# ROGERS v. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY

> District Court, M.D. North Carolina · August 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10254134

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254134

## How later opinions describe it (automated extraction)

- 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.”’

## Opinion text

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
10

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.
11

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.”’).
12

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 □□□□□

13

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.

14

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.
15

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254134. Public record. Not legal advice.