Roberts v. Perry

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:16-cv-385-FDW

JIMMY ALLEN ROBERTS, )

)

Plaintiff, )

)

vs. ) ORDER

)

FRANK L. PERRY, et al., )

)

Defendants. )

__________________________________________)

THIS MATTER comes before the Court on Defendants’ Motion for Summary Judgment,

(Doc. No. 33).

I. BACKGROUND

Pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983 and the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”). The Amended Complaint passed initial review,

(Doc. Nos. 16, 17), and Plaintiff previously filed a Motion for Summary Judgment that was denied,

(Doc. Nos. 26, 27). Defendants have now filed a Motion for Summary Judgment that is before the

Court for consideration.

(1) Amended Complaint1 (Doc. No. 16)

Pro se Plaintiff, who is currently incarcerated at the Franklin Correctional Center, filed this

action pursuant to 42 U.S.C. § 1983 and RLUIPA for incidents that allegedly occurred at Mountain

View Correctional Institution. He names as Defendants the North Carolina Secretary of Prisons

1 Allegations that did not pass initial review are omitted from this section.

Eric Hooks (formerly Frank L. Perry), and the following employees of Mountain View C.I.:

Administrator Mike Slagle, Mailroom Supervisor Lynn Ollis, and Correction Officer Grear.

Plaintiff alleges in his verified Amended Complaint that five religious books arrived for

him at Mountain View C.I. on June 24, 2016. They were authored by Pastor Everett Ramsey of

Faith Baptist Church, and they were published by James Nelson Publishers and/or Pastor Ramsey

and satisfied the DPS definition of “published.” Defendant Ollis rejected the publications because

they did not come from a legitimate publisher or marketer and Plaintiff appealed. On June 26,

2016, Plaintiff sent Defendant Slagle a request form informing him of Ollis’ actions but he failed

to respond or take any remedial action, which shows deliberate indifference. On July 12, 2016,

Plaintiff sent a letter to Perry notifying him of Ollis’ actions and he failed to respond or take any

remedial action, which shows deliberate indifference. On July 21, 2016, Plaintiff filed a grievance

and received an unsatisfactory response and he appealed through step-3, which was denied.

On August 15, 2016, Correctional Officer Grear confiscated Volume 2 of Lawrence

Buchard’s “The Covenant Heritage Series” from Inmate Eddie Money. Plaintiff informed

Defendant Grear that he had loaned the book to Inmate Money as authorized by DPS policy.

However, Grear said the book was Aryan Brotherhood material and therefore contraband. The

book is religious regarding his ancestral religious practice and does not contain any gang-related

subject-matter. Confiscation was the sole product of Grear’s hatred of Plaintiff because of his race

and ancestral religion and tries to use the security policies to punish Plaintiff. Plaintiff had received

the book while at Avery C.I through proper mailroom screening. It was also inspected upon his

arrival at Mountain View C.I., and he had it for over a year at Mountain View C.I. where it was

inspected repeatedly without incident. Plaintiff was allowed to receive Volumes 4 and 5 of the

book. Plaintiff filed a grievance September 7, 2016, received an unsatisfactory response, and

appealed through step-3 which was denied.

Plaintiff’s incoming correspondences with Ed Sommerville suddenly stopped while

Plaintiff was housed at Mountain View C.I., without notice. Plaintiff came to suspect that

Defendant Ollis was responsible. This suspicion was confirmed on June 6, 2016, when Plaintiff

found out that Sommerville’s correspondences had been returned to him by mailroom staff. On

July 11, 2016, Plaintiff wrote to Ollis on a request form and asked her to explain why the religious

and political articles had been returned without notice or due process procedures, which are

mandatory. On July 13, 2016, Defendant Ollis rubber stamped the request, saying the mailings had

been returned due to absence of prisoner number in the address, which is untrue. On July 15, 2016,

Plaintiff wrote to Defendant Perry informing him of Defendant Ollis’ abuses but he did not respond

or take any remedial action, which shows deliberate indifference. On October 22, 2016, after

Plaintiff was transferred to Craggy C.I., he received two letters from Sommerville informing

another Mountain View C.I. inmate of his futile attempts to mail religious and political printouts

to Plaintiff. Plaintiff filed another grievance on October 22, 2016, which was returned without

processing as untimely.

