Roberts v. Perry et al
Filing
41
ORDER granting 35 Defendant's Motion for Summary Judgment, and this action is dismissed with prejudice. Signed by Chief Judge Frank D. Whitney on 8/1/2017. (Pro se litigant served by US Mail.)(khm)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-34-FDW
JIMMY ALLEN ROBERTS,
)
)
Plaintiff,
)
)
vs.
)
)
FRANK L. PERRY, et al.,
)
)
Defendants.
)
__________________________________________)
ORDER
THIS MATTER comes before the Court on a Motion for Summary Judgment by
Defendants Betty Brown, Frank L. Perry, and Mike Slagle, (Doc. No. 35).
I.
BACKGROUND
A.
Procedural Background
Pro se Plaintiff Jimmy Allen Roberts, a North Carolina state inmate currently
incarcerated at Craggy Correctional Institution (“Craggy”) in Asheville, North Carolina, filed
this action on February 16, 2016, pursuant to 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff has
named as Defendants: (1) Frank L. Perry, Secretary of the North Carolina Department of Public
Safety (“NCDPS”); (2) Betty Brown, Director of Chaplaincy Services with the NCDPS; and (3)
Mike Slagle, Administrator of Mountain View Correctional Institution (“MVCI”). Plaintiff
contends that, when he was incarcerated at MVCI, Defendants Perry, Brown, and Slagle violated
the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et
seq, by failing to recognize “Nation of Israel” as an approved religion and by limiting the
number of religious texts he can possess. (Id. at 8-19). To summarize Plaintiff’s claim, Plaintiff
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argues that he applied for recognition of “Nation of Israel” in 2014 by completing a form DC572. (Id. at 4-7). In 2015, he was informed that the group would not be recognized and that his
religious texts would be limited according to North Carolina Department of Public Safety
(“NCDPS”) policy. (Id.). Plaintiff claims this impedes his ability to practice his religion. (Id.).
Plaintiff also claims that he attempted to contact North Carolina Prisoner Legal Services
(“NCPLS”) in 2015 for legal assistance, but they declined to represent him. (Id. at 19-24).
According to Plaintiff, this constitutes a violation by Defendants of his First Amendment right to
access to the courts. (Id.). Plaintiff requests declaratory and injunctive relief. (Id. at 24-29).
Defendants filed the pending summary judgment motion on May 23, 2017. (Doc. No.
35). On May 31, 2017, this Court entered an order in accordance with Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements for filing a response to the
summary judgment motion and of the manner in which evidence could be submitted to the Court.
(Doc. No. 39). On June 1, 2017, Plaintiff filed an “objection,” which the Court will treat as his
response to the summary judgment motion. (Doc. No. 40). Plaintiff has attached various
publications and prison policies to his objection.
B.
Factual Background
1.
Defendants’ Summary Judgment Materials
To support the summary judgment motion, Defendants rely on all pleadings, exhibits, and
other documents incorporated into the record, including the affidavits of Defendants Brown and
Slagle. In her affidavit, Defendant Brown states that, as Director of Chaplaincy services, she has
encountered only one request related to Nation of Israel and that request was from inmate
Plaintiff. (Doc. No. 37 at ¶ 7: Brown Aff.). Brown asserts that she has never met Plaintiff and
only engaged in limited correspondence with him because Chaplain Edwards was tasked with
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communicating with Plaintiff about his request. (Id. at ¶¶ 4, 5, 8). According to Brown, Plaintiff
completed a form DC-572, or a Request for Religious Assistance, and the form was transmitted
to Brown’s office in September 2014. (Id. at ¶¶ 9-11; Ex. A). The request was then forwarded
to the Religious Practices Committee (“RPC”) on October 2, 2014, in accordance with Religious
Services Policy procedures. (Id. at ¶¶ 10, 14; Ex. A, B).
The form indicates that Plaintiff was seeking recognition of “Nation of Israel” as a
religion and includes information from two pastors about the group. (Id. at ¶¶ 11-12). The
pastors, who are in Kentucky and Missouri, do not indicate that they have ever met Plaintiff.
