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Appeals Court of Massachusetts.



Decided: March 22, 2021

By the Court (Green, C.J., Meade & Rubin, JJ.3)


The plaintiffs, members of the Church of Firstborn Kahal Hab'Cor (CFB), are incarcerated at the Massachusetts Correctional Institution at Norfolk (MCI–Norfolk).4 They brought an action against the defendants, various officials of the Department of Correction (department), alleging, among other things, that the department violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc-1 et seq. (2018) (RLUIPA), by failing to provide the plaintiffs with the “Holy Diet” and dedicated space for their religious practice.5 A Superior Court judge allowed the plaintiffs’ motion for summary judgment on the former claim, and found in favor of the plaintiffs on the latter claim following a jury-waived trial. The defendants now appeal from those judgments and the related order granting the plaintiffs injunctive relief on the dedicated space issue.6 We vacate and remand for further proceedings consistent with this memorandum and order.

Background. 1. Summary judgment.7 The plaintiff Nathan Marquis LeBaron formed the CFB, a sect of Messianic Judaism with a mission to administer the ministry of “Yeshua” to the imprisoned. Pursuant to G. L. c. 180, LeBaron filed articles of organization, which were approved and certified by the Secretary of the Commonwealth on November 7, 2014. LeBaron serves as the president of the CFB and chief judge of the “Beit Din,” the religious court. Other plaintiffs serve as church officers.

In his role as the chief judge, LeBaron issued a “Declaratory Judgment” describing the Holy Diet with citation to religious scriptures. He explained that the failure to adhere to the Holy Diet is a “form of rejection of the government of the Messiah” and “render[s] a person less than their potential, which directly affects the person's ability to give 100% to either God or their neighbor.” Elsewhere in the record, the plaintiffs define the Holy Diet to include:

“(1) fresh vegetables of all available varieties; (2) fresh fruits of all available varieties; (3) juice made from real fruits and vegetables with no sugar added; (4) unprocessed kosher meats; (5) whole grain foods such as breads, beans, lentils, etc.; (6) dairy food products such as whole milk, yogurt, cheese, cream, butter, etc.; (7) honey instead of sugar; and (8) olive oil.”

Consistent with the department's policy, several plaintiffs submitted inmate religious services requests seeking access to the Holy Diet and to dedicated synagogue space. The plaintiffs’ requests for the Holy Diet were denied but, at least in some instances, the plaintiffs were authorized to receive the department's kosher meals. The kosher meals do not meet the standards of the Holy Diet because, for instance, they contain processed meat and do not include fresh vegetables. The plaintiffs’ requests for dedicated space also were denied pending location of a Messianic Jewish volunteer to lead the plaintiffs in worship.

The parties cross-moved for summary judgment on all claims. Acting on those motions, the judge determined that the plaintiffs’ religious exercise was substantially burdened by the denial of access to the Holy Diet. The judge also concluded that the defendants advanced compelling governmental interests in operating an efficient food program, minimizing costs and administrative burdens, and preventing conflict between inmates that supported their decision. However, the judge determined that the defendants failed to present evidence that they considered alternatives other than offering the plaintiffs the standard kosher diet; that option, the judge explained, “does not constitute an alternative at all” because consumption of the kosher diet requires the plaintiffs to violate their sincerely held religious beliefs. The judge then concluded that the defendants’ failure to demonstrate use of the least restrictive means warranted entry of summary judgment in the plaintiffs’ favor on their RLUIPA claim concerning the Holy Diet. By the same written decision, the judge determined that the plaintiffs’ claim that the defendants violated RLUIPA by failing to provide dedicated space for their religious practice must proceed to trial because questions of fact existed.

2. Trial. Eight days before the commencement of the jury-waived trial on that remaining claim, the judge retweeted without comment a newspaper article on her Twitter social media webpage.8 The article described a “hunger strike” initiated by an inmate at MCI-Norfolk who was placed in solitary confinement for stockpiling bottled water that he intended to distribute to fellow inmates. The defendants filed an emergency motion to recuse, arguing that the social media post evidenced the judge's bias toward the defendants and called into question her impartiality. The judge orally denied the motion prior to conducting a view of MCI-Norfolk on the first day of the trial and later memorialized her ruling in a written memorandum of decision and order.