Plaintiff began studying Christian literature in 2001, received “Theophany” in 2004 which

altered the course of his life, was invited to enroll in a “prototypical Seminary Extension Program”

in 2007, and in 2009, received ordination from the Ministerial Seminary of America, adopted a

“Christian identity,” and began incorporating the “Hebrew Roots Movement” into his belief

system, in May 2017 he was given the opportunity to prepare lesson plans and conduct weekly

Sabbath services, and in 2018, he became the first officially designated “faith helper” in the

Western District of North Carolina. (Doc. No. 16 at 14-16, 22). Yaweh grants his chosen people

who make the study of scripture the primary focus of their daily lives. (Doc. No. 16 at 18).

Plaintiff’s ability to perform these “divinely assigned duties” is measured by the amount of

“curricular information that he is allowed to access, research, and assimilate in the advancement

of his own spiritual maturation….” (Doc. No. 16 at 18). When the sources of information diminish,

the practice of his religion is diminished. The confiscated material does not advocate violence and

no rational relationship between stopping incoming religious publications and a compelling

government interest, which has substantially burdened his religious practice. (Doc. No. 16 at 20).

Plaintiff requested judicial notice of the absence of hate, violence, white supremacist,

racism, anti-Semitism, domestic terrorism, criminal activity from his beliefs, and that the

Defendants’ grievance responses are silent regarding a compelling government interest.

Plaintiff requested costs, injunctive relief, and “all punitive or remedial relief this court

deems appropriate.” (Doc. No. 16 at 29).

(2) Defendants’ Motion for Summary Judgment (Doc. No. 33)

Defendants argue that Plaintiff has failed to demonstrate the existence of a genuinely

disputed material fact that the conduct he complains of is substantially burdensome to the exercise

of his religion. The policy at issue placed restrictions on religious exercise and made it more

difficult but did not pressure Plaintiff to violate or abandon the precepts of his religion. Plaintiff

admits that he had access to other volumes of the legal materials to study his faith. Further, the

publication and mail policies at issue are valid because they are reasonably related to the legitimate

penological interests of controlling contraband and security problems. Plaintiff has also provided

no genuine issue of material fact to show that Defendants acted with the requisite intent.

Plaintiff cannot proceed on claims against Defendant Perry on the theory of respondeat

superior because there is no such liability under § 1983. He cannot proceed against Defendants

Perry or Slagle on the theory of supervisory liability because the allegations fail to show that either

of these Defendants had knowledge of a pervasive or unreasonable risk of constitutional injury to

Plaintiff.

Plaintiff cannot recover monetary damages from Defendants in their official capacities

because they are barred by the Eleventh Amendment and Defendants are entitled to qualified

immunity from any claims for monetary damages in their individual capacities because their

conduct was neutral and rational. Further, Plaintiff has not demonstrated any compensable

damages for the alleged violation of his First Amendment rights aside from possibly asserting

emotional distress or mental anguish and are not reasonably quantifiable.

(3) Plaintiff’s Response (Doc. No. 37)

The Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),

on April 26, 2019 informing Plaintiff of the legal standards applicable to summary judgment

motions and ordering him to file a response within 14 days. (Doc. No. 36). The Court cautioned

Plaintiff that “[f]ailure to to file a timely and persuasive response will likely lead to the relief that

Defendant [Harwood] seeks.” (Doc. No. 36 at 3).

