UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Malachi I. Yahtues

v. Case No. 16-cv-174-SM Opinion No.

David Dionne and Willie Scurry

O R D E R

Before the court are pro se plaintiff Malachi I. Yahtues’s

motion for summary judgment (doc. no. 214) and defendants David

Dionne and Captain Willie Scurry’s cross-motion for summary

judgment (doc. no. 219). The court also addresses Yahtues’s

“Motion to Suppress Deposition Transcripts” (doc. no. 224) and

the defendants’ two motions to strike (doc. nos. 216 and 230).

Yahtues was held as a pretrial detainee at the Hillsborough

County Jail between 2014 and 2016. During that time, Dionne was

the superintendent of the Hillsborough County Department of

Corrections, while Scurry was a corrections officer at the jail.

The cross-motions for summary judgment pertain to Yahtues’s

Claims 1 through 4, which are brought against Dionne and/or

Scurry through

based on violations of the

First, Sixth, and Fourteenth Amendments. Yahtues also brings

certain claims under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”). The factual bases for

Yahtues’s claims are varied. Generally, Yahtues asserts that Dionne or Scurry failed to provide him access to a law library

or legal assistance, held him in unhealthy and unsafe living

conditions, failed to permit him to practice his religion

unhindered, and failed to provide him access to adequate medical

care.

The court denies Yahtues’s motion for summary judgment

(doc. no. 214) and grants the defendants’ cross-motion for

summary judgment (doc. no. 219). Yahtues’s “Motion to Suppress

Deposition Transcripts” (doc. no. 224) is denied. The

defendants’ two motions to strike (doc. nos. 216, 230) are

denied as moot.

Standard of Review

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

(1st Cir. 2016) (citation omitted). Summary

judgment is appropriate when the record reveals “no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this

context, a factual dispute “is ‘genuine’ if the evidence of

record permits a rational factfinder to resolve it in favor of

either party, and ‘material’ if its existence or nonexistence

2 has the potential to change the outcome of the suit.” Rando v.

Leonard,

(1st Cir. 2016) (citation omitted).

Consequently, “[a]s to issues on which the party opposing

summary judgment would bear the burden of proof at trial, that

party may not simply rely on the absence of evidence but,

rather, must point to definite and competent evidence showing

the existence of a genuine issue of material fact.” Perez v.

Lorraine Enters.,

, 29–30 (1st Cir. 2014). In other

words, “a laundry list of possibilities and hypotheticals” and

“[s]peculation about mere possibilities, without more, is not

enough to stave off summary judgment.” Tobin v. Fed. Express

Corp.,

, 451–52 (1st Cir. 2014).

Background

A. Procedural History

Yahtues brought this suit under

, alleging

that Dionne and Scurry violated his rights under the United

States Constitution when he was a pretrial detainee at the

Hillsborough County Jail. After conducting a preliminary review

and narrowing the claims, the court found that Yahtues asserted

the following claims and subclaims:

1. HCDC Superintendent David Dionne, as the individual in charge of the HCDC, the supervisor of HCDC correctional and medical staff, and who is responsible for reviewing all administrative appeals, violated Yahtues’s rights, when

3 Yahtues was a pretrial detainee at the HCDC, between June 25, 2014 and August 1, 2016, as follows:

a. Dionne violated Yahtues’s First, Sixth, and Fourteenth Amendment due process rights to meaningfully access the courts when Yahtues was housed in segregation in the HCDC Restricted Housing Unit (“RHU”), or in Unit 2B/Maximum Security, by refusing to grant plaintiff’s grievances and/or refusing to alter HCDC policies, resulting in:

i. The denial of Yahtues’s physical access to the HCDC law library and to the assistance of a person trained to conduct legal research;

ii. The denial of adequate access to legal materials caused by allowing plaintiff to obtain such materials through a “page” system, in which Yahtues could receive copies of legal documents only by making a written request for the specific document; and

iii. The denial of adequate opportunities to contact the attorney representing him in his criminal case.

b. Dionne denied Yahtues’s right to humane conditions of confinement, in violation of the Fourteenth Amendment Due Process Clause, with regard to the HCDC’s providing Yahtues with: used underwear soiled with urine, fecal matter, blood, semen, and vaginal secretions, resulting in Yahtues developing “jock itch,” bedding soiled with urine, fecal matter, blood, semen, and vaginal secretions; and used footwear, resulting in Yahtues developing a foot fungus, by:

i. Refusing to change HCDC policy with regard to the provision of used underwear and footwear;

ii. Failing to ensure bedding was properly laundered after receiving notice of the inadequacy of the HCDC’s laundry procedures; and

iii. Ignoring and/or denying Yahtues’s request to provide Yahtues with new unused underwear and footwear.

4 2. HCDC Captain Willie Scurry, in charge of HCDC operations and programs, violated Yahtues’s rights, when Yahtues was a pretrial detainee at the HCDC, between June 25, 2014 and August 1, 2016, as follows:

a. On numerous occasions, Scurry violated Yahtues’s First, Sixth, and Fourteenth Amendment due process rights to meaningfully access the courts when he:

i. Failed to adequately address Yahtues’s grievances seeking legal supplies, access to the law library, and/or legal assistance; and

ii. Failed to provide a remedy on the numerous occasions when the HCDC lost or misplaced Yahtues’s outgoing legal mail.

b. Scurry violated plaintiff’s rights under the First Amendment Free Exercise Clause and RLUIPA by:

i. Failing to provide Yahtues with “proper” Kosher meals on numerous occasions;

ii. Providing Yahtues with rotten or spoiled Kosher food;

iii. Denying Yahtues’s grievances requesting religious headwear (a “kufi”) and a prayer rug, on the basis that those items “are not part of [Yahtues’s] religion”;

iv. Denying Yahtues the ability to celebrate the Jewish holiday of Passover in both 2015 and 2016, by failing to provide Yahtues with items necessary to observe the religious requirements of that holiday; and

v. Denying Yahtues a Torah in RHU.

c. Scurry ignored Yahtues’s request to have a Torah in RHU because inmates in RHU are only allowed to have New Testament Bibles, in violation of the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause.

