Coward v. Jabe et al

Filing 105

MEMORANDUM OPINION RE: Defts' Motion for Summary Judgment. Signed by District Judge Leonie M. Brinkema on 03/10/14. (pmil, )

IN THE UNITED STATES DISTRICT COURT FORf$HE

EASTERN DISTRICT OF VIRGINIA

'''

Alexandria Division

"'

KALVIN DONNELL COWARD,

| !

Hi f MAR I02«4 "'

Plaintiff,

V'i^'

l:10cvl47 (LMB/TRJ)
Appeal No. 13-6060
JOHN JABE, Deputy Director of
Operations (VDOC), et al.,
Defendants.

MEMORANDUM OPINION

Kalvin Coward ("Coward" or "plaintiff"), a Virginia inmate

proceeding p_ro se, filed the instant civil rights action
pursuant to 42 U.S.C. § 1983, alleging that various state prison

officials (collectively, "defendants") violated his rights under
the Religious Land Use and Institutionalized Persons Act

("RLUIPA" or "the Act"), 42 U.S.C. § 2000cc-l et seq.
Defendants have moved for summary judgment on all counts.

For

the reasons that follow, defendants' Motion for Summary Judgment
will be granted.
I.

BACKGROUND

This being the fifth opinion to address plaintiff's claims,
only a brief recitation of the pertinent facts is required.
Plaintiff is a self-described sincere adherent of the Nation of
Gods and Earths ("NGE"), otherwise known as the "Five

Percenters," who observe the teachings of their founder Allah

and regard each black man as his own god.

See PL's Mot. in

Opp. of Mem. in Supp. of Summ. J. Mot. ("Opp.") 3-4.

On

December 15, 2008, plaintiff submitted a request to the Virginia
Department of Corrections ("VDOC") for recognition of NGE as a

religious group.

A number of privileges attend such

recognition, including the right to hold communal services.

Defendants denied his request, citing NGE's existing
classification as a gang, which precludes members from
gathering, possessing written materials indicative of

membership, and "otherwise carry[ing] out gang activity."

After

receiving the denial, plaintiff pursued several informal

complaints, grievances, and appeals via administrative channels,
to no avail.

On February 17, 2010, plaintiff filed a complaint in

federal court against John Jabe, A. David Robinson, G. F.

Sivels, Gregory L. Holloway, Clyde R. Alderman, R. Woods, and C.
Hall, all of whom are VDOC officials.

See Compl.

Read

generously, plaintiff claimed that defendants' refusal to

recognize NGE as a religion violated RLUIPA, as did their

alleged failure to follow proper procedures in processing his
request.

Id^

In addition, plaintiff claimed that defendants

violated RLUIPA by confiscating from his mail an article

entitled "The Harlem Six," the contents of which are a history

lesson on NGE, and by confiscating separate Five Percenter
literature.

Id.

Defendants filed a motion for summary judgment on all four

claims, which the Court granted in an Order dated May 11, 2011.
In an accompanying Memorandum Opinion, the Court concluded that

defendants had successfully demonstrated that their policy of
classifying NGE as a gang rather than a religion was the least

restrictive means of furthering a compelling interest in prison
safety.

The Court also concluded plaintiff had failed to prove

that defendants had substantially burdened a religious exercise
by confiscating certain materials from his mail.

Plaintiff

appealed, and the Fourth Circuit vacated the Order on the

grounds that summary judgment was granted on a basis not raised

by defendants without sufficient notice to plaintiff; defendants

had not produced adequate record evidence demonstrating that
their refusal to recognize NGE as a religion was the least

restrictive means of furthering a compelling governmental
interest; and that a genuine dispute of material fact remained

as to whether the confiscation of plaintiff's materials imposed
a substantial burden.
Cir.

See Coward v. Jabe, 474 F. App'x 961 (4th

2012).

Upon remand, the action was stayed pending the outcome of

Versatile v. Johnson, 474 F. App'x 385 (4th Cir. 2012), aff'g

No.

3:09cvl20,

2011 WL 5119259 (E.D. Va. Oct.

27,

2011).

In

Versatile, the Fourth Circuit summarily affirmed a district

court decision denying relief to an NGE member raising similar
RLUIPA claims against prison officials.

The district court

there adopted a magistrate judge's finding that the NGE member
"had failed to sustain his burden to show that his beliefs

[were]

*religious in nature' for the purposes of his particular

claim."