Plaintiff file a Response to the Motion for Summary Judgment that attempted to state a

claim for denial of access to the courts, which was denied, and was construed in part as a Motion

for Extension of Time to Respond, which was granted until June 7, 2019. (Doc. Nos. 37, 38). That

time limit has expired and Plaintiff has not filed any further response.2

2 Plaintiff complains that he lacks the access to legal assistance and materials that would allow him to respond

(4) Evidence3

(A) Affidavit of Michael A. Slagle (Doc. No. 35-1)

Defendant Slagle is the Superintendent of Mountain View C.I. He is familiar with NCDPS

policies and procedures and is trained and experienced in the management of inmates like Plaintiff.

As the Superintendent, Slagle has access to the Offender Population Unified System (“OPUS”),

an electronic database containing comprehensive inmate records as well as NCDPS policies and

procedures, Mountain View Standard Operating Procedure (“SOP”) and documents related to the

religious services and practices at Mountain View.

Defendant Slagle searched his records and found a letter from Plaintiff dated December 9,

2016; he did not find any correspondence from Plaintiff dated June 26, 2016. Anytime Slagle

receives correspondence from an offender he takes it seriously and either investigates it, provides

a response, or forwards it to the appropriate section for review and response. He does not ignore

or dispose of any offender correspondence directed to him.

While reviewing Plaintiff’s records, he reviewed documents that show Plaintiff appealed

the decision to reject publications that were sent to him from Faith Baptist Church because they

did not meet the guidelines to be considered approved from a legitimate marketer and/or

distributor. Plaintiff’s appeal was forwarded to the Inmate Publication Review Committee which

reviewed the publications and determined that the source of the publications/materials was not a

to the Motion for Summary Judgment. The Court rejects this excuse for failing to respond. Plaintiff was informed of

the applicable legal standard and of his obligation to “set forth specific facts showing that there is a genuine issue for

trial…” in the Roseboro Order and was granted an extension of time to respond. (Doc. No. 36 at 2). Plaintiff has failed

to explain how the alleged lack of access to legal assistance or materials prevented him from presenting evidence,

including affidavits, to show there is a genuine factual issue for trial.

3 This section is not exhaustive.

legitimate publisher or distributor of publication material. Plaintiff chose to destroy the

publications on August 2, 2016.

NCDPS policy provides procedures for how offenders confined at facilities such as

Mountain View can receive and possess publications that include hardback and paperback books,

newspapers, magazines, newsletters, and vendor catalogues. The NCDPS publication policy is

“necessary to control security problems caused when contraband such as drugs, weapons, money,

and tools that can be used to effect an escape are smuggled in books, magazines, and newspapers

from unvetted sources or visitors.” (Doc. No. 35-1 at 3). These searches are done to “reduce and

prevent the incidents of contraband, to include drugs and weapons, which compromise the safety

of the inmate and officers in the facility. (Doc. No. 35-1 at 3-4).

Offenders at Mountain View receive large quantities of mail on a weekly basis for the 908

offenders housed there. It is estimated that thousands of pieces of mail are received on a weekly

basis. All incoming mail is searched per policy and staff find contraband in the mail frequently

consisting of items such as drugs, tobacco, and Security Risk Group paraphernalia. Recently, staff

found a large quantity of drugs coming through the mail disguised as religious material from a

church, “showing the need for a strong policy regarding who and where mail and publications can

be received from.” (Doc. No. 35-1 at 4).

As Superintendent, Slagle is responsible for developing and implementing a facility

contraband control procedure consistent with NCDPS Contraband Control Policy (Exhibit D).

(Doc. No. 35-1 at 4). Mountain View’s SOP regarding prisoner personal property includes rules

related to religious materials and unauthorized property or contraband (Exhibit E) and a policy on

religious activities that includes rules related to religious items and practices (Exhibit F).4

NCDPS policies and procedures and Mountain View SOPs related to inmate mail

privileges, receipt and possession of publications, contraband control, and the possession of

religious materials or items “were not promulgated with any intent to discriminate against Plaintiff

or his religious faith, but are necessary to maintain the safety of the inmates and officers in the

facility.” (Doc. No. 35-1 at 5). Slagle denies that, in performing his duties as the Superintendent

at Mountain View, that he “violated any rights secured to Plaintiff under the laws of the State of

North Carolina or the Constitution and laws of the United States.” (Id.).