3. Defendants Dionne and Scurry, acting with deliberate indifference, failed to ensure that Yahtues was provided with

5 proper treatment for Yahtues’s serious medical and mental health needs, in violation of Yahtues’s Fourteenth Amendment due process rights.

4. Defendants Dionne and Scurry endangered Yahtues’s health and safety by failing to prevent Yahtues from being served spoiled food on a number of occasions, in violation of Yahtues’s Fourteenth Amendment due process rights.

Doc. 192 at 8-10. Both Yahtues and the defendants, Dionne and

Scurry, have moved for summary judgment in their favor on the

claims. 1

B. Facts Yahtues was held as a pretrial detainee on criminal charges

at the Hillsborough County Jail between June 25, 2014, and

August 1, 2016. During the time Yahtues was at the jail, Dionne

was the Superintendent of the Hillsborough County Department

Corrections. Scurry was a captain at the jail with

responsibility for operations, including meals, the law library,

laundry, food service, housekeeping, and maintenance.

Because of his repeated misconduct and disciplinary

infractions, Yahtues was, at times, housed in the jail’s various

restricted units. These restricted units included the jail’s

maximum-security unit, its administrative segregation unit, and

its restricted housing unit. For security reasons, the

1 On August 30, 2019, the court permitted joinder of a fifth claim that is not at issue in the motions addressed in this order. Doc. 240.

6 restricted units had more strict rules on inmate movement and

property than those placed on the jail’s general population.

1. Access to Legal Materials

a. Page System

When housed in the restricted units, jail regulations

prohibited Yahtues from physically accessing the jail’s law

library. Instead, Yahtues was required to use a “page” system

to request material from the library.

The page system required Yahtues to submit requests for

materials to the law librarian. The law librarian was tasked

with retrieving the requested materials for Yahtues and other

inmates. The law librarian was also available to make copies

for inmates and to direct inmates to available resources.

While housed in the restricted units, Yahtues used the page

system, making several requests for legal materials. Dionne

averred that the law librarian copied many cases, statutes, and

texts for Yahtues while he was restricted from physical access

to the library.

On occasion, Yahtues was unable to receive legal help from

the law librarian to the full extent that he requested it. For

example, Yahtues requested help from the librarian in filing a

motion to suppress in his criminal case. According to Yahtues,

however, the librarian did not know how to find the material he

7 wanted and jail officials were indifferent toward helping him

with his research. Doc. 214-3 at 2; Doc. 214-1 ¶ 9.

Yahtues also attempted to proceed pro se in his criminal

case, and he asked the law librarian for case law on that

subject. The law librarian was unable to help, and Yahtues was

not provided research assistance after submitting inmate

requests and grievances. Ultimately, Yahtues discharged

counsel; he had four different lawyers represent him over the

course of his criminal case. Doc. 233-1 at 4 ¶ 8; doc. 219-3 at

18.

Yahtues pleaded guilty to the charges against him in 2016,

and he was transferred to the New Hampshire State Prison to

begin serving his sentence. Yahtues was represented by counsel

when he pleaded guilty and when he was sentenced. In his

deposition, Yahtues testified that he probably would have

received a longer sentence if he had represented himself.

Yahtues also testified that he did not know what his last

attorney in his criminal case was unable to do because of

Yahtues’s inability to access to the law library. Yahtues,

however, suggested that because of his lack of access to the law

library, he was unable to research an issue relating to whether

he had sufficient predicate convictions to receive an armed

career criminal enhancement.

8 b. Time to Communicate with Counsel

Yahtues filed grievances in which he complained that, while

housed in the restricted units, he was only allowed morning

recreation time when his unit was supposed to alternate between

morning and evening recreation time. Yahtues explained that

inmates could use their recreation time to call counsel, and he

asserted that his counsel was not available during the morning

recreation hours. In the grievance, Yahtues stated that it was

possible that he had evening recreation time one day that week.

In response, jail staff wrote that Yahtues could not

dictate the particular time of day provided for recreation or

out-of-cell time. In another response, jail staff explained

that the jail could not customize out-of-cell time around

Yahtues’s attorney’s schedule given the large number of inmates

at the jail. The response added that Yahtues could communicate

with counsel through the mail or in-person visits.

c. Legal Mail

Yahtues filed several grievances regarding “missing mail.”

Doc. 214-1 ¶ 50. In his declaration, Yahtues stated that he had

in his possession evidence that he believed to be exculpatory

with respect to the offenses for which he had been on trial. He

stated that he placed that evidence in an envelope, which he

then gave to a corrections officer to mail.

9 In his grievance on the issue, Yahtues wrote that a

corrections officer told him that the envelope containing the

claimed exculpatory material was overweight and that it needed

to be split into two separate mailings. Yahtues wrote in the

grievance that he “complied” with that direction, and he says

that he split the evidence into two envelopes which he gave to

jail staff to be mailed. Doc. 214-8 at 22. Scurry, however,

stated in his affidavit and in his response to Yahtues’s

grievance that the two envelopes were still overweight and were

returned to Yahtues. Id.; doc. 214-10 ¶ 12.

Yahtues asserted that the two envelopes did not reach their

intended destinations. Doc. 214-8 at 23. Yahtues asked the

jail to find the missing mail by checking the mailroom and

checking the local post office.

Scurry responded to

Yahtues’s request, stating that Yahtues could not tell him the

date or a reasonable approximation of the date when Yahtues sent

the two envelopes out. Scurry noted that there were no records

of Yahtues having sent out the mail he claimed was missing.

Scurry added that no one saw any additional large envelopes sent

out by Yahtues after the two overweight envelopes were returned

to him. In his deposition, Yahtues stated that he had no

information beyond his assumptions or inferences to conclude

that the jail had failed to mail his package. See doc. 219-3 at

30-31.

10 2. Living Conditions

Yahtues received unclean undergarments from the jail that

were stained with feces and urine, and he filed a grievance

complaining about it. Yahtues, however, retracted his grievance

after he received new undergarments. Doc. 214-1 ¶ 44. Yahtues

filed another grievance in which he complained that the

undergarments are “pre-used which means they have been soiled

with feces and urine.” Doc. 214-7 at 5 (labeled Exhibit E-4).