Versatile,

2011 WL 5119259, at *30.

The district court

also adopted the magistrate judge's finding that prison
officials had sufficiently proved that their regulations
regarding NGE materials were the least restrictive means of

furthering a compelling interest in prison safety.

*45.

Id. at *28,

Citing Versatile, this Court sua sponte granted

defendants' original motion for summary judgment, reasoning that
plaintiff's arguments were moot "[bjecause it ha[d] been

determined that NGE is not a religion" for purposes of RLUIPA.

Plaintiff again appealed, and the Fourth Circuit again vacated
for failure to hold further proceedings; for "treating Versatile
as controlling authority that NGE is not a religion under RLUIPA

in all cases"; and for granting summary judgment on grounds not

raised by defendants without allowing plaintiff an opportunity
to respond.

Coward v. Jabe, 532 F. App'x 328

(4th Cir. 2013).

The Fourth Circuit directed that the parties be allowed "an

opportunity to supplement the summary judgment record with
additional arguments and materials."
Upon the second remand,

Id. at 331.

this Court instructed defendants to

file a revised summary judgment motion addressing the concerns
expressed by the Fourth Circuit.

Accordingly, on September 13,

2013, defendants filed the instant motion, relying on new

arguments and new evidence (in the form of affidavits) regarding

their refusal to recognize NGE as a religion and their policy of
confiscating certain NGE materials.
("Defs.' Mem.").

See Defs.' Mem. in Supp.

On November 18, 2013, plaintiff filed a 44-

page Opposition to defendants'
II.

revised motion.

DISCUSSION

The Court will address plaintiff's claims in two parts:
grouping claims one and two, which together assert that

defendants' intentional refusal to recognize NGE as a religion
substantially burdens plaintiff's religious exercise, and

grouping claims three and four, which separately assert that

defendants also imposed a substantial burden by confiscating NGE
materials from plaintiff's mail.
A. Standard of Review

Summary judgment is appropriate where the record

demonstrates "that there is no genuine dispute as to any

material fact and the [moving party] is entitled to judgment as
a matter of law."

Fed. R. Civ. P. 56(a).
5

A genuine dispute of

material fact exists

"if the evidence is such that a

jury could return a verdict for the nonmoving party."
v. Liberty Lobby, Inc.,

477 U.S.

242, 248 (1986).

reasonable

Anderson

Courts must

view the record in the light most favorable to the nonmoving
party, and must draw all reasonable inferences in its favor as

well, see Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132
Cir. 2002); however,

(4th

"the mere existence of a scintilla of

evidence in support of" the nonmoving party's position is
insufficient, Anderson, 477 U.S. at 252; see also Othentec Ltd.

v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008).

Accordingly, to

survive a motion for summary judgment, "[t]he disputed facts
must be material to an issue necessary for the proper resolution
of the case, and the quality and quantity of the evidence

offered to create a question of fact must be adequate to support
a jury verdict."

Thompson Everett, Inc. v. Nat'l Cable Adver.,

L.P., 57 F.3d 1317, 1323 (4th Cir. 1995)

(citation omitted).

B. Refusal to Recognize NGE as a Religion

Plaintiff claims that defendants wrongly refused to

recognize NGE as a religion and failed to follow proper internal
procedures in doing so, in violation of RLUIPA.

Defendants

previously moved for summary judgment on these claims on the
grounds that plaintiff had not exhausted his administrative

remedies.

Following this Court's request for supplemental

briefing and evidence, defendants raised new grounds for summary
6

judgment, including that their decision to designate NGE as a
gang precludes recognition as a religion because gangs "are not

allowed to congregate, demonstrate indicia of membership,
possess written materials that would indicate membership or

otherwise carry out gang activity."

Defs.' Mem. 15.

Defendants

further argue that the gang designation is reasonable and
"necessary to promote the compelling interest of prison

security."

Id^ at 15; see also id. at 14, 16.

Plaintiff

responds that the gang designation "should not be allowed to

stand" because it is supported by insufficient evidence.
Opp.

See

39-41.

RLUIPA bars the government from imposing a "substantial

burden on the religious exercise of a person residing in or
confined to an institution," unless the government can

demonstrate that imposing such a burden furthers a "compelling
governmental interest" by the least restrictive means possible.
42 U.S.C. § 2000cc-l(a).

