Kalvin Coward v. John Jabe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cv-00147-LMB-TRJ Copies to all parties and the district court/agency. [999143931]. Mailed to: Kalvin Coward. [13-6060]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6060

KALVIN DONNELL COWARD,
Plaintiff - Appellant,
v.
JOHN JABE, Deputy Director of Operations (VDOC); A. DAVID
ROBINSON, Eastern Regional Director (VDOC); G. F. SIVELS,
Eastern Regional Ombudsman (VDOC); GREGORY L. HOLLOWAY,
Assistant
Warden,
General
Population;
CLYDE
ALDERMAN,
Assistant Warden, Work Center-Special Housing; R. WOODS,
Institutional
Ombudsman;
C.
HALL,
Sergeant
of
the
Institutional Investigation Unit,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:10-cv-00147-LMB-TRJ)

Submitted:

June 19, 2013

Before MOTZ and
Circuit Judge.

SHEDD,

Decided:

Circuit

Judges,

and

July 5, 2013

HAMILTON,

Senior

Vacated and remanded by unpublished per curiam opinion.

Kalvin Donnell Coward, Appellant Pro Se.
Michael Hugh Brady,
Earle Duncan Getchell, Jr., OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kalvin

Donnell

Coward

appeals

the

district

court’s

order granting the Defendants’ motion for summary judgment in
Coward’s 42 U.S.C. § 1983 (2006) action raising claims under the
Religious Land Use and Institutionalized Persons Act (RLUIPA).
We vacate the order and remand for further proceedings.
We review the district court’s order de novo, viewing
the facts and drawing all reasonable inferences therefrom in the
light

most

favorable

to

the

non-moving

party.

PBM

Prods.,

LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011).
pro

se

litigant’s

pleadings

must

be

liberally

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

A

construed.

Summary judgment is

properly granted “if the movant shows that there is 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).

The

relevant inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided

that

one

party

must

prevail

as

a

matter

of

law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
After giving notice and a reasonable time to respond,
the district court may grant a motion for summary judgment on
grounds not raised by a party.

Fed. R. Civ. P. 56(f).

to give the required notice is reversible error.

Failure

See Smith v.

Perkins Bd. of Educ., 708 F.3d 821, 831-32 (6th Cir. 2013);
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Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1261,
1263 (11th Cir. 2011).
RLUIPA bars a government from imposing a substantial
burden on an inmate’s religious exercise unless it demonstrates
that the burden is the least restrictive means of furthering a
compelling governmental interest.

See 42 U.S.C. § 2000cc-1(a)

(2006); Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir. 2009).

A

substantial

a

burden

on

religious

exercise

occurs

when

government puts substantial pressure on an adherent to modify
his behavior and violate his beliefs.

Lovelace v. Lee, 472 F.3d

174, 187 (4th Cir. 2006) (citations and quotations omitted).

In

assessing this burden, courts must not judge the significance of
the particular belief or practice, as RLUIPA bars inquiry into
whether

the

religion.

belief

or

practice

is

central

to

a

prisoner’s

Id. at 187 n.2 (citations and quotations omitted).
The

plaintiff

bears

the

burden

of

showing

that

he

seeks to engage in an exercise of religion and the challenged
practice

substantially

burdens

that

exercise.

§ 2000cc-2(b) (2006); Smith, 578 F.3d at 250.

42

U.S.C.

Once a plaintiff

carries his burden, the government must prove that the religious
burden is the least restrictive means of furthering a compelling
governmental interest.
at 250.

42 U.S.C. § 2000cc-1(a); Smith, 578 F.3d

“As to those elements on which it bears the burden of

proof, a government is only entitled to summary judgment if the
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proffered evidence is such that a rational factfinder could only
find for the government.”

Smith, 578 F.3d at 250.

“RLUIPA defines the term religious exercise broadly to
include any exercise of religion, whether or not compelled by,
or central to, a system of religious belief.”
679

F.3d

197,

200

(4th

Cir.

quotation marks omitted).

2012)

Couch v. Jabe,

(citations

and

internal

“Although RLUIPA must be construed in

favor of a broad protection of religious exercise, it must be
applied with particular sensitivity to security concerns.”
at 201 (citations and internal quotation marks omitted).
other

strict

government

must

concluding
means.

scrutiny

that

contexts,

consider
the

and

policy

courts

have

reject

chosen

is

held

other
the

As in

that

means

least

Id.

the

before

restrictive

See id. at 203—04 (citations omitted).
To

determine

whether

a

plaintiff’s

beliefs

are

protected as a religion, this Court considers “whether they are
(1)

sincerely

plaintiff’s]
Chesterfield,

held

and

‘scheme
708

(2)

of

F.3d

religious

things.’”
560,

570-71

in

nature

Moore-King
(4th

Cir.

v.

under

County

2013)

United States v. Seeger, 380 U.S. 163, 185 (1965)).

[the
of

(quoting
As to the

second prong, the Court asks whether the “beliefs occupy a place
in

[the

plaintiff’s]

life

parallel

to

that

filled

by

the

orthodox belief in God.”

