ROGERS v. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MICHAEL DWAYNE ROGERS, )

Plaintiff,

v. 1:19CV417

NORTH CAROLINA DEPARTMENT

OF PUBLIC SAFETY, et al, )

Defendants.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court for a recommended ruling on Defendants Betty Brown

and Chris Rich’s motion for summary judgment. (Docket Entry 46.) Plaintiff Michael

Dwayne Rogers filed a brief in opposition to Defendants’ motion. (Docket Entry 50.) For

the reasons that follow, the undersigned will recommend that Defendants’ motion for

summaty judgment be granted.

I, BACKGROUND

Plaintiff, a pro se state prisoner in the custody of the North Carolina Department of

Public Safety (“(NCDPS”) and self-proclaimed member of the Nation of Islam (“NOI”), filed

a Complaint pursuant to 42 U.S.C. § 1983 alleging violations of his rights under the First and

Foutteenth Amendments of the United States Constitution, the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc, ef seg. (“RLUIPA”), and the North Carolina

Constitution. (See Complaint, Docket Entry 2; see aso Am. Complaint, Docket Entry 18.) As

to the remaining Defendants,! Plaintiff alleges that he was improperly validated as a member

of the Security Risk Group (“SRG”) Five Percent Nation of Gods and Earths (“NGE”) in

1998, and Defendant Rich refused to close Plaintiffs file in July 2018 despite the

recommendation of SRG officers and as required by prison policy. (See Am. Compl. {J 11-

15, 20-23, 26, 28.) As a result of his continued gang member status, Plaintiffs religious

practices wete substantially harmed, he has been denied minimum custody benefits, his

rehabilitation efforts have been limited, and he has not had a fair opportunity at parole. (See

id. WVf25, 27, 31, 33-34.) In addition, Plaintiff alleges that Defendant Brown has substantially

burdened his religious rights by prohibiting programs and services devoted to the NOI, though

setvices ate available for other religious organizations. (Id. f/f] 18-19, 35.)

On September 27, 2021, Defendants Brown and Rich filed a motion for summary

judgment arguing that Plaintiff cannot establish a genuine issue of material fact that

Defendants violated his constitutional rights. (Docket Entry 46.) In support of Defendants’

motion, they submitted affidavits on their own behalf along with NCDPS’s policies and

ptocedures regarding religious services. (See Betty Brown Affidavit (“Brown Aff”), Docket

Entry 48-1; Chris Rich Affidavit (“Rich Aff”), Docket Entry 48-3; NCDPS Policy &

Procedures for Religious Setvices (“Religious Services Policy”), Docket Entry 48-2.)

As the Director of Chaplaincy Services duting the relevant time herein, Defendant

Brown’s duties and responsibilities include formulating and providing professional supervision

of chaplaincy setvices. (Brown Aff. { 7(a).) More specifically, she provides guidance and

' All other Defendants have been terminated from this action. (See Docket Entries 21, 28.)

assistance for the religious programs and services to all the facilities within North Carolina

ptisons. (Id.; see also Religious Services Policy § .0101(a).)

Defendant Brown is the chair of the Religious Practices Committee (“RPC”), a group

that determines the creation or modification of religious practices policy, with approval of the

Commissioner of Prisons. (Brown Aff. J 8.) The RPC also reviews and makes

recommendations regarding a ptisoner’s requests for a teligion that is not officially

accommodated by the NCDPS. (Id. §] 9; see also Religious Services Policy § .0108(b).) The

RPC considers several things when assessing a new religion including whether requested

ptactices or pataphernalia have a recognized role in the faith practice and are sincerely sought

for religious reasons, conflicts with valid penological interests, prison accommodation means,

and duplication of existing services. (Brown Aff. 9.) Defendant Brown states that the RPC

must balance many governmental interests “in a manner least resttictive of inmate religious

freedom.” (Id. 10.) She further states that varying accommodations are made for different

faith groups because of the unique and individualized nature of religious beliefs in each

religious group. (Id. 411.) Ultimately, each faith practice is analyzed separately as the tenets

of each faith practice are different. (Id.)

