Allah v. The Commonwealth Of Virginia

Filing 41

OPINION, ORDER Denying 32 MOTION for Summary Judgment filed by The Commonwealth Of Virginia. Signed by Judge James P. Jones on 9/27/2013. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
INFINITE ALLAH,
Plaintiff,
v.
COMMONWEALTH OF VIRGINIA,
Defendant.

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Case No. 2:12CV00033
OPINION AND ORDER
By: James P. Jones
United States District Judge

James A. DeVita, Arlington, Virginia, for Plaintiff; Lara Kate Jacobs Todd,
Assistant Attorney General, Office of the Attorney General of Virginia, Richmond,
Virginia, for Defendant.
In this action under 42 U.S.C.A. § 2000cc(1)(a) (West 2012), the plaintiff
Infinite Allah, a state prisoner, claims that the decision of the Virginia Department
of Corrections (“VDOC”) to deny religious recognition to his religious group,
called the Nation of Gods and Earths (“NGE”), and restrict him and other NGE
members from meeting or holding religious services, violates the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”) and fails to serve a compelling
governmental interest. The plaintiff seeks injunctive relief to require VDOC to
recognize NGE as a religious group and permit it to meet and hold services. The
defendant Commonwealth of Virginia (“Commonwealth”), has now moved for
summary judgment. For the reasons set forth below, I will deny the motion.

I
The underlying facts of this dispute are set forth more fully in two previous
opinions of the court. Infinite Allah v. Virginia, No. 2:10CV00075, 2011 WL
251214 (W.D. Va. Jan. 25, 2011); Infinite Allah v. Virginia, No. 2:12CV00033,
2013 WL 101665 (W.D. Va. Jan. 8, 2013). In its Motion for Summary Judgment,
the Commonwealth argues that (1) the plaintiff has failed to show that VDOC’s
denial of recognition of NGE as a religious group substantially burdened his
religious exercise; (2) NGE is not a religion; and (3) even if NGE is a religion, the
burden imposed is the least restrictive means of furthering the compelling
governmental interest in prison security. The plaintiff in turn argues that there are
genuine issues of material fact with regard to (1) whether NGE is a religion; (2)
whether VDOC’s actions constitute a substantial burden on the plaintiff’s religious
exercise; (3) whether VDOC’s actions are the least restrictive means of insuring
prison security; and (4) whether NGE constitutes a security threat.
The plaintiff and the Commonwealth dispute many material facts, especially
the existence and extent of NGE prison gang activity. The plaintiff claims that
there has been no such NGE activity between April 2002 and November 2012 (the
time of his association with NGE). The Commonwealth disagrees, and submitted
affidavits from several prison officials to that effect. The plaintiff also disagrees
with the Commonwealth’s assertions that NGE stresses black supremacy, that
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NGE is a gang, and that NGE infiltrates the religious services of other recognized
groups.
The Commonwealth’s Motion for Summary Judgment has been fully briefed
and is ripe for decision.

II
Summary judgment is appropriate when the pleadings and affidavits show
that there is “no genuine dispute as to any material fact” and “the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining
whether the moving party has shown that there is no genuine issue of material fact,
a court must assess the factual evidence and all inferences in the light most
favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
RLUIPA protects the religious exercise of institutionalized persons. The
general rule of RLUIPA states:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . even
if the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that
person —
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
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42 U.S.C.A. § 2000cc-1(a)(1)-(2) (West 2012).

RLUIPA assigns burdens as

follows:
If a plaintiff produces prima facie evidence to support a claim alleging
a violation of the Free Exercise Clause or a violation of section
2000cc of this title, the government shall bear the burden of
persuasion on any element of the claim, except that the plaintiff shall
bear the burden of persuasion on whether the law (including a
regulation) or government practice that is challenged by the claim
substantially burdens the plaintiff’s exercise of religion.
42 U.S.C.A. § 2000cc-2(b) (West 2012).