Although Congress did not define the

term "substantial burden," the Fourth Circuit has interpreted it
as a burden that arises when "a state or local government,

through act or omission, *put[s] substantial pressure on an
adherent to modify his behavior and to violate his beliefs.'"

Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (quoting
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707,

718 (1981)).

A "religious exercise" in this context covers "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).

Under RLUIPA, a plaintiff bears the initial burden of

proving by a preponderance of the evidence that he sought to
engage in an exercise of religion and that the government
substantially burdened his ability to do so.

2(b).

See id. § 2000cc-

Only beliefs or practices that are sincerely held and

religiously motivated fall within the purview of the Act,
thereby excluding acts derived solely of personal conscience or
philosophical conviction.

See Cutter v. Wilkinson, 544 U.S.

709, 725 n.13 (2005); Moore-King v. Cnty. of Chesterfield, 708

F.3d 560, 570-71 (4th Cir. 2013).

If the plaintiff establishes

a prima facie case, the burden of persuasion shifts to the
defendant to show that the challenged practice or policy is the
least restrictive means of furthering a compelling governmental
interest.

1(a).

See 42 U.S.C. § 2000cc-2(b); see also id. § 2000cc-

Although this is a heavy burden, context matters in

determining whether it has been met.

Courts 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 cost and limited resources."

Cutter, 544 U.S. at 723 (internal quotation marks and citation

omitted); Lovelace, 472 F.3d at 189-90; see also Couch v. Jabe,
679 F.3d 197, 201 (4th Cir. 2012)

(noting that RLUIPA must be

applied with special sensitivity to prison security concerns).
Plaintiff goes to great lengths to characterize NGE as a
religion for purposes of RLUIPA.

Whether he is correct or not

is a particularly difficult question to answer for obvious
reasons.

Va. 2009).

See Harrison v. Watts, 609 F. Supp. 2d 561, 572 (E.D.

Perhaps unsurprisingly, courts routinely "bypass

this question by assuming without deciding that . . . NGE

constitutes a religion," meaning that there is "no controlling
circuit precedent" on the issue.

Id^ at 573 & n.9; see also

Coward, 532 F. App'x at 331 ("The district court erred by
treating Versatile as controlling authority that NGE is not a
religion under RLUIPA in all cases . . . .").

Because an answer

is not necessary to the ultimate decision here, it is enough to
join other courts in simply assuming that NGE constitutes a

religion.

Likewise, it is not necessary to decide whether

defendants' refusal to recognize NGE as a religion imposes a
substantial burden on plaintiff's exercise because NGE's well-

documented connection to prison violence justifies defendants'
actions in this instance.

There is ample evidence in the record to establish that

defendants' classification of NGE as a gang — thereby precluding
recognition as a religion — was reasonable and the least

restrictive means of furthering a compelling interest in prison
safety.

1(a).

See 42 U.S.C.

§ 2000cc-2(b); see also id. § 2000cc-

The new affidavits submitted by defendants in support of

their revised motion for summary judgment are especially

persuasive.

The first is from Gary Clore, who is the Manager of

the VDOC's Gang and Security Threat Group Unit and therefore
bears responsibility for "providing] direction to the VDOC in
gang matters."

Aff. of Gary J. Clore ("Clore Aff.")

fl l.

Clore

has testified as an expert witness in federal court on "matters

pertaining to gang activities in Virginia prisons," including
matters specifically pertaining to NGE.
Versatile, 2011 WL 5119259, at *18.

Id. H 2; see also

He has been familiar with

NGE since the early 1990s, when he was a staff member at

Powhatan Correction Center.

Clore Aff. \ 9.

Based on his

extensive experience, Clore describes how NGE operates within
prison walls as a "paramilitary organization" with altered
clothing for identification, a clear "hierarchical structure

similar to the military," and coordinated drilling in the
recreation yard.

See id. U 9.

These observations have led him

to conclude that NGE "[was], and still [is], very much a

10

militant separatist group."

Id.

Clore also describes NGE's

involvement in several specific incidents in VDOC facilities,
including an assault on a guard at Red Onion State Prison and a
general tendency to "take[] over [other groups'] authorized
religious services."

Id. f 10.

NGE's violent nature is corroborated by the affidavit of

Michael Duke, who is presently a Gang Specialist in the same
Gang and Security Threat Group Unit.

Duke's 17 years of

employment with the VDOC includes positions as "a Corrections

Officer, a Sergeant, a Lieutenant, and a Gang Coordinator at
Greensville Correctional Center."

