Greene v. Lassiter

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-00224-MR

COREY DELON GREENE, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

)

KENNETH LASSITER, et al., )

)

Defendants. )

________________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for

Summary Judgment, [Doc. 69]; Plaintiff’s “Request to File Declaration in

Support of Summary Judgment Response,” [Doc. 78]; Plaintiff’s “56(f) and/or

(e) Requesting more time for Discovery – Responding to Summary

Judgment,” [Doc. 79]; and Plaintiff’s Motion for Appointment of Counsel,

[Doc. 82].

I. PROCEDURAL BACKGROUND

Pro se Plaintiff Corey Delon Greene (“Plaintiff”) is a prisoner of the

State of North Carolina currently incarcerated at Alexander Correctional

Institution in Taylorsville, North Carolina. He filed this action on July 18, 2019

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

Amendment and the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 US.C. § 2000cc-1, while he was incarcerated at

Avery/Mitchell Correctional Institution (“AMCI”) in Spruce Pine, North

Carolina. [Doc. 1]. Plaintiff names the following Defendants: (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) Betty Brown, identified

as the Director of Chaplaincy Services; and (6) Chris Rich, identified as the

Security Risk Group (“SRG”) Coordinator. [Id. at 2-4]. It appears that Plaintiff

sought to sue the Defendants in their individual and official capacities.1 [See

id. at 2-3, 13].

In his original verified Complaint, Plaintiff alleged that his rights under

the RLUIPA and First Amendment were violated by the following: (1)

Defendant Brown’s failure “to recognize the Nation of Gods and Earth

[“NGE”] as a Religion;” (2) Defendant Browns’ denial of his requests for

religious assistance in worshiping God as a member of the NGE without

honest inquiry into the religion and while allowing other faiths with similar

tenets to practice; (3) Defendant Lassiter imposition of a substantial burden

1 Plaintiff explicitly names Defendants Moose, Ishee, Lassiter, and Cobb in “both

capacities,” [Doc. 1 at 2-3], and does not specify the capacity or capacities in which he

seeks to sue Defendants Brown and Rich, [Id. at 13].

on Plaintiff by denying his religion; (4) Defendant Rich’s classification of the

NGE as an SRG for over 20 years because it is not the least restrictive

means of furthering NCDPS’ interests; and (5) Defendant Lassiter’s failure

to consistently apply policies regarding NGE materials. [Id. at 16]. Plaintiff

made no allegations against or claims particular to Defendants Moose,

Ishee, or Cobb. [See id.].

For relief, Plaintiff seeks an injunction requiring the NCDPS to allow

the NGE “to practice as any other religion (i.e.) to have Holy days, festivals

diets etc.” [Doc. 1 at 17]. Plaintiff also seeks declaratory relief and punitive

damages, as well as compensatory damages for the “loss of limited religious

liberty enjoyed by other prisoners” due to Plaintiff’s SRG status, which has

resulted in his limitation to two phone calls per month and visitation with only

immediate family and only behind a glass window, review of his non-legal

mail by staff, and random cell searches. [Id. at 17-18].

On September 12, 2019, Plaintiff filed an Amended Complaint, which

made only minor corrections to his original Complaint and maintained the

same claims, including that the NGE is a religion. [See Doc. 16]. Plaintiff’s

first Amended Complaint survived initial review and he proceeded on his First

Amendment and RLUIPA claims. [Id.]. Then, on February 24, 2020, Plaintiff

moved to amend his complaint again and submitted a proposed, verified

Second Amended Complaint. [Doc. 25]. Plaintiff asked to substitute the

word “culture” for “religion” and to “stipulate[e] that the Nation of Gods and

Earths is a God centered culture,” not a religion, and that this is a “central

tenet” of the NGE. [Id.]. The Court granted Plaintiff’s motion to amend. [Doc.

27]. Finally, on September 17, 2020, Plaintiff moved to amend his complaint

a third time, which the Court allowed. [Docs. 53, 54]. In his verified Third

Amended Complaint, Plaintiff sought only to correct the name of a fellow

inmate he had previously referenced. [See Doc. 55].

On May 17, 2021, Defendants moved for summary judgment. [Doc.

69]. In support of their motion, Defendants submitted a memorandum and

their verified discovery responses in this matter.2 [Docs. 69-1, 70, 70-1 to

70-2]. The Court entered an order in accordance with Roseboro v. Garrison,

528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the deadline and

requirements for filing a response to the summary judgment motions and of

the manner in which evidence could be submitted to the Court. [Doc. 74].

Plaintiff timely responded to Defendants’ summary judgment motion. [Doc.

