BONE EL v. SOLOMON

IN THE UNITED STATES DISTICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTHONY MAURICE BONE EL, )

)

Plaintiff, )

)

v. ) 1:17CV445

)

GEORGE T. SOLOMON, JACK CLELLAND )

and R. MCNEIL, )

)

Defendants. )

ORDER, MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court for a recommended ruling on Defendants George E.

Solomon, Jack Clelland, and R. McNeil’s motion for summary judgment. (Docket Entry 60.)

Plaintiff Anthony Maurice Bone-El filed a brief in opposition to Defendants’ motion. (Docket

Entry 64; see also Docket Entries 69-71.) Plaintiff also filed a motion to appoint counsel

(Docket Entry 67) and a motion to permit additional discovery (Docket Entry 68). For the

reasons that follow, the undersigned will deny Plaintiff’s motion for appointment of counsel,

grant Plaintiff’s motion to permit additional discovery, and recommend that Defendants’

motion for summary judgment be granted.

I. BACKGROUND

Plaintiff in this action filed a Complaint alleging a violation of his civil rights pursuant

to 42 U.S.C. § 1983. (Complaint (“Compl.”), Docket Entry 2.) At the time of the alleged

incident, Plaintiff was an inmate at Albemarle Correctional Institution (“Albemarle CI”), a

facility within the North Carolina Department of Public Safety (“NCDPS”).1 (Id. at 4.)2

Plaintiff alleges that he has been denied his constitutional right to practice his faith as a

member of the Moorish Science Temple of America (“MSTA”). (Id. at 5-9.) He contends

that members of the MSTA are “deem[ed] to be Moslem in the truest sense of both terms and

word.” (Id. at 5.) Plaintiff asserts that, because he is Moslem, he is required to have a prayer

rug, prayer beads, and a kufi to practice his MSTA faith. (Id.) He further contends that the

Islam faith (and, therefore, MSTA) requires a prayer rug when prostrate praying three times a

day. (Id. at 5-8.) Plaintiff states that Defendants’ refusal to give him a prayer rug forces him

to “prostrate on a dirty floor.” (Id. at 8.) Plaintiff has used someone else’s prayer rug but is

unsure when the person will want it back. (Id.) As a result of Defendants’ actions, Plaintiff

claims that his First Amendment right to free exercise of his religion has been violated, and

he demands declaratory, injunctive, and monetary relief. (Id. at 10; see also Am. Compl., Docket

Entry 13.)

On August 13, 2020, Defendants filed a motion for summary judgment, arguing that

Plaintiff’s claim fails because Defendants have not substantially burdened Plaintiff’s ability to

exercise his religion. (Docket Entry 60.) In support of their motion for summary judgment,

Defendants submitted the declaration of Chaplain Betty Brown, NCDPS’s Director of

Chaplaincy Services since 2003. (Betty Brown Declaration, Docket Entry 62-1.) As the

Director of Chaplaincy Services, her duties and responsibilities include formulating and

1 It appears that Plaintiff is currently housed at Albemarle CI.

2 All citations in this recommendation to documents filed with the Court refer to the page numbers

located at the bottom right-hand corner of the documents as they appear on CM/ECF.

providing professional supervision of chaplaincy services. (Id. ¶ 4.) More specifically, she

provides guidance and assistance for the religious programs and services to all the facilities

within North Carolina prisons. (Id.)

Ms. Brown avers that NCDPS provides written guidance to NCDPS administrators,

chaplains, and other appropriate staff concerning religious practices and religious

paraphernalia. (Id. ¶ 5; see also Ex. 1 to Brown Decl., NCDPS Religious Practices Resource

Guide and Reference Manual (“Manuel”), Docket Entry 62-2.) The Manuel recognizes the

MSTA as an approved religion. (Manual at 5.) The Manuel provides guidance on MSTA’s

basic beliefs, authorized practices, and approved religious property. (Id. 5-10.) Before policy

concerning a religious practice is written or modified, a division of prison chaplaincy services

(1) conducts thorough research on proposed faith practices; (2) seeks guidance from other

state prison systems; and (3) consults with recognized authorities within the faith group to

determine the tenets and requirements of the faith practice, and how best to accommodate

those practices without endangering the health and safety of staff or other inmates, without

interrupting prison operations, and without squandering monetary or personnel resources.