Scurry responded to Yahtues’s grievance, stating that all used

undergarments, socks, and uniforms are washed with detergent,

bleach, disinfectant, and fabric softener, and that “heavily

stained” items would be thrown away.

Yahtues disputed

Scurry’s statement on the ground that it is “well rehearsed.”

Yahtues also grieved about the provision of unsanitary

footwear. Yahtues believes he caught a foot fungus because of

the unsanitary footwear. Scurry responded to Yahtues’s

grievance on the issue, stating that all shoes were sprayed with

disinfectant.

Yahtues also filed grievances asserting that his bedding

was not properly laundered. In his affidavit, Dionne stated

that the inmates at the jail can turn in dirty bedding to be

laundered. Doc. 233-1 ¶ 11. Dionne stated that the jail does

not control when inmates turn in their bedding for laundering,

11 unless there is an obvious sanitary issue. Jail policy provides

that inmates at the jail “may at any point request replacement

of uniforms, bedding, socks and/or footwear, due to condition

(soiled or worn).” Doc. 233-6 ¶ 20.

3. Supply of Religious Articles

Yahtues is Jewish and identifies with a set of religious

beliefs known as “Hebrew Israelite.” To put his religious

beliefs into practice, Yahtues requested that the jail provide

him with a prayer rug and headwear known as a “Kufi”. 2

When Yahtues made requests for items on the ground that

they were necessary to his religious practice, Dionne and Scurry

consulted with a Judaic advisor, Rabbi Levi Krinsky. In his

affidavit, Dionne stated that Rabbi Krinsky told them that a

prayer rug and Kufi were not necessary for Yahtues to practice

his faith.

As to prayer rugs, while the jail places some restrictions

on the size and sourcing of prayer rugs, they are not

prohibited. Doc. 233-6 ¶ 13. The jail, however, does not

provide prayer rugs to inmates at its cost. In response to

2 Scurry could not recall any request from Yahtues for religious headwear other than a passing reference in a grievance. Doc. 233-6 ¶ 14.

12 Yahtues’s request for a prayer rug, Scurry coordinated a meeting

between Yahtues and Rabbi Krinsky to discuss their faith.

Additionally, while he was housed in the restricted units,

Yahtues asked for a “full Bible,” i.e., one containing both the

Old Testament and the New Testament. 3 The jail did not provide

one to Yahtues while he was in the restricted units.

In his affidavit, Dionne stated that, because of the First

Amendment’s Establishment Clause, the jail is prohibited from

purchasing at its cost religious texts such as Bibles, Torahs,

or Qurans. To provide inmates access to religious texts, the

jail relies on donated texts or texts obtained by inmates and

sent from approved sources. Doc. 233-1 ¶ 9. Dionne added that

Yahtues had full access to the Torah to the extent the jail had

copies available from these sources. Scurry conducted research

on the internet to try to find information for Yahtues about the

cost and method of ordering a Torah from an approved source.

In his declaration, doc. 214-1, Yahtues states that he

filed a grievance in which he requested access to a Bible

containing the Torah that was already in his possession but

unavailable to him because he was in a restricted unit. The

3 Yahtues specifically wanted the books of the Torah for his religious practice. Because the Old Testament generally incorporates the Torah, Yahtues observed that a Christian Bible containing the Old Testament would also contain the texts Yahtues requested for his religious practice.

13 grievance that Yahtues identifies as supporting his claim,

however, demands only that a Bible containing the Torah be

provided to him, not that he be provided access to a Bible

containing the Torah that he already owned. Doc. 214-5 at 3-4

(labeled Exhibits C-3 and C-4). Yahtues did not write in the

grievance that he already had a Bible containing the Torah from

a jail-approved source in his personal property and that he just

needed access to it while in the restricted units. Scurry

responded to Yahtues’s grievance, stating that no Bibles

containing Torah were available that met the security standards

for the restricted units. Scurry also noted that Yahtues had a

jail-issued Bible while outside the restricted units, but he

pointed out that it was not available. 4

4. Religious Diet

a. Passover

Yahtues filed grievances about the provision of necessary

foodstuffs for him to celebrate Passover. In his declaration,

Yahtues stated that to properly celebrate Passover the following

items are necessary: Matzah, bitter herbs (horseradish), hard-

boiled egg, chopped nuts, apples, honey, greens, and grape

4 Because of security concerns regarding their physical size, not all jail-issued Bibles are permitted in the restricted units.

14 juice. Yahtues also testified that lamb is necessary. Doc.

219-3 at 46.

The jail provided Yahtues with a Matzah “cracker” in

addition to Yahtues’s Kosher meals. Dionne and Scurry believed

that a Matzah cracker was the only necessary item for Passover

for Yahtues’s practice based on the advice of Rabbi Krinsky.

Scurry also researched information for Yahtues about how Yahtues

could purchase additional items from an approved source for the

celebration of Passover.

b. Spoiled Kosher Food

Yahtues also filed grievances about receiving inappropriate

and/or spoiled Kosher food from the jail. On Rabbi Krinsky’s

advice, Scurry arranged to have Kosher chicken purchased from a

local Whole Foods store and hard-boiled eggs prepared for

Yahtues. Doc. 233-6 ¶ 10. This arrangement lasted for

“months”. Doc. 219-3 at 53.

The jail also provided Yahtues with prepackaged, freeze-

dried Kosher meals. Yahtues observed a greenish hue on at least

some of those prepackaged meals. In his declaration, Yahtues

identified specific examples of spoiled meals: an instance when

he received a spoiled omelet and potato tray and a spoiled pot

roast beef tray. As to the omelet tray, Yahtues stated that the

tray was replaced with a new tray that Yahtues said was “okay”.

15 Doc. 214-6 at 12 (labeled Exhibit D-8). As to the pot roast

tray, Yahtues complained of a “strange smell,” “weird taste,”

and a “greenish hue.” Doc. 214-6 at 17 (labeled Exhibit D-

12(a)). According to Scurry’s response to Yahtues’s grievance

on the issue, the meal was replaced and Yahtues ate it without

issue. 5

Yahtues received another pot roast tray with a

green hue and the tray was again replaced.

