Coward v. Jabe et al

Filing 235

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 08/28/17. (pmil, )

IN THE UNITED STATES DISllUCT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

KALVIN DONNELL COWARD,
Plaintiff

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V.

A. DAVID ROBINSON, Chief of Corrections
Operations, et al.,

No. 1:10-cv-l 47 (LMB/MSN)

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Defendants.
MEMORANDUM OPINION

Plaintiff Kalvin Donnell Coward ("Coward" or "plaintiff), an inmate of the Virginia

Department of Corrections, alleges that the defendants, A. David Robinson, Chief of Corrections
Operations, and Harold W. Clarke, Director, in their capacities as employees of the Department
(the defendants will be referred to collectively as "VDOC" or "the Department"), unlawfully

impeded his religious exercise as an adherent of the Nations of Gods and Earths ("NGE" or "the
Nation"), in violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA")

and the First Amendment by refusing to recognize the NGE as a religion and instead designating
it a gang subject to the Department's zero tolerance policy. Specifically, plaintiff alleges four
violations of RLUIPA based on the VDOC's 1) refusal to recognize the NGE as a religion
pursuant to his December 15, 2008 request for recognition and failure to follow proper

procedures when reviewing that request; 2) failure to recognize the NGE or follow proper
procedures in response to plaintiffs March 1, 2009 request for recognition; 3) confiscation of
religious material entitled "The Harlem Six" from his mail on June 25, 2009; and 4) confiscation

of "Five Percenter literature" from his mail on July 16, 2009. Plaintiff also asserts a fifth claim

for theological discrimination in violation of the Free Exercise Clause of the First Amendment.'

[Dkt. No. 7-i]. Plaintiff asks the Court to enjoin the VDOC from enforcing policies that prevent
him from practicing the activities that are central to his beliefs as a member of the NGE and

order that the NGE be afforded the privileges enjoyed by other religions recognized by the
Department Id at 30. For the reasons that follow, the Court finds that the VDOC's policies
violate Coward's rights under both RLUlPA and the Free Exercise Clause of the First
Amendment.
I.

PROCEDURAL HISTORY

Plaintiff filed liis initial complaint pro se and litigated the case pro se for several years
during which the complaint was amended, multiple motions were filed, and several dispositive
motions were granted. Plaintiff successfully appealed the dispositive rulings, resulting in three
remands. After the third remand, the Court vacated its previous order granting defendants'

Motion for Summary Judgment and ordered defendants to file a renewed Motion for Summary

Judgment within thirty days. [Dkt. No. 130]. Defendants were granted multiple extensions of

time based on the representation that the parties were attempting to settle this litigation. [Dkt.
Nos. 138, 140, 149, and 151]. During his third appeal, plaintiff secured pro bono counsel who

have continued to represent him before this Court. Ultimately the parties were unable to reach a

resolution, and on January 3, 2017 the Court issued a scheduling order giving the parties four

months to complete any additional discovery. [Dkt. No. 154]. Following the close of discovery.

' Although there is no indication in the record that plainti ffwas ever given leave toadd his
theological discrimination chiim, s^ [Dkt. Nos. 8,24, and 37], because the Fourth Circuit
understood this claim to be properly raised, and the parties have addressed it in their proposed
findings of fact and conclusions of law, the Court will nunc pro tune grant plaintiffs June 10,
2010 motion to amend [Dkt. No. 7] to the extent that it adds a claim for theological
discrimination.

neither party sought summaiy judgment and the Court held a bench trial on July 13 and 14,2017.
At trial, plaintiff offered testimony from the following witnesses: himself; Rick Panayoty, a
twenty-two-year adherent of the NGE and former inmate who was a party in a RLUIPA lawsuit

against the New York Department of Corrections regarding recognition of the NGE and who has

since been released and is now a senior in college with plans to attend law school; Donald
Palmer,a managing editor of the Five Percenternewspaper and cofounderof the National Office

of Cultural Affairs for the NGE; Michael Muhammad Knight, Ph.D., a professor of religious
studies who has written two books about the NGE; defendant Clai-ke, the most senior official at

the VDOC; and Martin Horn, the former head of the Pennsylvania and New York City
departments of correction. Defendants called Reverend John Randall Myers, a religious
consultant and private chaplaincy services provider for the Department; Christopher M. Burke,
the Central Regional Coordinator for the Operations and Logistics Unit of the VDOC; and
defendant Robinson, the second-in-command at the VDOC.
11.

FINDINGS OF FACT

A. Background on the NGE

Through the testimony of the plaintiff, NGE adherents Panayoty and Palmer, plaintiffs
expert Professor Knight, and plaintiffs exhibits, the following facts about plaintiffs beliefs and
the NGE were established:"

Plaintiff, who has been incai'cerated for twenty-three years, has been an adherent of the
NGE, also known as the Five Percent Nation, since 1985. Tr. at 7:21-25, 47:19-48:5. The NGE

" Although the Department cross-examined these witnesses to attempt to undermine testimony
about the NGE not being prone to violence, probing, for example, a tense interaction between
ProfessorKnight and some NGE adherents, the defense offered no evidence contradicting the
depiction of NGE beliefs other than the testimony of Reverend Myers, which the Court found
was unreliable because it was based on insufficient information.
3

originated within the Nation of Islam ("NOT") and ultimately became a distinct tradition. PX 157
at 7. The NOI was founded by Fard Muhammad in Detroit, Michigan in the 1930s and teaches
that Muhammad was god incarnate. Tr. at 106:2-20. The NGE's founder, Clarence i3X,

originally was an NOI adherent, but, in the 1960s, he ''challenged the core [NOI] tenet that God
had been manifested in Fard Muhammad," and he began teaching the NOPs catechism, known

as the 120 Degrees orthe Supreme Wisdom Lessons^ to youths on street corners and basketball
courts in New York. Tr. at 220:19-24; PX 157 at 8. He ultimately founded tlie Allali Youth

Center in Harlem ("Mecca," in NGE parlance), which remains operational to this day. |d One of
Clarence 13X's core beliefs was that "if you want to change anything then you should teach
children" because they do not know anything about hate and racism unless they are exposed to it
by adults. Tr. at 107:7-24; PX 157 at 8.

Today, NGE adherents come from all walks of life and include law enforcement officers,
business people, teachers, professors, and people in the medical field. Tr. at 86:11-18. These
adherents believe that every black man is his own god, PX 157 at 9, and should learn to live

righteously through study and self-mastery, Tr. at 11:2-7. In the NGE community, black men are
referred to as "Allah" or "God" and women are referred to as "Earth." PX 157 at 9. As one

scholar described it, a black man "is a God in the sense of being a Creator of his own destiny."
Id. By characterizing black men as gods, NGE adherents argue that they, like members of other
religions, "have a picture of God that reflects their identity." PX 73 at 3.
The 120 Degrees, which is central to both the NGE and the NOI, teaches tliat "five

percent of society [is] enlightened and reject[s] the belief in a false, unseen deity, instead

^The 120 Degrees is comprised ofa series ofsocratic lessons—English "C" Lesson (1-36),
Student Enrollment (1-10), Lost-Found Muslim Lesson No. I (1-14). Lost Muslim Lesson No. II
(1-40), and Actual Facts (1-20)—which add up to 120. PX 9 at 10-33; PX 43 at 10.

recognizing the truth of God as the Black Man/' PX 157 at 8. Ten percent of people are "the

rich[,] the slave makers of the poor, who teach lies tothe poor—^to believe that the almighty,
true, and living god is a spook and cannot be seen by the physical eye." PX 9 at 27. The ten

percent are often referred to as devils and the 120 Degrees teaches that a devil "make[s] slaves
out of the 85% by keepingthem worshiping something he knows they cannot see (invisible) and
he lives and makes himself rich from tlieirlabor." PX 9 at 25. By contrast, the five percent ai'e
tasked with teaching "freedom, justice, and equality to all the human family of the planet earth,"
also known as "civilizing" people and making them "righteous." Id. at 27. Based on these shared
teachings, members of both the NOI and the NGE may identify as Five Percenters, although the

label is more commonly associated with NGE adherents. Tr. at 261:13-25.''
Although the 120 Degrees includes some problematic statements, such as, "the colored
man or the Caucasian is the devil" and "all Muslims will murder the devil, because they know he

is a snake and, also, if he be allowed to live, he would sting someone else. Each Muslim is

required to bring four devils," Id at 18,22, plaintiff addressed this potentially incendiary
language by offering evidence that, according to NGE teachings, the four devils that NGE

adherents strive to "kill" are lust, greed, envy, and hate, Tr. at 20:5-9. More broadly, the 120
Degrees represents "a project in self-mastery" in which devils simply "represent negative
personality traits." Tr. at 256:14-23, The devil is usually personified as a white man because
during the Atlantic slave trade and the history of the United States, white men worked to "keep

the black man down or keep the black man subjugated," Tr. at 24:3-17: however, a black person
can also be a devil and Clarence 13X emphasized that "[t]he worst devil is a black devil." PX 75

'' Today, many adherents prefer to identify as"theNation of Gods and Earths" rather than as
"Five Percenters." PX 157 at 8.

at 11. Thus, being a devil is ultimately "more about the mentality than it is about the skin color."
Tr. at 25:2-8. In keeping with this belief, white people can be members of the Nation. Id Indeed,

although Elijah Muhammad, an early leader of the NOI, taught that white people could know
righteousness but could not be righteous, Clarence 13X adopted a white disciple and pronounced
him a "righteous man." Id at 252:20-253:2.
Plaintiff explained that, for NGE adherents, their belief about the pursuit of righteousness

and self-mastery through the destruction of negative personality traits speaks to "the ultimate
questions of human existence" and their cosmology "teaches a continued existence beyond this
dense physical world, a continued existence that most religions refer to as the afterlife." Coward

AIT, [Dkt. No. 100-2] *| 8. As is taught in the Bible and the Qur'an, many NGE adherents,
including plaintiff, believe that "after creating the planet earth, the Supreme Creator formed the
primordial waters and dust (black mud) of the earth, the physical structure (body) of the first

(original) human beings to exist on earth, and animated these physical structures into existence
as sentient beings." Id

16. The NGE also teaches that death is "a continuation within the

infinite cycle of life. There is no end to life itself, and that which is of life only transforms from
one stage of life to another." Id ^ 22.