(Brown Decl. ¶ 8.)

Pursuant to the Manual, members of the MSTA faith are approved to receive a Fez

head covering, one national flag of Morocco, one flag of the United States, a picture of the

Prophet Noble Drew Ali, a nationality identification card, and certain reading material.

(Manual at 7.) Members of the MSTA faith are not authorized to receive prayer beads, prayer

rugs, or kufis because those items are not required to practice MSTA. (Id.; see also Brown Decl.

¶ 9.) Ms. Brown states that the approved items for MSTA worship are related to the basic

tenets of that faith’s religious beliefs. (Brown Decl. ¶ 10.) Although Plaintiff claims that the

MSTA religious group is Moslem (or Muslim) and thus requires a prayer rug and prayer beads

(see Compl. at 7), Ms. Brown contends that, based upon generally accepted authority, a Muslim

may use a blanket, towel, or any other piece of cloth for prostrate praying. (Brown Decl. ¶

12.) Thus, it is not a violation of the faith practice of Islam to prostrate pray without a prayer

rug or prayer beads. (Id.)

In response to the summary judgment motion, Plaintiff has filed an affidavit

contending that members of the MSTA faith “are the same which is Islam” and that both

groups are Muslim. (Anthony Maurice Bone-El Affidavit at 1-2, Docket Entry 65.) He further

asserts that members of the MSTA faith should be entitled to possess prayer beads, prayer

rugs, and kufis, and be permitted to celebrate Ramadan fasting.3 (Id. at 1-3.) Approximately

one month after response briefs were due, Plaintiff filed additional briefs and documents in

opposition to Defendants’ motion. (See Docket Entries 69-71.) He also filed a motion to

appoint counsel (Docket Entry 67) and a motion to permit additional discovery (Docket Entry

68).4

II. DISCUSSION

Summary judgment is appropriate when there exists no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnick

3 Plaintiff’s contentions regarding any violations of Ramadan fasting rights was neither asserted in the

prison grievances nor in the Complaint. Thus, the undersigned will not discuss those allegations any

further.

4 The purported “additional discovery” appears to be the additional documents submitted after the

response brief was due. (See Docket Entries 69-71.)

v. Int’l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary

judgment bears the initial burden of coming forward and demonstrating the absence of a

genuine issue of material fact. Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 718 (4th Cir.

1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has met its

burden, the non-moving party must then affirmatively demonstrate that there is a genuine

issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring

the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 817 (4th

Cir. 1995). Thus, the moving party can bear his burden either by presenting affirmative

evidence or by demonstrating that the non-moving party’s evidence is insufficient to establish

his claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting).

When making the summary judgment determination, the Court must view the

evidence, and all justifiable inferences from the evidence, in the light most favorable to the

non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196

(4th Cir. 1997). However, the party opposing summary judgment may not rest on mere

allegations or denials, and the court need not consider “unsupported assertions” or “self-

serving opinions without objective corroboration.” Evans v. Techs. Applications & Serv. Co., 80

F.3d 954, 962 (4th Cir. 1996); see also Anderson, 477 U.S. at 248-49.

1. Substantial Burden

Plaintiff alleges that Defendants violated his rights under the First Amendment’s Free

Exercise Clause. “Prison walls do not form a barrier separating prison inmates from the

protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). Prisoners “clearly

retain protections afforded by the First Amendment, including its directive that no law shall

prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)

(citation omitted). The Supreme Court has applied the First Amendment to the states through

the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947).

To state a free exercise claim under the First Amendment, a plaintiff must demonstrate

that he held a sincere religious belief, and that the official action or regulation substantially

burdened his exercise of that belief.5 Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). The

Fourth Circuit has held that “a substantial burden on religious exercise occurs when a state or

local government, through act or omission, put[s] substantial pressure on an adherent to

modify his behavior and to violate his beliefs.” Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir.