Aff.") f 1.

Aff. of Michael Duke ("Duke

He has been a Gang Specialist for the last seven

years, as well as a member of the Virginia Gang Investigators

Association ("VGIA") for the last ten.

Id^ In both capacities,

Duke has trained criminal justice officials on gang issues, such

as how to identify gang members.

Id.

He also possesses a deep

knowledge of NGE in particular, having interviewed members,
observed them in VDOC facilities, and even visited the

organization's headquarters in New York City.

Id. H 3.

Based

on his unique expertise, Duke, like Clore, has concluded that

NGE is "a separatist group that teaches racism."

Id^ U 4.

In

support, Duke describes other incidents involving NGE, in which
members "incited a group demonstration during the Rastafarian
11

Program" at Sussex II State Prison and separately "assaulted and
stabbed a white offender in the chow hall" at Keen Mountain

Correctional Center.

See id. f 10.

Moreover, he points to

clear indications of gang behavior, including "documented

attempts by [NGE members] to recruit Bloods and attempts by the
Bloods to recruit [NGE members]."

Id. 1 8.

In consideration of these and similar observations, the
VDOC has classified NGE as a gang and therefore denied

plaintiff's request for recognition as a religion.

Giving due

deference to defendants' experience and expertise, see Cutter,
544 U.S.

at 723,

the Court concludes that their classification

of NGE as a gang is eminently reasonable.

Defendants have

produced more than sufficient evidence that NGE as a group poses
a threat to prison safety by, among other things, provoking

racial hostility, and in fact bears most hallmarks of a gang.
Similarly, the Court concludes that defendants have carried

their burden of showing that the classification is the least

restrictive means of furthering a compelling governmental
interest in prison safety.

See Couch, 679 F.3d at 201

(explaining that the burden of justifying a policy or practice
in terms of security concerns is an "unremarkable step").

The

nexus between the disputed classification and maintaining safe

conditions for inmates and guards is obvious.

12

By restricting

group meetings and teaching materials, the VDOC has succeeded in

causing NGE's membership to "drop[] tremendously[,] along with
the [number of] incidents involving" NGE members.
H 8.

Duke Aff.

In addition, there is no less restrictive means of

accomplishing this goal because the number of NGE members in

VDOC facilities still exceeds one thousand, id., and their

relative strength makes it impossible for the VDOC to adopt
comparatively incremental measures.

Significantly, plaintiff

offers no evidence to rebut any of these points.
The Court's conclusions follow case law in this circuit and

.others.

"[C]ourts have consistently held . . . that

restrictions placed on [NGE] practices do not offend . . . the
Religious Land Use and Institutionalized Persons Act . . . ."

Harrison, 609 F. Supp. 2d at 573 & n.10.

Particularly relevant

here, the Fourth Circuit has approved NGE's designation as a

Security Threat Group in a different state prison system.

See

In re Long Term Admin. Segregation of Inmates Designated as Five

Percenters, 174 F.3d 464, 466-69 (4th Cir. 1999) (addressing an
inmate's challenge under the First Amendment's Free Exercise
Clause).

The same is true of several federal courts nationwide

based on a shared recognition of NGE's violent nature.

See

Harrison, 609 F. Supp. 2d at 573 n.ll (collecting cases).

13

Plaintiff denies any connection between NGE and prison
violence and proceeds to argue that "defendants['] determination

that NGE constitutes a gang should not be allowed to stand
without VDOC officials providing a reliable marker that

distinguishes a security threat group/gang from a God Centered

Culture/religious group with some extremist members."
41.

Opp. 39-

To this end, plaintiff has appended to his Opposition

multiple affidavits from fellow NGE members.1

The affiants

collectively state that NGE is a coherent and legitimate belief
system, that those beliefs do not condone violence or racism,
and that they have not personally participated in acts of
violence on behalf of NGE.

Like plaintiff, the affiants

apparently concede that some NGE members have engaged in

violence, even though they maintain it is not religiously
required.

These affidavits do nothing to undermine the

persuasiveness of defendants' affidavits, which specify numerous

violent incidents and are the product of long-term observation
in VDOC facilities.

Defendants' affidavits leave no doubt that

NGE's connection with prison violence is real and significant

notwithstanding abstract protests to the contrary.