The matter proceeded to trial over the course of five days. Thereafter, the judge issued written findings of fact and rulings of law wherein she concluded that the plaintiffs were entitled to injunctive relief on their RLUIPA claim for access to dedicated space. Following the entry of judgment on this claim, the judge issued a “clarification of injunctive relief” explaining that the defendants were to provide open access to dedicated space in the inner perimeter security room for the plaintiffs’ worship, prayer, and study including use above and beyond volunteer-led group worship.9

Discussion. 1. Holy Diet. The defendants first argue that the judge erred in allowing the plaintiffs’ motion for summary judgment on their claim that the defendants violated RLUIPA by failing to provide them with the Holy Diet. We review a grant of summary judgment de novo, construing all facts in the light most favorable to the defendants as the party against whom judgment has entered. See Miller v. Cotter, 448 Mass. 671, 676 (2007); Barry v. Planning Bd. of Belchertown, 96 Mass. App. Ct. 314, 317 n.6 (2019).

To prevail on a claim under RLUIPA, the plaintiffs bear the initial burden of proving that the defendants’ failure to provide them with the Holy Diet substantially burdens their religious exercise. See Trapp v. Roden, 473 Mass. 210, 214 (2015). The statute defines “religious exercise” broadly to include “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). See 42 U.S.C. § 2000cc-3(g) (RLUIPA “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”). However, to garner protection under RLUIPA, “a prisoner's request for an accommodation must be sincerely based on a religious belief and not some other motivation.” Holt v. Hobbs, 574 U.S. 352, 360–361 (2015). If the plaintiffs satisfy this initial burden of proof, the burden then shifts to the defendants to show that their decision was “in furtherance of a compelling governmental interest” and was “the least restrictive means of furthering that compelling governmental interest.” Trapp, supra, quoting Holt, supra at 362.

In her written decision on the parties’ cross motions for summary judgment, the judge appeared to accept that the observance of the Holy Diet is a religious exercise, but elsewhere explicitly noted that “[t]he Court will not query whether the Holy Diet is ․ the product of sincere religious belief.”10 Given that the plaintiffs must prove that the denial of their dietary request implicates their religious exercise, we proceed to consider the state of the summary judgment record on that issue. See Holt, 574 U.S. at 360.

By way of the “Declaratory Judgment” prepared by LeBaron in his role as chief judge of the Beit Din, the plaintiffs presented evidence that their request for access to the Holy Diet is based on their religious beliefs as members of CFB. However, the defendants adequately challenged the sufficiency of that evidence, arguing that the Holy Diet, based solely on LeBaron's reading of the scriptures, is a “dubious creation of LeBaron,” “of a questionable religious foundation, and ․ more akin to a vague and generalized assortment of food preferences such as fresh fruit, fresh vegetables, whole grains, dairy and kosher meats.”11 See Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (“prison officials may appropriately question whether a prisoner's religiosity, asserted as the basis for a requested accommodation, is authentic”). See also Guzzi v. Thompson, 470 F. Supp. 2d 17, 26 (D. Mass. 2007), vacated on other grounds, U.S. Ct. App., No. 07-1537 (1st Cir. May 14, 2008) (discussing RLUIPA's requirement that requested diet be part of system of religious belief rather than plaintiff's “purely subjective ideas of what his religion requires”). Cf. Walters vs. Santa Clara Dep't of Corrections, U.S. Dist. Ct., No. 12-cv-02799, slip op. at 7 n.2 (N.D. Cal. Sept. 19, 2013) (“Courts have repeatedly rejected RLUIPA and First Amendment claims where the dietary request is a matter of personal preference rather than based on religion”) (collecting cases).

The foregoing illustrates that the summary judgment record reflects a factual dispute on the question whether adherence to the Holy Diet constitutes a religious exercise. That issue is properly resolved at trial as it necessarily requires exploration of whether the plaintiffs’ requests were based on a religious belief or personal preference draped in a claim of religious observance. Accordingly, we vacate judgment on the RLUIPA claim for the Holy Diet and remand for further proceedings.12

2. Dedicated space. The defendants argue that the judge should have recused herself prior to trial in light of the retweet of the newspaper article about MCI-Norfolk. We review the denial of the motion to recuse for abuse of discretion. See Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 546 & n.5 (1998).