(Doc. No. 37-1 at 8-9). The Nation of Israel information supported by the pastors indicates that
church membership is limited to “racially pure Anglo-Saxon” individuals—meaning whites only,
and the information further refers to Jews as a “mongrel race.” (Id. at 11, 13). The church also
allows inmates to serve as priests. (Id. at 13). Brown asserts in her affidavit that, although she
does not substantively consider DC-572s, she does cursorily review them before forwarding
them to the RPC. (Doc. No. 37 at ¶¶ 13-14, Ex. B). Brown opines that neither the group’s racist
ideology nor the sanctioning of inmates as priests is conducive to correctional settings. (Id. at ¶
13).
On November 12, 2014, Plaintiff requested to know the status of his DC-572. (Id. at ¶
16, Ex. D). On December 16, 2014, Brown responded that the RPC was considering Plaintiff’s
request. (Id. at ¶ 17, Ex. D). On December 4, 2014, the RPC determined that, because of the
group’s discriminatory rhetoric and Plaintiff’s security threat status, Nation of Israel would not
be recognized for purposes of the Religious Practices Manual (“RPM”). (Id. at ¶ 18, Ex. E).
Specifically, the RPC concluded that Nation of Israel does not necessarily hold itself out to be a
religious group separate from Christianity or Messianic Judaism requiring a need for separate
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recognition. (Id. at ¶ 23). Further, the RPC concluded—from the group’s and Plaintiff’s own
submitted materials—that the group is a white supremacist or racially exclusive organization
which excludes non-whites from membership. (Id.). The RPC also concluded that Plaintiff, who
was designated as a Messianic Jewish inmate, was permitted to worship that faith in whatever
fashion his custody level permitted, including receiving a Kosher diet, as long as he is not
disruptive or presenting a threat to the institution. (Id. at ¶¶ 24, 25, 27). The RPC also noted that
Plaintiff could be accommodated though private devotion and Messianic Jewish or Christian
services because Messianic Jewish designation and his beliefs appeared consistent with those
faith practices. (Id.).
After Brown was informed of the December 2014 RPC meeting, she requested that
Chaplain Edwards meet with Plaintiff in January 2015 to inform him of the RPC’s
determination. (Id. at ¶ 20). In May 2015, Plaintiff wrote to Brown again and requested to
appeal the RPC’s determination. (Id. at ¶ 21, Ex. F). Edwards again spoke with Plaintiff and
informed him of the RPC consensus. (Id. at ¶ 22, Ex. F).
As to Plaintiff’s challenge to his designated security status, Brown states in her affidavit
that neither she nor the RPC make determinations related to security threat or risk groups
(“STG” or “SRG”) and did not designate Plaintiff as a member of either group. (Id. at ¶ 26).
Brown further states that neither she nor the RPC make determinations related to the
permissibility of publications. (Id. at ¶ 28). She states, however, that Plaintiff would be able to
receive any publications, including Nation of Israel publications, as long as they were approved
by the review policy set forth by the publications policy and committee. Generally, to receive
publications, the materials must be free of gang-related information, racist information, violence,
and the like. (Id. at ¶ 29). Brown asserts that she did not review any materials indicating that
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Plaintiff was prohibited from possessing appropriate religious material. (Id. at ¶ 30). Brown
also did not see any information indicating that Nation of Israel beliefs require Plaintiff to
possess more religious materials than other inmates. (Id.). Facilities make determinations on
how many religious texts that inmates may possess based on the facility’s security and
operational needs. (Id.).
Finally, Brown asserts that DPS has refused to recognize Nation of Israel as a group
because of its hateful, racist, and separatist rhetoric, as established and documented in its own
literature. (Id. at ¶ 31). Brown further opines that groups espousing racist ideals are not suitable
to DPS recognition because the violence and racist ideals promoted by the groups are not
suitable in a correctional setting. (Id. at ¶ 32). Such groups are usually intended to instill
violence, revolt, and racism against non-white individuals. (Id.).