If the plaintiff shows prima facie

evidence of a RLUIPA violation and demonstrates that the defendant has
substantially burdened the plaintiff’s religious exercise, then “the government must
prove that the burden in question is the least restrictive means of furthering a
compelling governmental interest.” Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir.
2009).
The Fourth Circuit has a well-settled definition of what constitutes a
substantial burden under RLUIPA:
[A government] policy imposes a substantial burden on religious
exercise if it puts substantial pressure on an adherent to modify his
behavior and to violate his beliefs, or forces a person to choose
between following the precepts of her religion and forfeiting
governmental benefits, on the one hand, and abandoning one of the
precepts of her religion on the other hand.
Ozmint, 578 F.3d at 251 (alterations, citations and internal quotation marks
omitted). Because of its decentralized structure, it is difficult to ascertain what
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religious practices NGE mandates. However, while “the fact that a particular
practice is in fact mandated is surely relevant to determining whether the burden is
substantial[,]” RLUIPA protects “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” Parks-El v. Fleming, 212
F. App’x 245, 247 (4th Cir. 2007) (unpublished) (citations and internal quotation
marks omitted).

RLUIPA protects personal religious practices, and not just

institutional religious practices.1

Thus, VDOC could substantially burden the

plaintiff’s individual religious exercise even if NGE should not be considered an
institutional religion, or if the plaintiff practices NGE in a way that differs from
NGE’s literature. The plaintiff states that he has been “placed in the untenable
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RLUIPA requires individualized analysis. While Harrison v. Watts, 609 F.
Supp. 2d 561 (E.D. Va. 2009), was cited by both parties as to the issue of whether NGE
constitutes a religion, the court’s analysis there was specific to the plaintiff, who testified
that he viewed NGE as a secular way of life rather than a religion. Id. at 572.
Considering the plaintiff’s testimony, the court reasoned:
[W]here an inmate charges prison officials with interfering with his right to
practice his religion, determination of whether his professed beliefs are
sincerely held and religiously motivated is a difficult but necessary question
for courts to decide. . . . Yet, however difficult such an inquiry might be in
some cases, it is quite simple and straightforward in this case because
plaintiff has been quite candid and forthright from the outset that he does
not consider his beliefs to be religiously motivated, but instead to comprise
a way of life or culture that impel him to act in certain manners.
Id. at 572-73 (citations and internal quotation marks omitted). For another example of
how RLUIPA analysis is specific to each plaintiff, see Versatile v. Johnson, No.
3:09CV120, 2011 WL 5119259, at *30 (E.D. Va. Oct. 27, 2011) (“[T]his Court does not
hold that NGE is not religion in all cases; rather, the Court finds that, given the record in
this particular case, Versatile cannot carry his burden of persuasion to that end.”).

