DAVID T. MILLER vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, SHIRLEY, [Note 1] & others. [Note 2]

MILKEY, J. The plaintiff, David T. Miller, is a practicing Muslim currently incarcerated at the Massachusetts Correctional Institution at Shirley (MCI-Shirley). At issue here is whether he has a right to possess a religious medallion of particular significance to him. Officials at other State correctional facilities allowed Miller to wear the medallion on a chain around his neck. However, when Miller was transferred to MCI-Shirley in 2015, a Department of Correction (DOC) official confiscated the medallion and chain based on his belief that their market value exceeded the amount allowed by DOC's inmate property policies (a limitation in turn based on general security interests). After DOC denied Miller's requests for the return of his medallion, he brought this action. Among other grounds, Miller invoked the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5 (2000), a Federal statute that protects the rights of institutionalized individuals to practice their religions. A Superior Court judge allowed DOC's motion for judgment on the pleadings, and entered judgment dismissing Miller's case. As explained below, the judge failed to conduct the thorough and individualized analysis that the RLUIPA requires. We therefore vacate the judgment in part and remand for further proceedings.

Background. 1. DOC's regulations and policies. DOC's property regulations recognize an inmate's right to possess certain approved religious items. 103 Code Mass. Regs. § 403.10(2)(e) (2017). [Note 3] The regulations themselves do not specify what is acceptable, but instead reflect that DOC is to post in inmate libraries "[a] list of approved religious articles." Id. At least some of the items on such lists can be purchased through each correctional facility's (facility or prison) canteen. By regulation, any items "available for purchase at the institutional inmate canteen or through approved vendors" must be purchased through those

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means. [Note 4] 103 Code Mass. Regs. § 403.13(4) (2017). "Any items that cannot be purchased via the inmate canteen may enter the institution, but only with the approval of the [s]uperintendent or a designee." 103 Code Mass. Regs. § 403.13(1) (2017).

Prior to 2017, when DOC updated its regulations, an inmate who wished to acquire a religious item that had not been preapproved for sale at the canteen could seek approval to obtain the item by making a request of the superintendent at the prison. [Note 5] 403 Code Mass. Regs. § 403.10(9) (2001). The superintendent would then refer the request to the religious services review committee, which would make a recommendation to the DOC commissioner. Id.

The November 2016 authorized list of approved religious items that appears in the record included a general listing for religious medals and pendants that are equal to, or less than, fifty dollars in value, one-eighth of an inch in thickness, and one and one-half inches in diameter. The list also included a general listing for religious chains valued at fifty dollars or less, not to exceed twenty inches in length. In addition to these general listings, the list also included listings for two specific Islamic medallion and chain combinations. One was for a "sterling silver Allah Medallion and Chain" (Allah medallion). The other was for an "Islam Star/Crescent Medallion and Chain" (star/crescent medallion). An inmate can purchase either of these two items from the prison's canteen. The regulations expressly allow inmates to seek case-specific exemptions for religious items that do not appear on the approved lists. [Note 6] See 103 Code Mass. Regs. § 403.10(9) (2001); 103 Code Mass. Regs. § 403.10(2)(e) (2017).

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2. Facts. [Note 7] a. Miller's medallion. The medallion confiscated from Miller is made of an undetermined metal that is silver in color. It is rectangular in shape, and approximately one inch wide and one and three-quarters inches long. Around the border of the medallion there are a number of what DOC's records list as "faux diamonds."

Miller contends that possessing this particular medallion is important to his faith. Inscribed on the medallion's face is a passage from the Quran that was the favorite of his late mother, who raised him as a Muslim. According to Miller, the quoted passage is a "protection verse" that provides a "remembrance of God when it's recited." The medallion once belonged to Miller's older brother and was given to Miller after his father passed away.

