Allah v. The Commonwealth Of Virginia
Filing
79
OPINION. Signed by Judge James P. Jones on 4/28/2014. (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 SETTING FORTH
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
By: James P. Jones
United States District Judge
James A. DeVita, Arlington, Virginia, for Plaintiff; Kate E. Dwyre, Assistant
Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia,
for Defendant.
In this action based upon the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C.A. §§ 2000cc to 2000cc-5 (West 2012), the
plaintiff, a state prison inmate and adherent of a group called the Nation of Gods
and Earths (“NGE”), claims that the Virginia Department of Corrections
(“VDOC”) has substantially burdened his exercise of religion by refusing to (1)
recognize NGE as a religion; (2) allow him to meet communally with other
members of NGE; (3) allow him to wear clothing items indicating his adherence to
NGE; (4) accommodate his preferred diet; and (5) allow him to possess NGE
materials and publications. Based upon the evidence submitted at a bench trial,
and for the following reasons, I will deny relief and enter judgment for the
defendant.
I. PROCEDURAL BACKGROUND.
This action was filed pursuant to 42 U.S.C.A. § 1983 (West 2013) by
plaintiff Infinite Allah, also known as David Mitchell Turner, against the
Commonwealth of Virginia (“Commonwealth”). He seeks injunctive relief under
RLUIPA preventing the Commonwealth from burdening the exercise of his
religious beliefs.1 The Commonwealth initially filed a Motion to Dismiss. It
asserted that the plaintiff had failed to state a claim upon which relief could be
granted under RLUIPA because as a matter of law, NGE is not a religion. I denied
the motion, concluding that although several other courts have decided based on
the record before them that NGE does meet the recognized definition of a religion,2
1
The plaintiff filed an earlier action in this court, making similar claims. While I
denied the Motion to Dismiss in that case, finding that the Commonwealth had failed to
show that the plaintiff had not adequately exhausted his prison administrative remedies,
Infinite Allah v. Virginia, No. 2:10CV00075, 2011 WL 251214, at *5 (W.D. Va. Jan. 25,
2011), the parties stipulated to a dismissal of the case without prejudice prior to trial.
2
See Coward v. Jabe, Nos. 1:10cv147(LMB/TRJ), 11-6754, 2012 WL 6651929,
at *4 (E.D. Va. Dec. 19, 2012), vacated and remanded, 532 F. App’x 328 (4th Cir. 2013)
(unpublished); Versatile v. Johnson, No. 3:09CV120, 2011 WL 5119259, at *13 (E.D.
Va. Oct. 27, 2011), aff’d, 474 F. App’x 385 (4th Cir. 2012) (unpublished), cert. denied,
133 S. Ct. 1261 (2013). For a history of NGE consistent with the evidence presented at
trial, and its general treatment by the courts, see Justin L. Sowa, Note, Gods Behind Bars:
Prison Gangs, Due Process, and the First Amendment, 77 Brook. L. Rev. 1593, 16051612 (2012).
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the plaintiff might present different evidence, or subscribe to a set of beliefs
different from those presented in other cases.
Infinite Allah v. Virginia, No.
2:12CV00033, 2013 WL 101665, at *3 (W.D. Va. Jan. 8, 2013).
Next, the
Commonwealth moved for summary judgment, which I also denied, finding
genuine disputes as to material facts, such as the existence and extent of violent
incidents among NGE-affiliated inmates.
Infinite Allah v. Virginia, No.
2:12CV00033, 2013 WL 5435607, at *2 (W.D. Va. Sept. 27, 2013).
Thereafter, a three-day bench trial was held at which the parties presented
extensive testimony and exhibits. Following preparation of the trial transcript, the
parties have fully briefed the issues and the plaintiff’s claims are now ripe for
decision by the court.
II. FINDINGS OF FACT.
As required by Federal Rule of Civil Procedure 52(a), and based on my
opportunity to assess at trial the credibility of the witnesses and exhibits, the
following are my findings of fact. In determining the facts, I have taken into
account the rationality and internal consistency of the testimony, the extent of
detail and coherent nature of the testimony, the manner of testifying by the
witnesses, and the degree to which the subject testimony is consistent or
inconsistent with other evidence in this case.
