Jasmaine f/k/a Duane L. Fox v. Linsenby

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:18-cv-00201-MR

JENNIFER ANN JASMAINE )

f/k/a Duane Leroy Fox, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

FNU LIZINBEE, et al., )

)

Defendants. )

________________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for

Summary Judgment [Doc. 34].

I. PROCEDURAL BACKGROUND

Pro se Plaintiff Jennifer Ann Jasmaine (“Plaintiff”) is a prisoner of the

State of North Carolina currently incarcerated at Mountain View Correctional

Institution in Spruce Pine, North Carolina. Plaintiff filed this action on April

20, 2018. [Doc. 1]. Plaintiff filed a verified Amended Complaint on July 26,

2018 pursuant to 42 U.S.C. § 1983, asserting violation of her First

Amendment rights, and the Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), 42 US.C. § 2000cc-1, against Defendant FNU Lesinby,1

identified as Chaplain at Lanesboro Correctional Institution (“Lanesboro”),2

and Defendant FNU Brown, identified as Regional Chaplain. [Doc. 15].

Plaintiff alleged that, on April 10, 2018, she sent Defendants Linsenby

and Brown a DC-572 Inmate Request for Religious Assistance form

regarding Plaintiff’s practice of Witchcraft3 at Lanesboro and that Plaintiff

received no response. [Id. at 4]. Plaintiff alleged that “[t]here is no way to

practice Witchcraft the way the policy is written.” [Id.]. Plaintiff seeks

injunctive and declaratory relief and nominal damages. [Id. at 46-47].

Plaintiff’s Amended Complaint survived initial review and she proceeded on

her First Amendment and RLUIPA claims.4 [Doc. 16].

1 Defendant Lesinby’s true full name is Roy Linsenby and Defendant Brown’s true full

name is Betty Brown. The Court will direct the Clerk to update the docket in this matter

accordingly.

2 Lanesboro has since been converted to a women’s prison and is now called Anson

Correctional Institution.

3Although Plaintiff refers to the religion that is the subject of her Complaint as “Witchcraft,”

she also refers to “Wiccan services” in her Amended Complaint. [See Doc. 15 at 2, 3].

Plaintiff alleges that, “[i]n 1974, seventy-three (73) witches came together to form the

Council of American Witches. They produced a document consisting of thirteen (13)

principals explaining the basic fundamental concepts of a religious form of Witchcraft

called Wicca, (Which is one branch of Witchcraft, not the only one. There are numerous

branches of Witchcraft).” [Id. at 34].

4 Plaintiff also purported to assert a Fourteenth Amendment equal protection claim, [Doc.

15 at 8], which was not addressed on initial review, [see Doc. 16]. In support of this claim,

Plaintiff alleged that “[D]efendants made special rules and gave special benefits to

members of other religions” and that Defendants discriminated “against Witchcraft based

on suspect classifications because Witchcraft is [an] insular minority.” [Doc. 15 at 8]. To

Plaintiff conducted no discovery in this matter, [see Doc. 35 at 2], and

Defendants moved for summary judgment, [Doc. 34]. In support of their

motion, Defendants submitted a memorandum; an Affidavit of Defendant

Betty Brown; the North Carolina Department of Public Safety (NCDPS)

Religious Services, Wicca, and Food and Nutrition Management Policies;

and Plaintiff’s DC-572 form. [Docs. 35, 36-1 through 36-5].

The Court entered an order in accordance with Roseboro v. Garrison,

528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements for filing

a response to the summary judgment motions and of the manner in which

evidence could be submitted to the Court. [Doc. 37]. The Plaintiff was

specifically advised that she “may not rely upon mere allegations or denials

of allegations in [her] pleadings to defeat a summary judgment motion.” [Id.

at 2]. Rather, she must support her assertion that a fact is genuinely disputed

by “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

establish an equal protection violation, Plaintiff first must demonstrate that she has been

treated differently from others with whom she is similarly situated, and that the unequal

treatment was the result of intentional or purposeful discrimination. Morrison v.

Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). In doing so, the plaintiff must set forth

“specific, non-conclusory factual allegations that establish an improper [discriminatory]

motive.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003) (quoting Trulock v. Freeh,

275 F.3d 391, 405 (4th Cir. 2001)). Plaintiff failed to meet this burden (and forecasts no

evidence in support of this claim now). The Court, therefore, dismisses her Fourteenth

Amendment claim.

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” [Id. at 3 (citing Fed.