In support of the summary judgment motion, Defendants have also submitted the
affidavit of Defendant Slagle, current Administrator of MVCI. (Doc. No. 36 at ¶ 3: Slagle Aff.).
He was not the Administrator of MVCI before 2015, but was employed at the facility. (Id. at ¶
4). Slagle asserts that he had no interactions with Plaintiff while he was housed at MVCI, and he
denies that he personally infringed on Plaintiff’s religious rights or blocked his access to legal
representation. (Id. at ¶ 12). He also denies that MVCI staff violated Plaintiff’s religious rights
or impeded his access to legal representation. (Id.).
Slagle states in his affidavit that, as to Plaintiff’s DC-572, MVCI staff met their
obligations to process and forward the DC-572 for review by the RPC. (Id. at ¶ 5). MVCI staff
were not involved in the outcome of the DC-572, as the RPC made that determination. (Id. at ¶
6). Slagle further asserts that MVCI staff appropriately responded to and addressed each of
Plaintiff’s grievances related to his claims. (Id. at ¶¶ 6-8). As to Plaintiff’s grievance regarding
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religious materials or excessive books, Slagle determined that staff responded attentively to the
complaints and that the responses were consistent with MVCI Standard Operating Procedures
(“SOPs”), which allow inmates to possess ten books at any given time, plus approved reading
material for their declared religion. (Id. at ¶ 8, Ex. A, F). Books of an unrecognized religion
would not fall within the “approved reading material” from the Religious Practices Manual.
(Id.).
As to Plaintiff’s claims about legal representation, Slagle denies that MVCI staff has
impeded Plaintiff’s right to access the courts and Slagle notes that, in fact, Plaintiff was
disciplined in 2016 for providing legal assistance to another inmate. (Id. at ¶ 10: Ex. C).
As to Plaintiff’s designation in a Security Risk Group (“SRG”) for white supremacy,
Slagle states that he did not participate in Plaintiff’s SRG classification. (Id. at ¶ 9, Ex. B). The
documents supporting the SRG classification indicate that Plaintiff has tattoos associated with
white supremacy groups. (Doc. No. 36-2 at 2).
Slagle further attests that Plaintiff was found in possession of white supremacy materials
on March 16, 2016. (Doc. No. 36 at ¶ 13). Specifically, MVCI staff carried out a routine search
on Plaintiff’s cell and discovered materials appearing to be SRG-related, specifically white
supremacist. (Id.). Specifically, staff located one book, two pamphlets, and some printed
materials stapled together. (Id. at ¶ 14; Doc. No. 36-5: Ex. E, Seized Materials). Slagle asserts
that the printed materials contained the words “White Warrior,” “KKK,” and “Ku Klux Klan.”
(Id.). The materials also contained anti-Jewish rhetoric, including entire sections of a newsletter
called “Why We Hate Jews.” (Id.). Slagle asserts that the materials further espoused violent
views of stopping the “integration” or mixing of races and stating they are aimed at equipping
individuals to “advance” the “Kingdom of God.” See (Id.). According to Slagle, such materials
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are not suitable for Plaintiff’s possession in the prison system because they teach and espouse
racist ideals and contain hateful, separatist rhetoric, including statements denouncing intermixing races, the Jewish faith, and African-Americans. (Doc. No. 36 at ¶ 15). Slagle opines that
promotion of such ideas would lead to tension and unrest in the inmate population between
inmates of different races, as well as with inmates and staff of different races. (Id. at ¶ 17).
According to Slagle, this would directly pose a risk to prisons, staff, and public in North
Carolina. (Id.). Slagle asserts that he reviewed the materials, determined that they were SRGrelated, and retained them as contraband. (Id. at ¶ 15, Ex. E).
II.
STANDARD OF REVIEW
Summary judgment shall be 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). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is material only if it might affect the outcome of the suit under governing law. Id.
The movant has the “initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving
party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.