5 Although not specifically asserted in the Complaint, Plaintiff implicates the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq in his responsive brief. (See

Docket Entry 70 at 10-11.) Applying a more stringent protection, RLUIPA provides that “[n]o

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” serves to further a

compelling government interest and “is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000cc-1. In order to determine whether there has been a

violation under RLUIPA, Plaintiff “bears the burden of establishing a prima facie case, showing (1)

that he seeks to engage in an exercise of religion, and (2) that the challenged

conduct substantially burdens that exercise.” Krieger v. Brown, 496 F.App’x. 322, 324 (4th Cir. 2012).

RLUIPA and First Amendment claims proceed in two stages, both of which require a showing

of a substantial burden on the religious exercise. See Wright v. Lassiter, 921 F.3d 413, 418 (4th Cir.

2019) (“At the first stage, which is essentially the same for both [RLUIPA and First Amendment]

claims, the plaintiff must show that the prison’s policies imposed a substantial burden on his exercise

of sincerely held religious beliefs.”) (citing Carter v. Fleming, 879 F.3d 132, 139-40 (4th Cir. 2018)).

Given the recommendation herein that Plaintiff has not demonstrated a substantial burden on the

free exercise of his religious beliefs, his claim would also fail under RLUIPA.

2006) (internal quotations and citations omitted). In contrast, “[n]o substantial burden occurs

if the government action merely makes the religious exercise more expensive or difficult, but

fails to pressure the adherent to violate his or her religious beliefs or abandon one of the

precepts of his religion.” Dellinger v. Clarke, 172 F. Supp. 3d 898, 902-03 (W.D.Va. 2016)

(internal quotations and citations omitted). A prison policy that substantially burdens an

inmate’s ability to practice his religion withstands a First Amendment challenge when it is

“reasonably related to legitimate penological interests.” O’Lone, 482 U.S. at 349

(quoting Turner, 482 U.S. at 89 (1987)). “In assessing [whether there is a substantial] burden,

courts must not judge the significance of the particular belief or practice in

question.” Lovelace, 472 F.3d at 187 n.2.

Plaintiff essentially contends that the denial of a prayer rug substantially burdened his

right to exercise his religion through prostrate praying. Defendants do not dispute that

Plaintiff is a member of the MSTA faith, that members of the MSTA faith consider themselves

to be Moslem, or that that members of the MSTA faith are required to prostrate pray daily.

Defendants do contend, however, that their actions do not impose a substantial burden on

Plaintiff’s religious practice.

As stated, a “substantial burden” on the free exercise of religion is one that forces

adherents of a religion to modify behavior, to violate beliefs, or to choose between forfeiting

governmental benefits and abandoning a religious precept. Lovelace, 472 F.3d at 187. Plaintiff

here has not demonstrated that Defendant’s actions imposed a substantial burden on his

religious exercise. NCDPS religious policy recognizes the MSTA faith, and the faith’s worship

tenet of daily prayer. (Manuel at 5.) Plaintiff does not aver that he has been forbidden by

Defendants to prostrate pray. Rather, he contends that is unable to exercise his religion,

specifically through praying, without a prayer rug. He does not, however, demonstrate that

Defendants’ denial of Plaintiff’s request for a prayer rug (or prayer beads and a kufi) required

him to forego prostrate prayer. Indeed, he admits that he can in fact prostrate pray, and do

so on a prayer rug, because he obtained a prayer rug from another inmate, which prayer rug

he still possessed at the time of his original Complaint. (Compl. at 8.) These facts do not

demonstrate a substantial burden on Plaintiff’s free exercise of his right to prostrate pray.

Plaintiff’s claim that MSTA adherents require a prayer rug on which to prostrate pray

solely because all adherents to Islam (which he says includes those of the MSTA faith) require

a prayer rug does not bolster his arguments. (See Compl. at 5, 7.) Plaintiff’s affidavits and

additional MSTA literature shed some light on the interplay between the MSTA faith and

Islam, as well as insight on the MSTA’s use of a prayer rug. (See Docket Entries 71-1, 71-2.)

However, they do not validate Plaintiff’s contention that Defendant’s denial of a prayer rug

stops him from practicing his faith.6

Ultimately, the Court should not, nor need not, decide whether Plaintiff’s free exercise

of his right to prostrate pray is essential to his MSTA faith or whether MSTA has a sincere

connection to the Islamic faith. See Krieger, 496 F. App’x at 325 (“A plaintiff is not required . .