R. Civ. P. 56(c)(1)(a)]. The Court further advised that, “[i]f Plaintiff has any

evidence to offer to show that there is a genuine issue for trial,” “[she] must

now present it to this Court in a form which would otherwise be admissible

at trial, i.e., in the form of affidavits or unsworn declarations.” [Id. at 2 (citing

Fed. R. Civ. P. 56(c)(4))]. Plaintiff did not respond to Defendants’ summary

judgment motion. Plaintiff’s Amended Complaint, however, was submitted

under penalty of perjury and the allegations therein made on Plaintiff’s

personal knowledge, therefore, are to be considered for their evidentiary

value here. See Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021)

(holding that verified prisoner complaints should be considered as affidavits

on summary judgment “when the allegations contained therein are based on

personal knowledge”).

II. STANDARD OF REVIEW

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.” Fed. 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 her pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, 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, 129 S. Ct.

2658, 2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)).

III. FACTUAL BACKGROUND

In the Amended Complaint, Plaintiff alleged that she sent Defendants

a DC-572 form requesting assistance with the practice of her religion. On

this form, Plaintiff listed “Witchcraft” as the official name of her religion.5

[Doc. 6 at 2]. Plaintiff alleged that she received no response to her DC-572

form from Defendants. Plaintiff also alleged that “[t]he policy is incorrect on

the entire aspect of Wiccan,” that “we are not given the proper supplies to

5 In her Amended Complaint, Plaintiff incorporates by reference the DC-572 form she filed

with the Court on April 20, 2018 in this case. [Doc. 15 at 4, 45; see Doc. 6]. The DC-572

form filed by Plaintiff is missing its second page. Attached to it, however, is what appears

to be Plaintiff’s handwritten requests for changes to policy to practice Witchcraft. [See

Doc. 6 at 3-9]. Defendants submitted the complete two-page DC-572 form with their

summary judgment materials but did not submit the attachment. [See Doc. 36-5].

have Wiccan service” and that Defendant Linsenby “wont even put Wiccan

service on the schedule.” [Doc. 15 at 2 (errors uncorrected)]. Plaintiff further

alleges that Witchcraft is the only faith “that is held to having services only

eight times a year[,] [y]et the Native Americans have service three times a

week, every week.” [Id. at 2]. Plaintiff also alleges that “Witchcraft does not

get to have their special meal for each sabbats,” which are special Days of

Observance, and although “Witchcraft is a nature[-]based faith, like Native

Americans,” “Witchcraft is not allowed to have their service outside like

Native Americans do” or use fire as part of their services. [Id. at 2, 7]. Plaintiff

seems to allege that Witchcraft requires a vegan diet, which she has been

denied. [Id. at 5-6]. Plaintiff, however, later alleges that the needs of

Witchcraft can also be met with a vegetarian diet. [Id. at 44; see id. at 37].

Finally, Plaintiff alleges that she is being denied the right to meet with a

religious leader and to attend religious services of her faith, despite “Chaple

policy” stating that “all reconized religions will get one (1) hour a week.” [Id.

at 7-8, 10 (errors uncorrected)].

Defendants’ relevant forecast of evidence shows the following. The

NCDPS Religious Practices Operation Manual that relates to Wicca practice

(“Wicca Policy”) allows a Wiccan offender to observe eight special Days of

Observance called “Sabbats.” [Doc. 36-3 at 5-6]. The Wicca Policy notes

that there are 13 special days called “Espats” or Full Moon Celebrations that

may be observed, but “these celebrations are subject to approval of the

facility head and shall in no way interfere with work assignments.” [Doc. 36-

3 at 6]. The Wicca Policy calls for the availability of certain Corporate

Worship items that are to be stored in the Chapel in a locked secured area

when not in use. These items include an altar of wood, an altar cloth, three

bowls, one Chalice, one wand, two statues or pictures of various gods and

goddesses, six scented altar candles, six candle holders, and one pinecone,

seashell, rock, or leaf. [Doc. 36-3 at 6]. Inmates are also given salt and

water for ceremonial purposes. [Id. at 7]. The Wicca Policy allows inmates

to personally possess a Book of Shadows, a sacred cloth, a cauldron (bowl

and chalice), a talisman bag, one pack of Tarot cards, one set of runes, a

wand, an athame (picture of a ceremonial knife), a religious medallion, and

reading materials. [Id. at 36-3]. The Wicca Policy provides that “most

rituals/ceremonies will be handled individually using only the religious

paraphernalia authorized in this reference manual.” [Id. at 1]. The Wicca

Policy does not, however, identify any formal diet requirements for Wiccans.

