Gray v. NH Department of Corrections et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M. Gray
v. 	Case No. 20-cv-152-PB
Helen E. Hanks et al. 1
REPORT AND RECOMMENDATION
Plaintiff Jeffrey Gray, while he was incarcerated at the
New Hampshire State Prison, filed a pro se complaint pursuant to
42 U.S.C. § 1983 against the New Hampshire Department of
Corrections (“DOC”) and three DOC employees. 	Mr. Gray alleges
that the defendants denied him religious services in violation
of his federal constitutional and statutory rights. 	The
complaint is before this court for preliminary review, pursuant
to 28 U.S.C. § 1915A(a) and Local Rule 4.3(d)(1).
Background
From December 2017 until December 2018, Mr. Gray was housed
in the DOC’s Secure Psychiatric Unit (“SPU”) because he suffered
from post-traumatic stress disorder, persistent major
depression, attention deficit hyperactivity disorder, and a
1 The defendants identified in the complaint are: the New Hampshire
Department of Corrections (“DOC”), DOC Commissioner Helen Hanks, DOC Secure
Psychiatric Unit (“SPU”) Director Paula Mattis, and SPU Unit Manager Capt.
Scott Marshall.
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personality disorder. 	At that time, Mr. Gray had a medium
custody security status. 	While housed in the SPU, Mr. Gray
requested various religious services and materials from prison
officials, including pastoral counseling services, access to
religious texts at the prison library, participation in
religious study groups and Sunday morning services, and regular
clergy visits. 	He sought those services on at least three
occasions, in written requests directed to SPU Unit Manager
Captain Scott Marshall, SPU Director Paula Mattis, and DOC
Commissioner Helen Hanks. 	Each of them denied his requests. 	In
the meantime, Mr. Gray alleges, medium-custody inmates housed in
the general population were permitted those religious services.
Mr. Gray is suing Capt. Marshall, Director Mattis, and
Commissioner Hanks (collectively, “individual defendants”) in
their personal capacities on the ground that their denials of
his requests for religious services violated his rights under
the First Amendment, the Equal Protection Clause of the
Fourteenth Amendment, Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12132 et seq. (“ADA”), Section 504
of the Rehabilitation Act, 29 U.S.C. § 794, and the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc
et seq. (“RLUIPA”). 	He also asserts claims against the DOC
under the ADA and RLUIPA. 	The only relief Mr. Gray seeks is
damages.
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Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed by inmates seeking relief from government
employees or entities. 	See 28 U.S.C. § 1915A(a); LR 4.3(d)(1).
Claims may be dismissed if the court lacks jurisdiction, a
defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. 	See 28
U.S.C. § 1915A(b); LR 4.3(d)(1)(A). 	In considering whether the
complaint states a claim, the court determines whether, stripped
of legal conclusions, and with all reasonable inferences
construed in the plaintiff’s favor, the complaint contains
“sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” 	Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Discussion
The court addresses Mr. Gray’s First Amendment, Equal
Protection Clause, ADA, Rehabilitation Act, and RLUIPA claims in
turn, and concludes that only the First Amendment claim passes
muster at the preliminary review stage.
I. 	First Amendment Claim
Mr. Gray asserts that the individual defendants violated
his rights under the First Amendment when they denied his
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requests for religious services while he was housed in the SPU.
Mr. Gray’s allegations are sufficient to state a claim under the
First Amendment’s Free Exercise Clause against those defendants,
and in an Order issued simultaneously with his Report and
Recommendation, the court directs service of that claim.
The First Amendment’s Free Exercise Clause “requires
government respect for, and noninterference with, the religious
beliefs and practices of our Nation’s people.” 	Cutter v.
Wilkinson, 544 U.S. 709, 719 (2005). 	This provision applies to
the states under the Fourteenth Amendment. 	See Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 8 n.4 (2004). 	“[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,”
including the right to the free exercise of religion. 	Pell v.
Procunier, 417 U.S. 817, 822 (1974); see O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987). 	The First Amendment protects
the exercise of a prisoner’s sincerely held religious beliefs
only to the extent that the exercise does not contravene prison
regulations that are “reasonably related to legitimate
penological interests.” 	Beard v. Banks, 548 U.S. 521, 528
(2006) (quoting Turner v. Safley, 482 U.S. 78, 87 (1987)).
Mr. Gray’s allegations that his requests for religious
services, including clergy visits and Sunday morning services,
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were denied are sufficient to allege a denial of a central and
essential religious practice. 	In the absence of evidence of
legitimate penological interests, the court is left to conclude
that Mr. Gray has plausibly alleged that those denials
improperly impinged upon his First Amendment right to exercise
his religion.