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1. The plaintiff is a prison inmate in the custody of VDOC, an agency of the
Commonwealth.
2. The plaintiff is a follower of NGE, also known as the Five Percenters, a
group containing adherents both inside and outside of prison.
3. Among other teachings, NGE asserts that black men are the only divinity.
NGE posits that the world’s population is divided into three categories: “[T]he Ten
Percent who teach the Eighty-Five Percent to believe in a mystery God that can not
[sic] be seen and the Five Percent who do not believe in the teachings of the Ten
Percent . . . .” (Am. Compl. ¶ 6.) The “Five Percent” refers to members of NGE.
A principal tenet of NGE is the racial superiority of its members, a doctrine that
has considerable potential for violence in the modern prison setting.
4. VDOC does not recognize NGE as a religious group at any of its prison
facilities and does not allow NGE members to communally meet, wear special
clothing, or possess NGE materials and publications, nor does it provide a special
diet for NGE members.
5. Whether or not NGE is considered a bona fide religion, it has acted as a
prison gang that would pose a threat to the safety and security of VDOC prison
facilities if treated as other religious groups. Inmates affiliated with NGE have a
demonstrated history of violence and racism.
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6. Communal meetings of NGE members would pose a danger to the safe
and secure operation of VDOC prison facilities.
Such meetings present a
heightened risk of violence as compared to other groups, and would require a
degree of supervision that is not practically feasible.
7. Identifiable NGE clothing, such as NGE hats and medallions, serve as
gang identifiers and aid in recruitment and power displays by NGE gang members,
contrary to the safety and security of the prison.
8. VDOC’s current policies and procedures allow the plaintiff meals in
general accordance with his claimed religious preferences and any deviation
therefrom is de minimus and causes no burden to the plaintiff’s exercise of
religion.
9. NGE materials are often handwritten, and can vary from copy to copy.
Whether handwritten or typed, most contain racist and/or violent sentiments.
Additionally, most contain codes that have the potential to aid inmates in passing
messages that circumvent safety and security in the prison.
10. The principal publication of NGE, called The Five Percenter, often
contains codes, and racist or violent sentiments. It is frequently disallowed for
inmate use by VDOC for these reasons, although it is generally reviewed on an
issue-by-issue basis.
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III. ANALYSIS.
The Commonwealth contends that rather than being a religion, NGE is a
gang and security threat group that is simply not entitled to protection under
RLUIPA.
In the alternative, it argues that the restrictions placed upon the
plaintiff’s religious exercise are the least restrictive means of furthering a
compelling state interest in prison safety.
After careful consideration of the
evidence at trial, I do not find it necessary to determine whether NGE is in fact a
bona fide religion. Instead, I find that VDOC’s policies and procedures pertaining
to NGE at issue in this case are the least restrictive means of furthering a
compelling state interest in prison safety.
A. RLUIPA.
The plaintiff asserts a claim under RLUIPA, which 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.
42 U.S.C.A. § 2000cc-1(a). RLUIPA assigns burdens as follows:
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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.
§ 2000cc-2(b). “A plaintiff bears the burden of persuasion on whether the policy
or practice substantially burdens his exercise of religion. If the plaintiff satisfies
this requirement, the government must then prove that the challenged policy is the
least restrictive means of furthering a compelling governmental interest.” Couch v.
Jabe, 679 F.3d 197, 200 (4th Cir. 2012) (internal citations omitted).
RLUIPA sets forth a broad definition of “religious exercise” that extends
beyond institutional religions. 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. § 2000cc-5(7)(A). Under RLUIPA, a 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.’” Smith v. Ozmint, 578 F.3d 246, 251 (4th Cir. 2009) (quoting Lovelace
v. Lee, 472 F.3d 174, 187 n.2 (4th Cir. 2006)). Accordingly, even if a plaintiff
practices in a way that differs from the recognized practices of a particular religion,
the plaintiff’s religious exercise is protected. See Lovelace, 472 F.3d at 188 (“Such
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an 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.”).