Defendant Brown further avers that the NOI is not a recognized religious group that

can hold services within NCDPS facilities. Ud § 14.) Rather, the RPC concluded that

Plaintiff's request to practice the NOI could be met through the Islamic services currently

ptovided pursuant to NCDPS policy and any individual needs could be experienced through

ptivate devotion in his cell. (Id. {[ 15-16.) Defendant Brown also states that Plaintiff was

advised that the prison facility would accommodate his faith through publications that he

could purchase. (Id. 17.) However, pteapproval was tequited for any books ordered. □□□□

Lastly, Defendant Brown contends that she had no petsonal involvement in PlaintifPs SRG

designation not does the chaplaincy services make decisions concerning gang classification of

ptisonets. (Id. {J 20-21.)

Defendant Rich noted that he was previously employed? by the NCDPS as an

Intelligence Managet/Criminal Analyst of the Special Operations and Intelligence Unit

(“SOTU”) located in Raleigh, North Catolina. (Rich Aff. J 4.) His duties and responsibilities

included overseeing the SRG validation and assessment ptocess, helping oversee SRG

ptograms and policy, gathering and disseminating criminal intelligence, and working with both

internal and external entities for investigative purposes. (Id. §[ 5.) He further states that the

NCDPS Security Manual specifically defines Security Threat Group (“STG”) associates to

include those known to participate in the illegal activities of a and also those inmates

“being watched or observed to gather evidence or intelligence to support validation as an

STG/STI member.” (Id. J 10.) Defendant Rich explained that an inmate is initially given a

STG designation based on extensive reseatch and documentation of a membet’s behavior by

facility intelligence officers in the field. (Id. {[9.) The facility intelligence officer then completes

an investigation which is subject to review by the facility head, and prior to “validation,” the

prisoner receives notification of their validation with an opportunity to dispute it. (id) Once

2 At the time of the filing of the affidavit, Defendant Rich was employed by the NCDPS as a

Strategic Planning Coordinator. (Rich Aff. 4)

> Defendant Rich has referenced both SRG and STG in his affidavit. (See Rich Aff. 5, 7, 8,

10, 12.) STG appeats to be former name for the SRG. (See Brown Aff. ] 20 (SRG (Security Risk

Group) formally STG (Security Threat Group)”).)

an inmate is validated, they ate reviewed annually by the SOTU to determine whether theit

validation level is accurate or whether it should be modified. Ud. J 12.) Prisoners are not

aware of the timing of the annual review nor the results which remain confidential for security

concerns. (Id.)

Defendant Rich avers that Plaintiff's validation as an NGE member was supported by

sufficient evidence, per policy in 1998. (Id. §] 11.) Further, Defendant Rich asserts that

Plaintiffs validation was continuously reviewed since 2015, he continued to meet the criteria

for validation, and has remained validated throughout his incarceration. (Id. 12-14.) As to

the NGE, Defendant Rich states that it has remained an SRG in North Carolina due to their

history of violence and illegal activity within the prison system and their core beliefs which

lends itself to racial supremacy, cultural division, and extremism. (Id. J 16.) Defendant Rich

states that Plaintiff has been in possession of materials that has met the criteria of a SRG, and

allowance of NGE material would ultimately compromise the security of the prison facilities

and the public. (Id. ff] 15, 17-19.) Finally, Defendant Rich states that the NCDPS was in the

ptocess of developing a new policy to allow renunciation of SRG membership by SRG

validated inmates. (Id. | 21.) However, the policy was not yet in place during his final review

of Plaintiffs file in July 2017. Ud.)

In response to the motion for summaty judgment, Plaintiff reasserts his contentions

regarding his improper SRG validation and the substantial burdens on his religious tights. (See

Docket Entry 50 at 1-18.)4 Plaintiff submitted a declatation on his own behalf along with the

* Unless otherwise noted, all citations in this recommendation refer to the page numbets at

the bottom right-hand corner of the documents as they appear in the Court’s CM/ECF system.

declaration of his brother, Roy Anthony. (See Michael Rogets Declaration (“Rogets Decl.”),

Docket Entry 50 at 23-36; Roy Anthony Declaration (“Anthony Decl.”), Docket Entry 50 at

37-38.)