. to prove that the exercise at issue is required by or essential to his religion.”). However,

Plaintiff’s general statement that the MSTA faith, in connection with the tenets of Islam,

6 In particular, the Court notes the portion of MSTA literature that addresses the prayer rug. (See

Docket Entry 71-2 at 8.) While insight is given on the use of the prayer rug, it notably only mentions

that the MSTA faith is required to pray three times a day. It does not say that prostrate prayer cannot

be achieved without the prayer rug.

absolutely requires a prayer rug for prostrate praying is unsupported. As previously stated,

based upon generally accepted authority, a Muslim may use a blanket, towel, or any other piece

of cloth for prostrate praying. (Brown Decl. ¶ 12.) Thus, it is not a violation of the faith

practice of Islam to prostrate pray without a prayer rug or prayer beads.7 (Id.) In fact, Plaintiff

as much as acknowledged such. (See Docket Entry 70 at 9 (“Plaintiff agrees with defendants

that a prayer rug, prayer beads, [and a] kufi, is not a requirement of Islam[.]”).) See also Boone

v. Morgan, No. CIV.A. CCB-09-3335, 2011 WL 3163586, at *3 (D. Md. July 26, 2011)

(unpublished) (“Neither a knit kufi nor a knit prayer rug are required by the Muslim faith.”).

In sum, Plaintiff has not presented evidence supporting his assertion that his religious

practice has been substantially burdened by Defendants. The denial of the prayer rug, prayer

beads, and a kufi did not require Plaintiff to forego prostrate prayer. In fact, he not only

exercised his right to prostrate pray, but did so on a prayer rug from another inmate. (See

Compl. at 8.) Furthermore, although he professes that the MSTA faith follows the tenets of

the Islamic faith, Plaintiff undermines his own arguments of the necessity of the prayer rug,

prayer beads, and a kufi by conceding that it is not a requirement of Islam. (Docket Entry 70

at 9.) Having failed to carry his burden to show a substantial burden, Defendants should be

entitled to summary judgment.8

7 Plaintiff’s Complaint infers that, without a prayer rug, he is forced to prostrate on a dirty floor. (See

Compl. at 7.) Although not binding, another district court held to this point that, “a prayer rug is not

essential to Plaintiff praying, rather, the essential requirement for Plaintiff to pray is that the area on

which he prays be clean.” Mohammad v. Beard, No. CIV.A. 05-580, 2007 WL 1439051, at *10 (W.D.

Pa. May 16, 2007) (unpublished).

8 Even if it were determined that there was a substantial burden on Plaintiff’s rights, the undersigned

concludes that Plaintiff cannot demonstrate that Defendants’ acts were conscious or intentional as

Defendants simply followed the dictates of the Manuel which provides guidance on the MSTA faith.

See Cherry v. Platt, No. 3:10-CV-629-RJC, 2012 WL 868897, at *6 (W.D.N.C. Mar. 13, 2012) (“Although

2. Compensatory/Punitive Damages

The purpose of Section 1983 damages is to compensate individuals for injuries suffered

as a result of a constitutional violation.9 White v. City of Greensboro, 408 F. Supp. 3d 677, 693

(M.D.N.C. 2019) (citation omitted). “Where no injury [is] present, no ‘compensatory’ damages

[can] be awarded.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986). Here there

is no constitutional damages warranting compensatory damages. Likewise, Plaintiff’s claims

for punitive damages fail. See Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987) (internal

quotations and citations omitted) (Punitive damages are allowed in § 1983 claims only when

the conduct “involves reckless or callous indifference to the federally protected rights of

others, as well as for conduct motivated by evil intent”).