At trial the parties presented conflicting testimony from two experts
regarding whether NGE is a religion entitled to protection under RLUIPA. The
plaintiff presented testimony from Theodore Swedenburg, Ph.D., a professor of
anthropology at the University of Arkansas, who opined that NGE is a religion that
believes “[t]he black man is the god of the universe” and “divinity resides within
the black man.”
(Trial Tr. 6, Oct. 30, 2013.)
In turn, the Commonwealth
presented testimony from Randy Myers, president of Chaplain Service Prison
Ministry of Virginia, who opined that NGE is not a religion, but instead is a
cultural movement that teaches racial supremacy. He expressed an opinion that
while many NGE members use religious language and state that divinity resides
within the “Asiatic black man,” such language is used to refer to a philosophy of
self-empowerment. (Trial Tr. 41, Oct. 30, 2013.)
In spite of the parties’ reliance on this evidence, this case does not require
the court to resolve these differences in opinion. RLUIPA concerns “the religious
exercise of a person,” and not a group or institution. 42 U.S.C.A. § 2000cc-1(a).
RLUIPA provides recourse for the individual whose religious exercise has been
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substantially burdened in the absence of a compelling government interest
furthered by the least restrictive means available.
B. SUBSTANTIAL BURDEN.
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 put[s] 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). At trial, the plaintiff testified that he considers NGE a religious group
and himself a member of that group. He described some of his beliefs and the
relief he seeks. For the purposes of this case, I will assume without deciding that
the plaintiff is sincere in his beliefs and that challenged policies and practices of
VDOC (other than those relating to diet) substantially burden the plaintiff’s
religious exercise. Accordingly, the burden of proof is upon the Commonwealth to
prove by a preponderance of the evidence that its restrictions are permissible under
RLUIPA.
C. COMPELLING INTEREST.
“[P]rison security is a compelling state interest . . . .” Cutter, 544 U.S. at
725 n.13. It “deserves ‘particular sensitivity.’” Lovelace, 472 F.3d at 190 (citing
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Cutter, 544 U.S. at 722.) The Supreme Court has stated, “We do not read RLUIPA
to elevate accommodation of religious observances over an institution’s need to
maintain order and safety.” Cutter, 544 U.S. at 722. The Court explained:
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. They anticipated that courts
would apply the Act’s standard with due deference to the experience
and expertise of prison and jail administrators in establishing
necessary regulations and procedures to maintain good order, security
and discipline, consistent with consideration of costs and limited
resources.
Id. at 722-23 (alterations, citations and internal quotation marks omitted).
While the decisions of prison administrators are afforded due deference,
prison administrators must still provide a “substantive, relevant explanation” to
demonstrate a compelling interest. Ozmint, 578 F.3d at 253. An explanation
sufficient to demonstrate a compelling interest in prison security was provided in
Couch v. Jabe. There, prison officials demonstrated that a prison grooming policy
was connected to a compelling government interest by submitting affidavits that
“connected the Policy’s restrictions to specific health and security concerns and
showed that those concerns are furthered by the Policy.” 679 F.3d at 202. One
official explained that long hairstyles and beards “could conceal contraband;
promote identification with gangs; create a health, hygiene or sanitation hazard; or
could significantly compromise the ability to identify an offender . . . .” Id. at 201.
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Similarly, in this case, the Commonwealth presented credible testimony
explaining why VDOC’s policies and procedures (1) classifying NGE as a security
threat group and gang; (2) refusing to allow NGE members to communally meet;
(3) refusing to allow NGE members to wear special clothing; (4) refusing to
accommodate the plaintiff’s requested diet; and (5) refusing to allow inmates to
possess NGE materials and publications, each further a compelling interest of
prison safety.
The Commonwealth presented testimony from several VDOC
administrators and employees: A. David Robinson, Chief of Corrections
Operations; Dr. Louis Cei, Operations Support Manager and Chairman of the
Publication Review Committee; Gary Clore, Manager of the Gang and Security
Threat Group Management Unit; and Michael Duke, another member of the gang
unit. The Commonwealth also presented testimony from Randy Myers, President
of Chaplain Service Prison Ministry of Virginia, who acts as a consultant for
VDOC.
