Brown v. Solomon et al

Filing 7

ORDER, Plaintiff's action survives initial review, the Clerk is directed to mail summons forms to Plaintiff for Plaintiff to fill out and return for service of process on Defendants. Signed by Chief Judge Frank D. Whitney on 9/15/2017. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:15-cv-66-FDW
MARSHALL LEE BROWN, JR.,

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Plaintiff,
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vs.
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GEORGE T. SOLOMON, ET AL.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, (Doc. No.
1). On May 28, 2015, this Court entered an order granting Plaintiff in forma pauperis status and
waiving the initial filing fee. (Doc. No. 3).
I.

BACKGROUND

Pro se Plaintiff Marshall Lee Brown, Jr., is a North Carolina prisoner incarcerated at the
Alexander Correctional Institution in Taylorsville, North Carolina. Plaintiff filed this action on
April 29, 2015, pursuant to 42 U.S.C. § 1983, naming as Defendants: (1) North Carolina
Department of Public Safety (“NCDPS”) Director George T. Solomon; (2) NCDPS Chaplaincy
Services Director Betty Brown; (3) NCDPS Chaplaincy Services Director Swindell Edwards; (4)
Alexander CI Chaplain Daniel Redding; and (5) Alexander CI Superintendent Susan White. (Doc.
No. 1).
Plaintiff alleges that, while incarcerated at Alexander CI, Jehovah’s Witness inmates were
provided separate faith worship services until mid-2014. This included classes once a week on
Sundays in the chapel library, a special annual celebration of Christ’s death on April 14, 2014, and
a religious faith worship service and lecture on April 26, 2014.
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After permitting Jehovah’s Witnesses to worship for years at Alexander CI, Defendant
Redding arbitrarily and indefinitely suspended the Jehovah’s Witness worship services. (Doc. No.
1 at 15). On June 30, 2014, a request was made to Redding to reinstate the weekly services but he
refused, stating that the NDCPS Religious Resource Guide and Practices Manual (“RRGPM”)
categorizes Jehovah’s Witnesses as Christian-Protestants who do not have to be granted a separate
time, meeting place, or specific services. (Doc. No. 1 at 16-17).
The RRGPM incorrectly categorizes Jehovah’s Witnesses as Christian-Protestant sect. The
three recognized categories of Christians in the RRGPM – Catholics, Protestants, and Eastern
Orthodox – share the three common beliefs of God as revealed in Jesus Christ, the Holy Spirit as
the third person of the trinity, and salvation through Christ. Jehovah’s Witnesses do not believe in
the holy trinity doctrine so they should be recognized as a distinct Christian organization with nontraditional beliefs and practices. Jehovah’s Witnesses follow the biblical commands that they all
speak in agreement, have no division, meet together, and annually celebrate Christ’s death. (Doc.
No. 1 at 19). The RRGPM states that it is not exhaustive and needs to be reviewed and updated at
regular intervals, and that relevant materials from knowledgeable religious authorities should be
added to make it more accurate and useable.
Redding’s prior provision of separate religious worship services shows that he is conscious
that a doctrinal disparity exists between Jehovah’s Witnesses and other Christian denominations.
(Doc. No. 1 at 18). Redding refused to reinstate Jehovah’s Witness services even though he was
in the best position to do so, which shows his intent to discriminate.
On February 23, 2015, an informal letter, completed DC-572 form, and extensive factual
information were sent to Defendant White requesting that she contact knowledgeable authorities,
i.e., the Governing Body of Watchtower Bible & Tract Society. White did not respond but
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forwarded the materials to Defendant Redding who, in turn, forwarded them to Defendant Brown.
Plaintiff does not know whether it was within White’s power to take further action or investigate
the matter. (Doc. No. 1 at 21).
On March 23, 2015, a memorandum from Defendant Edwards to Brown stated that the
DC-572 form is not to be used for existing religious faith groups. Further, “Jehovah’s Witnesses
is considered as a Christian-Protestant in the RRGPM, therefore there is to be no separate services
or meeting time just for them, they are being accommodated according to NCDPS policy.” (Doc.
No. 1 at 20). Brown and Edwards were the “epicenter” of, and in a position to recognize, the
RRGPM policy error and its unconstitutional consequences yet they chose to allow discriminatory
religious suppression to continue. (Doc. No. 1 at 21).
Solomon supervises all the named Defendants, which “should keep him aware of the
possible legal or Constitutional matters, as well as the Grievance Commission/Resolution Board;
and the examiners they appoint.” (Doc. No. 1 at 22).
Plaintiff asserts claims under the First Amendment’s Free Exercise and Establishment
Clauses, the Fourteenth Amendment,1 and the Religious Land Use and Institutionalized Persons
Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., against the Defendants in their individual
and official capacities.
Plaintiff seeks to have the RRGPM amended to recognize Jehovah’s Witnesses as a distinct
Christian organization with non-traditional beliefs and practices, reinstatement of distinct religious
worship services once a week, payment of the cost of filing the complaint by Edwards and Brown
as nominal damages due to the emotional and religious stress their actions have caused, and other

Because Plaintiff’s First Amendment rights arise through the due process clause of the Fourteenth Amendment, the
Court analyzes this claim as part of his First Amendment claim.
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relief that the Court deems just.
II.

STANDARD OF REVIEW

A “court shall dismiss [a prisoner's] case at any time if the court determines that ... the
action or appeal ... fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii). A complaint should not be dismissed for failure to state a claim “unless ‘after
accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable
factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot
prove any set of facts in support of his claim entitling him to relief.’” Veney v. Wyche, 293 F.3d
726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.
1999)). In its frivolity review, a court must determine whether the Complaint raises an indisputably
meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or
delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). However, the liberal construction requirement will not permit a district court to ignore
a clear failure to allege facts in his complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
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Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
III.

DISCUSSION

Plaintiff alleges claims pursuant to RLUIPA and the First Amendment.
RLUIPA provides, in part that 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. § 2000cc1(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). A plaintiff bears
the initial burden of showing that the challenged policy substantially burdens 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
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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 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).
The First Amendment of the Constitution states that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.
Amend I. The First Amendment applies to the states through the Fourteenth Amendment. See
Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). For government conduct to survive scrutiny under
the Establishment Clause, “(1) it must have a secular purpose; (2) its principal or primary effect
must neither advance nor inhibit religion; and (3) it must not foster an excessive government
entanglement with religion.” Buxton v. Kurtinitis, 862 F.3d 423, 432 (4th Cir. 2017) (citing Lemon
v. Kurtzman, 403 U.S. 602, 612–13 (1971)); see also Madison v. Riter, 355 F.3d 310, 316 (4th
Cir. 2003). 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
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interests.” 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. 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.
The Court finds that, accepting Plaintiff’s allegations as true and construing all inferences
in his favor, his RLUIPA and First Amendment claims are not clearly frivolous and therefore
survive initial review.
IV.

CONCLUSION

For the reasons stated herein, the Court finds that Plaintiff’s claims survive initial screening
by the Court in that they are not clearly frivolous.
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s action survives initial review under 28 U.S.C. § 1915(e).

2.

IT IS FURTHER ORDERED THAT the Clerk is directed to mail summons
forms to Plaintiff for Plaintiff to fill out and return for service of process on
Defendants. Once the Court receives the summons forms, the Clerk shall then
direct the U.S. Marshal to effectuate service on Defendants.
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The Clerk is

respectfully instructed to note on the docket when the forms have been mailed to
Plaintiff.
Signed: September 15, 2017

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