The nonmoving party may not rely upon mere allegations or denials of allegations in his
pleadings to defeat a motion for summary judgment. Id. at 324. The nonmoving party must
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present sufficient evidence from which “a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County,
Md., 48 F.3d 810, 818 (4th Cir. 1995).
When ruling on a summary judgment motion, a court must view the evidence and any
inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477
U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct. 2658,
2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
III.
DISCUSSION
A. Plaintiff’s RLUIPA and First Amendment Claims Based on Failure to Recognize
Nation of Israel and Restriction on Plaintiff’s Right to Possess Religious Texts
As noted, Plaintiff purports to bring a claim arising under RLUIPA. The Court will
further assume, for the purposes of this summary judgment motion, that Plaintiff also intended to
bring a claim for a violation of his right to exercise his religion under the First Amendment.
First, RLUIPA provides, in part: “No 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
(2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.
§ 2000cc-1(a). “RLUIPA thus protects institutionalized persons who are unable freely to attend
to their religious needs and are therefore dependent on the government’s permission and
accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005).
Under RLUIPA, the plaintiff must initially show that the challenged policy substantially burdens
8
his exercise of his religion. See 42 U.S.C. § 2000cc-2(b); Holt v. Hobbs, 135 S. Ct. 853, 862
(2015). The statute defines “religious exercise” as “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); Smith v.
Ozmint, 578 F.3d 246, 251 (4th Cir. 2009). A “‘substantial burden’ is one that puts substantial
pressure on an adherent to modify his behavior and to violate his beliefs, [] or one that forces a
person to choose between following the precepts of her religion and forfeiting governmental
benefits, on the one hand, and abandoning one of the precepts of her religion on the other hand.”
Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (quotations, citation, and alterations omitted).
Once the inmate makes a prima facie showing, the burden shifts to the government to
prove that “the burden in question is the least restrictive means of furthering a compelling
governmental interest.” Ozmint, 578 F.3d at 250. “‘RLUIPA adopts a . . . strict scrutiny’
standard.” Couch v. Jabe, 679 F.3d 197, 203 (4th Cir. 2012) (quoting and citing Lovelace, 472
F.3d at 198 n.8). Under RLUIPA, the court must give “due deference to the experience and
expertise of prison and jail administrators in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with consideration of costs and limited
resources.” Cutter, 544 U.S. at 723 (quotation omitted). “However, ‘a court should not rubber
stamp or mechanically accept the judgments of prison administrators.’ . . . Rather, due deference
will be afforded to those explanations that sufficiently ‘take[] into account any institutional need
to maintain good order, security, and discipline.’” Couch, 679 F.3d at 201 (quoting Lovelace,
472 F.3d at 190).
As for Plaintiff’s First Amendment claim, the Free Exercise Clause of the First
Amendment states that “Congress shall make no law respecting an establishment of religion.”
U.S. CONST. amend. I. The Supreme Court has applied the First Amendment to the states
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through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). To
state a free exercise claim under the First Amendment, a plaintiff must allege facts sufficient to
show that he held a sincere religious belief, and that the official action or regulation substantially
burdened his exercise of that belief. Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). A prison
policy that substantially burdens an inmate’s ability to practice his religion withstands a First
Amendment challenge when it is “reasonably related to legitimate penological interests.”1
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78,
89 (1987)). In deciding whether a defendant’s actions can be sustained as reasonably related to
legitimate penological interests, the court must consider the following four factors: (1) whether
there is a valid, rational connection between the regulation and the legitimate penological
interest; (2) whether there are alternative means of exercising the right in question that remain
open to prisoners; (3) the impact accommodation of the asserted constitutional right would have
on guards and other inmates and on the allocation of prison resources; and (4) whether ready
alternatives exist which accommodate the right and satisfy the penological interest. See Turner,
482 U.S. at 89-90. “As a result, if prison officials demonstrate that a challenged policy is
pursuing a legitimate governmental objective, and demonstrates some minimally rational
relationship between that objective and the means chosen to achieve that objective,” courts must
approve of those means. Lee v. Johnson, 793 F. Supp. 2d 798, 805 (W.D. Va. 2011) (quoting
1
Claims brought under the First Amendment are subject to a less demanding standard of proof
than claims brought under RLUIPA, with RLUIPA claims requiring “strict scrutiny instead of
reasonableness.” See Lovelace, 472 F.3d at 199 n.8. Thus, the First Amendment affords less
protection to an inmate’s free-exercise rights than does RLUIPA. Id. The initial burden on the
inmate is the same under both RLUIPA and the First Amendment—i.e., to show that his right to
free exercise of religion has been substantially burdened. Brown v. Ray, 695 F. Supp. 2d 292,
300 (W.D. Va. 2010). However, if a plaintiff fails to present evidence of a RLUIPA violation
sufficient to survive summary judgment, it follows that his First Amendment claim also fails.