II. DISCUSSION

Summaty judgment is apptoptiate 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

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

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

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

1991) (citing Celotexs v. Catrett, ATT U.S. 317, 322 (1986)). Once the moving patty has met its

burden, the non-moving patty 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 US. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817

(4th Cir. 1995). Thus, the moving patty can bear his burden either by presenting affirmative

evidence ot by demonstrating that the non-moving patty’s evidence is insufficient to establish

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

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

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

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

(4th Cir. 1997). However, the patty opposing summary judgment may not test on mete

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

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

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

A. First Amendment & RLUIPA Claims

1. Substantial Burden

Defendants contend that summaty judgment should be granted in their favor as to

Plaintiffs RLUIPA and First Amendment claims because Plaintiff cannot demonstrate that

the conditions he faced, nor the policies of the NCDPS, placed a substantial burden on his

right to free exercise of his religion. (See Docket Entry 47 at 5-13.) The Free Exercise Clause

of the First Amendment guarantees inmates a “reasonable opportunity” to practice their

religion. Cruz v. Beto, 405 U.S. 319, 322 (1972). The Supreme Court of the United States has

applied the First Amendment to the states through the Fourteenth Amendment. See Everson

v. Ba. of Educ. 330 U.S. 1, 15 (1947). A prisoner does not enjoy the same full range of freedoms

as those not incatcerated; rather, state action violates a prisonet’s constitutional rights if it

burdens a prisonet’s religious rights and is not reasonably related to a legitimate penological

interest. Turner v. Safley, 482 U.S. 78, 89 (1987). In determining whether a reasonable

relationship exists, the Supreme Court usually considers four factors: (1) whether there is a

“valid, rational connection” between the restriction and a legitimate governmental interest; (2)

whether alternatives for exercising the right remain to the prisoner; (3) what effect

accommodation of the right will have on prison administration; and (4) whether there are

other ways that prison officials can achieve the same goals without encroaching on the

tight. Id. at 89-91.

Applying a mote stringent protection, RLUIPA provides that “[nJo 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 tule 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 “beats 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 ». Brown, 496 F. App’x 322,

324 (4th Cir. 2012).

Following the Supreme Court’s guidance, the Fourth Circuit has held that “a substantial

burden on religious exercise occuts when a state or local government, through act or omission,

put[s] substantial pressure on an adherent to modify his behavior and to violate his

beliefs.” Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) Gnternal quotations and citations

omitted). In contrast, “[nJo substantial burden occurs if the government action merely makes

the religious exetcise more expensive or difficult, but fails to pressure the adherent to violate

his ot her teligious beliefs or abandon one of the precepts of his religion.” De/knger v.

Clarke, 172 F. Supp. 3d 898, 902-03 (W.D.Va. 2016) (internal quotations and citation omitted).

Upon Plaintiff establishing a prima facie case, the burden shifts to the government to show

“that the limitation on the plaintiffs religious exercise is the least restrictive means of

furthering a compelling government interest.” Kyeger, 496 F. App’x at 324. “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.

Here, Plaintiff has not established that Defendants’ actions imposed a substantial

butden on the ability to exercise his religion. Although the NOI is not a recognized religious

etoup within NCDPS facilities, NCDPS’s religious policy provided alternative means fort

Plaintiff to exercise his religion through Islamic services and any individual needs could be

experienced through private devotion in his cell. (See Brown Aff. {ff[ 14-16.) In addition,

Plaintiff was advised that the facility would accommodate his faith through publications that

he could putchase with preapproval. (Id. J 17.) These accommodations do not demonstrate

a substantial burden on Plaintiffs free exercise of his religion.

Plaintiff contends that Defendants’ alternative means for religious accommodations

through Islamic services ate insufficient because NOI’s theology conflicts with the Islamic

setvices ptovided. (Rogets Decl. § 12, Docket Entry 50 at 31.) Plaintiffs concerns regarding

Defendants’ accommodations teveal an impediment that does not tise to the level of a

substantial burden. Even if it were such that NOT’s theology differed from the Islamic services

at the NCDPS facilities, Plaintiff still could engage in his religious exercise through private

devotion and could purchase publications with preapproval. Ultimately, while the Coutt

acknowledges Plaintiff's zealous genuine beliefs in his faith (see zd. ff] 3-12, 16-17), he has not

established that he was pressured to violate or abandon these beliefs by Defendants. See

Dellinger, 172 F. Supp. 3d at 902-03 (“[N]o substantial burden occurs if the government action

metely makes the religious exetcise mote expensive or difficult, but fails to pressure the

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

teligion.”).