Id. at 571 (citations and internal

quotation marks omitted).

Protected beliefs must “amount to a
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religious faith as opposed to a way of life.”

Id. (citing

Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972)).
Defendants moved for summary judgment on the grounds
that Coward had failed to properly exhaust his administrative
remedies as to claims one and two of his complaint challenging
Defendants’ refusal to recognize his group, the Nation of Gods
and Earths (NOGE), as a religion, and that Coward had failed to
sustain

his

burden

of

proving

his

exercise

of

religion

was

substantially burdened as to claims three and four challenging
Defendants’

confiscation

of

his

literature

as

gang

material.

For purposes of summary judgment, Defendants assumed that NOGE
is a religion and that Coward is a sincere adherent.
The district court initially granted summary judgment
to the Defendants on claims one and two on the grounds that
Defendants

had

demonstrated

that

their

policy

of

classifying

NOGE as a gang and not a religion was the least restrictive
means of furthering a compelling governmental interest; and the
court granted summary judgment to the Defendants on claims three
and four based on its determination that Coward failed to prove
his exercise of religion was substantially burdened.

We vacated

the district court’s order after concluding that the district
court granted Defendants’ motion on different grounds without
the notice required under Fed. R. Civ. P. 56(f); the Defendants
had not demonstrated in the summary judgment record that their
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refusal

to

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restrictive

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recognize

NOGE

means

furthering

of

as

a

religion
a

was

compelling

the

least

governmental

interest; and we were unable to conclude there was no genuine
dispute

of

Coward’s
gangs

material

NOGE

and

fact

materials

gang

to

under

literature

religious exercise.

as

a

was

whether
policy
a

the
of

confiscation

zero

substantial

tolerance

burden

on

of
to
his

We remanded the case to the district court

for further proceedings consistent with our opinion.
On remand, the district court sua sponte stayed the
case pending our decision in Versatile v. Johnson, 474 F. App’x
385 (4th Cir. 2012), aff’g 2011 WL 5119259 (E.D. Va. Oct. 27,
2011), cert. denied, 133 S. Ct. 1261 (2013).

In Versatile, we

affirmed on the reasoning of the district court its decision
accepting the recommendation of the magistrate judge and denying
relief

on

another

plaintiff’s

RLUIPA

claims

concerning

NOGE.

The district court adopted the magistrate judge’s finding after
conducting

evidentiary

hearings

that

the

plaintiff

failed

to

sustain his burden to show his beliefs were religious in nature
for the purposes of his particular claim, but the court did not
hold that NOGE was not a religion in all cases or decide the
ultimate issue of whether NOGE occupies a place in the lives of
its members parallel to that filled by the orthodox belief in
God in religions more widely accepted in the United States.

The

district court also accepted the magistrate judge’s finding that
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even if NOGE was a religion, the defendants demonstrated their
regulations on publication approval were the least restrictive
means of furthering a compelling state interest.
After our decision issued, the district court in this
case sua sponte granted Defendants’ original motion for summary
judgment based on Versatile.

The district court concluded that

our decision rendered Coward’s argument “moot,” and his claims
concerning Defendants’ failure to recognize NOGE as a religion
and

decision

to

confiscate

NOGE

materials

did

not

trigger

protection under RLUIPA “[b]ecause it has been determined that
NOGE

is

not

a

religion.”

Alternatively,

the

district

court

noted that it would grant summary judgment to the Defendants on
claims three and four based on the district court’s holding in
Versatile that the defendants in that case demonstrated their
regulations on publication approval were the least restrictive
means of furthering a compelling state interest.
On

appeal,

Coward

contends

that

the

district

court

erred in granting summary judgment to the Defendants based on
Versatile

and

proceedings
district

in

ignoring

consistent

court

erred

our

with
by

our

instructions

to

hold

opinion.

We

agree.

treating

Versatile

as

further
The

controlling

authority that NOGE is not a religion under RLUIPA in all cases,
and the court again granted summary judgment on a ground not
raised by a party without allowing the parties an opportunity to
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be heard.

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The court alternatively indicated that it would adopt

findings of fact from Versatile rather than basing its decision
on the record in this case.
may be judicially noticed.

However, only indisputable facts
See Fed. R. Evid. 201(b); Nolte v.

Capital One Fin. Corp., 390 F.3d 311, 317 n.* (4th Cir. 2004).
Accordingly, we vacate the district court’s order and
remand

for

further

proceedings

consistent

with

this

opinion.

Specifically, we direct the district court to allow the parties
an opportunity to supplement the summary judgment record with
additional arguments and materials.
should

still

wish

to

grant

Then, if the district court

summary

judgment

on

grounds

not

raised by a party or to judicially notice any facts, the court
should provide the parties with notice and an opportunity to be
heard.

See Fed. R. Civ. P. 56(f); Fed. R. Evid. 201(e).

We

express no opinion on whether NOGE is a religion under RLUIPA.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

VACATED AND REMANDED

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