First, VDOC has offered a substantive, relevant explanation for its decision
to classify NGE as a gang and security threat group. Robinson testified that
VDOC has experienced six gang-related incidents involving inmates affiliated with
NGE in the last two years.
He also testified that out of all incidents, 125 involved
an inmate affiliated with NGE. Robinson explained that while gang violence is
down generally, VDOC has created more than 150 staff positions since 1990 solely
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devoted to monitoring gang activity. He testified that more staff is required the
larger gangs become.
VDOC also provided examples of violence committed by NGE members
through testimony and exhibits. For example, a Disciplinary Offense Report from
2005 described an incident where a NGE-affiliated inmate kicked an officer
attempting to remove his leg irons. (Def.’s Ex. 8, at 1.) A search of the inmate’s
property revealed a note stating, “I’m trying not to let these devils trick me up but I
hate these police. I want to do something dangerous to them.” The letter was
signed “Superior Allah,” and NGE lessons were also found in his possessions.
(Id.)
Finally, Clore opined that NGE meets the definition of a gang that is set
forth in the Code of Virginia, which defines a gang as
any ongoing organization, association, or group of three or more
persons, whether formal or informal, (i) which has as one of its
primary objectives or activities the commission of one or more
criminal activities; (ii) which has an identifiable name or identifying
sign or symbol; and (iii) whose members individually or collectively
have engaged in the commission of, attempt to commit, conspiracy to
commit, or solicitation of two or more predicate criminal acts, at least
one of which is an act of violence, provided such acts were not part of
a common act or transaction.
Va. Code Ann. § 18.2-46.1 (Supp. 2013). Clore testified that VDOC monitors just
under 1,000 inmates for their connections to NGE, and opined that this number
would spike if NGE were recognized as a religion. He explained that prospective
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gang members must commit crimes in order to join, which poses a security risk to
other inmates and staff. VDOC’s data on violent incidents connected to NGEaffiliated inmates explains why it has chosen to categorize NGE as a gang and
security threat group.
While the plaintiff called as witnesses seven inmate members of NGE who
claimed that NGE had not been involved in gang violence in the Virginia prison
system since at least 1987, I do not place weight on that testimony, in light of the
obvious self-interest of these witnesses. In addition, while it is true, as argued by
the plaintiff, that VDOC does not have statistics showing a significant number of
recent assaults and other incidents of violence by NGE members, I find that is
more likely the result of VDOC’s restrictions on NGE activities rather than NGE’s
propensity.
Second, VDOC has offered a substantive, relevant explanation for why it
refuses to allow NGE members to meet in a communal fashion. Myers explained
that racist sentiments contained in some NGE materials are one reason why NGE
members are not permitted to meet together.
He pointed to documents
characterizing Caucasian men as “devils,” and explained that movements that
denigrate other races, religions, or cultures are dangerous in the prison
environment because they can lead to violence.
Additionally, Duke testified that
NGE meetings previously have led to violence. He stated that at some NGE
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meetings, a member who is not adequately familiar with NGE lessons will be
given “a universal beat down,” where meeting attendants form a circle and beat the
individual as punishment for not knowing NGE lessons. Duke testified that he has
seen and investigated such beat downs within VDOC. (Trial Tr. 171-72, Oct. 30,
2013.) Violence and messages of racial denigration are legitimate reasons to deny
meeting rights within a prison.
Third, VDOC has explained why it does not permit NGE members to wear
special clothing. The plaintiff requested the ability to wear a hat with a tassel, and
a medallion. At trial, he testified that the hat and medallion are symbols of his
membership in NGE. He explained, “[I]t lets those around me know exactly how I
strive, and what my intentions are . . . which is peace, which is Islam.” (Trial Tr.
30, Oct. 29, 2013.)