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Hines v. S.C. Dep’t of Corrs., 148 F.3d 353, 358 (4th Cir. 1998) (internal quotation marks
omitted)). “Several factors are relevant to this reasonableness determination, including whether
there is a logical connection between the asserted interest and the challenged policy, whether
accommodating the inmate’s rights would severely impact allocation of prison resources, and
whether inmates retain alternative means of exercising their religious rights.” Id.
1. Group Recognition
In support of their summary judgment motion, Defendants first argue that the materials
submitted by Plaintiff with his Complaint and with his DC-572 indicate that Nation of Israel is
not a separate religion for purposes of recognition and that Plaintiff has, therefore, has not
proven that his rights have been violated under either RLUIPA or the First Amendment. The
Court agrees, as these materials indicate that Nation of Israel is a group comprised of Messianic
Jewish and Christians who disagree with the mixing of races, rather than a separate religion.
(Doc. No. 1-2 at 3-7; Doc. No. 37, Ex. A at 10-11). Plaintiff’s materials used to support his DC572 include a letter from Pastor Donald Elmore, stating that Plaintiff is capable of leading the
“functions of a Christian Church.” (Doc. No. 37-1 at 9). It appears that the premise and
practices of the group lie in the same texts studied by both Messianic Jewish and Christian faith
groups; however, their interpretations as of the texts differ, primarily in that Nation of Israel
promotes white supremacy and anti-Semitism—racist ideologies that Nation of Israel appears to
contend are supported by Biblical scripture. See (Doc. No. 1-2 at 3-7; Doc. No. 37; Doc. No. 371 at 10-11: Ex. A). That is, according to Nation of Israel’s own Statement of Beliefs: “The
Nation of Israel . . . is comprised mainly of former Christians and Messianics, who have come to
recognize that modern Judeo Christianity in its 3,000 plus cultic variations, i.e., denominations is
counter conductive to the religion depicted in Scripture.” (Doc. No. 37-1 at 10). Further,
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Plaintiff has not alleged a substantial burden on his ability to practice his beliefs according to the
Nation of Israel, given that he is designated a Messianic Jewish inmate and is capable of
participation in both Messianic Jewish and Christian services. See (Doc. No. 37 at ¶¶ 17-18).
Defendants further note that, according to the Southern Poverty Law Center, which
researches and tracks right-wing, extremist hate groups in America, the “Church of Israel” and
Pastor Gayman are “leading ideologues of the racist and anti-Semitic Christian Identity
religion[.]” See (Doc. No. 38-1 at 1: Appendix A to Mem.; Doc. No. 38-2: Appendix B to
Mem.). According to the Anti-Defamation League of America, Dan Gayman was associated
with violent individuals and violent attacks such as those by Eric Rudolph, who was convicted of
detonating bombs at the 1998 Olympics and an abortion clinic. See (Doc. No. 38-3 at 8:
Appendix C to Mem.). Defendants contend that the sources consulted for Defendants’ attached
appendices concur that Dan Gayman, his congregation, the Nation of Israel, and the Christian
Identity movement are the same. See (Doc. No. 38-4: Appendix D to Mem.). The AntiDefamation League materials further state that, within the Christian Identity movement,
“[o]verall level of criminal activity is high, ranging from hate crimes to acts of terrorism.” See
(Doc. No. 38-3 at 2).