For religious reasons, Miller refuses to wear either of the two Islamic medallions available through the canteen. The Allah medallion is unacceptable to him precisely because it includes the word "Allah." [Note 8] The star/crescent medallion is not acceptable to Miller because it represents the Nation of Islam, of which he decidedly is not a member. In addition, neither of the two available options has the special significance that the one passed down through his family has to him. DOC does not dispute the sincerity of Miller's objections to the available alternatives, or of his religious beliefs more generally.

b. DOC's practices at other institutions. Before being transferred to MCI-Shirley, Miller was incarcerated at two other correctional facilities. When he was held at the Souza-Baranowski Correctional Center, Miller was allowed to possess and wear the medallion on a chain around his neck. He similarly was permitted to wear the chain and medallion when he was housed for a period of time at the Old Colony Correctional Center. DOC does not assert, and there is nothing in the record to suggest, that Miller's wearing of the medallion caused tensions with other inmates, or created any other security problems.

c. DOC's confiscation of the medallion. Once Miller was

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transferred to MCI-Shirley in 2015, a DOC officer there confiscated the medallion and chain as contraband because he believed that their value exceeded fifty dollars. [Note 9] Another DOC officer told Miller that he could regain the medallion if he had its chain made smaller. According to Miller, relying on that representation, he had the chain downsized at a considerable cost to him, but DOC continued to withhold the medallion and chain.

d. Miller's exemption request. In 2016, Miller submitted to DOC a request asking that his medallion and chain be returned to him. DOC's religious services review committee (committee) recommended denial of Miller's request after concluding that the size and value of the items rendered them "contraband" under DOC's policies. [Note 10] In recommending denial of Miller's exemption request, the committee acknowledged and did not question Miller's beliefs. While recommending denial, the committee indicated its willingness to "work with the vendor to provide a reasonable alternative for inmate Miller to purchase." DOC's commissioner accepted the committee's recommendation and denied Miller's request.

e. Miller's grievances. Miller did not accept DOC's offer to "work with the vendor" to try to develop a mutually acceptable alternative. [Note 11] Instead, he filed a series of grievances over DOC's continued withholding of his chain and medallion. DOC denied Miller's grievances on the merits on the ground "that the items in question remain not authorized for retention." Miller then filed an administrative appeal of the denial of his last grievance. This, too, was denied.

f. The current action. In June of 2016, Miller filed the current action against various DOC officials (collectively, DOC). As

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originally framed, his complaint was an appeal from the denial of his grievance, and brought pursuant to G. L. c. 30A, § 14, and G. L. c. 127, § 38H. A few months later, Miller filed an amended complaint that broadened his claims, e.g., by alleging that DOC's actions violated the RLUIPA and the First Amendment to the United States Constitution.

For two full years after Miller filed his original complaint, DOC did not file an answer or otherwise respond. In June of 2018, DOC finally filed, as its answer to the original complaint, the eight-page administrative record that had been generated during the grievance process. See Superior Court Standing Order 1-96. DOC never filed an answer to Miller's amended complaint. [Note 12]

Miller filed a "motion for judgment" based on DOC's tardiness and the slim record that DOC had filed. DOC then cross moved for judgment on the pleadings, while simultaneously submitting an additional fifty-four pages of "exhibits" outside of the administrative record it had filed. That material included documentation of Miller's exemption request, an affidavit describing how DOC had handled Miller's request, and photographs of the medallion and chain. In the memorandum it filed in support of its motion, DOC addressed not only Miller's c. 30A appeal of the denial of his grievance, but also those claims raised in his amended complaint, including his RLUIPA claim. DOC specifically argued that where DOC officials "determin[ed] that [Miller's] possession of this religious medallion and chain created compelling security concerns and where the photographs of the contrabanded item bolster[ed] their concerns and a reasonable alternative was offered to the plaintiff, the RLUIPA claim against [DOC] fail[ed]."

The judge allowed DOC's motion and entered judgment in its favor "substantially for the reasons set forth in DOC's memorandum." As to Miller's RLUIPA claim, the judge wrote "that DOC regulations, and the DOC's confiscation of the medallion under those regulations, do not violate" RLUIPA.