However, VDOC officials testified that because NGE is
classified as a gang and security threat group, such symbols are in contravention to
its zero tolerance gang policy. Also, Robinson testified that clothing denoting an
affiliation with NGE presents a problem for cell compatibility amongst inmates,
since other inmates might fear or refuse placement with a cellmate who is visibly a
member of NGE, which is viewed as a gang within the prison. Robinson testified
that special clothing would enhance NGE’s ability to recruit new gang members
because its presence within the prison would be more visible. Robinson explained
that while there are gangs and subsets of gangs within VDOC, inmates often are
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unaware of the affiliations of other inmates. He stated that when they become
aware, power struggles and violence often arise. VDOC has adequately explained
that its policy banning gang symbols on clothing is meant to counteract gang
recruitment and fear among inmates, and promote a neutral, faction-free
environment.
Fourth, VDOC has explained that the plaintiff’s requested diet is already
available to him. At trial, the plaintiff testified that he does not eat pork or tuna
fish because these foods are forbidden for NGE adherents. Pork is forbidden
because it is “meat of the cloven hoof” and tuna fish is forbidden because it is a
fish “considered to be of a scavenging nature.” (Trial Tr. 19, Oct. 29, 2013.)
Robinson testified that beans or cheese are always available to inmates as a protein
alternative to tuna or pork. The plaintiff is able to avoid the two foods that he
testified were forbidden for NGE adherents under the standard diet offered to all
inmates.
Fifth, VDOC has offered a substantive, relevant explanation for why it does
not permit inmates to possess NGE materials such as the Book of Life and The
Five Percenter newsletter.
VDOC officials explained that for safety reasons,
inmates are not permitted to possess materials that promote violence or racism, and
provided examples of confiscated NGE materials containing violent or racist
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sentiments.3 Additionally, Robinson testified that NGE materials like the Book of
Life, the Supreme Alphabet, and the Supreme Mathematics pose particular
difficulties since they not commercially published.
Instead of checking a
publication once, prison staff members would have to go through each copy page
by page. Additionally, because some NGE materials contain codes, staff members
would have to be trained in reading NGE codes. Robinson testified that this type
of individual attention to each document would be costly when implemented across
forty-three prisons that have only three or four people in each mail room.
Duke also presented testimony on the danger that handwritten documents
pose. He testified that the some Books of Life confiscated from NGE members
contain symbols, and opined that NGE members are moving to a more advanced
code since members of the gang unit have been able to decode their messages that
3
For example, a confiscated copy of “Student Enrollment (1-10)” contained the
following language:
1.) Who is the Original Man?
Ans.) The Original Man is the Asiatic Blackman, the maker, the owner, the
cream of the planet Earth, Father of civilization, God of the Universe.
2.) Who is the Colored Man?
Ans.) The colored man is the Caucasian White man, Yacubs grafted Devil
of the planet Earth.
(Def.’s Ex. 5, at 1.)
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employ the Supreme Alphabet and the Supreme Mathematics. He testified that
such symbols and codes aid inmates in passing messages that circumvent security.
As to the requested NGE periodical, Cei testified that VDOC does not have
a blanket ban on The Five Percenter, but that each issue is reviewed de novo. He
stated that prior issues of The Five Percenter have been disapproved because of
coded language and violent sentiments. 4 VDOC’s policy of banning materials that
4
Some, but not all, of the examples of violent, racist, or coded messages contained
in The Five Percenter that were offered by VDOC are contained below:
BLOODS WILL BECOME GODS AS SOON AS THEY ARE GIVEN
THE BASIC AWARENESS TO FIGHT FOR THEIR OWN PEOPLE
AND NOT TO FIGHT AGAINST THEIR OWN PEOPLE. THEY WILL
BECOME SOME OF THE GREATEST GODS & EARTHS WHO EVER
CAME INTO THIS NATION! MANY A GREAT GOD & EARTH HAD
GANG ORIGINS B-4 THEY GOT THE KNOWLEDGE. WE MUST
TEACH THEM! K7
(Def.’s Ex. 16.)
I DON’T KNOW IF YOU REMEMBER ME BORN-U-TRUTH I
AM THE GOD THAT WROTE THE PLUS LESSON “THE BUILD: THE
WHITE MAN IS THE DEVIL” I WAS A SUBSCRIBER OF THE
POWER PAPER, EVERY PAPER FROM 1998-2006 WHEN THE DEVIL
(VDOC) STOPPED US FROM BEING ABLE TO PURCHASE THE
PAPER, AND THEY STARTED CONFISCATING ALL MATERIAL
PERTAINING TO OUR CULTURE. . . .