In addition to the 120 Degrees, the NGE's central texts include the Supreme

Mathematics, which attaches a value such as "wisdom" or"understanding" to each number;'^ the
Supreme Alphabets, which gives a meaning such as "Allah" or "justice" to each letter of the

According to the Supreme Mathematics, 1= Knowledge, 2= Wisdom, 3= Understanding, 4=
Culture or Freedom, 5= Power or Refinement, 6= Equality, 7= God, 8= Build or Destroy, 9=
Bom, and 0= Knowledge or Cipher. PX 9 at 5.
6

alphabet; ^and the 12 Jewels, which are the values ofknowledge, wisdom, understanding,
freedom, justice, equality, food, clothing, shelter, love, peace, and happiness. Tr. at 81:14-22; PX
9 at 6; PX 157 at 8-10. NGE adherents use the Supreme Mathematics and Supreme Alphabets to
discern meaning, particularly in words and dates. Forexample, as plaintiffexplained, for the date
July 13th, the one and the three in 13 stand for knowledge and understanding and when one is
added to three it sums to four, which stands for cultural freedom. Tr. at 15:22-16:6. Usingthe
Supreme Alphabets, a word such as "Allali" can be translated to "Arm, Leg, Leg, Arm, Head,"
which represents man and man as Allah. PX 157 at 12. The Supreme Mathematics, the Supreme
Alphabets, and the 12 Jewels are creations of Clarence I3X and make no mention of white devils
or violence. Tr. at 100:9-13; PX 157 at 8-9.

The Bible and the Qur'an are also texts that NGE adherents study, although they are not

considered central texts. Tr. at 10:6-17. Other relevant literature includes periodicals, such as the
Five Percenter newspaper, which "plays an important role in connecting Nation communities
around the country." PX 157 at 14. The Five Percenter includes content ranging from reflections
on NGE beliefs to letters from adherents, such as the incarcerated man who wrote on November

3,2009 to share that since joining the NGE he had "achieve[d] many great things" including

acquiring his G.E.D. and enrolling in college, which he claimed he "would never have received"
"if it wasn't for these life teachings." PX 71 at 10.
NGE adherents are required to engage in daily study of their foundational texts to gain a
deeper understanding of their "divine nature and ... relationship with life and the universe."

^The Supreme Alphabets states that A= Allah, B= Be or Bom, C= See, D= Divine orDestroy,
E= Equality, F= Father, G= God, H= He or Her, 1= Islam, J= Justice, K= King, L= Love, Hell or
Right, M= Master, N= Now or End, 0= Cipher, P= Power, Q= Queen, R= Rule or Ruler, S= Self

or Savior, T= Truth or Square, U= Universe, V= Victor>', W= Wisdom, X= Unknown, Y= Why,
and Z= Zig Zag Zig. PX 9 at 7-9,

Coward Aff., [Dkt. No. 100-2]%23. Individual NGE adherents often compile their personal
interpretations of the foundational texts in a collection referred to as the "Book of Life." Tr, at

246:11-18. Collectively, NGE adherents practice their beliefs by attending civilization classes
and group meetings called ciphers or parliaments, as well as by observing honor (lioly) days.
Coward Aff, [Dkt. No. 100-2] 23. Civilization classes involve adherents coming together to
discuss their beliefs and broaden their knowledge by studying topics such as economics and
health. Tr. at 21:11 -17. At ciphers or parliaments, NGE adherents stand in a circle and build on
the day's degree and talk about advancing the Nation. Id at 21:2-10, 21:18-22:3. "Enlightenment

for a Nation adherent is not obtained by private devotion, but through dialogue with other
members of the Nation." PX 157 at 13.

NGE adherents observe four honor days. Allah's (Clarence 13X's) Birthday, which the

NGE calls Father's Day, is celebrated on February 22 and is marked by fasting and communal

reflection on Allah's legacy. PX 152 at 10. Show and Prove Day, which is celebrated on or
around June 13, is an opportunity for NGE adherents to show and prove that Allah lives on

through them by showcasing their gifts and talents at a community picnic, id at 10-12. On tlie
third honor day, the Annual Family Day Event/Allah Social, which is celebrated on the last

Saturday in August, NGE adherents gather and invite friends and family members to join in their
festivities. Id at 12. The last honor day, called Day One, is celebrated on October 10 when NGE
adherents commemorate the birth of the NGE by reflecting on the history of the NGE and
dressing in their traditional colors of black and gold with men wearing Kufis and women

wearing head wraps or Galas. Id at 13.^

' A"Kufi" is'"[a] hemispheric cap that can be made ofcloth, knitted or crocheted, multi-colored
or single colored[,] that may have one or two tassels protruding from the top." M, at 15, A
"Gala" is "[a] piece or several pieces of material worn to cover the women's head[s]." Id
8

Like Jews and Muslims, NGE adherents do not eat porkor pork byproducts, Tr. at 18:2116:2; PX 9 at 12. They also do not eat scavenger animals such as crab and catfish. Id. A Kosher,
Malal, or Vegandiet generally conforms to their dietary strictures. Id; PX 152 at 14. The NGE's
symbol is the Universal Flag, which consists of the number 7, the sun, the moon, and a star. PX

152 at 15. NGE adherents display the flag during events and honor days. Id.

Although NGE adherents self-identify as a "God Centered Culture," they explicitly do
not identify with the word "religion," emphasizing that historically religion has been a tool of

oppression and fosters dependence on external forces. PX 157 at 12; PX 152 at 8. Citingthe
Crusadesand other "so-called Holy Wars," the Five Percenter newspaperargues that "[mlore
wars have been fought and more blood has been shed in the name of religion than any other
cause, perhaps all other causes." PX 74 at 3. ''All religions say in one way or another that man
does not and cannot stand alone. He is vitally related with and even dependent on powers in
Nature and Society external to himself." Id at 8. Despite discomfort with labeling the NGE a
"religion," Coward states that the Nation "occupies a place in [his] heart, mind and life parallel

to that filled by the orthodox belief in God/a Supreme Being in more mainstream religions which

are widely accepted in the United States." Coward Aff., [Dkt. No. 100-2] ^ 6.

Despitedeveloping predominantly in urban, inner city areas where gang activity is
present, the NGE has "vehemently renounced gang activity, and the Nation does not view gang
members as part of the [NGE]." PX 157 at 14. Clarence 13X disavowed violence, encouraged his

community to pursueeducation, and worked closely with established political figures, including
the former New York City mayor, John Lindsay.

In a speech entitled "We are Not a Gang,"

Clarence 13X is said to have walked arm-in-arm witli Mayor Lindsay through Harlem after the
assassination of Martin Luther King, Jr. and, although other cities "were devastated by riots,
9

delivered at Brookdale College in 1998, oneNGE adherent explained that the grouphad been
mislabeled as a gang because it consisted primarily of youngmen with checkered pasts who
werejust coming into knowledge of themselves. PX 43 at 13. He explained:
We cannot be a gang, because we are a people who are civilized
Every member of
our Nation has a responsibility—^has a duty—to teach those who are uncivilized; those
who have no knowledge and wisdom of themselves, nor understanding of their culture, or
respect for government. It is their duty to show these people how they must be. This is
why we teach that we are not anti-white or anti-establishment.... The only initiation one
must have is the true dedication to reforming one's self.

Id at 14. Plaintiff testified credibly that in prison NGE adherents work with young men to help
them break away from gangs. Tr. at 15:5-9. "I actually be around a lot of gang members," he

said, "Bloods, Crips, you know, Gangster Disciples, MS-13, and a lot of them young guys, you
know, and 1 get the opportunity to deal with them, to talk with them, you know, and try to move
them away from their mindset." Id at 14:18-25. Similarly, an issue of the Five Percenter
newspaper advocates converting gang members, specifically Bloods, to become Gods, observing

that "many a great God and Earth had gang origins [before] they got the knowledge. We must
teach them!" PX 86 at 1.

B. The VDOC's Policies Regarding Religious Activities
The VDOC regulates the recognition of religious groups in accordance with a policy

entitled Offender Religious Programs. DX 28. Under this policy, offenders sign up to participate
in religious services through a pass list, which is used to control access to communal worship. Id,
at IV.A.2(b)(i). An offender who wishes to attend a religious service must fill out a form

designating the service the offender wants to attend. Id Inmates are generally not permitted to

attend services for more than one religion. Id All religious ser\'ices are visually observed by
Lindsay praised Clarence 13X [] for helpingto keep New York relatively free from damage." PX
157 at 8.
10

correctional officers, with the level of supervision varying based on the security level of the
facility, and group worship is normally conducted by an approved external spiritual leader or

volunteer, not an inmate.|d at IV.A.7. Inmates may possess individual faith objects that have
been approved by the Faith Review Committee, which is comprised of VDOC employees

appointed by the Chief of Corrections Operations. |d at IV.A.l 1; IV.D.l. All such objects must

be purchased from the facility commissary and all religious literature must comply with the
operating procedure for incomingpublications. Id. at IV.F.6-7; see also DX 27. To request
recognition for a religious group, an inmate must submit a "complete and well documented
request" to the Facility Unit Head, who "will refer the request and supporting documentation to
tlie Faitli Review Committee for recommendation to the Chief of Corrections Operations," who
makes the final determination whether to approve a proposed religious group. DX 28 at IV.E.3-4.
Under the VDOC's policies, the Department may limit participation in religious activities based
on "documentation showing a threat to the safety of persons involved in such activity or that the

activity itself disrupts order in the facility." Id at IV.F. I. In addition, "religious activities may be
limited, restricted, discontinued, or denied by the Facility Unit Head based upon legitimate
concerns regarding security, safety, facility order, space, or resources." Id

Only those groups that are formally recognized by the Department are "allowed to meet
in [VDOC] facilities." DX 28 at 111, "Recognition of Religious Groups." The Department's
policies require it to "give no preference to the activities of one religious denomination, faith, or

sect over another." Id at I. The list of "Religions Approved to Operate in [VDOC] Facilities"
enumerates 39 "approved" religious groups. PX 114. Many of these groups are mainstream
religions such as Islam, Judaism, and various Cliristian denominations. Id Others are less

widespread, such as Asatru, Eckankar, Integral Yoga, NOI, Santeria, and Wicca. Id The list also
11

includes two "sects" tliat are "not approved": Five Percent Nation (Five Percenters/NGE) and

Lost and Found Nation of Islam. Id The Five Percenters/NGE has been designateda security
threat group ("STG") or gang. PX 7 at 9.
In 2007, four inmates at Southampton Correctional Center petitioned the warden for

recognition of the NGE and for the right to hold civilization classes. DX 9 at 00701. Warden J.V.
Beale disapproved these requests and forwarded them to the then-Eastern Regional Director, A.