II. 	Equal Protection Claim
Mr. Gray’s equal protection claim, asserted against the
individual defendants in their personal capacities, is centered
on the allegation that his requests for religious services were
denied while other medium-custody inmates, housed in the general
population, were allowed such services. 	The district judge
should dismiss that claim for failure to state a claim upon
which relief may be granted.
“The Fourteenth Amendment’s Equal Protection Clause
prohibits a state from treating similarly situated persons
differently because of their classification in a particular
group.” 	Mulero-Carrillo v. Román-Hernández, 790 F.3d 99, 105-06
(1st Cir. 2015). 	To state an equal protection claim, a
plaintiff must allege facts showing that “(1) the [plaintiff],
compared with others similarly situated, was selectively
treated; and (2) that such selective treatment was based on
impermissible considerations such as race, religion, intent to
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inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure” the plaintiff. 	Davis
v. Coakley, 802 F.3d 128, 132-33 (1st Cir. 2015) (internal
quotation marks omitted). 	To meet the “threshold requirement”
of differential treatment, a plaintiff must “identify and relate
specific instances where persons situated similarly in all
relevant aspects were treated differently,” to show that he was
“singled out for unlawful oppression.” 	Ayala–Sepúlveda v.
Munic. of San Germán, 671 F.3d 24, 32 (1st Cir. 2012) (internal
quotation marks omitted). 	“Unless state action burdens a
suspect class or impinges upon a fundamental right, [courts]
review equal protection claims for a rational relationship
between the disparity of treatment and a legitimate government
purpose.” 	Toledo v. Sanchez, 454 F.3d 24, 33 (1st Cir. 2006).
Mr. Gray has not pleaded facts sufficient to state an equal
protection claim. 	First, he has not sufficiently alleged that
he was similarly situated in all relevant aspects to the inmates
housed in the general population who were provided religious
services. 	His allegation that they had in common a medium-
custody security status is insufficient to plead this element.
Second, Mr. Gray has not pleaded that any of the allegedly
selective treatment upon which he bases his equal protection
claim was based on an impermissible classification, such as his
religion.
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To the extent Mr. Gray alleges that the selective treatment
was based on his disability, it is well-established that “[t]he
disabled are not a suspect class for equal protection purposes.”
Toledo, 454 F.3d at 33 (citing City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439, 448–50 (1985)). 	Thus, to
survive dismissal, he must allege that the defendants’ actions
“were irrational and not motivated by any conceivable legitimate
reason.” 	Id. 	Even reading Mr. Gray’s complaint generously, he
has failed to allege facts showing that the defendants’ failure
to accommodate his requests was due to irrational prejudice. 	To
the extent Mr. Gray contends that the defendants violated his
equal protection rights by actively discriminating against him
based on his disability, as opposed to failing to accommodate
his requests, “mere conclusory allegations of discrimination
unsupported by any facts are insufficient for notice pleading
purposes.” 	Id. at 34. 	Accordingly, the district judge should
dismiss Mr. Gray’s equal protection claim.
III. ADA and Rehabilitation Act Claims
Mr. Gray asserts that both the DOC and the individual
defendants violated his rights under Title II of the ADA and
Section 504 of the Rehabilitation Act. 	He alleges in a
conclusory fashion that, in denying his requests for religious
services, the defendants discriminated against him on account of
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his disability. 	He has failed to state a claim upon which
relief may be granted.
Title II of the ADA and Section 504 of the Rehabilitation
Act “provide, in nearly identical language, that ‘no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.’”
Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 144 (1st Cir. 2014)
(citing 42 U.S.C. § 12132; 29 U.S.C. § 794(a)). 	A state prison
is a “public entity.” 	Pa. Dep’t of Corr. v. Yeskey, 524 U.S.
206, 209–10 (1998). 	To state a plausible claim under either
statute, a plaintiff must allege: “(1) that he is a qualified
individual with a disability; (2) that he was either excluded
from participation in or denied the benefits of some public
entity’s services, programs, or activities or was otherwise
discriminated against; and (3) that such exclusion, denial of
benefits, or discrimination was by reason of the plaintiff’s
disability.” 	Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st
Cir. 2000).
The district judge should dismiss the disability
discrimination claims against all defendants for failure to
state a claim. 	Although Mr. Gray has pleaded that he is a
qualified individual with a disability on account of his mental
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impairments, he has asserted no facts to support his bare
allegation that the defendants denied him religious services
because of his disability. 	The mere fact that the defendants
refused his requests does not permit a reasonable inference that
they did so because of his disability. 	Cf. Lebron v. Commw. of
P.R., 770 F.3d 25, 31 (1st Cir. 2014) (“Simply alleging in a
conclusory fashion that the defendants engaged in ‘intentional
discrimination,’ as does the complaint here, is not enough to
satisfy the pleading standard.”); Toledo, 454 F.3d at 33
(similar).