....
COULD YOU SEND ME A COPY OF EACH ARTICLE THAT YOU’RE
GOING TO PRINT IN THE POWER PAPER, FOR EACH MONTH
PRIOR TO YOU PRINTING IT IN THE POWER PAPER? THAT WAY
THE GODS HERE WILL GET THE POWER PAPER, JUST NOT IN
THE NEWSPAPER FORM. . . .
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espouse violent or racist sentiments, and its policy of banning handwritten
materials that facilitate the ability of inmates to pass messages in code, are both
connected to the compelling state interest of prison safety.
....
DRAW IT UP GOD AND LET ME KNOW WHAT YOU CAN DO
AND HOW YOU CAN DO IT TO AVOID THE DEVIL’S EYE. . . .
(Def.’s Ex. 20.)
We know how to teach that the Blackman is God and the white man is the
devil. . . .
....
The Blackman is God, period point blank. So to all of you still seeking to
mix, dilute or tamper with our truth, know that you will not succeed. There
is only one God and he is the Blackman. . . . The difference is the one God
Allah is manifested in the many bodies of the Blackman and the devil is
manifested in the many bodies of the white man.
(Def.’s Ex. 21, at 3.)
ALLAH TAUGHT US THAT THE BLACK MAN IS GOD, BUT NOW
BROTHERS SAY THE WHITE MAN IS GOD! . . . THESE WARPED
TEACHINGS ARE DESIGNED TO MAKE OUR NATION NOTHING!
THEY ATTACK THE VERY PREMISE OUR NATION WAS BUILT
ON! FIRST THEM BROTHERS SAID THE WHITE MAN WAS THE
DEVIL, NOW THEY SAY THE WHITE MAN IS GOD?? . . . . ALLAH
SAID, “THERE ARE ONLY TWO PEOPLE ON THE PLANET EARTH
GOD AND THE DEVIL.” IF YOU SAY THE BLACK MAN IS GOD
AND THE WHITEMAN IS GOD, WHO IS THE DEVIL? JUST
BECAUSE I CALL THE WHITE MAN A DEVIL, IT DOESN’T MAKE
ME ANTI WHITE. I’M JUST POINTING OUT HIS NATURE TO
HIM. . . .
(Def.’s Ex. 21, at 12.)
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D. LEAST RESTRICTIVE MEANS.
The Fourth Circuit has stated that when the government attempts to
demonstrate that it has chosen the least restrictive means, the government’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 costs.” Lovelace, 472 F.3d at 190. It also
requires “that the government, consistent with the RLUIPA statutory scheme,
acknowledge and give some consideration to less restrictive alternatives.” Couch,
679 F.3d at 203.
For example, in Couch, even though prison officials had demonstrated that a
prison grooming policy was connected to a compelling government interest, the
Fourth Circuit vacated and remanded a district court’s grant of summary judgment
to prison officials because the prison officials had not demonstrated that the policy
was the least restrictive means available.
The court held that an affidavit
supporting the prison officials’ position “was general and did not indicate
consideration of less restrictive alternatives.” Id. It noted that the affidavit “failed
to explain how the prison could accommodate other exceptions to the grooming
policy but could not accommodate a religious exception.” Id. (referring to female
prisoners’ longer hair and a medical exception for those whose skin was irritated
by shaving). It also noted that “at no point did [prison officials] even assert that
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the Policy was the least restrictive means of furthering the identified compelling
interests.” Id. at 204. In contrast, VDOC has provided explanations for its policies
as discussed above, and also demonstrated that for each policy, it considered other
alternatives. After reviewing all of the evidence presented on this issue, I find that
VDOC has proved that it chose the least restrictive means available to achieve its
compelling interest in prison safety.
