is moot. Accordingly, the defendants' Motion to Dismiss (Docket No. 10) will be DENIED. Additionally, Cryer's Motion to Waive Service and to Order the Defendants to Answer the Amended Complaint (Docket No. 15), and his Ex Parte Motion to Answer Amended Complaint (Docket No. 19) will be DENIED in light of the rulings in this Memorandum and Order.

B. The Motion to Dismiss the Amended Complaint1. Standard of Review

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint “must ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests,’ and allege ‘a plausible entitlement to relief.’ ” Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir.2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In evaluating the amended complaint, the court must delineate factual allegations from allegations that merely offer legal conclusions couched as facts or statements that are otherwise threadbare or conclusory. See Soto–Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir.2011). “The make-or-break standard ... is that the combined allegations, taken as true, must state a...