Additionally, Mr. Gray’s disability discrimination claims
against the individual defendants are not cognizable. 	Title II
of the ADA prohibits discrimination by a “public entity,”
defined as any state or local government, department, agency, or
other instrumentality. 	42 U.S.C. § 12131(1). 	Section 504 of
the Rehabilitation Act prohibits discrimination by a federally
funded “program or activity,” including public entities and
private businesses. 	See 29 U.S.C. § 794(b). 	By definition, an
individual is neither a “public entity” nor a “program or
activity,” which means that individuals cannot be sued in their
personal capacities directly under the provisions of either
statute. 	See Alsbrook v. City of Maumelle, 184 F.3d 999, 1005
n.8 (8th Cir. 1999).
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Mr. Gray cannot circumvent this limitation by asserting his
personal-capacity discrimination claims under § 1983. 	Although
the First Circuit has not addressed the issue, the majority of
circuit courts have held that public officials cannot be sued in
their personal capacities under § 1983 predicated on alleged
violations of Title II of the ADA or Section 504 of the
Rehabilitation Act. 	See, e.g., Vinson v. Thomas, 288 F.3d 1145,
1156 (9th Cir. 2002); Garcia v. State Univ. of N.Y. Health Scis.
Ctr., 280 F.3d 98, 107 (2d Cir. 2001); Lollar v. Baker, 196 F.3d
603, 609-10 (5th Cir. 1999). 	These courts have reasoned that
the ADA and the Rehabilitation Act provide comprehensive
internal enforcement mechanisms that foreclose resort to the
general enforcement provisions of § 1983. 	See, e.g., Lollar,
196 F.3d at 609-10. 	This court agrees with these well-reasoned
opinions and likewise concludes that the disability
discrimination claims asserted against the individual defendants
in their personal capacities are not cognizable.
IV. 	RLUIPA Claims
Mr. Gray asserts a violation of his right to freely
practice his religion under RLUIPA. 	The district judge should
dismiss the RLUIPA claims as to all defendants.
To the extent a violation of RLUIPA is asserted against the
DOC, the Eleventh Amendment bars the claim. 	As a state entity,
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the DOC enjoys “sovereign immunity to private suits for money
damages under RLUIPA.” 	Sossamon v. Texas, 563 U.S. 277, 293
(2011). 	There is no suggestion that the DOC has waived its
immunity for purposes of Mr. Gray’s RLUIPA claim. 	Accordingly,
the district judge should dismiss that claim against the DOC.
See 28 U.S.C. § 1915(e)(2).
Mr. Gray’s personal-capacity RLUIPA claim fares no better.
In the absence of binding precedent from the First Circuit,
“this court has aligned itself with the majority of courts that
have addressed the issue, in holding that RLUIPA does not
authorize claims for damages asserted against defendants in
their individual capacities.” 	Ayuso v. Zenk, No. 16-CV-317-PB,
2016 WL 7076994, at *1 (D.N.H. Oct. 31, 2016), 2016 U.S. Dist.
LEXIS 167391, at *2-*3, R&R approved sub nom. Ayuso v. N.H.
State Prison, 2016 WL 7052969, 2016 U.S. Dist. LEXIS 167391
(D.N.H. Dec. 5, 2016); see Howard v. Skolnik, 599 F. App’x 323,
323 (9th Cir. 2015); Cryer v. Spencer, 934 F. Supp. 2d 323, 333
(D. Mass. 2013) (collecting Third, Fourth, Fifth, Seventh,
Tenth, and Eleventh Circuit cases). 	Thus, the District Judge
should dismiss the RLUIPA claims against the individual
defendants, whom Mr. Gray has sued in their personal capacities
only.
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Conclusion
For the foregoing reasons, the district judge should
dismiss Mr. Gray’s equal protection, ADA, Rehabilitation Act,
and RLUIPA claims against all defendants, dismiss his First
Amendment claim to the extent it is asserted against the DOC,
and drop the DOC from this action. 	Any objection to this Report
and Recommendation must be filed within 14 days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The 14-day period
may be extended upon motion. 	Failure to file a specific written
objection to the Report and Recommendation within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
___________________
Andrea K. Johnstone
United States Magistrate Judge
June 8, 2021
cc: 	Jeffrey Gray, pro se
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