76]. Plaintiff submitted a memorandum; an Affidavit of Larry Dunston, an

SRG expert for the NCDPS, in the matter of Miles v. Guice, No. 5:13-CT-

2 The discovery responses are verified only by Defendants Brown, Rich, and Cobb and

not by Defendants Lassiter, Ishee, or Moose. [See Doc. 70-1 at 25-27].

03193-FL in the Eastern District of North Carolina; Plaintiff’s prison

infractions record; the Declaration of Kwame Hollaway; and case law. [Docs.

76, 76-3, 76-4]. Plaintiff, however, did not submit his own sworn testimony.

Nonetheless, the allegations made in Plaintiff’s sworn complaints made on

his personal knowledge 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”).

In September 2021, approximately three months after Plaintiff’s

summary judgment response deadline, Plaintiff filed two motions through

which he seeks, out of time, to submit additional evidence for the Court’s

consideration here. [Docs. 78, 79; see Doc. 80, 80-1]. This evidence

includes Plaintiff’s Affidavit, [Doc. 78 at 2-7], which Plaintiff states is

necessary “to envince [sic] the character” of the previously submitted case

law, [id. at 1], and letters from “Master ‘Shamar’ Significant,” Plaintiff’s

“beloved brother who writes to any who want correspondence from [the Allah

School in Mecca],” [Doc. 80 at 1; Doc. 80-1], “to cure the possible fatal defect

of his summary judgment response,” [Doc. 79 at 2]. As grounds for more

time, Plaintiff states that he was initially confused by documents produced

by Defendants in discovery and that “everything was cleared” with only a

“small window to file summary judgment.” [Id.]. Plaintiff argues that “[u]nder

warning of judicial economy,” he did not request another extension of the

deadline. [Id.]. Instead, Plaintiff choose to wait nearly three months past his

response deadline to submit this evidence. Plaintiff does not explain why he

was unable to present the evidence in his response, given the additional

three weeks between the dispositive motions’ deadline and his response

deadline. Because Plaintiff could have timely submitted these materials with

his summary judgment response and because they do not change the

outcome of these proceedings in any event, the Court will deny Plaintiff’s

motions to submit this evidence out of time.

This matter is now ripe for disposition.

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 his 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). Courts “need

not accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” Eastern Shore Mkt. Inc. v. J.D. Assoc.’s, LLP, 213 F.3d 174,

180 (4th Cir. 2000). 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. Facts, however, “must be

viewed in the light most favorable to the nonmoving party only if there is a

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127

S.Ct. 1769, 1776 (2007).

III. FACTUAL BACKGROUND

The relevant forecast of evidence in the light most favorable to the

Plaintiff is as follows.

Plaintiff is a prisoner of the State of North Carolina currently serving a

life sentence. [Doc. 70-2 at 281]. Plaintiff was first validated as an NGE

member in 1998. According to Plaintiff’s own evidence, the NGE consist

mostly of Islamic inmates who are affiliated with the Bloods of the United

Blood Nation gang. [Doc. 76-4 at ¶ 6: Dunston Aff.]. The NGE and the UBN

members share the same violent propensities in prison because they are

essentially the same group of inmates. [Id. at ¶ 7]. The NGE arose out of

the Nation of Islam and shares many of its beliefs. [Id. at ¶ 17]. The NCDPS

considers the NGE3 to be an SRG. [Doc. 70-2 at 263].

Plaintiff worked his way down the security levels and his SRG status

was vacated in January 2002. Then in June 2002, while housed at Brown

Creek Correctional Institution, Plaintiff was again validated as a member of

the NGE based on the use or possession of gang-related symbols and

membership documents. He was validated at level three, the highest level,

at that time due to his history of disruptive behavior. [Doc. 70-1 at 12-13]. It

appears that Plaintiff retained SRG status through the times relevant here

and has been at level three for at least the previous several years. SRG

levels are based on the threat an inmate poses to institutional security,

typically determined by infraction history. Level three inmates, including the

Plaintiff, can reduce their SRG level by attending the Security Threat Group

Management Unit (STGMU) program. [Id. at 13-14; see Doc. 70-2 at 270].

In August 2017, while housed at AMCI, Plaintiff learned that another

inmate, Kwame Hollaway, was allowed NGE material after Hollaway

submitted a grievance when his materials had been confiscated. [Doc. 1 at

15]. In June 2018, Plaintiff filed a Form DC-572 Request for Religious

3 The NGE are also known as the Five Percent Nation, Five Percenters, and 5%ers. For

the sake of uniformity, the Court will refer to this group as the NGE.