Discussion. The procedural posture of this case is complicated by two facts. First, review of Miller's c. 30A claim is limited to

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the administrative record, while review of his other claims is not. See, e.g., 42 U.S.C. § 2000cc-2(a) (creating private right of action under RLUIPA). Second, although DOC labeled its motion as one for judgment on the pleadings, it submitted an affidavit and various documents that effectively converted its motion into one for summary judgment with respect to the non-c. 30A claims. [Note 13] See Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974) ("If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by [Mass. R. Civ. P. 56, 365 Mass. 824 (1974)]").

In the end, these complications do not affect our review. Regardless of how the motions were framed, our review is de novo, and the overarching question we face is whether DOC has demonstrated an entitlement to judgment in its favor as a matter of law. See Moretalara v. Boston Hous. Auth., 99 Mass. App. Ct. 1, 7 (2020). Miller has not demonstrated how he was deprived of an opportunity to respond to the largely uncontested materials that DOC submitted such that he suffered material prejudice. See Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008) (judge's consideration of material outside pleadings without giving parties opportunity to present all pertinent material can constitute reversible error where nonmoving party can demonstrate prejudice).

We address Miller's First Amendment, RLUIPA, and c. 30A claims in turn.

1. First Amendment claim. We agree with the judge that Miller's First Amendment claim fails as a matter of law. Under longstanding precedent, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). The United States Supreme Court established this test "[t]o ensure that courts afford appropriate deference to prison officials." O'Lone v. Estate of Shabazz,

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482 U.S. 342, 349 (1987). Notably, courts have not interpreted the First Amendment to require DOC to implement the least restrictive policy possible. See Turner, supra at 90. The case law reflects the deferential approach charted by the Supreme Court precedent. See, e.g., Kane v. Muir, 431 Mass. 1001, 1001-1002 (2000) (upholding dismissal of First Amendment challenge to DOC policy that prohibited inmates from possessing multicolored rosary beads, which could be construed as signifying gang membership, where DOC allowed possession of unicolor beads).

Here, there plainly is a reasonable relation between DOC's fifty-dollar limit on the value of religious property and DOC's legitimate interest in maintaining prison safety (e.g., by reducing the likelihood of conflict among inmates over valuables). For First Amendment purposes, it is also relevant that Miller may practice his religion in ways other than wearing this exact medallion. [Note 14] See O'Lone, 482 U.S. at 351. For that reason, DOC's offering to work with Miller and the vendor to develop an alternative medallion undercuts Miller's claim to have demonstrated a violation of the First Amendment. See Kane, 431 Mass. at 1001-1002. We discern no error in the judge's conclusion that, as a matter of law, Miller has not made out a violation of the First Amendment.

2. RLUIPA claim. We reach a different conclusion with respect to Miller's RLUIPA claim. Congress enacted that statute in order to provide inmates significant religious liberty rights beyond those recognized by First Amendment jurisprudence. See Holt v. Hobbs, 574 U.S. 352, 356-358 (2015). The RLUIPA mandates that

"[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person --

"(1) is in furtherance of a compelling governmental interest; and

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"(2) is the least restrictive means of furthering that compelling governmental interest."

42 U.S.C. § 2000cc-1(a). To further that rule, the RLUIPA provides a private cause of action in 42 U.S.C. § 2000cc-2(a).

In an RLUIPA action, the inmate must make a prima facie showing that the government has "substantially burdened" his free exercise of religion rights. Holt, 574 U.S. at 360-361. If the inmate makes such a showing, the government then bears the burden of justifying its infringement on the inmate's rights. See 42 U.S.C. § 2000cc-2(b). That burden is a heavy one. The "RLUIPA requires us to scrutinize the asserted harm of granting specific exemptions to particular religious claimants and to look to the marginal interest in enforcing the challenged government action in that particular context" (quotation and citation omitted), and it "does not permit . . . unquestioning deference" to prison officials. Holt, supra at 363-364. See Trapp v. Roden, 473 Mass. 210, 217 (2015) ("Prison officials may not declare a compelling governmental interest by fiat" [quotation and citation omitted]). The least restrictive means analysis, too, is "exceptionally demanding" (quotation and citation omitted). Id. at 218. In this manner, the enactment of the RLUIPA has transformed the legal framework applicable to religious freedom claims brought by inmates. "Simply put, [DOC] must 'demonstrate, and not just assert, that the rule at issue is the least restrictive means of achieving a compelling governmental interest.'" Spratt v. Rhode Island Dep't of Corrections, 482 F.3d 33, 42 (1st Cir. 2007), quoting O'Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003).