In response to Yahtues’s grievances about the green hue on

the food, Scurry contacted the jail’s vendor for prepackaged

Kosher foods. The vendor told Scurry that the prepackaged meals

complied with applicable regulations for health and safety

serving time frames. The vendor also told Scurry that the green

hue was an expected result of the flash freezing process. This

information was communicated to Yahtues. Doc. 214-6 at 22.

c. Milk & Meat Mixtures

Yahtues was served dairy products (milk) alongside meat,

which violates the dietary rules for his religious practice.

Yahtues identifies one grievance, on April 1, 2015, concerning

milk and meat mixtures. 6 Scurry responded to Yahtues’s grievance

5 Yahtues was treated with Pepto-Bismol to settle his stomach.

6 In his declaration, Yahtues also identified another grievance regarding the provision of chocolate pudding that he believed was non-Kosher. In the grievance, Yahtues placed the

16 and, on April 16, 2015, met with Rabbi Krinsky and received

guidance from him. In his response to Yahtues’s grievance,

Scurry stated that “[a]fter the meeting, the issues have been

explained and corrected with Inmate Yahtues present.” Doc. 214-

6 at 5.

5. Medical Care

In his deposition, Yahtues testified that he was denied

medications for headaches and mental health issues. During the

time he was housed there, Dr. Matthew Masewic was employed as

the jail’s physician. In 2017, after Yahtues left the jail, Dr.

Masewic surrendered his medical license after allegations were

made that he, inter alia, failed to see inmates at the jail with

“significant medical conditions” and inadequately provided care

for those patients; “inappropriately stopped” inmates’

medications; failed to order appropriate medications for the

treatment of inmates’ underlying conditions; and failed to

maintain adequate documentation of the medical care provided to

inmates. Doc. 222-14 at 3. According to the documents

blame on anti-Semitic kitchen staff. In response to the grievance, Scurry consulted with Rabbi Krinsky, who concluded that the chocolate pudding served to Yahtues was Kosher.

17 submitted to the court by Yahtues, Dr. Masewic disputed the

allegations. Id. at 4. 7

While he was at the jail, Yahtues submitted a grievance

complaining about improper treatment for a fungal condition in

his foot that Yahtues believed was caused by unsanitary footwear

provided by the jail. Doc. 126-28 at 1-2. In the same

grievance, Yahtues complained about migraines and requested a

stronger medication for them than Aspirin or Tylenol. The

grievance was forwarded to the jail’s health services

administrator who responded that Yahtues was receiving proper

treatment for athlete’s foot. Yahtues testified that Dr.

Masewic provided medication for his foot fungus issues.

Yahtues had an MRI at a hospital outside the jail for his

headaches. The MRI returned “unremarkable” and a physical

therapist directed that no further treatment was warranted.

Doc. 219-3 at 4.

Additionally, in a grievance regarding his restriction to

the bottom bunk of his cell due to his headaches, Yahtues

complained about the improper nature of Dr. Masewic’s treatment.

Yahtues noted that he was going through “sleepless nites [sic]

and psychological trauma” because of Dr. Masewic’s treatment and

the restriction. Doc. 126-28 at 4. He further stated that

7 Dr. Masewic was a defendant in this suit, but he was voluntarily dismissed by Yahtues.

18 forcing him to see Dr. Masewic violated his rights under the

Eighth Amendment. The healthcare services administrator

responded that the restriction was in place due to Yahtues’s

complaints about migraines and a previous back injury. The

administrator also recommended non-strenuous physical exercise

such as walking, sit-ups, and push-ups. The administrator and

Dionne further responded that Yahtues could not be forced to

comply with treatment or medications.

Yahtues testified that, since leaving the jail, he has been

on and off psychotropic medications and that he was in the

process of trying to determine the right combination to minimize

side effects while also maximizing treatment results.

Discussion

Yahtues and the defendants filed cross-motions for summary

judgment on the four remaining claims in this case and their

subparts. The defendants are entitled to summary judgment in

their favor on every claim.

I. Access to Courts & Communication with Counsel

a. Access to Law Library & Legal Assistance in Segregation/Maximum Security (Claim 1(a)(i)-(ii) & Claim 2(a)(i)) In Claims 1(a)(i)-(ii) (brought against Dionne) and 2(a)(i)

(brought against Scurry), Yahtues asserts that Dionne and Scurry

19 violated his right of access to the courts by limiting his

physical access to a law library and by failing to provide him

with legal assistance. Under the Sixth and Fourteenth

Amendments, state pretrial detainees have a constitutional right

of meaningful access to the courts. Lewis v. Casey,

(1996); Holloman v. Clarke,

(D. Mass. 2017). To show that this right has been

violated, the detainee must identify a policy or practice that

denied him meaningful access to the courts and show that the

policy or practice actually injured his ability to pursue a

nonfrivolous legal claim. See Holloman,

;

Peterson v. Wrenn, No. 14-CV-432-LM,

, at *7

(D.N.H. Jan. 30, 2017) (citing Casey,

).

Importantly, “[t]he Constitution requires only that prisoners

‘be able to present their grievances to the courts,’ not that

they be able to conduct generalized research. Johnson v.

Poulin, No. 07-CV-161-PB,

, at *5 (D.N.H. Apr.

28, 2008) (quoting Lewis,

).

Yahtues contends that the page system for jail detainees

and inmates held in the restricted units was not adequate to

provide meaningful access to the courts. Yahtues has not

provided evidence from which a reasonable jury could find that

the jail’s page system for access to the law library denied him

meaningful access to the courts. This court has previously

20 found that a similar page system – used when prisoners are

restricted from physically accessing the library because of

disciplinary infractions – was reasonable. See id. at *6 (“This

method of providing access to legal research materials has been

upheld as constitutionally sufficient by other courts.”).

Furthermore, Yahtues has failed to provide evidence showing

that, even if the page system was inadequate, he was actually

injured in an attempt to bring a nonfrivolous legal claim.

Yahtues pleaded guilty to the criminal charges against him, and

he was, of his own accord, represented by counsel when he

pleaded guilty and when he was sentenced. Yahtues claims that

he could have represented himself effectively if he had more

help from jail staff, but the jail is not required to provide

generalized legal advice to inmates or detainees. Furthermore,

Yahtues only speculates about an issue regarding his armed

career criminal designation, and he presented no evidence that

there was a nonfrivolous claim or argument that he 8 was unable to

pursue because of a lack of access to the law library.