(B) Affidavit of Isaac Grear (Doc. No. 35-2)

Defendant Grear is a Correctional Officer at Mountain View. He is familiar with the

policies and procedures of NCDPS and is trained and experienced in the management of inmates

like Plaintiff.

As part of his duties as Correctional Officer, Grear regularly conducts searches of inmate

property and supervised searches. These searches are done “to reduce and prevent the incidents of

contraband, to include drugs and weapons, which compromise the safety of the inmates and

officers in the facility.” (Doc. No. 35-2 at 2).

Defendant Grear did confiscate a book from Inmate Money that, to Grear’s knowledge,

was not approved religious property. At the time Grear confiscated the book that was in Inmate

Money’s possession, it was Grear’s opinion “based on [his] training and experience as a

4 The Court takes judicial notice of NCDPS Policy & Procedures and of Mountain View SOP which will not

be separately summarized in this Order. See Fed. R. Ev. 201.

correctional officer that the book mirrored white supremacy materials.” (Doc. No. 35-2 at 2).

Therefore, pursuant to his training regarding unauthorized property that he suspected may be

contraband, he confiscated the book and turned it in to Mountain View’s facility intelligence

officer for his review and determination if the book was a security risk. Defendant Grear recalls

that he was approached by Plaintiff, “an associated gang member,” who told Grear that the book

was actually his. (Doc. No. 35-2 at 2). Because Plaintiff was designated as a possible gang member,

Grear informed him that the book was submitted to the facility’s intelligence officer and that he

would pass on a note to the officer that the book was Plaintiff’s. Grear is not aware of the outcome

of the facility intelligence officer’s investigation into the matter.

Defendant Grear does not draft policies or create them and cannot modify the policies of

NCDPS or Mountain View. It is his role to implement the policies of NCDPS and Mountain View.

Defendant Grear confiscated the book he found in Inmate Money’s possession because, to

his knowledge and experience, it may have been contraband as defined in NCDPS and Mountain

View policies. Defendant Grear “was not angry at Plaintiff, and in performing [his] duties [he] was

not acting out of spite or malice.” (Doc. No. 35-2 at 3). Defendant Grear performed his duties

consistent with NCDPS and Mountain View policies. He “did not act with any intent to

discriminate against Plaintiff either because of his race or religious faith.” (Id.). Defendant Grear

“den[ies] that in performing [his] duties” as a Correctional Officer at Mountain View, that he

“violated any rights secured to Plaintiff under the laws of the State of North Carolina or the

Constitution and laws of the United States.” (Id.).

(C) Affidavit of Lynn Ollis (Doc. No. 35-3)

Defendant Ollis is Accounting Clerk I/ Mailroom Processing Assistant at Mountain View.

As part of the duties as Mailroom Processing Assistant, Defendant Ollis regularly conducts the

initial screening of incoming publications for compliance with NCDPS Policy & Procedures

Manual, Chapter D, § .0100 regarding Publications Received/Possessed by Inmates. The Policy

provides that, prior to the distribution of a publication, including hardback and paperback books,

newspapers, magazines, newsletters, and vendor catalogues, initial screening is performed and

then the publication is forwarded to the Warden/Superintendent or Deputy/Assistant

Superintendent for the purpose of disapproving receipt or possession of a publication by an inmate.

These searches are done “in order to reduce and prevent the incidents of contraband, to include

drugs and weapons, which compromise the safety of the inmates and officers in the facility.” (Doc.

No. 35-3 at 2).

Defendant Ollis does not draft policies or create them and cannot modify the policies of

NCDPS or Mountain View, but rather, implements the policies of NCDPS and Mountain View.