3. Qualified Immunity

To the extent Plaintiff asserts monetary claims against Defendants in their individual

capacities, they are entitled to qualified immunity. Under the doctrine of qualified immunity,

“government officials performing discretionary functions generally are shielded from liability

inmates clearly retain their First Amendment right to free exercise of religion in prison, ‘negligent acts

by officials causing unintended denials of religious rights do not violate the Free Exercise Clause.’ ”)

(citing Lovelace, 472 F.3d at 201); Muwwakkil v. Johnson, No. 7:09CV00318, 2010 WL 3585983, at *7

(W.D. Va. Sept. 13, 2010) (Plaintiff “fails to demonstrate that prison officials knew that denial of the

requested property items . . . substantially burdened [plaintiff’s] religious practice . . . Without

knowledge that the property restriction substantially burdened [plaintiff’s] religious practices, the

defendants’ alleged actions . . . did not violate the First Amendment or RLUIPA.”), aff’d, 407 F. App’x

685 (4th Cir. 2011).

9 As to any claim under RLUIPA, the Fourth Circuit has held that RLUIPA only authorizes injunctive

relief against a state official, irrespective of whether the individual is sued in his or her individual or

official capacity. See Wall v. Wade, 741 F.3d 492, 496 n.5 (4th Cir. 2014) (“We note at the forefront

that Congress did not authorize damages claims against state officials under RLUIPA. See also Sossamon

v. Texas, 563 U.S. 277, 284-88 (2011) (prohibiting damages claims against state officials in their official

capacity); Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009) (same for individual capacity).

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982); see also Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306

(4th Cir. 2006) (“Qualified immunity shields government officials performing discretionary

functions from personal-capacity liability for civil damages under § 1983[.]” (emphasis added)).

Thus, the traditional two-step qualified immunity inquiry requires a court to determine: “(1)

whether the official violated a constitutional right; and if so, (2) whether the right was ‘clearly

established’ at the time of its violation.” Rock for Life-UMBC v. Hrabowski, 411 Fed. App’x 541,

546-47 (4th Cir. 2010) (citation omitted). In evaluating qualified immunity, a court initially

may determine whether the plaintiff has alleged or shown a violation of a constitutional right

at all. See Pearson v. Callahan, 555 U.S. 223 (2009). Further, “[b]ecause qualified immunity is

designed to shield officers not only from liability but from the burdens of litigation, its

establishment at the pleading or summary judgment stage has been specifically encouraged.”

Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992).

Here, Plaintiff has not demonstrated a violation of his constitutional right to free

exercise of his religion. Therefore, this Court concludes that Defendants are entitled

to qualified immunity. See Abney v. Coe, 493 F.3d 412, 415 (4th Cir. 2007) (finding that “[i]f [an

official] did not violate any right, he is hardly in need of any immunity and the analysis ends

right then and there”); Parker v. Burris, 2015 WL 1474909, at *8 (M.D.N.C. Mar. 31, 2015)

(finding that “the absence of evidence supporting a finding that a constitutional violation

occurred satisfies the first prong of the qualified immunity analysis”), report and recommendation

adopted, No. 1:13CV488, 2015 WL 2169148 (M.D.N.C. May 8, 2015), affd, 623 PF. App’x 82

(4th Cir. 2015).

4. Plaintiffs Motions

Plaintiff has filed a motion for appointment of counsel. (Docket Entry 66.)

Exceptional circumstances are not present warranting the appointment of counsel. Cook ».

Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Moreover, in light of the recommendation herein

that no constitutional violation has occurred, appointment of counsel is unnecessary. Thus,

Plaintiffs motion will be denied.

As to Plaintiffs motion to permit additional discovery (Docket Entry 68), the

undersigned construes the motion as a request to consider the additional documents submitted

by Plaintiff that oppose Defendants’ motion for summary judgment. (See Docket Entries 69-

71.) The Court will grant said motion to the extent Plaintiffs additional responsive documents

(Docket Entry 69-71) have been considered in the recommendation herein.

Ill. CONCLUSION

For the reasons sated herein, IT IS HEREBY ORDERED that Plaintiff's motion to

permit additional discovery (Docket Entry 68) be GRANTED, and Plaintiffs motion for

appointment of counsel (Docket Entry 66) be DENIED.

IT IS RECOMMENDED that Defendants George E. Solomon, Jack Clelland, and

R. McNeil’s motion for summary judgment (Docket Entry 60) be GRANTED and that this

action be dismissed. Y } |

Joe L. Webster

United States Magistrate Judge

November 6, 2020

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