Assistance to Defendant Betty Brown, the Chaplaincy Services Director,

requesting that the NGE be allowed to worship God as the NGE in the

NCDPS. [Id. at 14]. Specifically, Plaintiff requested that the NGE “be given

a place of congregation.” [Doc. 70-2 at 224]. Plaintiff explained that the NGE

believe that “[b]lack people are the original people of the planet Earth.” [Id.].

On the form, Plaintiff was asked to state: “the practices that are essential to

your religion and the materials/items that are essential to those practices,

and, identify for each the religious authority, law or teaching that mandates

or encourages the practice or item” and directed to “[u]se additional pages if

necessary.” [Id.]. In response, Plaintiff stated only that the “fundamental

lessons” of NGE are found in “Life 120°.” [Id.].

Plaintiff’s request was denied a month or two later. [Doc. 1 at 14; see

Doc. 70-2 at 264]. In denying Plaintiff’s request, Defendant Brown advised

Plaintiff that the NCDPS considers the NGE to be an SRG and that the

Religious Practices Committee, therefore, could not support Plaintiff’s

request. [Doc. 70-2 at 263]. Defendant Brown also advised Plaintiff that

AMCI would accommodate Plaintiff’s faith through publications Plaintiff may

purchase, but that “any books ordered must be preapproved and within the

publication policy guidelines.” [Id. at 264]. On January 15, 2019, after

learning more information from Chaplain Griffin, Plaintiff filed a second,

similar request. [Doc. 1 at 14]. Plaintiff’s second request was denied for the

same reasons as his first. [Id.; see Docs. 70-2 at 263-64].

In this action, Plaintiff initially claimed that NGE is a religion, but later

amended his Complaint to specifically allege that NGE is not a religion, but

rather a “God centered culture.”4 [Doc. 55 at 7]. Plaintiff continues to

maintain that NGE is his “culture – way of life.” [Doc. 76 at 5; Docs. 53, 55].

IV. 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

4 The Court considers Plaintiff’s allegation that NGE is a culture, and not a religion, as a

judicial admission for summary judgment purposes. Under the rule of judicial admission,

“a party is bound by the admissions of his pleadings.” Lucas v. Burnley, 879 F.2d 1240,

1242 (4th Cir. 1989). A judicial admission is a “representation that is ‘conclusive in the

case’” such as “formal concessions in the pleadings, or stipulations by a party or its

counsel, that are binding upon the party making them.” Minter v. Wells Fargo Bank, N.A.,

762 F.3d 339, 347 (4th Cir. 2014) (citing Meyer v. Berkshire Life Inc. Co., 372 F.3d 261,

264 (4th Cir. 2004)).

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)).

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

challenged policy substantially burdens his exercise of his sincerely held

religious beliefs. 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 … prohibiting

the free exercise [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 sustain

a free exercise claim under the First Amendment, a plaintiff must 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)). 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, as to RLUIPA, Plaintiff has not shown that AMCI receives

Federal financial assistance such that the protections of the RLUIPA apply

in the first place. More importantly, however, the forecast of evidence plainly

defeat both Plaintiff’s claims. To show entitlement to relief under RLUIPA or

the First Amendment, Plaintiff must show that he maintains a sincerely held

religious belief. Plaintiff initially based his claims on the premise that the

NGE is a religion and that his rights were violated because Defendant Brown

refused to allow Plaintiff to worship God5 as an NGE. Plaintiff, however,

amended his Complaint solely to allege and stipulate the “central tenet” that

NGE is a culture and not a religion. As noted, the Court considers this

allegation as a judicial admission for summary judgment purposes.6 Without

a forecast of evidence of a sincerely held religious belief in the first place,

there is no genuine issue for trial. The Court, therefore, will grant Defendants’

motion for summary judgment.

V. CONCLUSION

For all the foregoing reasons, the Court will grant Defendants’ motion

for summary judgment and dismiss this action with prejudice.

ORDER

IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary

Judgment [Doc. 69] is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s motions [Docs. 78, 79, 82]

are DENIED.

The Clerk is respectfully instructed to terminate this action.

5 It is well-accepted that NGE adherents believe that every black man is his own god. See

Coward v. Robinson, 276 F.Supp.3d 544, 551 (E.D. Va. Aug. 28, 2017).

6 Moreover, such a statement is also admissible at trial as an admission of a party

opponent under Federal Rule of Evidence 801(d)(1).

IT IS SO ORDERED.

Signed: January 5, 2022

Martiff Reidinger ey

Chief United States District Judge MES

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