The judge acknowledged "that Mr. Miller's grievances, and this lawsuit, raise a legitimate issue concerning his free exercise of religion." The judge did not, however, directly address the key question whether DOC's withholding of the medallion constitutes a substantial burden on Miller's exercise of his religion. If it does, then DOC cannot defend its actions simply by asserting that its regulations and policies serve valid penological interests. Rather, DOC would have to bear the heavy burden of justifying its confiscation of Miller's medallion as "the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a).

DOC suggests that because it offered to work with the vendor to develop an alternative that might satisfy Miller's needs, we should decide as a matter of law that its actions did not have a

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substantial impact on Miller's exercise of his religious beliefs. Conversely, Miller appears to assume that because DOC has not contested that his medallion has special significance to him, we may decide as a matter of law that DOC's actions did create a substantial burden. We decline both invitations. The extent to which DOC's actions pose a substantial burden is, at least to some extent, a factual question best addressed by a trial judge on an appropriately developed record. Cf. Trapp, 473 Mass. at 217 ("The DOC was obligated to put forth something more than conclusory assertions regarding health concerns, and it failed to do so"). For example, it is not at all clear on the current record whether DOC's offer to "work with the vendor" to develop suitable alternatives represents a meaningful commitment that could produce an adequate alternative in reasonable time. For another, while it appears undisputed that the medallion has some special significance to Miller because of its ties to his family, how that affects his exercise of religion would benefit from factual development. Such issues are not amenable to resolution on cross motions for judgment on the pleadings, or on a motion for summary judgment that is based on a record as thin as the one here. Contrast Rasheed v. Commissioner of Correction, 446 Mass. 463, 469-475 (2006) (affirming, based on well-developed summary judgment record, DOC's confiscation of various religious items). [Note 15]

There also are disputes of material fact with respect to whether DOC used the least restrictive means to achieve its compelling interest. For example, Miller's having worn his medallion in other prisons for a number of years without incident provides some evidence that DOC may not have needed to confiscate the medallion to advance its security interests, even though DOC is correct that that history does not estop the agency from confiscating the medallion now. See Spratt, 482 F.3d at 40 (inmate's "seven-year track record as a preacher, which is apparently unblemished by any hint of unsavory activity, at the very least casts doubt on the strength of the link between his activities and institutional security"). There also would be triable issues with respect to whether less restrictive alternatives could satisfy DOC's security interests. [Note 16]

In sum, the judge erred by dismissing Miller's RLUIPA claim without conducting the analysis that the statute requires. We therefore vacate this aspect of the judgment. [Note 17]

3. Chapter 30A appeal. A decision by DOC denying an inmate grievance is subject to review pursuant to G. L. c. 30A, § 14. [Note 18] To the extent that Miller's c. 30A claim is based on religious grounds, it merely restates his First Amendment and RLUIPA claims, which we already have addressed. To the extent that Miller seeks to bring an independent c. 30A claim to assert a denial of his rights on nonreligious grounds, he has not made out a violation of such rights. [Note 19] Either way, Miller has not explained how the c. 30A claim adds anything of substance to his potentially viable RLUIPA claim, and we therefore have no ground to overturn the judge's dismissal of it. [Note 20]

Conclusion. For the foregoing reasons, we vacate the portion of the judgment dismissing Miller's RLUIPA claim and remand the case to Superior Court for further proceedings consistent with this opinion. The judgment is in all other respects affirmed.

So ordered.