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position of having to make a choice between participating in religious activities or
incurring disciplinary action.” (Pl.’s Am. Compl. ¶ 8.) Since the “substantial
burden” determination is individualized, and since the plaintiff argues that the
Commonwealth’s refusal to recognize NGE as a religion makes him violate his
personal beliefs because he is unable to (1) congregate with other NGE members,
(2) wear religious clothing, (3) pray with others, (4) fast or follow a religious diet,
or (5) receive copies of religious texts without being subject to disciplinary action,
there is a genuine dispute of material fact as to whether the plaintiff is substantially
burdened in his religious exercise. Accordingly, the Commonwealth’s motion
must be denied.
While some courts have considered whether NGE as an institution is a
religion,2 RLUIPA sets forth a broad definition of “religious exercise” that extends
beyond institutional religions. Section 42 U.S.C.A. 2000cc-5(7)(A) of RLUIPA
defines “religious exercise” to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” 42 U.S.C.A. § 2000cc5(7)(A) (West 2012). Under RLUIPA, the plaintiff must demonstrate that his
religious beliefs are sincerely held in order to establish a protected right. Cutter v.
Wilkinson, 544 U.S. 709, 725 n.13 (2005). However, a court may “not judge the
significance of the particular belief or practice in question.” Ozmint, 578 F.3d at
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See, e.g., Marria v. Broaddus, No. 97 Civ.8297 NRB, 2003 WL 21782633, at *9
(S.D.N.Y. July 31, 2003) (discussing “the Nation’s apparent legitimacy outside prison”).
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251 (citations and internal quotation marks omitted). Even if the plaintiff practices
his religion in a way that differs from mainstream practices in his religion, his
religious exercise is protected. See Lovelace v. Lee, 472 F.3d 174, 188 (4th Cir.
2006) (“[A]n inmate’s right to religious exercise is substantially burdened by a
policy, like the one here, that automatically assumes that lack of sincerity (or
religiosity) with respect to one practice means lack of sincerity with respect to
others.”). The plaintiff has raised a genuine issue of material fact as to whether his
religious exercise has been substantially burdened, even if NGE does not constitute
an institutional religion or if other professed members of NGE engage in gang
activity. See Marria, 2003 WL 21782633, at *17 (“There are prisoners who would
describe themselves as Catholics, Protestants, Jews, Muslims, NOI, etc. who
likewise violate prison regulations . . . but no one would suggest that such facts
preclude the classification of these recognized groups as religions deserving of
First Amendment protection.”).
Another crucial issue in this case is whether VDOC has chosen the least
restrictive means to achieve its compelling interest in prison security. The Fourth
Circuit has stated that when the government attempts to demonstrate that it has
chosen the least restrictive means, the state’s “first job is to take the unremarkable
step of providing an explanation for the policy’s restrictions that takes into account
any institutional need to maintain good order, security, and discipline or to control
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costs.” Ozmint, 578 F.3d at 252 (citations and internal quotation marks omitted).
This explanation cannot be conclusory — the governmental entity should provide a
“substantive, relevant explanation.” Id. at 253. Here, the Commonwealth has
offered affidavits from prison officials, but did not give the dates and times of the
alleged NGE incidents, or explain why the restrictions are still necessary in the
absence of NGE incidents. Given that the alleged incidents of violence by NGE
members are in dispute, there is a question of whether VDOC has chosen the least
restrictive means of furthering prison security by denying religious recognition and
meeting privileges to NGE. In light of these issues, summary judgment is not
appropriate.

See, e.g., Panayoty v. Annucci, 898 F. Supp. 2d 469, 486, 489

(N.D.N.Y. 2012) (denying prison officials’ motion for summary judgment on
RLUIPA claims from NGE inmates and noting that the decreased restrictions on
NGE since Marria apparently did not produce increased gang violence in NY
prisons); Hardaway v. Haggerty, No. 05-70362, 2010 WL 1131446, at *6 (E.D.
Mich. Mar. 22, 2010) (denying both parties’ motions for summary judgment so a
trial could be held on whether designating NGE as a security threat group and
completely banning NGE literature were the least restrictive means of advancing
prison security).
Prison security concerns clearly require special consideration. The Supreme
Court has stated, “We do not read RLUIPA to elevate accommodation of religious
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observances over an institution’s need to maintain order and safety.” Cutter, 544
U.S. at 722. The Court explained:
We have no cause to believe that RLUIPA would not be applied
in an appropriately balanced way, with particular sensitivity to
security concerns. While the Act adopts a compelling governmental
interest standard, context matters in the application of that standard.
Lawmakers supporting RLUIPA were mindful of the urgency of
discipline, order, safety, and security in penal institutions.
Id. at 722-23 (citations and internal quotation marks omitted). However, the fact
that security issues are a special concern does not mean that a grant of summary
judgment is warranted in this case. Rather, the Fourth Circuit has stated that ‘“a
court should not rubber stamp or mechanically accept the judgments of prison
administrators”’ when assessing whether a prison is engaging in the least
restrictive means of furthering security. Couch v. Jabe, 679 F.3d 197, 201 (4th
Cir. 2012) (citing Lovelace, 472 F.3d at 190). In this case, even though the
Commonwealth has cited security concerns for its decisions regarding NGE, there
are genuine disputes of material fact such that summary judgment is not warranted.

III
For the reasons stated, it is ORDERED that the defendant’s Motion for
Summary Judgment (ECF No. 32) is DENIED.

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ENTER: September 27, 2013
/s/ James P. Jones
United States District Judge

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