For those reasons, Dionne is entitled to summary judgment

in his favor as to Claims 1(a)(i)-(ii) and Scurry is entitled to

summary judgment in his favor as to Claim 2(a)(i).

8 Yahtues also does not explain why his lack of law library access would have precluded his lawyer from pursuing an argument that Yahtues did not meet the criteria for an armed career criminal enhancement.

21 b. Access to Counsel in Restricted Units (Claim 1(a)(iii)) In Claim 1(a)(iii), brought against Dionne, Yahtues

contends that he was not provided adequate opportunities to

contact the attorney representing him in his criminal case.

Dionne argues that Yahtues has failed to show any specified harm

from any inability to contact counsel. Yahtues contends that

showing actual injury is not necessary where the violation

regarding access to courts is brought under the First

Amendment’s Free Speech Clause, citing Al-Amin v. Smith,

(11th Cir. 2008), and Jones v. Brown,

(3d Cir. 2006), in support.

“[W]hen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” Turner

v. Safley,

(1987). Courts use a four-factor

test to determine whether a jail regulation or action is

reasonable with regard to a detainee’s First Amendment rights:

(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.

Kuperman v. Wrenn,

(1st Cir. 2011) (citing

Turner v. Safley,

(1987)). Yahtues has not

22 shown evidence of an unreasonable restriction on his freedom to

communicate with counsel sufficient to create a triable issue

about whether his free speech rights were violated under the

First Amendment.

Yahtues’s recreational time was restricted because he was

housed in the restricted units for disciplinary reasons. Courts

routinely recognize jail administrators’ authority to determine

how to meet the various needs of a correctional facility. See

e.g., Overton v. Bazzetta,

(2003) (“We must

accord substantial deference to the professional judgment of

prison administrators, who bear a significant responsibility for

defining the legitimate goals of a corrections system and for

determining the most appropriate means to accomplish them.”).

Here, the jail’s limitation on Yahtues’s recreational time while

in the restricted units was rationally connected to the

government’s interest in maintaining security and discipline at

the jail.

Furthermore, Yahtues had alternative methods to communicate

with counsel, including mail and in-person visits. And, in his

grievance, Yahtues indicated that he did have one opportunity

during the week in question to have recreation time that

coincided with counsel’s telephonic availability. Given the

evidence provided at summary judgment, the restrictions on

23 Yahtues’s recreational time do not rise to the level of a

constitutional violation.

To the extent this subclaim is brought under the Sixth and

Fourteenth Amendments, Yahtues has not provided evidence to show

that there was any restriction on his access to counsel that

injured him. See Peterson,

, at *7. The evidence

presented shows that Yahtues was able to make the filings he

sought and that he was able to communicate with counsel. Dionne

is entitled to summary judgment in his favor as to Claim

1(a)(iii).

c. Loss of Legal Mail (Claim 2(a)(ii))

Yahtues asserts in Claim 2(a)(ii), brought against Scurry,

that his right of meaningful access to the courts was violated

because Scurry failed to provide him a remedy when the jail lost

or misplaced Yahtues’s outgoing legal mail. In support of his

claim, Yahtues points to the two envelopes he says he mailed

that were not received at their destination. Yahtues claims

that the mail contained exculpatory evidence and that he would

have been exonerated if the mail had been received.

Yahtues, however, pleaded guilty to the offenses with which

he was charged. For that reason, Yahtues cannot show that he

suffered any injury from any inability to access the courts.

Furthermore, Yahtues has not shown evidence from which a

24 reasonable jury could infer that Scurry was responsible for the

loss of his package. Scurry is entitled to summary judgment in

his favor as to Claim 2(a)(ii).

II. Laundering Policy (Claim 1(b))

In Claim 1(b), brought against Dionne, Yahtues contests the

jail’s provision of used underwear and footwear, as well as its

practices of laundering underwear and bedding. Yahtues argues

that he was provided with used undergarments. Yahtues concedes

that he withdrew his first grievance on this issue after being

provided with an exchange of other clothing, but he contends

that the exchange shows the defendants’ awareness of unsanitary

practices at the jail. Yahtues also points to the defendants’

“rehearsed” explanation about how the jail disinfects inmate

clothing and bedding. Yahtues asserts that he contracted “jock

itch” and a foot fungus because of soiled undergarments and

soiled footwear issued by the jail.

The Eighth and Fourteenth Amendments prohibit state prison

officials from depriving inmates and detainees of “the essence

of human dignity inherent in all persons.” Brown v. Plata,

(2011). To show a violation of the Eighth and

Fourteenth Amendments on the ground of inhumane conditions of

confinement, the detainee must show that he was subjected to

conditions of confinement that were severe or dangerous enough

25 to violate the Constitution and show that the defendant knew of

and disregarded an excessive risk to the detainee’s health and

safety. Giroux v. Somerset Cnty.,

(1st Cir.

1999).

Yahtues fails to provide sufficient evidence in support of

his claim of inhumane conditions to survive summary judgment.

When Yahtues was supplied with dirty undergarments, he let

Dionne know. In response, Yahtues received new undergarments,

which is consistent with the jail’s policy. The replacement of

Yahtues’s undergarments undercuts his claim that Dionne

disregarded an excessive risk to his health and safety.

Similarly, when Yahtues complained about the disinfection

process for used undergarments, he received a detailed

explanation of how items are laundered at the jail. Yahtues

seeks to challenge the explanation on the ground that it is

“well rehearsed,” but mere speculation is not sufficient to

create a genuine issue of material fact. Garmon v. Nat’l R.R.

Passenger Corp.,

(1st Cir. 2016) (“Garmon’s

unsupported assertions, however, are insufficient to present a

material issue of fact meriting trial.”). Similarly, without

providing supporting evidence, Yahtues speculates that the

jail’s clothing and footwear were the source of his foot fungus

condition and “jock itch.” Yahtues has not shown any evidence

that the jail was not adhering to its policy of laundering and

26 disinfecting used undergarments, footwear, and bedding.