David Robinson, who also disapproved the requests and forwarded them to the Faith Review
Committee, id. The Faith Review Committee referred them to J. Randy Myers, the Committee's

religious adviser, who testified during the bench trial. Id Myers is a Baptist minister with an

undergraduate degree in religious studies and a Master of Divinity degree from Southeastern
Baptist Theological Seminary. Tr. at 436:22-25. Unlike plaintiffs expert Professor Knight,
Myers has not published any books about the NGE or conducted the same kind of fieldwork.
Instead, he based his conclusions on review of a Wikipedia page, three websites, and two news

articles, as well as consulting with a member of the VDOC Gang Unit. Id. at 00700-03. Using
that information, Myers wrote a two and a half page report summarizing his understanding of
NGE beliefs and recommending that based on the VDOC's classification of the NGE as an STG
"and on the racist teachings of the group and the extensive record of dangerous, gang-related,

violent acts committed by its adherents in prisons and society," the Committee should deny the
request for recognition. Id. In support of his finding that the NGE was dangerous, Myers wrote,
"Most state prison systems consider Five Percenters to be a gang or a security threat group,
refusing to recognize them as a religion, refusing to allow adherents to congregate, and banning
their publications." Id, at 007002.

12

In his testimony, Myers added that the NGE did not satisfy the four-factor test he used to
assess a potential religion—^although this test is not discussed in his recommendation to the

Committee—^and that "a real detenniniiig factor for [him] was inso much of what [he] found in
the literature it refers to a deity or God of any sort as a mystery spook, as a human construct
created by other world religions, be they Islam, Judaism, Christianity, whatever." Tr. at 445:11-

446:22.^ He also concluded that the NGE's beliefs were not pro-social. Id at 448:18-449:1.
Based on his limited research, Myers testified that "the focus of the Five Percenters is not

actually on a Supreme Being or a higher power but on the preservation and glorification of one
race over all others." Id at 452:16-18. On October 31, 2007, after reviewing Myers's
recommendation, the Faith Review Committee did not approve the petition, concluding that the
NGE "is not a recognized religion in the VDOC." DX 9 at 00699. The Court finds that Myers's

opinion about the NGE and his report to the Committee were not reliable because he based his
conclusions on insufficient information.

Moreover, to the extent the Department was concerned about "the glorification of one

race over all others," it has acted inconsistently by granting recognition to Asatru (also referred

to as Odinism), a group associated with white supremacists, at the same meeting at which it

denied recognition to the NGE. DX 9 at 00698. Asatru is "the ancestral folk religion of Northern
Europe and a polytheistic, nature-based faith that worships a variety of gods and goddesses."
Mavfield v. Texas DeoH of Criminal Justice. 529 F.3d 599, 602 (5th Cir. 2008). It is well
documented that "Asatru has ties to white supremacist gangs in many prisons," Karow v. Fuchs.
No. 16-3049,2017 WL 2623106, at *2 (7th Cir. June 16,2017), and it has been designated as a

^Myers does not know the origin ofthe four-factor test that he applied or whether ithas a name.
Tr. at 469:10-470:9. He simply inherited the test from his supervisor at the VDOC, who has no
postgraduate training in religion, id
13

gang by the VDOC, PX 7 at 2; PX 29 at 31. Despite clear evidence of violence directly
connected to religious activity—in 2000, two VDOC inmates who practiced Asatru had violently
murdered another inmate with 68 stab wounds on an "altar" during an "Asatru ceremony," Lenz
v. Commonwealth. 544 S.E.2d 299, 301-02 (Va. 2001)—Asatru was approved by the Faith
Review Committee. DX 10 at 000710. Myers, who recognized that Asatru has a white

supremacist element tliat teaches racial violence, supponed this decision based on his conclusion

that Asatru was "legitimate" because it "tries to preserve a pre-Christian religion in [its] deities"
and has pro-social values of "family life, raising children, [and] being patriotic." Tr. at 449:9451:10.

On July 7, 2011, the Faith Review Committee reviewed a second request to recognize the
NGE. DX 10. The Faith Review Committee did not ask Myers to prepare a new report or update
his old recommendation. In the absence of a request for additional work, Myers repeated his

recommendation that the Committee disapprove recognition, which they did. Tr. at 457:20-

458:7; DX 10 at 00710. As the Committee explained in its minutes, "This group is viewed as a
gang, not a religion." DX 10 at 00710.

At the same meeting, the Committee considered whether to approve Asatru adherents
possessing the Asatru Credo, a two-page document that was confiscated from an inmate based on
"security concerns over the content." PX 83 at 7. Myers recommended that the Committee

approve the document, obsei-vingthat "[t]hese teachings are in line with mainstream
Asatru/Odinism teachings, and this is a faith group that has been recognized by [the VDOC]." Id.
He continued.

The credo asserts racial separation (i.e. the "purity" of the races), not racial hatred
or supremacy or violence. I see nothing in this credo that constitutes a security
threat within [VDOC] facilities. (I would note that the teachings of the Nation of
Islam—^NOI—are more potentially volatile, with the emphasis on Caucasians as
14

the "white devils." I do not see anything that rises to that level in these
statements.)

Id. ITie Committee ultimately took no action on the matter, finding that "[t]his item was not

referred by any institution, nor was there a request to approve or disapproved [sic] this
document." DX 10 at 00710.

While incarcerated at Greenville Correctional Center, plainti ff twice applied for
recognition of NGE as a religion. PX 45A. There is no indication that either of these requests

were ever forwarded to tlie Faith Review Committee, as required by Department policy. Id

Plaintiff also filed multiple administrative complaintschallengingthe confiscation of NGE
literature from his mail. Id at 31. These actions form the bases for his four RLUIPA claims.

Although the VDOC previously raised failure to exhaust as an affimiative defense, at trial the

Department conceded that plaintiff had fully exhausted his administrative remedies and the Court
made a finding to tliat effect. Tr. at 28; 17-20, 35:19-36:4.
The VDOC can and does use the controls established in its Offender Religious Program

policy to limit religious privileges as necessary for security and orderly operations. According to
Robinson, now the Chief of Corrections Operations, the Department has previously had security
concerns with the NOI and its 3,000 adherents in VDOC facilities and it has been able to address

those concerns by monitoring NOI activity through informants. Tr. at 508:1-21. When there is

information about a potential threat to the security or operation of a facility, the Department
restricts the frequency or duration of the NOl's meetings, subdivides adherents into smaller

groups, and may even put the instigators into restrictive housing. Id at 508:22-509:6. Robinson
testified that during his thirty-five year career with the VDOC there have been some violent acts

by NOI members but none "specifically related to that religion." Id at 510:2-8.

15

Similai'ly, Burke, the Central Region Coordinator for what is effectively the
Department's gang unit, testified that a large number of white supremacists attend Asatru

meetings and "they are closely monitored, and ... security staff is always present. There have

been instances where that group has stepped out beyond what is the Asatru religion, and they
have been suspended or even shut down at certain localities for abusing the religion itself to

cover what they were doing." jd at 429:22-430:6. But, despite the group's history of violent
incidents within the VDOC, Asatru is still recognized as a religion because if a group is

"recognized as a religion, [the Department] tend[s] to not track them and focus solely on them as

much as [they] do the security groups." Id at 428:4-7. (Burke was unaware that Asatru is also
designated as a gang. Id at 419:9-23.)

C. The Nation's Designation as a Security Threat Group

For purposes of this litigation, the VDOC uses the terms "STG" and "gang"

interchangeably. PX 155at 3. It defines a gang as: "A group of individuals who: (a) possess
commoncharacteristics that distinguish tliem from other offenders or groups of offenders and

who, as an entity, pose a threat to the safety and security of staff; the facility, otiieroffenders, or
the community; (b) have a common distinctive goal, symbolism, or philosophy; [and] (c) possess
identifiable skills or resources or engage in unauthorizedyillegal activities." DX 26 at 2.
In 1996, Gene Johnson, then the director of the VDOC, circulated a one-page memo

advising regional directors and wardens that "'Five Percent' groups should not be allowed to
meet in any Department of Corrections facility." DX 13. The memo did not identify any
evidence of a security threat. Id. It simply observed that the Five Percent groups were "non-

religious in nature, and that these groups consider their beliefs to be a 'way of life' rather than a
religion." id It added, without explanation, that "these groups may attempt to meet covertly" and
16

that"some members may present a threat to the orderly and secure operation of the institution."
14

At a June 2001 evidentiary hearing in a FirstAmendment case brought by an inmate
challenging the Department's policies regarding the NGE, DirectorJohnson testified that the
VDOC had not experienced any substantial problems with the NGE before the 1996 ban and that
no security-related incidents had occurred since 1996 that reaffinned the decision to ban the

NGE. PI. Findings [Dkt. No, 226] ^ l?.''^ He stated that the memo and the ensuing ban on NGE
activities was based in part on a 1995 phonecall with the South Carolina Department of
Corrections, id., which began advocating for other correctional institutions to ban the NGE after

five inmates in a South Carolina correctional institution led an uprising in April 1995, PX 157 at
15. The inmates uUimately surrendered in exchange for five minutes of time with an .Associated

Press reporter to air their grievances about a new policy requiring that inmates be clean shaven
and have short hair. Id at 15-16. According to press reports, the inmates involved self-identified

as Muslim or Rastafarian. |d, at 15. The subsequent criminal investigation concluded that one

memberof the uprising was a member of tlie NGE. PI. Findings [Dkt.No, 226] ^11. The South

Carolina Department of Corrections responded to the incident bybanning theNGE and placing
all suspected members in administrative segregation. PX 157 at 16. At least one such adherent

was held in "solitary confinement for 20 years, despite not having committed a single
disciplinary infraction during that time." Incumma v. Stirling. 791 F.3d 517, 519 (4th Cir, 2015).

The description of this testimony in Plaintiffs Proposed Findings of Fact [Dkt. No. 226] cites
at length to a hearing transcript from Coward v. Angelone. No. 3:00-cv-240 (E.D. Va. Sept. 25,
2001). Due to the age of the file, the relevanttranscript is not available electronically. Because

defendants have not objected to plaintiffs characterization of the transcript, the Court will accept
plaintiffs description of the transcript as accurate.
17

Johnson's 1996 memo merely precluded Five Percent groups from meeting and did not
discuss any specific security issues associated with the NGE, but it was the basis for the NGE

being designated an STG and since thattimethe Department has been "monitoring their

activities and attempting to track theirmembership." PX 155; Tr. at 376:7-11, 388:3-5."
Altliough Burke, whom the Department designated as an expert in gang investigations, explained
that "[a]ssessing each group, individually, prior to designating them as a STG minimizes—and in

[his] assessment, eliminates—the risk that a relatively innocuous organization will be
eiToneously designated as an STG," PX 156 at 3, the Department offered no evidence of a
. comprehensive individual assessment being conducted of the NGE before imposing the STG

designation.'^
Under VDOC Operating Procedure 427.1, offenders are "prohibited from joining,
recruiting, associating witli, participating in, or acting in concert with any individual or group of
individuals who may constitute a gang." DX 11 at 3. They are also "prohibited from owning,
creating, possessing, or passing to other individuals any coiTespondence, documents,

photographs, drawings, jewelry, symbols, or property of any type that contains or indicates gang
identifiers, language, or information." Id "Any behavior" that "indicates such participation may
lead to disciplinary, administrative, and/or criminal action against" the offender. Id In
accordance with this policy, STG members are not permitted to meet with other members of the

'' The NGE is not considered acriminal street gang in Virginia and its adherents are not
monitored by law enforcement. Tr. at 432:23-25.