Mountain View is a medium custody facility. Plaintiff received publications that were sent

to him from Faith Baptist Church, which “did not meet the guidelines to be considered approved

from a source that is a legitimate marketer and/or distributor of published material, so the

publications were rejected.” (Doc. No. 35-3 at 2). The Faith Baptist Church does not meet the

criteria of a “publisher,” which is defined to include “legitimate wholesale marketers and

distribution centers for published material” and includes “established retailers (Barnes & Noble,

Borders, etc.) if selling published material is part of their business.” (Doc. No. 35-3 at 2-3) (quoting

NCDPS Policy & Procedure § .0101(a) and § .0109(f)(O)).

Plaintiff appealed the decision to reject these publications and his appeal was forwarded to

the Inmate Publication Review Committee which reviewed the publications and determined that

the source of the publication/materials is not a legitimate publisher or distributor of publication

material. Plaintiff chose to destroy the materials on August 2, 2016.

Defendant Ollis performed the duties consistent with NCDPS and Mountain View policies

and “did not act with any intent to discriminate against Plaintiff because of his religious faith.”

(Doc. No. 35-3 at 3). Defendant “den[ies] that in performing [the] duties [of] a Mailroom

Processing Assistant at Mountain View, [Ollis] violated any rights secured to Plaintiff under the

laws of the State of North Carolina or the Constitution and laws of the United States.” (Id.).

(D) OPUS Online (Doc. No. 35-2 at 13)

The Offender Gang Information screen shows that Plaintiff is SRG associate as of August

8, 2007.

(E) Letter to Warden/Superintendent (Doc. No. 35-3 at 39)

The Letter to Defendant Slagle from the Publication Committee on July 26, 2016 regarding

the Return of Publication/Material Confiscated, states “The Publication Review Committee has

completed a review of the publication(s). Below is a list of publication(s) being returned to your

facility… Inmate Name Jimmy Roberts … Publication Title Faith Baptist Church… Final Action

by PRC DISAPPROVAL.”

(F) Letter to Inmate (Doc. No. 35-3 at 36-39)

The Letter to Plaintiff from the Chairperson of the Publication Review Committee on July

29, 2016 regarding “Your Appeal of Publication Source Listed Below,” states “The disapproval

of Faith Baptist Church 16800 Sunset Dr. Houston, MO 65483 as the source of your publication

material has been reviewed. It has been determined that the source of your publication/material is

not a legitimate publisher or distributor of publication material and/or the source is in conflict with

your custody level; therefore, you cannot receive the publication/material. Specifically, you are

denied receipt of the publication/material due to the violation of Prison Policy Chapter D, Section

.0109(f) Code (O), as described below… Source that is not a legitimate marketer, and/or distributor

of published material.” “Destroyed” signed by Plaintiff, August 2, 2016.

II. LEGAL STANDARDS

(1) Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fec. R. Civ. P.

56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is material only if it might affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving

party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.

The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings

to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present sufficient

evidence from which “a reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818

(4th Cir. 1995).

When ruling on a summary judgment motion, a court must view the evidence and any

inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477

U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). As a general rule,

when one party files a motion for summary judgment, the non-movant cannot merely rely on

matters pleaded in the complaint, but must, by factual affidavit or the like, respond to the motion.

Celotex, 477 U.S. at 324; Kipps v. Ewell, 538 F.2d 564, 566 (4th Cir. 1976); Fed.R.Civ.P. 56(e).

A verified complaint is the equivalent of an opposing affidavit for summary judgment

purposes when the allegations are based on personal knowledge. Davis v. Zahradnick, 600 F.2d

458, 459–60 (4th Cir.1979) (holding that the factual allegations contained in a verified complaint

establish a prima facie case under 42 U.S.C. § 1983, so as to preclude summary judgment).

However, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted

by the record, so that no reasonable jury could believe it, a court should not adopt that version of

the facts for purposes of ruling on a motion for summary judgment.’” Smith v. Ozmint, 578 F.3d

246, 254 (4th Cir. 2009) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)).