This Court finds that Defendants have presented evidence on summary judgment
showing that Nation of Israel is not a separate religion for purposes of recognition in the North
Carolina prisons. Rather, it is a group that espouses racist, white supremacy ideologies, and it is
a part of the so-called “Christian Identity” movement. In any event, assuming for purposes of
discussion that Nation of Israel is recognizable as a religion, it is well settled that RLUIPA does
not require a prison to accommodate a religious practice that jeopardizes institutional security,
and Defendants have presented ample evidence on summary judgment that this group does
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jeopardize institutional security. See Cutter v. Wilkinson, 544 U.S. 724, 722 (2005) (“We do not
read RLUIPA to elevate accommodation of religious observances over an institution’s need to
maintain order and safety.”). Courts have repeatedly held that religious materials or groups
possessing violent or racist messages are not entitled to religious protections. Brown v. D.O.C.,
265 F. App’x 107, 110 (3rd Cir. 2008) (confiscation of Five Percenter newspapers did not violate
the plaintiff’s rights where newspapers included articles with revolutionary and anti-government
messages); Cartwright v. Meade, No. 7:08-cv-250, 2008 WL 2944668, at n.2 (W.D. Va. July 31,
2008) (holding in dicta that classification of Five Percenters as a security threat group and
resulting confiscation of their materials did not state a claim under RLUIPA where there was no
showing that plaintiff was substantially burdened in the exercise of his religion); Bells v. Ozmint,
No. 6:06-2266, 2007 WL 1862668, at *3 (D.S.C. June 6, 2007) (confiscation of Five Percenter
material did not violate RLUIPA).
Here, Defendants have presented evidence on summary judgment showing that they have
given appropriate consideration to lesser restrictive alternatives to the ban of Nation of Israel as a
religious group or organization within North Carolina prisons and have offered substantive,
relevant explanations for why the group is not permitted to gain recognition as a religion.
Moreover, Defendants’ evidence, through the affidavits of Brown and Slagle, indicates that the
RPC considered the group and concluded that, while the group was not suitable for official
recognition, Plaintiff could worship his faith in whatever fashion his custody level permitted.
(Doc. No. 37 at ¶ 24). This would include private worship as to whatever his personal
interpretation of his faith is—whether that be based on Nation of Israel beliefs or not—as long as
he is not disruptive or presenting a threat to the institution and receipt of published materials so
long as they were deemed acceptable by the publications policy. (Id. at ¶ 25).
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In response to Defendants’ arguments on summary judgment, Plaintiff does not deny that
Nation of Israel is a racist and exclusionary group that promotes white supremacy. Instead, he
argues that the group’s racist message is justified because its “exclusionary rule” is mandated by
various passages in the Bible and it also serves security purposes. That is, Plaintiff argues that
the group’s racist beliefs merely reflect “a firmly held religious conviction founded upon a clear
and unambiguous scriptural mandate to wit; Exodus 19:56; Deuteronomy 7:3-6; Ezra, Chapters
9-10 et seq.; Nehemiah 13:1-3, 24 et seq. Further, from a security standpoint, such exclusion is
necessary to prevent militant black religious groups harboring violent gang members from
entering and disrupting services.” (Doc. No. 40 at 2). Plaintiff also argues that prison officials
“condone[] the practices of black religious groups” that foster racist attitudes against whites.
(Id.). Finally, Plaintiff contends that Defendants fabricated some of the evidence to support the
summary judgment motion. He contends specifically that some of the allegedly racist literature
found in Plaintiff’s cell was not actually confiscated from his cell. (Id. at 11).