Therefore, Dionne is entitled to summary judgment as to Claim

1(b).

III. Unhindered Religious Practice (Claim 2(b) and (c))

In Claim 2(b) and (c), Yahtues contends that Scurry

violated his constitutional rights and rights under RLUIPA by

his (1) failure to provide proper Kosher meals; (2) provision of

spoiled Kosher food; (3) failure to provide religious headwear

and a prayer rug; (4) failure to provide religious food items

for Passover; and (5) failure to provide a “full Bible”

containing the Torah while in the segregation unit.

Scurry moves for summary judgment in his favor. Scurry

contends that the evidence shows that Yahtues’s claims lack

merit. Scurry also contends that Yahtues’s religious beliefs

are not sincerely held. He argues that Yahtues sometimes failed

to adhere to his religious beliefs by purchasing pork products

from the jail commissary.

A. Applicable Law

To prevail on a claim under the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., an

inmate or detainee must show “(1) that an institutionalized

person’s religious exercise has been burdened and (2) that the

27 burden is substantial,” and if he makes that showing, the burden

shifts to the defendants to show “(3) that the burden furthers a

compelling governmental interest and (4) that the burden is the

least restrictive means of achieving that compelling interest.”

Spratt v. R.I. Dep’t of Corr.,

(1st Cir. 2007).

A burden is substantial if the challenged restriction puts

“substantial pressure” on the inmate to modify his behavior and

violate his beliefs. See id.; McGee v. O’Brien,

(D. Mass. 2016) (“On different occasions, the Supreme

Court has stated that ‘substantial pressure on an adherent to

modify his behavior and to violate his beliefs’ or a government

policy that tends to ‘coerce individuals into acting contrary to

their religious beliefs’ constitutes a substantial burden on

one’s religious exercise.”).

Restrictions on an inmate’s or detainee’s ability to

practice his religion do not violate the First Amendment’s Free

Exercise Clause 9 so long as they were imposed pursuant to a

prison policy “reasonably related to legitimate penological

interests” and “are not an exaggerated response to such

objectives.” Beard v. Banks,

(2006) (“[T]he

Constitution sometimes permits greater restriction of such

9 The Free Exercise Clause applies to the states through the Fourteenth Amendment. Freedom from Religion Foundation v. Hanover Sch. Dist.,

(1st Cir. 2010).

28 rights in a prison than it would allow elsewhere.”). As noted

above, courts use a four-factor test to determine whether a

regulation or action violates a detainee’s rights under the

First Amendment:

(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.

Wrenn,

(citing Turner,

). Courts

owe “substantial deference to the professional judgment of

prison administrators.” Beard,

(quoting

Overton,

).

The First Amendment’s Free Exercise Clause, however,

provides fewer protections regarding an inmate’s free exercise

of religion than RLUIPA. Starr v. Cox, No. 05-CV-368-JD,

, at *16 (D.N.H. Apr. 28, 2008). Therefore, “[i]f

there is no RLUIPA violation, there will be no Free Exercise

Clause violation.” Id.; Glenn v. N.H. State Prison Family

Connections Ctr., No. 11-CV-475-JD,

, at *3

(D.N.H. June 4, 2012) (“RLUIPA’s protection exceeds that

provided by the Free Exercise Clause.”), report and

recommendation approved,

(D.N.H. Jun. 26, 2012).

29 1. Kosher Meals (Claim 2(b)(i))

Yahtues contends that he did not receive Kosher-compliant

meals and that the kitchen staff and working inmates were not

certified to provide Kosher-compliant meals. Yahtues also

asserts that he was improperly provided milk as a beverage

alongside meat, which is contrary to the dietary laws of his

religion.

Yahtues does not provide evidence to dispute that he

received Kosher-compliant prepackaged meals or Kosher-compliant

meals with chicken and boiled eggs. Given these undisputed

facts, there was no substantial burden on Yahtues’s religious

exercise as to the provision of Kosher meals.

As to the provision of milk and meat mixtures, Yahtues

filed a grievance on the subject, but the evidence shows that

the problem was rectified by Scurry. While he appears to claim

that the problem continued, Yahtues identifies no further

grievances that he submitted on the issue or any evidence from

which a jury could find that further problems were made known to

Scurry or that Scurry failed to address such problem after it

was made known to him.

2. Spoiled Kosher Food (Claim 2(b)(ii))

Yahtues asserts that he received spoiled Kosher food.

However, he did not provide evidence linking his receipt of this

30 food to Scurry’s actions or indifference. Rather, Yahtues says

that occasional spoliation of food items was caused by other

inmate workers in the kitchen who did not like him or his

religious beliefs. Moreover, the evidence shows that, on the

specific occasions that Yahtues complained about spoiled meals,

they were replaced. Cf. Abdulhaseeb v. Calbone,

(10th Cir. 2010) (“By identifying only one occasion when he

was forced to accept the objectionable products and failing to

provide any other specific evidence . . . [the plaintiff] failed

to establish a genuine issue of material fact as to substantial

burden . . . .”). 10 Furthermore, Yahtues’s concerns about a

green hue on the prepackaged Kosher meals were investigated and

addressed by Scurry. Given these undisputed facts, Yahtues has

failed to show that the jail placed a substantial burden on

Yahtues’s ability to exercise his religion by providing him with

spoiled Kosher meals. Yahtues has not shown facts that would

constitute a RLUIPA or First Amendment violation by Scurry as to

the alleged provision of spoiled or rotten Kosher food.

10In his deposition, Yahtues could not say how many times he was provided spoiled meals during his two years at the jail, but he estimated it was between one and thirty times. Doc. 219- 3 at 33.

31 3. Religious Headwear and Prayer Rug (Claim 2(b)(iii))

Yahtues claims that he should have been provided with

religious headwear and a prayer rug. The evidence identified by

Yahtues and the defendants at summary judgment, however, shows

that the jail did not prohibit Yahtues from having a prayer rug

or any religious headwear. Rather, the jail did not provide

those items to him at its cost. The requirement that Yahtues

obtain these religious articles from outside sources rather than

from the jail does not constitute a substantial burden on

Yahtues’s religious practice. See Dellinger v. Clarke,

(W.D. Va. 2016) (“No substantial burden

occurs if the government action merely makes the religious

exercise more expensive or difficult . . . .”).

