Greene v. Lassiter

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-00224-FDW

COREY DELON GREENE, )

)

Plaintiff, )

)

vs. ) ORDER

)

KENNETH LASSITER, et al., )

)

Defendants. )

__________________________________________)

THIS MATTER is before the Court on initial review of Plaintiff’s Amended Complaint.

[Doc. 16].

I. BACKGROUND

Pro se Plaintiff Corey Delon Greene (“Plaintiff”) is a state inmate currently incarcerated at

Avery/Mitchell Correctional Institution in Spruce Pine, North Carolina. Plaintiff filed this action

on July 18, 2019 [Doc. 1], pursuant to 42 U.S.C. § 1983, and filed an Amended Complaint on

September 12, 2019. [Doc. 16]. Plaintiff names the following individuals as Defendants in his

Amended Complaint: (1) Tim Moose, identified as the Chief Deputy Secretary of the North

Carolina Department of Public Safety (NCDPS); (2) Todd Ishee, identified as the Commissioner

of Prisons; (3) Kenneth Lassiter, identified as the Director of Prisons; (4) Sarah Cobb, identified

as the Deputy Director of Prisons; (5) Chris Rich, identified as the SRG Coordinator; and (6) Betty

Brown, identified as the Director of Chaplaincy Services. [Doc. 1 at 3-4, 13].

Plaintiff alleges that Defendants violated his First Amendment right to the free exercise of

his religion and his rights under the Religious Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”), 42 U.S.C. § 2000cc et seq., by refusing to recognize the 5% Nation of Gods and

Earths (“NOG”) as an approved religious group. Plaintiff is a member of this faith group and

alleges that his request to be allowed “to worship God as 5%ers in the NCDPS” have been denied

without serious inquiry and based on unclear grounds. [Doc. 1 at 15]. Plaintiff also claims that he

was validated as a security risk group (SRG) member for simply having NOG material because

the NCDPS views NOG members as “the same as the blood gang members.” [Id. at 17]. Plaintiff

alleges that this denial of his faith has substantially burdened him and that classifying NOG as “a

SRG for over 20 years is not the least restrictive means of furthering the NCDPS interest.” [Id. at

18]. Plaintiff also alleges that other faiths with tenets similar to those of NOG are allowed to

practice their religion. Finally, Plaintiff contends that Defendant Lassiter has failed to consistently

uphold NOG-related policy. [Id.].

For relief, Plaintiff seeks declaratory and injunctive relief, as well as compensatory and

punitive damages. [Doc. 16 at 19-20].

II. STANDARD OF REVIEW

The Court must review Plaintiff’s Complaint to determine whether it is subject to dismissal

on the grounds that it is “frivolous or malicious [or] fails to state a claim on which relief may be

granted.” 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A requires an initial review of a “complaint

in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee

of a governmental entity,” and the court must identify cognizable claims or dismiss the complaint,

or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or seeks monetary relief from a defendant who is immune from

such relief.

In its frivolity review, this Court must determine whether the Complaint raises an

indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as

fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore,

a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).

However, the liberal construction requirement will not permit a district court to ignore a clear

failure to allege facts which set forth a claim that is cognizable under federal law. Weller v. Dep’t

of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

III. DISCUSSION

RLUIPA provides, in part: “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).

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

Jabe, 679 F.3d 197, 203 (4th Cir. 2012) (quoting and citing 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).

As for Plaintiff’s First Amendment claim, the Free Exercise Clause of the First Amendment

states that “Congress shall make no law respecting an establishment of religion.” U.S. CONST.

amend. I. The Supreme Court has applied the First Amendment to the states through the

Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). To state a free

exercise claim under the First Amendment, a plaintiff must 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). 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 the following four factors: (1) whether there is a valid, rational

connection between the regulation and the legitimate penological interest; (2) whether there are

alternative means of exercising the right in question that remain open to prisoners; (3) the impact

accommodation of the asserted constitutional right would have on guards and other inmates and

on the allocation of prison resources; and (4) whether ready alternatives exist which accommodate

the right and satisfy the penological interest. See Turner, 482 U.S. at 89-90. Claims brought under

the First Amendment are subject to a less demanding standard of proof than claims brought under

RLUIPA, with RLUIPA claims requiring “strict scrutiny instead of reasonableness.” See

Lovelace, 472 F.3d at 199 n.8.

Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of every reasonable

inference, the Court finds that Plaintiff’s First Amendment and RLUIPA claims are not clearly

frivolous and therefore survive initial review. See Coward v. Robinson, 276 F.Supp.3d 544 (E.D.

Va. Aug. 28, 2017) (holding the Virginia Department of Corrections violated plaintiff’s rights

under RLUIPA and the First Amendment by designating NOG as a security threat group and by

refusing to recognize the NOG as a religion).

IV. CONCLUSION

For the reasons stated herein, Plaintiff’s claims are not clearly frivolous and therefore

survive initial review.

IT IS, THEREFORE, ORDERED that:

1. Plaintiff’s action survives initial review under 28 U.S.C. § 1915(e).

2. Local Rule 4.3 sets forth a procedure to waive service of process for current and

former employees of the North Carolina Department of Public Safety (“NCDPS”)

in actions filed by North Carolina State prisoners. The Clerk of Court shall

commence the procedure for waiver of service as set forth in Local Rule 4.3 for

Defendants, who are alleged to be current or former employees of NCDPS.

Signed: February 3, 2020

Frank D. Whitney é □ □

Chief United States District Judge □□□□□