“In order to preserve and protect the integrity of the judiciary and the judicial process, and the necessary public confidence in both, even the appearance of partiality must be avoided.” Commonwealth v. Morgan RV Resorts, LLC, 84 Mass. App. Ct. 1, 9 (2013). Consequently, the Massachusetts Code of Judicial Conduct provides that “[a] judge shall disqualify himself or herself in any proceeding in which ․ the judge's impartiality might reasonably be questioned.” S.J.C. Rule 3:09, Canon 2, Rule 2.11(A) (2016).

“[I]f faced with a question of [her] capacity to rule fairly, the judge [must] consult first [her] own emotions and conscience to conduct an internal test of freedom from disabling prejudice․ If she subjectively believes she can rule impartially, the judge must next attempt an objective appraisal of whether ․ [her] impartiality might reasonably be questioned.” (Quotations omitted.)

Morgan RV Resorts, LLC, supra, quoting Lena v. Commonwealth, 369 Mass. 571, 575 (1976). Unless both the subjective and objective standards are satisfied, the judge must recuse herself. See S.J.C. Rule 3:09, Canon 2, Rule 2.11, comment 1 (2016).

We accept the judge's averment that she harbors no actual bias toward the defendants. We then consider whether, in light of the retweet of the newspaper article, “the judge's impartiality might reasonably be questioned by a fully-informed disinterested observer.” S.J.C. Rule 3:09, Canon 2, Rule 2.11, comment 1. On this point, we are persuaded by Opinion No. 2016-09 (Nov. 22, 2016) of the Committee on Judicial Ethics (committee), which addressed a similar factual scenario to the one presented here. The committee explained that, absent some indication by the user to the contrary, “the act of retweeting generally suggests that the user endorses the views expressed.” Id. Moreover, the committee cautioned that retweeting “[r]eports even by ‘mainstream media’ should be avoided, as such reports may contain commentary or reaction favoring one point of view.” Id.

Given the circumstances presented here, an objective observer might reasonably question the judge's impartiality at trial. The judge retweeted an article involving parties to litigation pending before her on the eve of trial. See Opinion No. 2016-09 (“judge must ․ always consider whether a particular post ․ would be improper in light of cases pending before that judge”). The Twitter account also identified the user by name and as a judge, increasing the risk that an outside observer would view the post as an endorsement of the article by a judge in that capacity. See id. (“when a judge is posting publicly as a judge, the judge must be exceptionally cautious”). We recognize that the newspaper article at issue made no mention of any plaintiff in this action and did not concern the subject of this litigation.13 However, the article and the comments contained therein could easily be read, at least in part, as critical of the defendants and their treatment of inmates at MCI-Norfolk. Therefore, we conclude that the judge abused her discretion in denying the defendants’ emergency motion to recuse prior to trial. We accordingly vacate the judgment entered in favor of the plaintiffs on their RLUIPA claim for dedicated space and the related order for injunctive relief, and we remand for a new trial before a different judge of the Superior Court.14

Conclusion. We vacate the amended judgment dated August 29, 2018, entered in favor of the plaintiffs on their RLUIPA claim for dedicated space, so much of the judgment dated November 15, 2018, as entered in favor of the plaintiffs on their RLUIPA claim for the Holy Diet, and so much of the clarification of injunctive relief dated November 23, 2018, as ordered injunctive relief on the issue of dedicated space. We remand for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.


4.   The plaintiffs also include the CFB itself and a related corporate entity. The record reflects that at least one plaintiff is now incarcerated at a different facility.

5.   The plaintiffs proceeded pro se before the Superior Court. The plaintiff Andrew J. Mallory, Jr., is now represented by counsel and is the only plaintiff who filed briefs on appeal. We consider his arguments on behalf of all plaintiffs.