In addition to the memo from Jolinson, Burke also cites a 2013 affidavit from the manager of
the VDOC's Gang and Security Threat Group Unit to justify die 1996 designation of the NGE as
an STG. According to that affidavit, in the 1990s the Five Percenter group at Powhatan

Correctional Center would "participate in exercise drills similar to military drills," "practice
defensive tactics," alter their clothing to show unity among the group, employ a rank structure,
and "pat down the attendees" before meetings. Allah v. Commonwealth. No. 2:12-cv-00033
[Dkt. No. 33-1] 19 (W.D. Va. 2013). The security threat posed by these activities is unclear.
18

group and they receive additional scrutiny from correctional officers. Tr. at 421:2-422:14. In

addition, an STG designation may affect an inmate's eligibility for parole and precludes parolees

from meeting with other members of the group or possessing the group's symbols or literature
while on parole. Id,

Burke filed an expert report and offered testimony explaining why the Department
considers the NGE to be an STG. A major factor in his analysis was the number of NGE

adherents he believed to be in VDOC facilities. In his report, Burke, who like others in the
Department uses the term "Five Percenters" to refer to NGE adherents, stated that "Five

Percenters are the second-largest STG within the [Department]," PX 155 at 8, and claims that the
VDOC's NGE adherent population "far eclipses the number of Five Percenters housed in
correctional facilities in other states." Id at 10. Burke testified that the Department identifies

suspected gang members by assigning them points for "self-admission, for tattoos, for affiliation
with other known members, possession of documents, things of that nature," Tr. at 371:18-24.
Once an inmate either has ten points or self-identifies as a gang member, the inmate is
considered a "known" or validated gang member. Id

Burke's report identified "1200 [VDOC] offenders currently classified as either known or
suspected Five Percenters" out of a total inmate population of 30,000, PX 155 at 10; however,

during his testimony, Burke reduced that estimate of 1200 known or suspected NGE inmates by
admitting that only about 700 were still "active" in the VDOC's data system. Tr. at 372:9-18.
Moreover, of these 700, several hundred were on probation or parole, reducing the number of
known or suspected NGE adherents actually being housed within VDOC correctional facilities to

no more than the high 400s. Id at 400:9-16. In addition. Burke did not and could not identify
what subset of these inmates were validated NGE members. Based on these admissions, Burke
19

conceded that the percentage of Virginia'sinmate population affiliated with the NGEis similar

to that of New York, which has 724 NGE adherents (out of 53,000 offenders). |d. at 407:17408:14.

The VDOC records also indicate that Five Percenters may be assigned more than one
gang affiliation, with the Department designatinginmates as either "Five Percenter,""Five

Percenter/Blood," or "Five Percenter/Crip." PX 25 at 31; PX 149at 2; DX 21 at 02268. The Five
Percenters appears to be the only gang for which the VDOC lists cross-affiliations, PX 25 at 31.
Another factor Burke identified as supporting NGE's designation as an STG is five

specific incidents of violence involving NGE adherents. PX 155. These incidents occurred over
the twenty-one-yearperiod from 1996 to 2017. Id. First, relying on an affidavit submitted in a
previous lawsuit by then-Director Johnson, Burke's report stated that "Five Percenters assaulted
a correctional officer at the Keen Mountain Correctional Center[, a level 4 facility,] in January
1996," PX 155 at 8; however. Director Johnson's original affidavit provided no additional details
about the number of inmates involved, the inmates' motivation, or the nature of the assault,

Johnson Aff. 4(i), Versatile v. Johnson. No, 3:09-cv-00120 (E.D. Va. 2010), ECF No. 27-1,
and neither party has introduced the records documenting the incident.

Burke's report also relied on an affidavit from a previous lawsuit to assert that "at Red
Onion State Prison, an offender kicked an officer in the chest, and, in his cell, documents were

found indicating that the offender wanted to hurt staff members." PX 155 at 7, According to the
disciplinary offense report, the event actually took place at Wallens Ridge State Prison, a level 5

facility,'^ where, on September 18,2005, acorrectional officer had just removed the leg shackles
VDOC inmates are assigned to a facility with a security level that correspondsto their criminal
offenses, the length of their sentence, and their history of disruptiveness. According to the
Department's classification system, level 1 facilities ai*e considered minimum custodyand
20

from an inmate when the inmate kicked the con*ectional officer in the chest. PX 23 at 1. A

subsequent search of the inmate's ceil revealed FivePercenter lessons as well as Crip literature
and a note saying "Fm trying not to let tliese devilstrick me up but I hatethese police. 1wantto
do something dangerous to them." Id There is no indication in the report that the officer was
injured. Id. at 1-2. Because the disciplinary hearing detemiined that the assault could not be tied

to STG activity, the inmate was found guilty of simple assault and possession of STG related
materials. Id. at 1-4

The third incident identified in Burke's report occun-ed at Keen Mountain Correctional
Center in March 2009 when an inmate described by Burke as a Five Percenter got into an
argument with another inmate, described as Caucasian, and told him, ''White people are the

devil," PX 155 at 9. According to Burke, a few days after the argument, the Five Percenter
assaulted the Caucasian inmate with his fists, resulting in the victim suffering multiple facial

fractures. Id During the bench trial, the only evidence the Department provided to corroborate
Burke's description of the incident was the VDOC's eleven-page incident report, which makes
no mention of the race of either of tlie inmates, includes no description of any words that were
exchanged between them, and does not indicate that tlie assailant was a member ofNGE or a
Five Percenter. DX 20.

As to the fourth incident, Burke's report states that "a Five Percenter stabbed two
Gangster Disciples at Sussex 11 state prison[, a Level 4 facility,] in approximately 2013." PX 155

at 9. The contemporaneous documentation from the Department indicates that inmate Pridgen, "a
inmates go to work in their communities every day; level 2 facilities are dorm facilities where
offenders are housed in open dormitory environments; level 3 facilities are medium security cell
blocks; and level 4 and level 5 facilities are considered high security facilities which, among
other restrictions, limit the number of people who can come together in a given area to no more
than 128 inmates at a level 4 facility and 88 at a level 5 facility. Tr. at 517:4-20.
21

confirmed Five Percenter/Blood," was involved in a fight with a member of the Gangster
Disciple from his housing unit in May 2013. PX 149 at 2; DX 21 at 02268. The Gangster

Disciple was punished and transferred to a different housing unit. |d. On July 9, 2013, a fight
broke out between Pridgen and two different Gangster Disciples in which Pridgen stabbed one of

his assailants. Id Prison officials concluded, "This incident appears to be a retaliation from the
Gangster Disciples against [Pridgen] based on the previous [housing] incident." |4; DX 21 at
02234.

As a final example of the "serious incidents" involving the NGE, Burke's report pointed
to an April 2, 2015 assault in which "two known members of the Five Percenters attacked

another inmate (unaffiliated with any STG) with homemade metal shanks." PX 155 at 8.
According to the VDOC's Report of Investigation, the fight, which took place at August
Correctional Center, a level 3 facility, involved four African American inmates, Allah. Howard,
Fentress, and Young, the first three of whom w^ere designated as "members of the Five Percenter

gang." PX 116 at 1,3. Allah and Howard attacked Young with sharpened pieces of metal and
then Fentress joined the fight alongside Young, his cellmate. PX 112 at 1. Fentress hit Allah who
then struck Fenti'ess with a sharpened piece of metal. Id at 2. Prison officials broke up tlie fight

and separated the inmates. While Howard was being escorted to segregated housing, he yelled
"pride walk." Id Young sustained several puncture wounds that were three millimeters deep but
none of the inmates required outside medical treatment. PX 116 at 10. When officers asked one
of the inmates about the cause of the fight, "he said he couldn't say what [it] was about" and
when he was asked if it was an altercation between the Bloods and the Five Percenters, tlie

inmate said "he wouldn't refute that either." PX 109 at 8. The 72-page report offers no
conclusions or theories about what caused the fight. PX 116.
22

Burke's report also identified "disruptive" activity by NGE adherents, including officers
at Greenville Correctional Center, a level 3 facility, performing "two cell extractions of Five
Percenters for disruptive behavior in the segregation unit," and "a group of Five Percenters,

along with some identified Bloods, [taking] over the Rastafarian religiousservices at Sussex II
State Prison, using those services as cover for conducting groupmeetings." PX 155 at 8-9.
According to the corresponding documentation, a letter from a correctional officer at Sussex II
state prison to the warden, the inmates attending the Rastafarian Program meetings were "not
participating in religious activities when they [were] meeting in the dining hall" but were

discussing the date, July 9, 2007. PX 28 at 1. The officer expressed concern that one inmate was
overheard saying that "the 797 [i.e.. 07-09-07] is going down like the 747" while others
remarked on the "unfair treatment that they were receiving within the institution" and talked

about assigning security positions within the facility. Id The memo also stated that of the 65
inmates enrolled to attend the program, 30 inmates had been validated as gang members with
most being designated as Five Percenters and Bloods. Id.

Burke's report also cited evidence of NGE adherents attempting to "recruit other inmates
to join the Five Percenters." PX 155 at 9. For example, on Januar>' 6, 2010, a gang specialist at
Povvhatan Correctional Center, a level 3 facility, documented an interview he had widi an inmate

found in possession of "several pages of 5% knowledge," consisting of a homemade newsletter
(The Enlightener Newsletter), which the inmate admitted was prepared by an inmate at

Powhatan. PX 53 at I. The inmate also admitted to participating in monthly "Ciphers
(meetings)" where the newsletters were distributed. Id

To buttress his conclusion that the NGE is a gang, Burke's report referenced an open

letter from the national chairman of the New Black Panther Party for Self Defense ("the Party"),
23

which advocated for "unity between TheNew Black Panther Party and the progressive members
of the Bloods who desire a better life forour people" and stated that theParty's "unityefforts to
date include unity with the Nation [of] Islam (NOl) and Minister Louis Farraklian; 5% Nation of
Gods and Eartlis; (NGE): Lost and Found Nation [of] Islam (LFNOI);... various Islamic and

Muslim formations; Moorish Science Temple of America (MSTA); the Black Hebrew

Israelites;" and several other entities. PX 26 at 1-3. Although the NOI, the Moorish Science
Temple of America, and the African (Black) Hebrew Israelites are all religions approved by the
VDOC, PX 114 at 1, the Department characterizes the letter as "acknowledg[ing] that the Five
Percenters were also a gang and ask[ing] them to join their organization." PX 155 at 10.