None of Plaintiff’s contentions in his response raise a genuine issue of material dispute as
to his RLUIPA and First Amendment claims against Defendants based on the prison’s refusal to
recognize Nation of Israel as an approved religion in the prison and Defendants are therefore
entitled to summary judgment as to this claim. Most significantly, Plaintiff has presented no
evidence on summary judgment to show how any conduct by Defendants is preventing him from
exercising his purported religion.2 That is, Plaintiff has not presented any evidence that
Furthermore, specifically as to Plaintiff’s RLUIPA claim, while RLUIPA authorizes
injunctive and declaratory relief, it does not waive the NCDPS’ Eleventh Amendment immunity,
nor does it authorize suits for money damages against prison officials, whether in their official or
individual capacities. Rendelman v. Rouse, 569 F.3d 182, 187 (4th Cir. 2009); accord Sossamon
v. Texas, 131 S. Ct. 1651, 1663 (2011). Lastly, to state a RLUIPA claim against an individual, a
plaintiff must establish that they acted with the requisite intent. That is, in the RLUIPA context,
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2
Defendants have in any way hampered his ability to participate in both Messianic Jewish and
Christian services, or his ability to continue practicing his white supremacist and anti-Semitic
beliefs, however deplorable they may be. In other words, Plaintiff points to no specific religious
practices that he is being deprived of participating in. On the other hand, Defendants have
presented evidence that Plaintiff can fulfill his religious duties by continuing to participate in
Messianic Jewish and Christian services in prison. While attending these services and
observances, Plaintiff is certainly free to entertain whatever racist and anti-Semitic thoughts he
wishes to entertain. This Court simply will not, however, order the North Carolina prisons to
officially recognize as a religion a group that espouses hateful and racist rhetoric, thus subjecting
this group to certain protections under prison regulations and policies. Moreover, as noted, the
Court finds most compelling the reasons given by Defendants for refusing to recognize Nation of
Israel—that recognizing such a group as an approved religion would no doubt jeopardize
institutional security. In sum, Defendants are entitled to summary judgment as to this claim.
2. Restrictions on Possession of Religious Texts
As part of his claim, Plaintiff also contends that Defendants violated his rights by
restricting his possession of religious texts. In support, Plaintiff broadly alleges that the numeric
restriction on the publications he is permitted to possess is unconstitutional. This claim fails.
The only materials seized from Plaintiff were outlined by Slagle as racist and violent—they were
not seized because they were excessive. See (Doc. No. 36 at ¶¶ 14-15, Ex. E). Moreover, the
materials speak for themselves as to why restrictions on such materials are necessary, as they
such claim requires more than negligence and is satisfied by intentional conduct. Lovelace v.
Lee, 472 F.3d 174, 194-95 (4th Cir. 2006). Here, Plaintiff has failed to establish such intent by
Defendants, and his claims against them fail for this additional reason.
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contain violent, racist, and gang-related materials. (Id.). Thus, the prison’s restrictions on
Plaintiff’s ability to possess these materials serve a compelling governmental interest of
maintaining institutional safety and security. (Id. at ¶¶ 16-18). Accord Bruton v. McGinnis, 110
F.3d 63 (6th Cir. 1997) (unpublished) (concluding that “[t]he district court properly found that
the ownership of materials and symbols associated with the hatred of blacks and Jews could
incite violence among a segment of society already prone to violence. [The Plaintiff] was
allowed to order, from an approved vendor, other Christian Identity materials less likely to incite
violence.”); Borzych v. Frank, 439 F.3d 388, 391 (7th Cir. 2006) (upholding a ban on religious
publications that “promote violence to exalt the status of whites and demean other races”).
Furthermore, Defendants have shown on summary judgment that Plaintiff was permitted to order
Nation of Israel materials that meet the publications policy and which do not promote racist or
violent ideas. In response, Plaintiff has simply not raised a genuine issue of disputed fact as to
his claim that his constitutional rights were violated based on the prison’s restriction on his right
to possess certain religious texts.
B.