First, VDOC has demonstrated that its decision to classify NGE as a gang
and security threat group, employs the least restrictive means possible to further a
compelling interest in prison security. VDOC has an extensive list of incidents
involving inmates affiliated with NGE, and has recorded six gang-related incidents
involving NGE in the last two years. VDOC officials also testified to their own
recent and historical experiences with NGE inmates. For example, Duke testified
about an incident occurring a few months before his testimony where an inmate
affiliated with NGE stabbed two members of the Gangster Disciples, which Duke
attributed to gang rivalry. Similarly, Clore testified about an incident where an
inmate affiliated with NGE assaulted another inmate who disagreed that the NGE
member was a god. Clore opined that NGE rhetoric referring to the white man as
the devil is not conducive to safe and secure prison facilities, since prisons are
multicultural environments.
He also opined that the current policies and
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procedures of VDOC, such as classifying NGE as a gang and security threat group,
keep NGE from growing as aggressively as it did in the nineties.
VDOC has also considered alternatives to its current policies and
procedures, such as housing all members of NGE together. Both Robinson and
Clore testified that this is not feasible due to the design of VDOC facilities and the
number of inmates associated with NGE.
In Mickle v. Moore (In re Long Term Administrative Segregation of Inmates
Designated as Five Percenters), 174 F.3d 464 (4th Cir. 1999), the court rejected
the Five Percenters’ argument that they should not be categorized as a security
threat group within the South Carolina Department of Corrections because only
some inmates claiming affiliation were promoting racism or violence. The court
reasoned:
Confronted with multiple reports of an identifiable group whose
members not only threatened but had actually committed serious,
violent acts in the [state prison] system and elsewhere, [the
Commissioner’s] decision to designate the Five Percenters as [a
security threat group] was manifestly a rational action.
Id. at 470. VDOC must adhere to a higher standard; it must employ the least
restrictive means of furthering a compelling interest in prison safety. However,
VDOC has demonstrated that NGE falls under the definition of a gang as set forth
in the Code of Virginia. VDOC has documented numerous incidents involving
NGE members, and has stated that it is unable to separately house all NGE
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members.
Given the collective record of violence among inmates claiming
affiliation with NGE, VDOC’s characterization of NGE as a gang and security
threat group is the least restrictive means of furthering its compelling interest in
prison security.
Second, VDOC has demonstrated that its policy banning NGE members
from meeting employs the least restrictive means possible to further a compelling
interest in prison safety. VDOC considered and allowed NGE to assemble in the
past, but eventually revoked the privilege due to security risks. Robinson testified
that NGE is not allowed to meet now because of previous incidents, the number of
inmates involved, risks to staff and other inmates, and limited financial resources
precluding additional staff supervising meetings. Although many religious groups
are allowed to meet, Robinson testified that due to NGE’s history, it would require
comparatively more supervision. Similarly, Clore gave examples of dangerous
activities that occurred at NGE meetings when he was a corrections officer at
Powhatan Correctional Center in the early nineties. He testified that inmates at the
meetings discussed killing fair-skinned people, and that there were several times
when VDOC had to shut the meetings down due to disruptive attendees. He also
stated that he observed NGE members assembling in the recreational yard and
practicing ways to counteract law enforcement techniques such as the spread eagle
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pat down. He stated that during these paramilitary drills, he observed visible rank
structure among the members.
Eventually, due to incidents like the ones recounted by Clore, NGE was not
allowed to meet pursuant to a memorandum dated July 23, 1996. (Def.’s Ex. 19.)
Clore testified that after NGE was taken off the authorized list for mass assembly,
the number of inmates who identified as NGE members dropped drastically.
While not all inmates affiliated with NGE may desire to engage in prohibited
activity, NGE members’ collective history of violence and current record of
violence, paired with the themes of racial superiority common across different
subsets of NGE, lead me to conclude that VDOC is employing the least restrictive
means necessary to further its compelling interest in prison security by forbidding
NGE from meeting.