In other

words, plaintiff has failed to rebut defendants' reasonable

1 The affiants are Shaikhi Teach Mathematics Allah, Lord
Versatile, Allah King Wize Rallahamen Allah, and Coker Robinson,
all of whom are currently incarcerated in VDOC facilities.
14

determination that classifying NGE as a gang rather than a

religion is necessary "to maintain good order, security, and
discipline" in Virginia prisons.

Lovelace, 472 F.3d at 190.

Summary judgment is therefore appropriate in favor of defendants
on plaintiff's first two claims.
C. Confiscation of Religious Material

Plaintiff also claims that defendants violated RLUIPA by
confiscating certain NGE publications from his mail.

Defendants

previously moved for summary judgment on the grounds that
plaintiff had failed to show that defendants' actions

substantially burdened his religious exercise.

This time,

however, defendants have raised alternative grounds for summary
judgment, including that their policy of reviewing and
selectively confiscating NGE materials is the least restrictive

means of furthering a compelling interest in prison security.
See Defs.' Mem. 14-16.

Defendants stress that there is no

"blanket ban" on NGE materials, only a policy of reviewing
publications individually to determine if the contents "indicate
gang membership" in some fashion.

Id. at 16.

Once again, there is ample evidence in the record - in the

form of affidavits - to support defendants' position.

It is

clear that the decision to confiscate materials from plaintiff's
mail, including "The Harlem Six" newsletter and other Five

Percenter literature, was related to valid prison safety goals.
15

To this end, Clore explains that NGE members are "known to use

secret codes ... to communicate and organize" within prison

walls, often by way of the sort of materials that plaintiff
seeks to keep here.

See Clore Aff. H 8.

NGE members also use

such materials to "recruit[] other gang members to join their
gang," especially members of the Bloods.

Id. U 10.

These

security concerns are echoed by Duke, who notes that plaintiff's

materials "are used to recruit new members, to prove membership,
Duke Aff. %6.

and serve as sources of codes."

Specifically,

memorizing them is "the means by which other offenders can

become [NGE members]."

Id. 1 5.

Duke also describes possession

itself as a problem because "visibility is strength" for gangs
struggling to achieve preeminence in the prison environment.

Id- 11 6.

Accordingly, in terms of prison safety, confiscating

the materials in question is one way to decrease the risk of
gang-related violence by interrupting organization and

recruitment efforts.

Cf. Hoiley v. Johnson, No. 7:08cv00629,

2010 WL 2640328, at *6 (W.D. Va. June 30, 2010) (approving the

same VDOC policy upon "conclud[ing] that the stated security

interest in limiting the influence and growth of [NGE] among the
VDOC inmate population is compelling").
The challenged policy is also the least restrictive means
of furthering this interest.

Duke avers that "alternatives have

16

been considered and rejected," including allowinc

NGE members

to

elect segregated confinement as a trade-off for possessing

forbidden materials, which is a logistical impos ibility in view
of the number of NGE members in the prison system

Aff. f 7.

See Duke

Plaintiff responds that the policy caiinot be the

least restrictive possible given that the content

of

the

materials in question does not pose a security threat.
argument fails for two reasons.

This

First, plaintiff ignores the

fact that possession alone is as problematic as t[he contents of
any particular publication for reasons related to visibility and

gang identification.

More generally, defendants

have not

imposed a blanket ban on NGE materials, and only

confiscate

individual publications after determining that tljey pose some
specific security risk, as they did here.

In sum, plaintiff has not brought forth any

evidence to

raise a factual question whether defendants have

burden under RLUIPA.2

Summary judgment is

met their

theref :>re appropriate

in favor of defendants on plaintiff's third and

fourth claims.

In addition to failing to rebut defendants evidence , plaintiff
has not offered any affirmative evidence of his dwn — beyond

naked assertions — suggesting that the policy in question
imposes a sufficiently substantial burden on his ability to
observe his NGE beliefs, even assuming that such beliefs are
religiously motivated.
In other words, the recorid contains no
evidence that defendants pressured plaintiff intc modifying his

behavior or violating his beliefs by confiscating
materials from his mail.

See Lovelace, 472 F.3d
17

certain

at

187.

Ill,

CONCLUSION

For these reasons, defendants' Motion for Summary Judgment
will be granted by an appropriate Order to be is sued

with this

Memorandum Opinion.

Entered this JQ day of March, 2014.
Alexandria, Virginia

Leonie M Ij&rinkema
United States District Judge

18