Plaintiff’s Claim for Violation of His First Amendment Right to Access to the
Courts
Plaintiff also purports to bring a First Amendment claim for a violation of his right to
access to the courts. Federal courts have long recognized that inmates have a fundamental right
to access to the courts and protect that right “by prohibiting state prison officials from actively
interfering with inmates’ attempts to prepare legal documents.” Lewis v. Casey, 518 U.S. 343,
350 (1996); Michau v. Charleston Cnty., 434 F.3d 725, 728 (4th Cir. 2006). “[M]eaningful
access to the courts is the touchstone.” Lewis at 351. Thus, to sustain a claim of denial of access
to the courts, a prisoner must show actual injury, i.e., that the prisoner’s efforts to pursue a legal
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claim were hindered. Id. at 351-52; accord O’Dell v. Netherland, 112 F.3d 773, 776 (4th Cir.
1997) (holding an inmate wishing to establish an unconstitutional burden on his right of access to
the courts must show actual injury to the capability of bringing contemplated challenges to
sentences or conditions of confinement before the courts). This right does not extend to include
the right to “litigate effectively once in court.” Lewis, 518 U.S. at 354 (disclaiming language in
Bounds v. Smith, 430 U.S. 817, 825 (1977), suggesting otherwise).
An inmate may not rely on conclusory allegations but, instead, must identify the specific
claim he has been unable to pursue or the specific procedural default arising from official
interference. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Specificity is necessary so
that prison officials are not required to file unnecessary responses to speculative allegations. Id.
See Michau, 434 F.3d at 728 (where the denial of access to courts claim failed because the
plaintiff did not specifically explain how he was injured by any limitations on his access to the
law library); Harden v. Bodiford, 442 F. App’x 893, 896 (4th Cir. 2011) (finding that an inmate
cannot rely on conclusory allegations to establish a claim of denial of access to the courts). In
fact, inmates have no absolute constitutional right to representation and “NCPLS attorneys are at
liberty to use their professional judgment and are not obligated to undertake representation in
virtually every case brought by inmates.” Salters v. Butler, No. 5:06-CT-3073-H, 2006 WL
4691237, at *l (E.D.N.C. Oct. 9, 2006) (unpublished).
Here, Plaintiff does not state how Defendants have impeded his access to the courts, aside
from broadly speculating that Defendants are somehow responsible for the actions of NCPLS.
These allegations do not plausibly give rise to an entitlement to relief for denial of access to the
courts. Furthermore, Plaintiff does not plead an actual injury. Instead, Plaintiff claims that
NCPLS’ denial of representation amounts to a constitutional injury, which he contends is
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somehow attributable to Defendants, but he does not explain how. Plaintiff does not claim that
there was or is an impediment to his ability to communicate with the courts or file papers, that
NCDPS’ policies prevented him from accessing or communicating with the courts, or that
Defendants have impeded his ability to communicate with NCPLS or private counsel. In sum,
Plaintiff’s allegations falls woefully short of establishing liability against Defendants for some
alleged deprivation of access to the courts. In sum, as with his RLUIPA claim, Plaintiff has not
come forward with evidence on summary judgment raising a genuine dispute of material fact as
to whether Defendants violated his right to access to the courts. Therefore, Defendants are
entitled to summary judgment as to this claim.
IV.
CONCLUSION
Plaintiff has failed to raise a genuine issue of material fact as to whether Defendants
violated his rights to practice his religion under the RLUIPA or the First Amendment, or his First
Amendment right to access to the courts. Defendants are therefore entitled to summary
judgment.3
Finally, Defendants also contend that Plaintiff’s claims, which are for only declaratory and
injunctive relief, are moot because Plaintiff has been transferred away from MVCI. The Court
does not address Defendants’ argument regarding mootness because the Court concludes that, in
any event, Defendants are entitled to summary judgment on the merits.
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3
IT IS, THEREFORE, ORDERED that:
1. Defendants’ Motion for Summary Judgment, (Doc. No. 35), is GRANTED, and this
action is dismissed with prejudice.
2. The Clerk is respectfully instructed to terminate this action.
Signed: August 1, 2017
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