In sum, there is no genuine issue of matetial fact as to whether Plaintiff's religious

practice has been substantially burdened by Defendants.> Moreover, even if this Court were

to find that Plaintiff has met this burden, Defendants have a compelling governmental interest

in prison safety and security and have shown that this is the least restrictive means available to

accomplish such interests.°

> The undetsigned further concludes that Plaintiff cannot demonstrate that Defendants’ acts

were conscious of intentional rather than negligent. See Cherry v. Platt, No. 3:10-CV-629-RJC, 2012

WL 868897, at *6 (W.D.N.C. Mar. 13, 2012) (unpublished) (“Although inmates clearly retain theit

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); Mawwakkil v. Johnson, No. 7:09CV00318, 2010 WL 3585983, at *7 (W.D. Va. Sept. 13,

2010) (unpublished) (Plaintiff “fails to demonstrate that prison officials knew that denial of the

requested property items . . . substantially burdened [plaintiffs] religious practice . . . Without

knowledge that the property restriction substantially burdened [plaintiffs] religious practices, the

defendants’ alleged actions . . . did not violate the First Amendment or RLUIPA.”) (footnote omitted),

affd, 407 F. App’x 685 (4th Cir. 2011).

Consistent with the same principles, any separate Equal Protection claim against Defendants

Brown and Rich fail as a matter of law because Plaintiff has not established that said Defendants acted

with the requisite discriminatory intent. “To succeed on an equal protection claim, a plaintiff must first

demonstrate that he has been treated differently from others with whom he is similarly situated and

the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty,

239 F. 3d 648, 654 (4th Cir. 2001). Plaintiff has not done so here. See C ¢% H Co, v. Richardson, 78 F.

App’x 894, 902 (4th Cir. 2003) (“[A] plaintiff alleging an Equal Protection violation actionable under §

1983 must establish that the differential treatment it was afforded was intentional, not the result of

mete negligence.”).

° To the extent Plaintiff affirmatively alleges and argues that he is not a member of a gang, and

specifically not a member of the NGE (see Am. Compl. (17; Rogers Decl. ¥ 9), he lacks standing to

challenge the NGE as a SRG ot to have it recognized as a religion. See Rogers v. Stanback, No.

1:13CV209, 2013 WL 6729864, at *2 n.4 (M.D.N.C. Dec. 19, 2013) (unpublished). However, to the

extent Plaintiff asserts that he is “validated” as NGE and “has a tight to defend his religion” (Am.

Compl. J 17; see a/so Rogers Decl. 9), the Court assumes that the NGE is a religious group entitled

to First Amendment protection. See Rogers v. Jackson, No. 5:15-CT-3092-FL, 2017 WL 4246866, at *7

(E.D.N.C. Sept. 25, 2017) (unpublished). However, as further discussed herein, Defendants have

shown that the prohibition on both the NOI and NGE further a compelling governmental interest

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2. Compelling Government Interest and Least Resttictive Means

Assuming arguendo that Plaintiffs religious practices have been substantially burdened,

to defeat the more stringent protections under RLUIPA Defendants must demonstrate “that

the limitation on the plaintiffs religious exercise is the least restrictive means of furthering a

compelling government interest.” Krieger, 496 F. App’x at 324. Defendants argue that the

NCDP3$’s resttictions on the NOI is the least restrictive means to setve the compelling interest

of preserving secutity and safety from the threat posed by such organization. (Docket Entry

AT at 13-15.) The Fourth Circuit in Lovelace recognized that “good order, security and

discipline” are valid concerns of prison officials, and “security deserves particular sensitivity.”

472 F.3d at 190 (internal quotations and citations omitted).

Specifically here, Defendant Rich contends that the NGE has a “history of violence

and illegal activity within the prison system and their core beliefs lends itself to racial

supremacy, cultural division, and extremism.” (Rich Aff. 916.) Allowing Plaintiff to possess

matetials associated with a SRG presents secutity risks and safety concerns. (See zd. Jf] 17-19.)

Even if deemed a substantial burden, the prohibitions on the NGE and NOI further

compelling governmental interests of safety and security. And such prohibitions have not

prevented Plaintiff from religious worship through access to Islamic services, private devotion,

and pteapproved publications.

Indeed, in a similar case, another district court within North Carolina already held

that “the prohibition on [NGE] Five Percentets and NOI furthets a compelling governmental

with no lesser alternative means to accomplish such. Thus, Defendants are entitled to summaty

judgment on Plaintiff's First Amendment and RLUIPA claims.