Burke's report stated that the NGE's designation as an STG is further supported "by the
message of racial supremacy that is displayed in their literature and teachings" and that "the

literature or lessons utilized by this group, if viewed by other white members of the offender
population, or even staff, could generate a risk to the harmonious operation of [VDOC's]
facilities." Id at 13. When Burke was asked at trial why the Department does not monitor the

NOl, which shares much ofthe same rhetoric and foundational texts with the NGE, Burke's only
explanation was that "one is looked at as a recognized religion and the other is recognized as a
gang." Tr. at 429:1-2. Burke agreed that the Department regards incidents involving the NGE as
gang activity because that group is classified as a gang, while the same conduct, if done by a

member of the NOI, would not be considered gang activity. Id at 429:3-14. When addressing
why racially supremacist teachings by Asatru do not undermine prison security, Burke explained
that the VDOC doesn't "recognize [Asatru] as a gang because they're recognized as a religion."

Tr. at 419:9-13. (As Burke ultimately acknowledged, according to the VDOC's records, Asatru

is both an approved religion and a designated gang. Id at 419:14-23.)
24

Burke's report emphasized that the list of violent and disruptive incidents was not

exhaustive and that there have been 503 total incidentreports "involving Five Percenters in
VDOC facilities since 2011," PX 155 at 10; however, the Department offered no details about

these incidents other than Burke's representation that "they encompass multiple aggravated
assaults, serious assaults, cell extractions, fights, situations requiring use of force and/or

application of restraints, [and] possession of contraband." PX 155 at 10. But, Horn, who
reviewed the list of incident reports, testified that many were unrelated to gangs or violence, such
as medical emergencies and attempts to desti'oy state property, which could include an>^hing

from cutting prison pants short to writing on the wall of a cell. Tr. at 296:2-7.
D. Accommodations for the NGE

In response to this lawsuit the VDOC conducted a survey of correctional institutions
across the country, asking about their policies regarding the NGE. The survey was distributed on

the VDOC's behalf by the Association ofState Correctional Administrators ("ASCA")'"' and
thirty-three states responded. According to the survey responses, tlie coiTectional departments of

thirteen states with NGE adherents do not recognize the NGE as a religion. They include
Arkansas, Delaware, Georgia, Kentucky, Minnesota, Nevada, New Hampshire, North Carolina,

South Carolina, Tennessee, Texas, Washington, and West Virginia. PX 136 at 5-7.'^ By
compai'ison, fifteen states' coiTectional departments do recognize the NGE as a religion. States

that have voluntarily afforded recognition to the NGE include Alabama, Illinois, Indiana,

''' ASCA is a professional organization representing the interests ofthe directors ofcorrections of
the 50 states, the territories of the United States, and several lai-ge municipalities as well as the
Bureau of Prisons. Tr. at 300:13-22.

At the time of the survey, Rhode Island was among the states that did not recognize the NGE.
It has since reached a settlement agreement pursuant to which it "acknowledges that [the NGE]
is a religion and shall be accorded the same protections as any other religion." PX 152 at 4.
25

Maryland, Montana, Ohio, and Pennsylvania. PL Findings [Dkt, No. 226] f 58. In addition, the
NGE has obtained recognition as a religion in lawsuits filed in Connecticut, Iowa,

Massachusetts, Michigan, New Jersey, New York, Oklahoma, and Rliode Island. PX 122A; PX

122B; PX 122F; PX 122G; PX 1221; PX 122K; PX 122M; PX 152. Ofparticular significance to
this litigation, Massachusetts agreed to recognize the NGE in 2008 while defendant Clarke was
the Commissioner of the Massachusetts Department of CoiTections. Tr. at 144:4-7.
Although there is some variationin the privileges afforded to NGE adherents, most states

that have recognized the NGE permitadherents to have access to their foundational texts,
including the 120 Degrees, the Supreme Mathematics, and the Supreme Alphabets, PX 122F at
3; PX 101 at 27; permit observance of the NGE's four honor days, PX 101 at 27; PX 152at 4:
authorize adherents to elect an alternative diet consistent with their religious beliefs, PX I22N at

1;PX 152 at 4; andallow corporate worship to the extent that NGE adherents can identify an
outside volunteer faith representative, PX 122N at 1; PX 122M at 1-2.

Of great significance to this litigation is the VDOC's failure to provide any evidence of

increased violence or erosion of good order and discipline at any correctional facility following
recognition of the NGE. To the contrary, defendant Clarke testified that he was not aware of any
discipline problems with the NGE duringthe three years he headed the Massachusetts
Department of Corrections after the NGE was recognized as a religion. Tr. at 146:3-7. He also
testified that he is in contact wth his counteiparts at other correctional facilities and is not awai-e

of any problems with the NGE in tlie states that have recognized it as a religion. Id at 188:20189:4.

Although Burke believes that"allowing the Five Percenters to meet, organize, or possess
their literature would pose an unacceptable risk to the safety and security of VDOC institutions,"
26

PX 155 at 14, Clarke testified that based on what he had learned during the course of this

lawsuit, tlie total ban on the NGE should be changed aiid he acknowledged that there are less
restrictive means of achieving the Department's goals. Tr. at 149:19-24, 209:11-18,

Shortly before trial, the Department ofl^red an accommodation that would entail moving
NGE adherents who want to practice their beliefs to a designated housing unit at Wallens Ridge
State Prison, a level 5 facility, where the group would retain its STO designation but members
would be allowed to practice their beliefs and possess their literature. Tr. at 539:13-20. (Wallens

Ridge is an all-male facility; female adherents would be placed at Fluvanna, a level 3 facility. Id.

at 176:10-16.)'^ This accommodation would be subject toreview and reconsideration after one
year. Id. at 162:10-14, Plaintiff is currently incarcerated at Deep Meadow Correctional Center, a

level 2 facility. Id. at 54:2-6. He has declined this accommodation stating, "To do that is to say
something is wrong with the [NGE]. To do that is to say that, they still say that we are a gang or
we're STG. To separate [NGE adherents] and give [them] privileges over here while everybody

else got privileges everywhere else is not right." Id at 56:18-57:2.
III.

CONCLUSIONS OF LAW

A. RLUIPA (Claims l-4>
I.

Section 3 of RLUIPA

RLUIPA requires that burdens on the free exercise rights of incarcerated persons must
withstand strict scrutiny, the most stringent standard ofjudicial review. Madison v. Riter, 355
F.3d 310, 314 (4th Cir. 2003). Recognizing that inmates are subject to "a degree of
The Department has implemented a similar accommodation for Rastafarians who wish to have
long hair in accordance with their religious beliefs. Tr. at 546:17-25. The Department considers
long hair a security risk and it is not allowed in general population. Id. The Department has
created an exception for Rastafarians who wish to grow their hair long as part of their religious
beliefs, permitting them to do so if they agree to be transferred to a designated housing unit at .
Wallens Ridge where the Department has "more control" and "more observation." Id,
27

[governmental] control unparalleled incivilian society and severely disabling to private religious
exercise/' Cutter v. Wilkinson. 544 U.S. 709, 720-21 (2005), Congress "passed RLUIPA to
afford this confined population greaterprotection of religious exercise than whatthe Constitution
itself affords," Lovelace v. Lee. 472 F.3d 174, 186 (4th Cir. 2006).
Section 3 of RLUIPA providesthat "[n]o government shall imposea 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 tliat die
burden is "in furtherance of a compelling governmental interest" and is "the least restrictive

means offurthering that... interest." RLUIPA, § 3(a), 42 U.S.C. § 2000cc-l(a).'^ Aplaintiff
"shall bear the burden of persuasion" on the prima facie case, namely "whether [the challenged
practice or law] substantially burdens the plaintiffs exercise of religion," Id § 2000cc-2(b). If a
plaintiff establishes a prima facie case, the burden shifts to the government to prove that the

burden in question is the least restrictive means of furthering a compelling governmental interest,
id § 2000cc-l(a).

Detennination of what constitutes a "religious" exercise is, as the Supreme Court has
acknowledged, "a most delicate question," Wisconsin v. Yoder. 406 U.S. 205,215-16 (1972),
and one that is "of course a difficult question for courts of law to decide," Doswell v. Smith. 139
F.3d 888 (table), 1998 WL 110161, at *3 (4th Cir. 1998). "But the inquiry, however difficult, is
necessary, for while 'the very concept of ordered liberty precludes allowing every person to

make his own standards on matters of conduct in which society as a whole has important

Section 3 applies to programs or activities that receive federal financial assistance, 42 U.S.C. §
2000cc-l (b)(1), which the VDOC does, Lovelace. 472 F.3d at 186.
28

interests,' the Free Exercise Clause protects those beliefs that are 'religious' and sincerely held."
Doswel]. at *3 (quoting Yoder. 406 U.S. at 215-16).

The test for determining whether an inmate's beliefs ai-e protected as a religion is
"whether they are (1) sincerely held and (2) religious in nature under [the inmate's] 'schemeof

things.'" Moore-King v. County of Chesterfield. 708 F.3d 560, 570-71 (4th Cir. 2013) (quoting

United States v. Seeger. 380 U.S. 163, 185 (1965))."^ In determining whether the belief is
religious in nature, a court should consider whether the belief"occup[ies] a place in [the
inmate's] lifeparallel to thatfilled by the orthodox beliefin God." Id at 571 (internal quotation
marks omitted).

A system of religious beliefs "is distinct from a 'way of life,' even if that way of life is
inspired by philosophical beliefs or otiier secular concerns;" however, "[a] religion need not be
based on a belief in the existence of a supreme being (or beings, for polytheistic faiths)."

Kaufman v. McCaughtrv. 419 F.3d 678, 681 (7th Cir. 2005) (citing Yoder. 406 U.S. at 215-16).-'^
As the Supreme Court has recognized, there are many religions in this country that "do not teach

18

•
The second prong of this inquiry appearsto be both subjectiveand objective. It is subjective
insofar as it looks at the role a belief system plays "in the life of its possessor," Seeger. 380 U.S.
at 166, and objective insofar as determining what is "religious in nature" depends on "objective
criter[ia]," Dettmer. 799 F.2d at 932,931 (quoting Seeger. 380 U.S. at 166) becausethe "concept
of ordered liberty precludes" subjective standards, Yodef. 406 U.S. at 215-16.