(2) First Amendment

The First Amendment states that “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech….” U.S.

Const. Amend I. The First Amendment applies to the states through the Fourteenth Amendment.

See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). A prison inmate retains those First Amendment

rights that are not inconsistent with his status as a prisoner or with the legitimate penological

objectives of the corrections system. Procunier v. Martinez, 416 U.S. 396, 412 (1974), limited by

Thornburgh v. Abbott, 490 U.S. 401 (1989); Pittman v. Hutto, 594 F.2d 407, 410 (4th Cir. 1979).

When a prison restriction infringes upon an inmate’s First Amendment rights, the alleged

infringement “must be evaluated in the light of the central objective of prison administration,

safeguarding institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979) (citing Jones v.

N.C. Prisoners’ Labor Union, 433 U.S. 119, 129 (1977)).

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

sufficient to show that he held a sincere religious belief, and that the official action or regulation

substantially burdened his exercise of that belief. Hernandez v. Comm’r, 490 U.S. 680, 699

(1989). For government conduct to survive scrutiny under the Establishment Clause, “(1) it must

have a secular purpose; (2) its principal or primary effect must neither advance nor inhibit religion;

and (3) it must not foster an excessive government entanglement with religion.” Buxton v.

Kurtinitis, 862 F.3d 423, 432 (4th Cir. 2017) (citing Lemon v. Kurtzman, 403 U.S. 602, 612–13

(1971)); see also Madison v. Riter, 355 F.3d 310, 316 (4th Cir. 2003). 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 v. Estate of

Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).

In deciding whether a defendant’s actions can be sustained as reasonably related to

legitimate penological interests, the court must consider: (1) whether there is a valid, rational

connection between the action and the stated legitimate government interest; (2) whether there are

alternative means of exercising the right; (3) whether accommodating the right will have an

adverse impact on guards, other inmates, and prison resources generally; and (4) the absence of

ready alternatives). Substantial deference is accorded to the professional judgment of prison

administrators, who bear a significant responsibility for defining the legitimate goals of a

corrections system and for determining the most appropriate means to accomplish them. Turner,

482 U.S. at 89-91; Overton v. Bazzetta, 539 U.S. 126, 132 (2003). The burden is not on the State

to prove the validity of prison regulations, but on the prisoner to disprove it. Id. Any regulation of

speech must not be any more encompassing than necessary to further the penological interested

involved. See Montcalm Publishing Corp. v. Beck, 80 F.3d 105, 108 (4th Cir. 1996) (citing

Martinez, 416 U.S. at 424).

(3) RLUIPA

RLUIPA provides, in part, that 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. § 2000cc-

1(a). “RLUIPA thus protects institutionalized persons who are unable freely to attend to their

religious needs and are therefore dependent on the government’s permission and accommodation

for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). A plaintiff bears

the initial burden of showing that the challenged policy substantially burdens his exercise of his

religion. See 42 U.S.C. § 2000cc-2(b); Holt v. Hobbs, 135 S. Ct. 853, 862 (2015). The statute

defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central

to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); Smith v. Ozmint, 578 F.3d 246, 251

(4th Cir. 2009). A “‘substantial burden’ is one that puts substantial pressure on an adherent to

modify his behavior and to violate his beliefs, [] or one that 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.” Lovelace v. Lee, 472 F.3d 174,

187 (4th Cir. 2006) (quotations, citation, and alterations omitted).

Once the inmate makes a prima facie showing, the burden shifts to the government to prove

that “the burden in question is the least restrictive means of furthering a compelling governmental

interest.” Smith, 578 F.3d at 250. “‘RLUIPA adopts a . . . strict scrutiny’ standard.” Couch v.