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intetest, which is the safety of inmates.” Rogers, 2017 WL 4246866, at *9. Further, the Fourth

Circuit has “observed that a federal intelligence summary concluded the Five Percentets were

‘a tadical Islamic sect/ctiminal group that is often boldly racist in its views, prolific in its

ctiminal activities, and operates behind a facade of cultural and religious rhetoric.’ ” Incumaa

v. Stirling, 791 F.3d 517, 520 n.3 (4th Cir. 2015), as amended uly 7, 2015).’ Ultimately, based

on the evidence presented here, considered in the light most favorable to Plaintiff, the

NCDP%$’s measutes in restricting the programs and setvices of the NOI and the prohibition

on the NGE are the least restrictive means to serve their compelling and penological interest

in institutional security and safety. Thus, PlaintifPs RLUIPA and First Amendment claims

fail.°

B. Due Process Claim

Plaintiff asserts that he was deprived of due process because his continued gang

member status has caused him atypical and significant hardship including the inability to

rehabilitate himself and the lack of a fair opportunity at parole. (See Am. Compl. {ff} 25, 27,

30-32, 34.) Defendants Brown and Rich contend that Plaintiff has not and cannot present

7 The NGE has been recognized as a religion in some states and district courts. See Miles □□

Guice, No. 5:13-CT-3193-FL, 2018 WL 505071, at *5 & n. 4 (E.D.N.C. Jan. 22, 2018) (unpublished)

(collecting cases).

® “This coutt need not conduct a sepatate analysis under the First Amendment because

RLUIPA requires a higher degree of proof than the First Amendment standard.” Rogers, 2017 WL

4246866, at *9.

° For the same reasons, Plaintiff claims for violation of his North Carolina constitutional rights

should be dismissed. In re Wiliams, 269 N.C. 68, 78, 152 S.E.2d 317, 325 (1967) (noting that “the

freedom protected by this provision of the State Constitution is no mote extensive than the freedom

to exercise one’s religion, which is protected by the First Amendment to the Constitution of the United

States.”’).

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admissible evidence sufficient to suppott a due process violation. (Docket Entry 47 at 16-19.)

To state aptocedural due process claim, Plaintiff must demonstrate that he “had a

constitutionally cognizable life, liberty, or property interest.” Sansotta v. Town of Nags Head, 724

F.3d 533, 540 (4th Cir. 2013) (citation omitted). Plaintiff must then show that he was deprived

of that interest by Defendants and “that the procedures [they] employed were constitutionally

inadequate.” Id. (internal quotations and citation omitted). “[WJhile a state statute ot policy

may create liberty interests giving tise to Due Process protection, this is so only if the denial

of such an interest imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Prieto v. Clarke, 780 F.3d 245, 249 (4th Cir. 2015) (internal

quotations and citation omitted).

Here, Plaintiffs arguments surrounding his validation as an NGE member, continued

improper classification, and failute to review his SRG status do not demonstrate a due process

violation. Fitst, as previously stated, Defendant Brown was not personally involved in any

decisions telated to the SRG designation of Plaintiff. (Brown Aff. Jf] 20-21.) As to Defendant

Rich, his was not employed with the NCDPS when Plaintiff was initially validated in 1998.

(See Rich Aff. { 2 (employed since 2004).) During annual reviews since 2015, Plaintiff

continued to meet the criteria for validation as a SRG member and thus has remained such

throughout his incarceration. (Id. {J 12-14.) Defendant Rich last reviewed Plaintiff's SRG file

on July 5, 2017, before other SOIU staff were assigned to the case. (Id. {| 20.) Based on the

NCDPS policies at that time, “the SRG membership was not removed from an inmate due to

the secutity tisk that could pose to staff or operations.” (Id. {| 21.) Defendant Rich admits

that the NCDPS was in the process of developing a new policy such that inmates □□□□□

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tenunciate their SRG membership and have the SRG notation removed from their file, but

such changes were not in place during his final review of Plaintiff's case. (Id)

The evidence here does not demonstrate a violation of Plaintiffs due process rights by

any actions of Defendant Rich. Plaintiff's continued SRG status was because he met the

ctiteria for such validation based on the policy in place at the time of Defendant Rich’s review.