[Doc. 36-1 at ¶ 22]. Nonetheless, the NCDPS Food and Nutrition

Management Policy requires a non-meat entrée choice for offenders at all

meals. [Id. at ¶ 25; Doc. 36-4 at 23-24]. As such, Plaintiff could choose a

vegetarian diet without a religious accommodation. [See Doc. 36-4 at 24].

Defendant Brown was the NCDPS Chaplaincy Services Coordinator at

the relevant times. [Doc. 36-1 at ¶ 2: Brown Aff.]. Pursuant to the NCDPS

Religious Services Policy, an offender who believes that her religion is not

currently recognized or “whose religious request cannot be met within the

framework of existing approved religious services must submit a written

request for assistance using the DC-572 Request for Religious Assistance:

Fact Sheet form.” [Doc. 36-2 at 4-5].

Defendant Brown’s office received Plaintiff’s DC-572 form. [Doc. 36-1

at ¶ 14]. Defendant Brown reviewed the form and asked Chaplain Swindell

Edwards to tell Plaintiff that Wiccan is already an accommodated faith group

and that witchcraft is a practice which involves the “exercise or invocation of

alleged supernatural powers to control people or events” typically involving

sorcery or magic. [Doc. 36-1 at ¶¶ 14-15]. Defendant Brown was not

otherwise involved in any decision regarding Plaintiff’s ability to practice her

faith. [Id. at ¶ 16]. Defendant Brown did not communicate with Defendant

Linsenby about Plaintiff or the issues raised by Plaintiff in her DC-572 form

and Brown does not recall Defendant Linsenby being involved in any way.

[Id. at ¶ 17].

This matter is now ripe for disposition.

IV. DISCUSSION

Defendants argue they are entitled to summary judgment because they

did not violate Plaintiff’s rights under the RUIPLA or the First Amendment

and because they are entitled to qualified and sovereign immunity. [Docs.

34, 35].

A. RUILPA and First Amendment

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).

“The protections of § 2000cc-1(a) apply whenever a ‘substantial

burden is imposed in a program or activity that receives Federal financial

assistance’ or whenever a ‘substantial burden affects, or removal of that

substantial burden would affect, commerce with foreign nations, among the

several States, or within Indian tribes.” Rendleman v. Rouse, 569 F.3d 182,

186 569 (4th Cir. 2009) (quoting 42 U.S.C. § 2000c-1(b)(1), (2)). It is

undisputed that Plaintiff is in a program receiving federal financial

assistance, and she bases her RLUIPA claim on this ground.6 [Doc. 15 at 9].

Under RLUIPA, the plaintiff bears the initial burden of showing that the

challenged policy substantially burdens her exercise of her 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

6 While RLUIPA claims are typically mooted by a prisoner’s release from custody or

transfer to another institution, since they primarily seek injunctive relief, Rendleman, 569

F.3d at 186 (citing Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007)), Plaintiff has

been transferred to another institution at which she is likely subject to the same religious

practice policies as she was at Lanesboro. Moreover, Plaintiff’s claim for nominal

damages is not mooted by her transfer. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.

1991) (transfer rendered moot a prisoner’s claims for injunctive and declaratory relief, but

not claims for damages).

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.

Here, Plaintiff alleges that she sent a DC-572 form to Defendants

requesting assistance with the practice of Witchcraft and that Defendants did

not respond. She claims that prison policy did not allow her to properly

practice her religion. She asks that she be afforded the opportunity to meet

Wicca leaders and attend more Wicca services to be held outside and using

fire, be allowed a vegetarian diet, be given special meals for Sabbats, and

be allowed to possess the “proper supplies” for a Wiccan service.

On this record it appears that Witchcraft is synonymous with Wicca

(and Plaintiff presents no evidence to the contrary). As such, the forecast of

evidence does not support violations of Plaintiff’s RLUIPA or First

Amendment rights by Defendants. While the forecast of evidence shows

that the Wicca Policy limits Plaintiff’s exercise of Witchcraft in some ways,

there is no forecast of evidence that the missing elements are compelled by

or central to Witchcraft. There is similarly no forecast of evidence that the

Wicca Policy substantially pressures Plaintiff to violate her religious beliefs

or forces Plaintiff to abandon a precept of her religion while incarcerated. At

best, at one point, Plaintiff alleges that Witchcraft requires a vegan diet.