Jabe, 679 F.3d 197, 203 (4th Cir. 2012) (quoting Lovelace, 472 F.3d at 198 n.8). Under RLUIPA,

the court must give “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.” Cutter, 544 U.S. at 723

(quotation omitted). “However, ‘a court should not rubber stamp or mechanically accept the

judgments of prison administrators.’ . . . Rather, due deference will be afforded to those

explanations that sufficiently ‘take[] into account any institutional need to maintain good order,

security, and discipline.’” Couch, 679 F.3d at 201 (quoting Lovelace, 472 F.3d at 190). Claims

brought under RLUIPA are subject to a more demanding standard than claims under the First

Amendment, that is, “strict scrutiny instead of reasonableness.” See Lovelace, 472 F.3d at 187,

199 n.8 187 (Supreme Court jurisprudence interpreting the Free Exercise Clause provides guidance

on what constitutes a substantial burden on religious exercise).

(4) Sovereign Immunity

The Eleventh Amendment bars suits directly against a state or its agencies, unless the state

has waived its immunity or Congress has exercised its power under § 5 of the Fourteenth

Amendment to override that immunity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66

(1989). Congress has not imposed § 1983 liability upon states, and the state of North Carolina has

done nothing to waive its immunity. Bright v. McClure, 865 F.2d 623, 626 (4th Cir. 1989) (citing

McConnell v. Adams, 829 F.2d 1319, 1328 (4th Cir. 1987)).

“[A]n official capacity suit is, in all respects other than name, to be treated as a suit against

the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, a lawsuit against an officer

in his official capacity is, in substance, a claim against the governmental entity and should be

subject to the same analysis. See Almone v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007);

see Hutto v. S.C. Retirement Sys., 773 F.3d 536, 549 (4th Cir. 2014) (State officials sued in their

official capacities for retrospective money damages have the same sovereign immunity accorded

to the State).

(5) Qualified Immunity

The doctrine of qualified immunity protects government officials “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. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity “balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The existence of qualified immunity “generally turns on the

‘objective reasonableness’ of the actions” without regard to the knowledge or subjective intent of

the particular official. Am. Civil Libs. Union of Md., Inc. v. Wicomico County, Md., 999 F.2d

780, 784 (4th Cir. 1993) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 641 (1987)) (internal

citations omitted).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court mandated a two-step sequence

for resolving government officials’ qualified immunity claims by determining whether: (1) the

facts that a plaintiff has alleged or shown make out a violation of a constitutional right; and (2) the

right at issue was “clearly established” at the time of defendant’s alleged misconduct. While the

sequence of the steps set forth in Saucier is “often appropriate,” it is not mandatory. Pearson, 555

U.S. at 236. Judges are permitted 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

in the particular case at hand. Id.

To overcome the qualified immunity defense at the summary judgment stage, the plaintiff

must have shown facts that make out a violation of a constitutional right, and the right at issue

must have been “clearly established” at the time of the defendant’s alleged misconduct. Thompson

v. Commonweath of Va., 878 F.3d 89, 97 (4th Cir. 2017) (citing Pearson, 555 U.S. at 232). The

analysis takes place against the backdrop of two dueling interests: “the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555

U.S. at 231.

To find a right is clearly established does not mean that “the exact conduct at issue [must]

have been held unlawful for the law governing an officer’s actions to be clearly established.”

Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001). Rather, the court’s analysis must take into

consideration “not only already specifically adjudicated rights, but those manifestly included

within more general applications of the core constitutional principle invoked.” Id. at 362-63

(internal quotation omitted). The right at issue is “clearly established” for qualified immunity

purposes if:

[t]he contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right. That is not to say that an official

action is protected by qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in light of pre-existing law the

unlawfulness must be apparent.

Anderson, 483 U.S. at 640 (citation omitted).