Plaintiff argues that during the July 2018 review of his SRG status, he was awate of a way in

which inmates could “lower their SRG level,” though the process was not afforded to him

even though facility intelligence officers recommended his SRG status be removed. (See

Docket Entry 50 at 16; see also Rogets Decl. 415, Docket Entry 50 at 32-33.) Even if this were

ttue, Defendant Rich did not personally review Plaintiffs SRG case since July 2077, after

which other SOIU staff were assigned to review the case. (See Rich Aff. ] 20.) Moreover,

Defendant Rich admits that the NCDPS was in the process of developing new policies

regarding inmates with SRG designations. (Id. J] 21.) Nevertheless, such new changes wete

not in place during his final review of Plaintiffs 2017 file. (Id) As such, thete is no due

ptocess violation on the part of Defendant Rich and Defendants ate entitled to summaty

judgment on such claim.

C. Official Capacity Claims

Defendants also argue that to the extent Plaintiff seeks monetary damages against them

in their official capacities, it is barred by the doctrine of sovereign immunity. (Docket Entry

47 at 19-20.) The Eleventh Amendment prohibits actions in federal court by individuals

against a state unless the state has consented to suit ot unless Congress has lawfully abrogated

the states’ Eleventh Amendment immunity. Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir.

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2003). The doctrine of sovereign immunity undet the Eleventh Amendment applies not only

to actions in which the State of North Carolina is a named defendant, but also to actions

against its departments, institutions, and agencies. DeMurry v. N.C. Dept of Corrs., 195 N.C.

App. 485, 492-93, 673 S.E.2d 374, 380-81 (2009). Additionally, in North Carolina, “[a]ctions

against officers of the State in their official capacities are actions against the State for the

purposes of applying the docttine of [sovereign] immunity.” Green v, Kearney, 203 N.C. App.

260, 268, 690 S.E.2d 755, 762 (2010) (citation omitted). Indeed, “[w]here [Section 1983's]

provisions allow for suit against a ‘person,’ and in suits for money damages, neither the state

not a state agency is deemed a ‘petson,’ [thus] this claim cannot be maintained by plaintiff

against [the State].” Savage v. N. Carolina Dep't of Corr, No. 5:06-CV-171-FL, 2007 WL

2904182, at *5 (E.D.N.C. Sept. 29, 2007) (unpublished).

Here, to the extent Plaintiff has filed suit against Defendants in their official capacities,

it would be against the NCDPS. Green, 203 N.C. App. at 268, 690 S.E.2d at 762. ‘The NCDPS,

as an agency of the State of North Carolina, has not consented to suit nor waived immunity.

Thus, Defendants should be entitled to summaty judgment on Plaintiffs claims to the extent

he seeks monetary damages against them in their official capacities under § 1983."

0 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

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) Therefore, the plaintiff's only potential remedies under RLUIPA are equitable.”). As

pteviously stated, Plaintiffs RLUIPA claim fails.

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D. Qualified Immunity

Lastly, Defendants atgue that they ate entitled to qualified immunity for any money

damages in their individual capacity. (Docket Entry 47 at 20.) Under the doctrine of qualified

immunity, “government officials performing discretionary functions generally ate shielded

from liability 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.

Fitegerald, 457 U.S. 800, 818 (1982); see also Ridpath v. Bd. of Governors Marshall Unw., 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[.]”).

Thus, the traditional two-step qualified immunity inquity 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 F. App’x 541,

547 (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)."

Here, Plaintiff has not demonstrated a constitutional violation. Thus, Defendants ate

entitled to qualified immunity. See Abney v. Coe, 493 F.3d 412, 415 (4th Cir. 2007) (finding that

[an official] did not violate any tight, he is hardly in need of any immunity and the analysis

ends tight then and there”).

"Tn Pearson, the Supreme Court overruled the mandatory two-step sequence adopted in

Sancier v. Katz, 533 U.S. 194 (2001), in analyzing qualified immunity. Thus, after Pearson, courts ate

free “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances ....” Pearson, 555 U.S. at 236.

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Ill. CONCLUSION

For the reasons stated herein, IT IS RECOMMENDED that Defendants Betty

Btown and Chris Rich’s Motion for Summaty Judgment (Docket Entry 46) be GRANTED

and that this action be dismissed.

| Joe L. Webster

United States Magistrate Judge

August 11, 2022

Durham, North Carolina

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