Later, however, Plaintiff alleges that the diet requirements of her religion can

also be met through a vegetarian diet. Moreover, the forecast of evidence

shows that all prisoners, including Plaintiff, are offered vegetarian options at

all meals.

As such, Plaintiff has not made a prima facie showing in support of her

RLUIPA claim and has similarly failed to support her First Amendment claim.

Without a substantial burden to the exercise of Plaintiff’s religion, the Court

need not examine whether “the burden in question is the least restrictive

means of furthering a compelling government interest,” Ozmint, 578 F.3d at

250, or it is “reasonably related to legitimate penological interests, O’Lone,

482 at 349. There is, therefore, no genuine issue for trial on Plaintiffs claims

and the Court will grant Defendants’ motion for summary judgment.

B. Qualified Immunity

“Qualified immunity is an affirmative defense that shields public

officers performing discretionary duties 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.’”

Lovelace, 472 F.3d at 196 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “To determine whether an officer is entitled to qualified immunity,

the court must examine (1) whether the plaintiff has demonstrated that the

officer violated a constitutional right and (2) whether that right was clearly

established at the time of the alleged violation.” E.W. ex rel. T.W. v. Dolgos,

884 F.3d 172, 178 (4th Cir. 2018) (internal quotation marks omitted); see

Lovelace, 472 F.3d at 199 (finding that an inmate’s RLUIPA rights were

clearly established in 2002 for qualified immunity purposes). The doctrine of

qualified immunity “gives government officials breathing room to make

reasonable but mistaken judgments and protects all but the plainly

incompetent or those who knowingly violate the law.” Smith v. Ray, 781 F.3d

95, 100 (4th Cir. 2015) (internal quotation marks omitted).

Here, because Plaintiff has not forecasted evidence that Defendants

violated a constitutional or statutory right, Defendants are also entitled

qualified immunity on Plaintiff’s individual capacity claims. The Court,

therefore, grants summary judgment for Defendants on this ground as well.

C. Sovereign Immunity

To the extent Plaintiff sought to sue Defendants in their official

capacities under § 1983, these claims fail. A suit against a state official in

his official capacity is construed as against the state itself. Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 71 (1989). It is well settled that neither a

state nor its officials acting in their official capacities are “persons” subject to

suit under 42 U.S.C. § 1983. Id.; see Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 690 n.55 (1978). Moreover, the Eleventh Amendment generally

bars lawsuits by citizens against non-consenting states brought either in

state or federal courts. See Alden v. Maine, 527 U.S. 706, 712-13 (1999);

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996).

Although Congress may abrogate the states’ sovereign immunity, it

has not chosen to do so for claims under 42 U.S.C. § 1983. See Quern v.

Jordan, 440 U.S. 332, 343 (1979). Likewise, North Carolina has not waived

its sovereign immunity by consenting to be sued in federal court for claims

brought under 42 U.S.C. § 1983. See generally, Mary’s House, Inc. v. North

Carolina, 976 F.Supp.2d 691, 697 (M.D.N.C. 2013) (claim under 42 U.S.C.

§ 1983 barred by sovereign immunity of North Carolina). As such,

Defendants are also entitled to summary judgment on Plaintiff’s official

capacity First Amendment § 1983 claim.

RLUIPA, on the other hand, “unambiguously conditions federal prison

funds on a State’s consent to suit,” Madison v. Virginia, 474 F.3d 118, 131

(4th Cir. 2006), although it does not unambiguously extend the waiver of

sovereign immunity to liability for monetary claims. As such, while “RLUIPA

plainly creates a cause of action against the States,” it “falls short of the

unequivocal textual expression necessary to waive State immunity from suits

for damages.” Id. at 131, 133. Accordingly, Plaintiff’s RLUIPA claim for

nominal damages against Defendants in their official capacities fails and will

also be dismissed on this ground.

V. CONCLUSION

For all the foregoing reasons, Defendants’ motion for summary

judgment is granted.

ORDER

IT IS, THEREFORE, ORDERED Defendants’ Motion for Summary

Judgment [Doc. 34] is GRANTED; and this action is dismissed with

prejudice.

IT IS FURTHER ORDERED that Plaintiffs Fourteenth Amendment

claim is DISMISSED.

The Clerk is respectfully instructed to update the docket in this matter

to reflect Defendant FNU Lizinbee’s true full name as Roy Linsenby and

Defendant FNU Brown’s true full name as Betty Brown.

The Clerk is respectfully instructed to terminate this action.

IT IS SO ORDERED.

Signed: September 13, 2021

Martifi Reidinger ey

Chief United States District Judge Ale

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