To determine if the right in question was clearly established, the court first looks to cases

from the Supreme Court, the Fourth Circuit, or the highest court of the state in which the action

arose. Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004). In the absence of “directly

on-point binding authority,” courts may also consider whether “the right was clearly established

based on general constitutional principles or a consensus of persuasive authority.” Booker v. South

Carolina Dep’t of Corr., 855 F.3d 533, 543 (4th Cir. 2017); Owens, 372 F.3d at 279 (“the absence

of controlling authority holding identical conduct unlawful does not guarantee qualified

immunity.”). Ordinarily, the unlawfulness of government conduct must be apparent in light of pre-

existing law. White v. Pauly, 137 S.Ct. 548, 442 (2017). However, a “general constitutional rule

… may apply with obvious clarity ... even though the very action in question has not previously

been held unlawful. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (citing United States v. Lanier, 520

U.S. 259, 271 (1997)). Therefore, “officials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Id. at 741.

III. DISCUSSION

(1) First Amendment & RLUIPA

Plaintiff asserts that Defendants violated the First Amendment and RLUIPA by

confiscating religious materials that were mailed to him. Defendants assert, and Plaintiff does not

dispute, that Plaintiff’s ability to exercise his religion was restricted but was not completely

foreclosed by NCPLS and Mountain View SOP policies and procedures, that Plaintiff was not

pressured to alter or violate his religious beliefs, and that Plaintiff admitted that he had alternate

means of practicing his religion. Therefore, Defendants did not substantially burden Plaintiff’s

religious exercise. Defendants further assert, and Plaintiff does not dispute, that the confiscations

were pursuant to NCDPS and Mountain View SOP that are necessary for the safety and security

of inmates and staff at Mountain View C.I., were not promulgated to intentionally discriminate

against Plaintiff or his religious faith, are reasonably related to legitimate penological interests,

and that Defendants Grear and Ollis’ actions in implementing these policies were the least

restrictive means of furthering a compelling governmental interest.

Defendants have presented evidence that Grear and Ollis were not involved in the creation

or modification of the NCDPS Policy & Procedure or Mountain View SOP, and that none of the

Defendants acted outside the NCDPS or Mountain View policies and practices. To the extent that

Plaintiff attempts to rely on respondeat superior this is unavailing because there is no such liability

under § 1983. Further, Plaintiff has not adequately alleged personal involvement by Defendants

Perry and Slagle, nor has he demonstrated that they had knowledge of an unreasonable or pervasive

risk of constitutional injury to Plaintiff that would impose supervisory liability on them.

Plaintiff has thus failed to demonstrate that a genuine dispute of material fact exists with

regards to Defendants’ alleged violation of his rights under the First Amendment and RLUIPA.

(2) Sovereign Immunity

To the extent that Plaintiff seeks compensatory and punitive damages against Defendants

in their official capacities, this is barred by sovereign immunity. See Almone, 478 F.3d at 106;

Hutto, 773 F.3d at 549. Therefore, Defendants’ Motion for Summary Judgment is granted on that

basis.

(3) Qualified Immunity

Defendants argue that qualified immunity shields them from damages in their individual

capacities because Plaintiff has not established a constitutional violation and their applications of

NCDPS and Mountain View SOP policies and procedures were neutral and reasonable.

Defendants have submitted evidence, and Plaintiff does not dispute, that Plaintiff is a

suspected SRG associate and that some of his mail from unapproved sources was confiscated and

sent for review in the interest of institutional safety and security in accordance with NCDPS and

Mountain View SOP policies and procedures. Plaintiff has failed to demonstrate that Defendants

violated a clearly established constitutional right of which a reasonable person would have been

aware. Therefore, Defendants are entitled to qualified immunity and Plaintiff is precluded from

obtaining damages against Defendants in their individual capacities.

Plaintiff has failed to satisfy his burden on summary judgment and therefore Defendants’

Motion for Summary Judgment will be granted.

IV. CONCLUSION

Based on the foregoing, Defendants’ Motion for Summary Judgment is granted and the

Clerk of Court will be instructed to close this case.

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion for Summary Judgment, (Doc. No. 33), is GRANTED.

2. The Clerk of Court is instructed to close this case.

Signed: June 25, 2019

Frank D. Whitney □

Chief United States District Judge ~*»**

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