The Court is aware that other district courts in this circuit have applied tests from Africa v.
Pennsvlvania. 662 F,2d 1025, 1032-33 (3d Cir. 1981), and United States v. Mevers. 95 F.3d
1475, 1483 (10th Cir. 1996), to determine whether a belief system constitutes a religion, see,

e.g.. Versatile v. Johnson. No. 3:09-cv-120,2011 WL 5119259, at *5 (E.D. Va. Oct. 27,2011),
affd. 474 F. App'x 385 (4th Cir. 2012); Harrison v. Walts, No. 1:06-cv-1061 (E.D. Va. Mar. 28,
2008); however, because the Fourth Circuit relied on the Moore-King test in Coward v. Jabe. No.

13-6-60, at *5 (4th Cir. July 5, 2013), it is the law of the case and the Court will apply it here.
Applying this test, the Eleventh Circuit has held that for purposes of the First Amendment,
atheism—a "school of thought that takes a position on religion, the existenceand importance of a
supreme being, and a code of ethics"—qualifies as a "religion." Kaufman. 419 F.3d at 682.
29

what would generally be considered a beliefin the existence of God," including "Buddhism,
Taoism, Ethical Culture, Secular Humanism and others." Torcaso v. Watkins. 367 U.S. 488,495

n.l 1 (1961). Courts must also "take care to 'avoid any predisposition toward conventional

religions so that unfamiliar faiths are not branded mere secular beliefs.'" Doswell at *3 (quoting
Africa, 662 F.2d at 1031). Similarly, adherents "may not be put to the proof of their religious
doctrines or beliefs. Religious experiences which are as real as life to some may be
incomprehensible to others." United States v. Ballard. 322 U.S. 78, 86 (1944).
RLUIPA "deflne[s] 'religious exercise' capaciously to include 'any exercise of religion,
whether or not compelled by, or central to, a system of reUgious belief,'" Holt v. Hobbs. 135 S.

Ct. 853, 860 (2015) (quoting 42 U.S.C. § 2000cc~5(7)(A)), and Congress has mandated that

RLUIPA be construed "in favor of broad protection of religious exercise, to the maximum extent
permitted by the terms of this chapter and the Constitution." 42 U.S.C. § 2000cc-3(g). Courts
have interpreted this language as indicating that Congress "intended to provide as much

protection as possible to prisoners' religious rights" without overly encumbering prison
operations. Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 987 (8th Cir. 2004). Congress has also

recognized that RLUIPA "may require a government to incur expenses in its own operations to
avoid imposing a substantial burden on religious exercise," § 2000cc--3(c).
2.

The VDOC's Designation of the NGE as an STG and Refusal of Recognition

Numerous courts in the Fourth Circuit have addressed RLUIPA claims by NGE adherents

and found that the NGE is not a religion and/or that the VDOC's policies toward the NGE
represent the least restrictive means for addressing a compelling government interest. See> e.g..
Allah V. Virginia. No. 2:12-cv33, 2014 WL 1669331, at *1 (W.D. Va. Apr. 28, 2014). atrd. 601
F. App'x 201 (4th Cir. 2015), Versatile. 2011 WL 5119259; Harrison. No. l:06-cv-1061.
30

Nevertheless, casesmust be decided on the record presented by the parties and, on this record,

the Court finds that plaintiff hascarried his burden of proving that the NGE is a religion and that
his belief is substantially burdened by the Department's policies. The VDOC, in turn, has failed

to demonstrate that its designation of the NGE as an STG, and by extension its zero tolerance
policy for NGE activity, represents the least restrictive means of furtheringa compelling
government interest.
a.

Prima Facie Case

The threshold question before this Court is whether plaintiffs beliefs are entitled to
protection as a religion, that is, whether they are 1) sincerely held and 2) religious in nature
under Coward's scheme of things. Moore-King, 708 F.3d at 570-71. The Department does not

challenge the sincerity of plaintiffs beliefs and, based on plaintiffs testimony and demonstrated

expertise about the Nation, the Court finds that his beliefs are sincerely held.
The Department does dispute that the NGE is a religion, arguing that its adherents
"worship themselves, rather than a higher being or power," and "are not engaged in a religious

practice, as contemplated under RLUIPA." Def. Findings [Dkt. No. 225] at 16. The facts in this

record do not support that position. The evidence before the Court, as discussed supra, amply
demonstrates that the NGE's belief system occupies a place in Coward's life parallel to that
filled by the orthodox belief in the god of Christianity, Judaism, or Islam. Moore-King. 708 F.3d
at 571. That NGE adherents do not believe in a deity does not disqualify the group irom

RLUIPA protection, as many widely recognized religions, such as Buddhism, "do not teach what
would generally be considered a belief in the existence of God." Torcaso v. Watkins. 367 U.S.

488, 495 n.l 1 (1961); PX 137 at 12. Similarly, NGE adherents' opposition to the label "religion"
is not dispositive because neither the Free Exercise Clause nor RLUIPA "turn on mere semantic
31

distinctions." Marria v. Broaddus. No. 97CIV.8297,2003 WL 21782633, at *11 (S.D.N.Y. July
31, 2003); see also PX 157 at 12 (explaining that Japanesereligions are no less worthy of the
term simply because "the word 'religion' did not exist in Japanese until Western influences

imposed the construct"). Rather, courts look to the beliefsystem itselfand here the evidence
demonstrates that NGE beliefs fulfill a function in the lives of its adherents analogous to that of
orthodox religions. According to plaintiffs religious expert Professor Knight, who has written
two books on the NGE and was highly credible,
[The Nation] makes a claim to a transcendent reality, that is, the divinity of tlie
black man. [NGE adherents] have resources such as the Supreme Wisdom
Lessons, Supreme Mathematics, and Supreme Alphabet[s], for understanding and
interpreting that transcendent truth or that reality. They have practices such as
fasting or dietary restrictions that reflect an effort to apply that transcendent
reality and the texts to their lives, and there's a community that defines itself by
this shared adherence to these transcendent truths and resources and practices.

Tr. at 243:12-244:2; see also Knight Rep, PX 157 at 12 (opining that "the Nation is every bit as
much of a religion as Christianity, Judaism, Hinduism, and other forms of Islam" and
representing tliat "this view of the Nation is shared by most scholars in tlie academic study of

religion"). Accordingly, the Court finds that, under plaintiffs scheme of things, his beliefs are
sufficiently religious in nature to be entitled to protection under both RLUlPA and the Free
Exercise Clause.

The record is equally clear that the VDOC's policies impose a substantial burden on
plaintiffs religious exercise. Defendants do not seriously dispute this. Def, Findings [Dkt. No.
225] at 16-18; Tr. at 587:6-24. As previously discussed, under VDOC Operating Procedure
427.1, NGE adherents ai'e "prohibited from" and may be disciplined or criminally prosecuted for

"joining, recruiting, associating with, participating in, or acting in concert with any individual or
group of individuals" who share their beliefs and for "owning, creating, possessing, or passing to
32

other individuals any correspondence, documents, photographs, drawings, jewelry, symbols, or
property of any type that" reference the NGE's beliefs or its Universal Flag. DX 11 at 3.
A substantial burden exists"[wjherethe state ... denies [an important benefit] because of
conduct mandated by religious belief, thereby putting substantial pressure on an adherent to
modify his behavior and to violate his beliefs. While the compulsion may be indirect, the
infringement upon free exercise is nonetheless substantial." Thomas v. Review Bd. of the Ind.

Emp't Sec. Div.. 450 U.S. 707, 717-18 (1981). The Supreme Court has recognized that "exercise
of religion" involves "assembling with others for a worship sei*vice," Cutter, 544 U.S. at 720, and

"'refusal to allow group worship clearly places a substantial burden on [an inmate's] free
exercise." Wright v. Favram. No. Cll-OOOl, 2012 WL 2312076, at *13 (N.D. Iowa June 18,
2012). report and recommendation adopted. No. C11-1, 2012 WL 2838366 (N.D. Iowa July 10,

2012). Similarly, precluding an inmate from participating in holy day observances "qualifies as a
substantial burden under RLUIPA." Lovelace. 472 F.3d at 187. Just this year, the Fourth Circuit

held that depriving an inmate of a foundational religious text "for longer than a period of 24

hours" imposes a substantial burden, Blaiikenship v. Setzer. 681 F. App'x 274,277 (4th Cir.

2017). By designatingthe NGE as an STG and refusing to recognize it as a religion, thereby
precluding plaintiff from engaging in commimal assembly, observing tlie NGE's four honor

days, and possessing his foundational texts, the Department has substantially burdened plaintiffs
religious exercise.
b. Government's Burden

Because plaintiff established a prima facie case, the burden shifted to the Department to

show that designation of the NGE as a gang subject to a zero tolerance policy is 1) in furtherance

of a compelling government interestand 2) the least restrictive means of furthering that
33

compelling government interest, id. § 2000cc-l(a). The Court respects the expertise of"[p]rison
officials [as] experts in running prisons and evaluating the effects of altering prison rules," but
RLUIPA does not permit ''unquestioning deference;" rather courts must hold prison officials to
RLUlPA's "rigorous standard." Holt v. Hobbs. 135 S. Ct. 853, 864 (2015). The Department's
asserted interest is "[mjaintaining prison order and institutional security—specifically,
suppressing the growth of a violent racial supremacist security threat group." Def Findings [Dkt.
No. 225] at 17.Although prison order and security are compelling interests, the Court must

determine whether those interests would be^'seriously compromised" by accommodating
plaintiffs religious exercise. Holt. 135 S. Ct. at 863. In other words, the Department must show
that it has a compelling interest in preventingCoward from practicing his system of beliefs.
There is no evidence in this record that plaintiff is violent, a racial supremacist, or a threat
to prison order and institutional security. In fact, his current incarceration at a level 2 facility

undercuts any argument that he poses a threat to prison security. The Department attempted to
introduce evidence of plaintiffs proclivity for violence by pointing to a recent scuffle he had
with another inmate in the commissary line. Tr. at 41:19-24. As the Court observed from the

bench, there was no evidence that the fight was motivated by race or religion. Id. at 42:1-43:14.