Third, VDOC has demonstrated that its policy banning NGE members from
wearing special clothing employs the least restrictive means possible to further a
compelling interest in prison security. This policy is closely tied to VDOC’s
categorization of NGE as a gang. The primary reason that external identifiers such
as the hat and the medallion are not allowed is because VDOC views them as a
means of showing solidarity with a gang. Robison considered the alternative of
allowing NGE members to wear items that signified their membership, and
concluded that it would compromise security. Clore testified that when gangs are
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allowed to display their affiliation, they are able to brag about their numbers,
intimidate smaller groups, and intimidate staff, employees, and volunteers. As
discussed above, VDOC has proven that categorizing NGE as a gang and security
threat group is the least restrictive means of furthering its compelling interest in
prison security. VDOC’s zero tolerance policy regarding gang activity is the
mechanism that it uses to reduce violence and ensure prison safety. There is no
alternative that allows NGE members to display NGE affiliation that also complies
with VDOC’s zero tolerance policy for gangs.
Fourth, VDOC’s current policies and procedures allow the plaintiff meals in
general accordance with his claimed religious preferences.
The standard diet
allows all inmates to choose beans or cheese as an alternative protein to pork or
tuna.
Any deviation from the plaintiff’s claimed religious preferences is de
minimus and causes no burden to the plaintiff’s exercise of religion.
Fifth, VDOC has demonstrated that its ban on NGE materials and its de
novo review of the NGE periodical The Five Percenter employs the least
restrictive means possible to further a compelling interest in prison security.
VDOC has demonstrated that some NGE materials contain codes or racist and/or
violent sentiments, and has considered alternatives to a complete ban on such
materials.
Robinson credibly testified that the alternative of redacting NGE
materials has been rejected as non-feasible. He explained that redaction is time-24-
consuming, costly, and creates problems with consistency from facility to facility.
He stated that allowing redaction is problematic because people might start
requesting redaction of letters and other documents, which is not feasible given the
thousands of documents that come into VDOC.
He also stated that there is a
general policy of not allowing inmates to possess redacted material because the
alteration of books and documents can create a place to hide contraband, and aid
inmates in the creation of coded messages (if they redact materials as opposed to
prison officials).
Robinson testified that the alternative of allowing inmates to possess NGE
materials in their cells only has been also rejected. He explained that permitting
such materials in cells “creates a security problem in regard to recruitment of other
members, and passing and sharing of information.” (Trial Tr. 48, Oct. 31, 2013.)
VDOC has considered alternatives to banning NGE materials, and has not found
any procedure that allows inmates to possess NGE materials while simultaneously
ensuring that VDOC facilities are safe and secure. I find this decision credibly
supported by the legitimate security needs of the prison system.
IV. CONCLUSIONS OF LAW.
1. This court has subject-matter jurisdiction and personal jurisdiction over
the parties.
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2. The Commonwealth has proved by a preponderance of the evidence that
the asserted burdens on the plaintiff are in furtherance of a compelling state
interest, and the least restrictive means of furthering that compelling state interest.
3. VDOC’s categorization of NGE as a gang and security threat group is
similarly supported by the evidence and is an appropriate security measure that is
the least restrictive means of furthering a compelling state interest in prison safety.
4. Due to staff limitations and safety risks to staff and inmates, a complete
ban on NGE communal meetings is the least restrictive means of furthering a
compelling state interest in prison safety.
5. Because NGE hats and medallions can serve as a gang identifiers and aid
in gang recruitment, a complete ban on NGE hats and medallions is the least
restrictive means of furthering a compelling state interest in prison safety.
6. VDOC’s decision not to offer a specific diet for the plaintiff does not
burden his exercise of religion.
7. Due to the inability of VDOC to review all handwritten NGE materials,
and the frequency with which typed and handwritten NGE materials contain codes,
racist sentiments, and/or violent sentiments, the decision of VDOC to ban such
NGE materials is the least restrictive means of furthering a compelling state
interest in prison safety.
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8.
The policy of VDOC to refuse possession by inmates of The Five
Percenter containing material not in compliance with VDOC standards is the least
restrictive means of furthering a compelling interest in prison safety.
9. The plaintiff has not proved a violation of his rights under RLUIPA and
is not entitled to relief.
V. CONCLUSION.
For the reasons stated, the plaintiff’s requested injunctive relief will be
denied. A separate judgment will be entered pursuant to Federal Rule of Civil
Procedure 58.
DATED: April 28, 2014
/s/ James P. Jones
United States District Judge
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