6.   As a single justice of this court explained:“[T]he current state of the trial court docket is far from ideal․ When the defendants first sought a stay pending appeal in October of 2018, a different single justice denied that motion without prejudice, noting that it did not appear that final judgment had entered. In an apparent effort to address that problem, the defendants moved for entry of a final judgment. Several months later, that motion remains pending. In the interim, the judge issued additional orders that rendered the status of the case even more confusing. Indeed, there appear to be at least six orders that might be characterized as partial ‘judgments’ in this case.”To the extent that the appeal is premature by reason of the absence of a final judgment, we interpret the single justice's order as granting leave for an interlocutory appeal. The issues are fully briefed, the parties do not claim that prejudice will result from the resolution of these issues at this juncture, and a decision on the merits is in the interests of judicial economy. See Creatini v. McHugh, 99 Mass. App. Ct. 126, 127-128 (2021); ZVI Constr. Co. v. Levy, 90 Mass. App. Ct. 412, 418 (2016). Therefore, we treat this as an appeal from the amended judgment entered on August 29, 2018, and the clarification of injunctive relief entered on November 23, 2018, both on the issue of dedicated space, as well as the judgment entered on November 15, 2018, on the issue of the Holy Diet. We do not address the plaintiffs’ remaining claims as they are not the subject of this appeal; however, nothing in this memorandum and order should be read to limit the plaintiffs’ right to appellate review following resolution of the specified issues on remand and, presumably, entry of a final, comprehensive judgment on all claims.

7.   The following facts are drawn from the summary judgment record and, at least for the purposes of the cross motions for summary judgment, appear undisputed. We reserve further recitation of the facts for our discussion below.

8.   The trial was scheduled before the same judge who resolved the summary judgment motions.

9.   Throughout the proceedings in the Superior Court, the judge issued various orders for injunctive relief related to the Holy Diet and dedicated space for the plaintiffs’ religious practice. The most recent order requires the defendants to continue to provide access to the inner perimeter security room as dedicated worship space for the plaintiffs and to continue to offer the plaintiffs the choice of the regular or kosher meal at each mealtime pending this appeal. On remand, the parties are free to argue the propriety of the orders for injunctive relief that are not the subject of this appeal.

10.   Though in this case the defendants do not argue that there is a disputed question of fact with respect to the sincerity of the plaintiffs’ religious beliefs, we note that the question of sincerity is one of fact. See Sprouse v. Ryan, 346 F. Supp. 3d 1347, 1358 (D. Ariz. 2017); Beebe v. Birkett, 749 F. Supp. 2d 580, 594–595 (E.D. Mich. 2010); Rowe v. Lemmon, 976 N.E.2d 129, 136 (Ind. Ct. App. 2012), cert. denied, 571 U.S. 854 (2013). See also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 718 (2014) (“the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims․ [B]y the time of RLUIPA's enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented”).

11.   The defendants also challenged the plaintiffs’ claim that the Holy Diet would cure certain medical conditions.

12.   We decline the defendants’ invitation to direct entry of summary judgment in their favor on this claim based on their argument that offering the plaintiffs the kosher meal was the least restrictive means of achieving their compelling governmental interests described above. Indeed, the defendants’ reliance on the judge's various orders for injunctive relief issued after resolution of the summary judgment motions as evidence that the kosher diet was, in fact, the least restrictive alternative highlights the need to develop a complete factual record on the issues presented at trial. Cf. Williams v. Annucci, 895 F.3d 180, 192 (2d Cir. 2018) (whether proffered alternative is least restrictive means is “fact-intensive inquiry”).

13.   As discussed above, the article concerned water quality at MCI-Norfolk and alleged punishment imposed by the department as a result of an inmate's attempt to stockpile bottled water. We note that while this appeal has been pending, the plaintiffs filed a motion, pro se, alleging water quality issues and seeking related relief, see LeBaron vs. Spencer, Mass. Super. Ct., No. 1585CV00275 (Worcester County Nov. 3, 2020) (motion for order to take current water samples and blood diagnostic testing of plaintiffs and providing case of bottled water per plaintiff on weekly basis). That motion remains pending. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (court may take judicial notice of docket entries in related proceedings).

14.   The defendants also argue that summary judgment should have entered in their favor on the dedicated space issue. Because this claim advanced to a trial on the merits, review of the denial of summary judgment on that claim is not proper. See Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986).

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