Further, that incidentprovided no more basisto concludethat plaintiffis part of a violent gang
than there is to argue that Christianity is a violent gang because Christians sometimes get into
fights. Id.
Similarly, there is insufficient evidence in this record to conclude that the NGE is a

violent, racially supremacist gang. Although Burke acknowledged that it was critical to conduct
an individualized assessment of each group before designating it an STG to avoid an erroneous
designation, PX 155 at 3, there is no evidence that such an assessment has ever been conducted
34

regarding the NGE. Rather, according to the record inthis case, based largely on onedisruptive
incident in a South Carolina prison over twenty years ago, then-Director Johnsoninstructed that
Five Percent groups not be allowed to meet in VDOC facilities. PX 16. This became the basis for

an STG designation, subjecting NGE adherents to heightened scrutiny and monitoring, and under
the Department's circular logic, all subsequent incidents involving Five Percenters—whether a

fist fight among inmates or the distribution of NGE literature—^then became evidence of "gang
activity." After twenty-one years of trackingFive Percenters, the VDOC has not produced
sufficient evidence supporting its position that the gang designation is warranted and flirthers a
compelling state interest.
For example, one of the Department's central arguments is that Virginia has a

substantially larger NGE population than states that have recognized the group as a religion. This
argument was significantly undercut by Burke's concession that the actual number of NGE
adherents incarcerated in VDOC facilities is not 1200 but closer to the high 400s. Beyond the

Department's initial error regarding the number of NGE adherents currently incarcerated, there
are reasons to question whether even the lower number is accurate. Although the VDOC assumes

that all "Five Percenters" are adherents of the NGE, Professor Knight testified that both NOI and
NGE adherents refer to themselves as Five Percenters, raising questions about the accuracy of

the Department's designation of individual inmates or at least its assumption that the NGE is
synonymous witli Five Percenters. In addition, the Department's representation that members of

the Five Percenters "gang" cross-affiliate with other gangs is not credible because the two gangs
witJi which they supposedly cross-affiliate—the Bloods and the Crips—^are staunch rivals and the
representation directly conflicts with the wealth of evidence from NGE literature and the more

credible testimony of NGE adherents that one of the NGE's goals is to reform young men caught
35

up in gangs. PX43 at 13; FX 86 at I;PX 157 at 14; Tr. at 14:18-25, 15:5-9. The potential
inaccuracies in theDepartment's designation of individual inmates are not merely a problem for
assessing the size of the VDOC's NGE population; they undercut all of the Department's
evidence about incidents involving Five Percenters by raising questions about whether these
inmates are, in fact, NGE adherents.

Even if the Court were to accept the reduced number of NGE adherents as accurate, the

evidence before the Court does not persuasively demonstrate that these inmates pose a collective
security threat. As an initial matter, there is no reason to believe that an inmate who has been

labeled a Five Percenter has a history of violent activity because the mere possession of NGE
literature, which the Department regards as gang paraphernalia, is enough to result in an inmate
being designated a suspected Five Percenter. In addition, although Burke represented that there
were 503 incident reports involving Five Percenters in VDOC facilities since 2011, Burke was

unable to testify about what percentage of the incidents were violent. Indeed, the Department
provided no context for this statistic. For example, it offered no evidence about the total number
of incident reports at the VDOC against which these 503 reports could be evaluated; what

percentage of the incidents were related to NGE beliefs or practices; what percentage of these
incidents were by suspected Five Percenters adherents versus known Five Percenters adherents;
what percentage of the incidents were by "Five Percenters" as compared to adherents who were
cross-affiliated as "Five Percenters/Bloods" or "Five Percenters/Crips;" or how this number of

incidents compared to incidents involving members of other STGs, such as the Bloods and Crips,

or to other religions, such as Asatru, the NOI, or Christianity. Without context, this data provides
little support for designatingthe NGE as a gang to further a compellingstate interest.

36

The Department has identified five individual incidents of violence involving Five
Percenters in the twenty-one-year period from 1996 to 2017; however, it presented no records of
the first alleged incident in 1996 and for the thj-ee most recent incidents, which occurred in 2009,
2013, and 2015, there is no evidence in this record Unking the incidents to NGE's beliefs and

practices. The one incident with any documented connection to the NGE occurred twelve years
ago in 2005 when an inmate kicked an officer in the chest and a subsequent search of his cell
revealed a note purportedly referring to correctional officers as "devils." PX 23 at 1. And yet, the
Department's own investigation concluded that the assault could not be tied to STG activity. Id
at 2. In short, neither tlie 2005 incident nor the five incidents taken together is enough to support

the designation of the NGE as an STG.
This conclusion is consistent with the opinion of plaintiff's expert on prison security,
Martin Horn, who served as the Secretary of Corrections for the State of Pennsylvania for a
period of six years and Commissioner of the City of New York's Department of Corrections for

six years. Tr, at 274:19-22.^' The Court found Horn's testimony to be highly persuasive. After
reviewing Burke's report, Horn testified that he "did not see any body ofevidence to suggest that
[the NGE] was a cohesive organization that was routinely engaged in activities that were
designed to disrupt the safe and orderly operation of prisons." Id. at 276:17-20. Horn observed

that the VDOC consistently failed to identify a nexus between an inmate's belief system and his
behaviors, \± at 278:17-24, and concluded that the incidents identified by the VDOC do not

justify classifying the NGE as a gang because "they span a period of some ten years at least,"
"[t]hey are substantially separated in time and space," "[t]hey occur at different facilities," and

"there's no indication that any of [the individuals] were motivated by their religious beliefs" or

Both of these states' departments of correction currently recognize the NGE as a religion.
37

"that they even knew each other," id. at 294:5-18, For example, when evaluating the evidence of

the 2015 fight at Augusta, Hornobserved that there was nothing in the record to suggest that the

fight was motivated by religious beliefs, rather, "it's the kind of incident that occurs in a prison,
it occurs among inmates of Christian faith and Islamicfaith, and it doesn't prove anything other
than inmates fight and inmates assault each other, and inmates defend their friends." Id. at
292:22-293:21.

Moreover, the Department has introduced insufficient evidence to support its assertion
that the NGE's teachings are any more racist or violent than that of other groups such as the NOI

and Asatru, which have been recognized as religions. The references to violence and "white
devils" on which the VDOC relies are in a text that is foundational to the NOI, which has been

recognized as a religion by the Department for approximately thirty years. Tr. at 510:9-15. As
Professor Knight persuasively argued, these statements must "be understood in the context of the
Nation's tradition as a whole" and that "reliance on isolated statements from Nation texts to

characterize the Nation as a violent group is no more justified than relying on Psalm 137 to

conclude that the Bible promotes infanticide." Id. (Psalm 137 states "Daughter Babylon, doomed

to destruction, happy is the one who repays you according to what you have done to us. Happy is
tlie one who seizes your infants and dashes them against the rocks."). Plaintiffs witnesses made

it clear that a devil merely represents negative traits, which can be embodied by persons of any
race. And, none of the Nation-specific texts—^the 12 Jewels, the Supreme Mathematics, or the

Supreme Alphabets—contains any discussion of violence or racial supremacy. Moreover,
plaintiff presented evidence indicating that the NGE not only renounces gang activity, it works to
refonn young men who are caught up in gangs by leaching them self-mastery and positive
values. The Department offered no expert or other evidence to contradict that evidence.
38

Even if the Department could show that designating the NGE as a gang subject to a zero
tolerance policy serves a compelling interest, it cannot demonstrate that itspolicies are the least
restrictive means of furthering that interest, a fact thatDirector Clarke explicitly conceded. Tr. at
149:19-24, 209:11-18. "The least-restrictive-means standard is exceptionally demanding," and it
requires the Department to show"that it lacks other means of achieving its desired goal without
imposing a substantial burdenon the exercise of religion."Burwell v. Hobbv Lobby Stores. Inc..

134 S. Ct. 2751,2780 (2014). As the term suggests, a zero tolerance policy is by definition a

maximally restrictive, minimally tolerant policy. In practice, it means tliat NGE adherents may
not associate with any individuals who share their beliefs or possess any property related to the
NGE.

The Department argues that these policies are necessary because NGE literature is "a

recmitment tool," the racial references in the 120 Degrees could cause tension among offenders

of different races, as well as with prison stafl Tr. at 362:24-363:6, 365:4-17, and the Supreme
Mathematics and Supreme Alphabet[s] could be used as a code to secretly communicate within

the prison, Def. Findings [Dkt. No. 225] at 6. Basedon these concerns, the Department argues
that NGE adherents cannot even be permitted to possess NGE literature in the confines of their

cell because "it could very easily be disseminated and passed on and copied and handed to other
offenders." Tr. at 365:22-25. They also maintain that NGE literature could not be held

exclusively with the chaplain or in tlie prison library because the NGE is "still recognized as a

gang in the department, and thatwould be the same as saying, well, the Bloods canpossess their

literature and hold it in a certain location." Id at 366:6-16. Similarly, the Department argues that
NGE adherents cannot be allowed to meet because "it's a showof force amongst them to the rest

of the population," which is a form of "intimidation;" "[ijt's a threat to security to have them all
39

in one location that way;" "[ijt's a tool for them to allow to recruit;" and "it gives them control
... inside the facility walls." Id at 362:8-18.

These arguments are not supported by the record before this Court. As an initial matter,
the means the Department is using to advance its interests in prison order and institutional

security are substantially underinclusive. With respect to the 120 Degrees, which is also central
to NOI beliefs, there is no evidence that NOl adherents are prohibited from possessing it, either
inside or outside their cells. Similarly, despite instances of white-supremacist Asatru literature
being seized based on "security concerns over the content," PX 83 at 7, Asatru remains a
recognized religion with the right for adherents to possess their foundational texts. And, there is
no credible evidence that either the Supreme Mathematics or the Supreme Alphabets can be used

to send coded messages that would incite disorder. These materials "have remained unchanged
since the 1960s, and are widely available to law enforcement on the Internet and elsewhere." PX
157 at 18.

The Department's rationales regarding communal assembly are also inconsistent witli
how the VDOC has treated other similar groups. Specifically, although the Department claims to

have security concerns regarding NOI meetings, it has neither withdrawn its recognition of the
NOI as a religion nor designated it an STG, and it has permitted Asatru adherents to meet despite
that group's gang designation, PX 7 at 2; PX 29 at 31, the violent murder that took place during
an Asatru ceremony in 2000, Lenz. 544 S.E.2d at 301-02, and the VDOC's admission that it has

"a large number of white supremacists that attend [Asatru] meetings," Tr. at 429:24-430:1. The
Department has offered no plausible reason for treating NGE adherents differently, other than
that Asatru is recognized as a religion while the NGE is not. In short, the VDOC's
accommodation of the NOI and Asatru adlierents is compelling evidence that its "interests could
40

be achieved by narrower [policies] that burdened religion to a far lesser degree." Church of the
Lukumi Babalu Ave. Inc. v. Citv of Hialeah. 508 U.S. 520, 543,546 (1993).