Additionally, it was reasonable for Scurry to rely on Rabbi

Krinsky’s advice as to what was necessary to provide for

Yahtues’s religious practice and what was not. See Adams v.

Stanley,

(D.N.H. 2003) (finding that

jail provided inmate reasonable opportunities to practice his

religion when jail staff determined the necessary religious

articles by consulting with religious authorities). Even so,

Scurry did not blindly follow Rabbi Krinsky’s advice without

seeking input from Yahtues about his beliefs. Scurry tried to

assist Yahtues in exercising his religious beliefs by arranging

a meeting with Rabbi Krinsky and by researching ways in which

32 Yahtues could purchase items or receive donated items. Far from

showing that there was a substantial burden on his free exercise

of religion, the undisputed evidence shows that Scurry worked

with Yahtues to accommodate his religious beliefs.

4. Passover Items (Claim 2(b)(iv))

Yahtues asserts that Scurry failed to provide appropriate

items for celebration of Passover in 2014 and 2015. Scurry

argues that he consulted with Rabbi Krinsky regarding what was

necessary to allow Yahtues to celebrate Passover and the Rabbi

advised that only Matzah was necessary. Yahtues does not

dispute that Matzah was provided to him.

Yahtues asked for several other specific foodstuffs in

addition to Matzah, but the jail did not place a substantial

burden on Yahtues’s ability to celebrate Passover by refusing to

provide all of them. See Kole v. Lappin,

(D. Conn. 2008) (finding no substantial burden on inmate’s

ability to celebrate Passover when she was provided with Kosher

meals and Matzah during the holiday, but only provided access to

limited, additional items through the prison commissary); Estes

v. Clarke, No. 7:15-CV-155,

, at *7 (W.D. Va.

June 5, 2018).

33 5. Torah (Claim 2(b)(v) and 2(c))

Yahtues claims that he should have been provided with a

Torah during his time in the restricted units. Yahtues states

that he was unable to bring his own Torah while in the units.

Scurry responds that the jail was unable to provide Yahtues with

a Torah because they did not have one available from accepted

sources.

Yahtues has failed to provide evidence that Scurry knew

that the jail had a text containing the Torah available that

could have provided to him while he was in the restricted units.

Yahtues has also failed to provide evidence that Scurry knew

that Yahtues had a text containing the Torah in his cell that

could have been provided to him while he was in the restricted

units. Rather, Scurry stated in the response to Yahtues’s

grievance that the Bible referenced by Yahtues was issued by the

facility and, per Scurry’s response, was not available for use

in the restricted units. For those reasons, Scurry is entitled

to summary judgment as to Claim 2(b)(v).

In Claim 2(c), Yahtues also contends that Scurry violated

the First Amendment’s Establishment Clause and the Fourteenth

Amendment’s Equal Protection Clause by only allowing inmates in

restricted units to have New Testament Bibles. “The Equal

Protection Clause contemplates that similarly situated persons

are to receive substantially similar treatment from their

34 government.” Davis v. Coakley,

(1st Cir.

2015); see also Village of Willowbrook v. Olech,

(2000). Yahtues’s equal protection claim lacks any merit

because there is no evidence that the jail permitted inmates to

possess New Testament Bibles but not the Torah or other

religious texts.

Under the Establishment Clause, states 11 are prohibited from

coercing anyone from supporting or participating in religion or

its exercise. See Marrero-Mendez v. Calixto-Rodriguez,

(1st Cir. 2016). Broadly, the state must act neutrally

between religion and nonreligion, as well as among different

religions. See

There is no evidence that the jail’s

practice or policy regarding accessibility of religious texts

forced Yahtues to support any particular religion or provided

favorable treatment to any religion. Rather, all religious

texts provided by the jail are acquired by donation, and the

evidence shows that the jail simply did not have any texts

containing the Torah available for Yahtues while he was in the

restricted units. Therefore, Yahtues’s claim under the

Establishment Clause fails.

11The Establishment Clause applies to the states through the Fourteenth Amendment. Everson v. Bd. Of Educ.,

(1947).

35 For those reasons, Scurry is entitled to summary judgment

as to Claim 2(b) and (c).

IV. Access to Adequate Medical Care (Claim 3)

Yahtues claims, under the Fourteenth Amendment, that Dionne

and Scurry acted with deliberate indifference in failing to

ensure that he received proper treatment for his mental health

issues. The defendants contend that Yahtues conceded that the

claim is advanced against Dionne alone, and they contend that

summary judgment is warranted in their favor because Yahtues

failed to disclose any medical experts and because Yahtues

received the care that he demands in this lawsuit. They also

argue that Yahtues’s theory that Dionne should have exercised

more control over Dr. Masewic has no legal underpinning.

To establish a constitutional violation under the

Fourteenth Amendment for inadequate medical care, a state

detainee must show that jail officials, acting with deliberate

indifference, denied him adequate care and treatment for a

serious medical or mental health need. See Plata,

; Zingg v. Groblewski,

(1st Cir. 2018).

The standard contains an objective component and a subjective

component. Zingg,

. The objective component

requires the plaintiff to show that he had an unmet serious

medical need, while the subjective component requires the

36 plaintiff to show that the defendant official acted with

deliberate indifference to the plaintiff’s health and safety.

Miranda-Rivera v. Toledo-Davila,

(1st Cir.

2016).

Yahtues asserts that Dionne is responsible for

Dr. Masewic’s failure to provide adequate medical care. Yahtues

contends that Dionne should have intervened and had him

evaluated for mental health treatment. Yahtues states that he

was suffering crippling headaches, hearing voices that triggered

violent episodes, that he demonstrated suicidal “tendencies”,

and attempted to assault staff and other inmates. Yahtues

asserts that he required psychotropic medications, which he was

denied under the care of Dr. Masewic.

Yahtues has not presented sufficient evidence to show that

a genuine dispute of material fact exists as to whether Dionne

acted with deliberate indifference to any serious medical need.

While Yahtues asserts that he should have received second

opinions on his diagnoses from Dr. Masewic, Yahtues was able to

receive outside tests and an outside diagnosis for his

migraines.