The availability of less restrictive means is reinforced by reference to the policies
employed in other states. Correctional departments in fifteen states recognize the NGE as a

religion and most of these departments appear to permit members to possess their foundational
texts and engage in some forni of communal worship. For example, pursuant to the policies
implemented by the Massachusetts Department of Corrections while Director Clarke was

commissioner, NGE adherents were permitted to celebrate four holy/honor days, engage in

private prayer or acknowledgment throughout the day, participate in one-on-one meetings with
approved external NGE volunteers, and possess the 120 Degrees, tlie Supreme Mathematics, the
Supreme Alphabet[s], and the Five Percenter newspaper in their cells. DX 42 at 5-6; Tr. at
167:1-177:16. Director Clarke testified that there were no significant problems with the

implementation of this policy while he was commissioner. Tr. at 167:1-177:16. In fact, the policy
was later amended to permit NGE adherents to engage in corporate worship, subject to the

availability of an external NGE volunteer. DX 42 at 7; Tr. at 177:17-178:10. Similarly, New
York permits NGE adherents to observe their four honor days, engage in individual worship, and
participate in communal worship using all of their foundational texts (in other words, inmates are

allowed to take the texts outside their cells). PX 101 at 27. According to Horn, the policies
adopted in these settlementagreements support the conclusion that "the blanket prohibition on

[the] NGE in Virginia [is] overly broad and that there [are] clearly other comparable states, states

of equal size, equal complexity, equivalent security concerns that were ableto treat [the] NGEas
a religion and to apply them the same sorts of, if you will, surgical or more precise regulations as
they do to all religions." Tr. at 311:13-24. The Court agrees. The VDOC's designation of the
41

NGE as an STG and enforcement of a zero tolerance policy for their activities is neither

supported by the evidence in this record noris it the least restrictive means of furthering a
compelling state interest.

The Court also finds that the Department's proposed accommodation—permitting the
NGE adherents to elect to be transferred to Wallens Ridge, where they would be housed in a
designated housing unit and allowed to practice their beliefs, all while the VDOC continues to

designate the NGE as an STG—is also not the least restrictive means of furthering a compelling
state interest. First, assuming for the sake of argument that the NGE is tmly worthy of the STG
designation, it would be irrational to transfer all its adherents to a single facility. Defendant's
own expert, Burke, testified that permitting NGE adherents to gather would merely exacerbate

the security threat, permit a larger "show offeree," and give NGE adherents greater "control"
inside the facility. Tr. at 362:8-18,360:20-22. In actuality, there is no evidence in this record that

NGE adherents pose a greater security threat than any other inmates and the VDOC's proposed
accommodation would substantially burden NGE adherents such as Coward, who would be

required to accept being designated a member of an STG and leave a low-security level 2 facility
for a far more restrictive level 5 facility in exchangefor the ability to practice his religion. Such a
requirement would impose a substantial burden on the plaintiff and, based on the Department's

far less restrictive practices for managing Asatru and NOI adherents, the Department has failed
to show that it is the least restrictive means of furthering a compelling state interest. In short, the
Department is not permitted under RLUIPA to require the plaintiff or other NGE adherents to
accept such a tradeoff.
B. First Amendment (Claim 5)
1.

The Free Exercise Clause
42

In addition to his claims under RLUIPA, plaintiff has raised a claim under the Free

Exercise Clause. As the Supreme Court has long recognized, "[i'jnmates clearly retain protections

affordedby the FirstAmendment, including its directive that no law shall prohibitthe free
exercise of religion," O'Lone v. Estate of Shabazz. 482 U.S. 342, 348 (1987) (internal citations

omitted); however,"[t]o ensure that courts afford appropriate deference to prison officials, [the
Supreme Court has] determined that prison regulations alleged to infringe constitutional rights

are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights," id at 349. Thus, when an inmate alleges that
prison regulations burden fundamental rights, such as those protected by the Free Exercise

Clause of the First Amendment, "the regulation is valid if it is reasonably related to legitimate
penological interests," Turner v. Saflev. 482 U.S. 78, 89 (1987), and the inmate bears the bui-den

of disproving the validity of the prison regulations, Qverton v. Bazzetta, 539 U.S. 126,132
(2003). This standard of review is "responsive both to the policy ofjudicial restraint regarding
prisoner complaints and to the need to protect constitutional rights." Turner. 482 U.S. at 85
(internal quotation marks omitted).
In assessing the reasonableness of a regulation, courts look to four factors. The first is

whether there is "a valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it." W. at 89 (internal quotation marks omitted). As

the Court elaborated, "a regulation cannot be sustained where the logical connection between the
regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.
Moreover, the governmental objective must be a legitimate and neutral one." Id. at 89-90. The

second factor "is whether there are alternative means of exercising the right that remainopen to
prison inmates." Id. at 90. "Where other avenues remain available for the exercise of the asserted
43

right courts should be particularly conscious of the measure ofjudicial deference owed to

corrections officials ... in gauging the validity oftheregulation." Id. (internal quotation marks

omitted). "Athird consideration is the impact accommodation ofthe asserted constitutional right
will have on guards and other inmates, and on the allocation of prison resources generally." Id
Although the Court acknowledged that "few changes will have no ramifications on the liberty of
others or on the use of the prison's limited resources for preserving institutional order," it

emphasized that"[wjhen accommodation of an asserted right will have a significant ripple effect
on fellow inmates or on prison staff, courts should be particularly deferential to the informed

discretion of corrections officials." Id Finally, courts should consider whether there are "ready
alternatives" available to the prison, the existence of which"may be evidencethat the regulation
is not reasonable, but is an exaggeratedresponse to prison concerns." Id (internal quotation
marks omitted).
2.

Theological Discrimination Against the NGE

Taking account of the different standard applicable to plaintiffs Free Exercise claim,
.specifically the reasonableness standard announced in Turner and the transfer of the burden to

plaintiff,the Court finds that the VDOC's policies regarding the NGE violate tlie Free Exercise
Clause.

As discussed above, plaintiff has demonstrated that the Departmenthas insufficient
evidence to support the designation of the NGE as an STG and the Department's asserted interest

in suppressing the growth of a violent racially supremacist group. The record before this Court

indicates thatthe Department's initial STG designation in 1996 was not tlie product of a

considered, evidence-driven analysis, nor did Director Johnson's memo purport to designate Five
Percent groups as an STG. DX 13. Despite the VDOC's careful monitoring of NGE adherents
44

for over twenty years and the alleged incidents of violence identified by Burke, theevidence
introduced by plaintiff demonstrates that there is no documented nexus between the five

identified incidents of violence and the beliefs andpractices of the NGE, noris there any basis to
conclude that these incidents are sufficiently interrelated to demonstrate a patternof violent

behavior by NGE adherents. Inthe absence of such evidence, the Department's policies do not
beara rational relationship to the asserted interest. Rather, the Department "treat[s] exclusively
as a gang a group that has had a law-abiding existence outside prison for the better part of [55]
years, tliat is an offshoot of another group that [the VDOC] considersa religion, and that has

practicesthat largely resemble those of recognized religious groups." Marria. 2003 WL
21782633, at *15. Furtlier, the marked disparity between the Department's policies toward the
NGE as compared to the NOI and Asatru indicates that the Department's policy is not a neutral
one.

As to the second factor, the Department's zero tolerance for NGE activity, including its

ban on NGE literature and communal gatherings, provides Coward with no alternative way to
exercise his belief system. As to the third factor, even if the Court were to credit the

Department's assertion that NGE adherents pose a greater security risk than the average inmate,
the testimony of Burke and Robinson demonstrates that the VDOC has been able to

accommodate unique security risks posed by other similar religions without undue burden on the
Department.

With respect to the last Turner factor, the "readily available alternatives" for safeguarding
prison security, which the Department has deployed with the NOI and Asatru, indicate that the

policiesregarding the NGE are "not reasonable, but [are] an exaggerated response to prison
concerns."Turner. 482 U.S. at 90. In sum,there is insufficient evidence in this record to support
45

the Department's designation of NGE as an STG. "The First Amendment demands a more

reasoned approach, even within the difficuhconfines of a prison environment." Wall v. Wade.
741 F.3d 492, 502 (4th Cir. 2014).
IV.

CONCLUSION

Forthe reasons stated above, the Court finds that the VDOC has violated plaintiffs rights

under RLUIPA and the First Amendment by designating the NGE an STG, thereby enforcing a
zero tolerance policy that prohibits plaintifffrom possessing his sacred textsand associating with
other NGE adherents, and refusing to recognize the NGE as a religion. In accordance with this
finding, the Department will be ordered to remove the STG designation from the NGE,""

recognize itas a religion,^^ and afford it the rights and privileges enumerated in the Department's
operating procedure for Offender Religious Programs, including but not limited to permitting
NGE adherents to observe their four honor days, possess their foundational texts, and engage in
communal worship, subject to the availability of an approved spiritual leader and under the

S^ Hardawav v. Haggertv. No. 05-70362 (E.D. Mich. Feb. 25,2011) (ordering that the
Michigan Department of Correction's "designation of the NGE as a STG is in violation of
RLUIPA" and "[t]he STG designation of [the] NGE shall be removed"); Hetsberser v. Havman.
No. MIF-L-5546-04 (Iowa D. Ct. Apr. 11, 2008) (ordering that "the New Jersey Department of
CoiTections and its subdivisions are enjoined from enforcing any and all policies which prevent
the plaintiff from practicing the activities that are central to his system of beliefs as a member of
the Nation of Gods and Earths"); Mania. 2003 WL 21782633, at *12 ("[W]e cannot find, based

on the trial record, that DOCS' classification of the Nation as a security threat group and
absolute ban on Nation literature further a compelling security interest and is the leastrestrictive
means of doing so.").

Hardawav v. Haggertv, 2011 WL 761494, at ("[T]he Court has already ruled that the NGE
is a religion entitled to protection under RLUIPA."); Hetsberger. No. MIF-L-5546-04; Marria.
2003 WL 21782633, at *12 ("| W]e find that plaintiff's beliefs as a member of the Nation of
God's [sic] and Earths are both sincere and 'religious in nature' and therefore entitled to
RLUIPA and First Amendment protection underthe free exercise clause.").
46

necessary visual monitoring.^"^ This holding does not preclude the Department from placing
restrictions on NGE adherents as necessary to maintain security and order, provided that the
Department does so within the confines ofRLUIPA and applicable prison policies. An
appropriate order entering judgment consistent with this finding will be issued with this
Memorandum Opinion.

Entered this ^ day ofAugust, 2017.
Alexandria, Virginia

Leonie M. Brinkenm

United States District Judge

Hetsberger, No. MlF-L-5546-04 (ordering that "plaintiffshall be permitted to practice the

following religious activities without impunity or adverse consequences from the New Jersey
Department ofCorrections: (a) teaching others about the knowledge ofwho God is (the righteous
and intelligent Black Man who lives Mathematics Supremely), (b) study the Supreme
Mathematics, Supreme Alphabets, 120 Degrees, Universal Flag, monthly National statements,

and The Son ofMan and Five Percenter newspaper periodicals, (c) observe holy days,... (d)

conduct Civilization Classes, in which senior members educate newer members about the lessons

and how they can be applied, and (e) gather monthly for 'Parliaments' and 'Rallies', during
which members make collective decisions and aid one another learn their lessons [sic]").
47