Yahtues does not substantiate with evidence his claims that

Dionne knew that intervention was required with regard to

Yahtues’s needs for psychotropic medication. The only grievance

that Yahtues identifies in the record on this point refers to

37 alleged psychological trauma resulting from Dr. Masewic’s

restriction that Yahtues sleep on the bottom bunk in his cell

and be limited to non-strenuous exercise. Dionne responded that

Yahtues did not have to comply with that treatment if he did not

want to. 12

At best, Yahtues speculates that Dionne knew about facts

that should have led him to further intervene. Yahtues also

concedes that he has no claim against Scurry for deliberate

indifference to serious medical needs. For those reasons,

Dionne and Scurry are entitled to summary judgment as to

Claim 3.

V. Service of Spoiled Food (Claim 4)

In Claim 4, Yahtues asserts that he was served spoiled food

and therefore was subjected to inhumane conditions of

confinement, in violation of the Fourteenth Amendment. Dionne

and Scurry assert that they are entitled to summary judgment in

12In support of his argument that Dionne knew that he needed psychotropic medications, Yahtues cites to a grievance at docket entry number 135-5. Docket entry 135 (dated December 4, 2017), however, is a “Notice of Intent” filed by Yahtues and does not contain any attachments. The court cannot find a grievance in the record that supports Yahtues’s contention that Dionne was aware of facts that would make it obvious to a layperson that Yahtues required psychotropic medications and was not receiving them.

38 their favor because Yahtues has not shown that he was routinely

provided spoiled food.

Under the Fourteenth Amendment, state detainees must be

provided with safe and nutritionally adequate food. See, e.g.,

Plata,

(“A prison’s failure to provide

sustenance for inmates ‘may actually produce physical torture or

a lingering death.’”); Phelps v. Kapnolas,

(2d

Cir. 2002). Yahtues asserts that he received prepackaged Kosher

meals with a green hue to them that were spoiled. As noted

above, in the specific instances that Yahtues asserts he was

served spoiled meals and told jail staff about it, the meals

were replaced. Yahtues even acknowledges in his motion for

summary judgment that Scurry worked to correct the problems with

his food. Doc. 214-2 at 5.

Indeed, Scurry investigated the issue and determined, based

on representations from the prepackaged meal vendor, that the

green hue was caused by the flash-freezing process. This

information was communicated to Yahtues. Yahtues has not

provided facts from which a reasonable jury could infer that he

was deprived of adequate food or that either Dionne or Scurry

acted with deliberate difference to conditions in which he was

deprived of adequate food. Therefore, his claim that he was

subjected to inhumane conditions of confinement in violation of

39 the Fourteenth Amendment fails. Scurry and Dionne are entitled

to summary judgment in their favor as to Claim 4.

VI. Motions to Strike

A. Yahtues “Motion to Suppress Deposition Transcripts” (doc. no. 224) and Defendants’ Motion to Strike Errata Sheet (doc. no. 230)

Yahtues objects to the court’s consideration of his

deposition (doc. no. 219-3) in connection with his or the

defendants’ motion for summary judgment. He argues that the

defendants failed to comply with Federal Rule of Civil Procedure

30(e).

“On request by the deponent or a party before the

deposition is completed, the deponent must be allowed 30 days

after being notified by the officer that the transcript or

recording is available in which (A) to review the transcript or

recording; and (B) if there are changes in form or substance, to

sign a statement listing the changes and the reasons for making

them.” Fed. R. Civ. P. 30(e). Yahtues requested that he be

able to see the transcript of his deposition before it was

submitted in support of the defendants’ motion for summary

judgment. The defendants assert that Yahtues has the transcript

and has had the opportunity to submit an errata sheet for the

court’s consideration.

40 Indeed, on June 24, 2019, Yahtues submitted objections to

the transcript, but noted only a broad objection to the entire

deposition on the basis of “Substance & Form” and “Overbreadth &

Vagueness.” Doc. 232; doc. 232-1. The defendants then moved to

strike (doc. no. 230) Yahtues’s errata sheet on the ground that

Yahtues’s objections were insufficiently specific. In response,

Yahtues moved to withdraw his errata sheet and objection to the

deposition (doc. no. 235), which was granted.

Yahtues had the opportunity to file an errata sheet and did

so, but he withdrew it in response to the defendants’ objection.

Doc. 235 at 1. Furthermore, Yahtues failed to identify in his

“Motion to Suppress Deposition Transcripts” or in his withdrawn

errata sheet any irregularity or inaccuracy in the deposition

transcript that would have warranted striking it from the

record. For those reasons, Yahtues’s “Motion to Suppress

Deposition Transcripts” (doc. no. 224) is denied. The

defendants’ motion to strike Yahtues’s errata sheet (doc. no.

230) is denied as moot.

B. Defendants’ Motion to Strike Evidence (doc. no. 216)

The defendants move to strike several exhibits from

Yahtues’s motion for summary judgment on the ground that they

contain inadmissible content. Generally, these exhibits

constitute statements or declarations from inmates who were

41 housed with Yahtues. The court has considered the material

Yahtues submitted in support of the summary judgment motion, but

has found that it is not germane to the issues before the court.

Summary judgment is warranted in the defendants’ favor

regardless of the admissibility of the exhibits submitted by

Yahtues. Therefore, the defendants’ motion to strike (doc. no.

216) is denied as moot.

Conclusion

Yahtues’s motion for summary judgment (doc. no. 214) is

denied. Dionne and Scurry’s motion for summary judgment (doc.

no. 219) is granted. Judgment is granted in Dionne and Scurry’s

favor as to Claims 1 through 4 and all their subparts.

Yahtues’s “Motion to Suppress Deposition Transcripts” (doc.

no. 224) is denied. The defendants’ motion to strike Yahtues’s

errata sheet (doc. no. 230) is denied as moot. The defendants’

motion to strike exhibits submitted by Yahtues (doc. no. 216) is

denied as moot.

SO ORDERED.

__________________________ Steven J. McAuliffe United States District Judge

March 27, 2020

cc: Malachi I. Yahtues, pro se John A. Curran, Esq.

42