JACKMON

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MORRIS JACKMON,

Civil Action No. 18-149 (JXN)(SDA)

Plaintiff,

v.

OPINION

NEW JERSEY DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

NEALS, District Judge

Before the Court is Defendants New Jersey Department of Corrections (“NJDOC”), Patrick

Nogan (“Nogan”), Cindy Sweeney (“Sweeney”), Sergeant Mountcastle-Thomas (“Mountcastle-

Thomas”), and S.C.O. Pikunich’s (“Pikunich”) (collectively “Defendants”) amended motion for

summary judgment (ECF Nos. 196, 197) and Plaintiff Morris Jackmon’s (“Plaintiff”) cross-motion

for summary judgment (ECF No. 182) pursuant to Federal Rule of Civil Procedure 56. Plaintiff

filed an opposition to Defendants’ amended motion for summary judgment (ECF No. 204), to

which Defendants replied (ECF No. 210). Defendants filed an opposition to Plaintiff’s cross-

motion for summary judgment (ECF Nos. 194, 195), and Plaintiff filed a reply (ECF No. 204).

Having considered the parties’ submissions in support of and opposition to the pending motions,

the Court decides the motions without oral argument under Federal Rule of Civil Procedure 78(b)

and Local Civil Rule 78.1(b). For the reasons set forth below, Defendants’ motion for summary

judgment is GRANTED in part, and Plaintiff’s cross-motion for summary judgment is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a state prisoner currently incarcerated at East Jersey State Prison (“EJSP”).

(Plaintiff’s Statement of Undisputed Material Facts (“PSOMF”) ¶ 29, ECF No. 182-2 at 13-18.)1

Plaintiff has been an adherent of the Nations of Gods and Earths (“NOGE”) since 1993. (Id. ¶ 30.)

The NOGE “(a/k/a the ‘Five-Percent Nation’ or simply ‘Five Percenters’) is an

organization founded by Clarence Smith.” (Defendants’ Statement of Undisputed Material Facts

(“DSOMF”) ¶ 6, ECF No. 196-2.)2 As a sincere adherent of the NOGE, Plaintiff is obligated to

“teach others about the knowledge of who God is and to read, study, and memorize materials like

‘Supreme Mathematics,’ and to meet several time a month for ‘Ciphers,’ ‘Civilization Classes,’

and ‘Universal Parliaments’ to teach each other about their ‘God-centered culture.” (PSOMF ¶

31.)

In 1994, the New Jersey State Police characterized the NOGE as “[p]robably the most

predominate of all African-American street gangs in this state.” (DSOMF ¶ 7.) “Only the

Commissioner or Deputy Commissioner shall be authorized to designate a group of inmates as a

security threat.” (Id. ¶ 5.) On December 30, 1997, former Commissioner William H. Fauver

designated the NOGE as a Security Threat Group (“STG”) based on documentation prepared by

the intelligence section of the Internal Affairs Unit. (Id. ¶ 12.) A STG is defined as “a group of

1 For the sake of brevity, all citations to the parties Rule 56.1 statements incorporate the evidentiary citations contained

therein. The Court sets forth only those material facts necessary to decide the motions. All facts are undisputed unless

otherwise noted.

2 Although Plaintiff filed an opposition to Defendants’ amended motion for summary judgment, he failed to file a

responsive statement of material facts in dispute. Rather, Plaintiff’s opposition brief “relies upon the Statement of

Material Facts in Support of Summary Judgment, previously filed as ECF No. 182.” (ECF No. 204 at 11.) Defendants’

amended motion for summary judgment includes a Statement of Undisputed Material Facts (ECF 196-2) that differs

from their initial statement of undisputed material facts (ECF No. 178-1). The Court will consider Plaintiff’s

responsive statement of undisputed material facts to the extent it addresses material facts asserted by Defendants in

the amended motion for summary judgment. Any of the material facts submitted by Defendants that are not addressed

in Plaintiff’s original responsive statement will be deemed admitted for the purposes of Defendants’ amended motion

in light of Plaintiff’s failure to dispute their statement of material facts. See Fed. R. Civ. P. 56(e)(2); Local Civil Rule

56.1.

inmates possessing common characteristics, interests and goals which serve to distinguish the

group or group members from other inmate groups or other inmates and which, as a discrete entity,

poses a threat to the safety of the staff, other inmates, the community or causes damage to or

destruction of property, or interrupts the safe, secure and orderly operation of the correctional

facility(ies).” (Id. ¶ 10.) STG activities are defined as

an activity(ies) or action(s) of an inmate that relate either directly or indirectly to

the goals of a [STG]. These activities include, but are not limited to: 1. Possession

of [STG] literature, such as correspondence, newsletters, publications, lessons,

membership lists and manuals; 2. Possession of [STG] paraphernalia, such as

beads, artwork, medallions and clothing articles; 3. Known [STG] hand-signs or

signals as observed by staff; 4. Participation in [STG] related assaults, disturbances,

meetings, gatherings, incidents or events; 5. Sending [STG] related

correspondence; and 6. Recruiting other inmates to join a [STG].

(Id. ¶ 11.) The STG policy is a “Zero Tolerance” policy that punishes NOGE adherents from

engaging in any “prohibited acts” that could in any way be associated with the NOGE, including

merely engaging another adherent or possessing any NOGE materials (symbols, literature, garbs,

etc.). (PSOMF ¶ 35.)

The 1997 NOGE STG designation was related to “Specific Violent Acts, Intended Action

of Violence and Specific Illegal or Prohibited acts as documented in numerous Special

Investigation Division (“SID”) investigations, each involving known adherents of the NOGE.”

(DSOMF ¶ 13.) Defendants cite fifteen incidents between August 1990 and January 1998, of

assaults, planned assaults, drug trafficking, prison disturbances, and prison fights involving NOGE

members, which resulted in NOGE’s STG designation. (Id. ¶¶ 14-28.)

Plaintiff does not dispute that the incidents occurred or that NOGE was designated as a

STG in 1997. Rather, Plaintiff disputes the current relevance of these facts to current-day life.

Plaintiff submits that the incidents are over two decades old and do not reflect the current behavior

of NOGE adherents. (See Plaintiff’s Response to Defendants’ Statement of Undisputed Material

Facts (“PRSOMF”) ¶¶ 9, 11-22, ECF No. 182-2 at 1-13.)

Since the NJDOC designated NOGE as a STG in 1997, the NJDOC is unaware of any

violent or disruptive behavior attributable to NOGE as a group. (DSOMF ¶ 31.) Since January

1998, the number of self-identified NOGE adherents within the NJDOC system has declined from

just over 900 to just over 100 in March 2019. (Id. ¶ 32.)

Over the past 30 years of imprisonment, Plaintiff has not been cited for a violent infraction.

(PSOMF ¶ 36.) Plaintiff has been punished for possessing NOGE-related materials and engaging

in NOGE practices and has been charged with further STG activities. (Id. ¶¶ 38, 40.) Plaintiff was

sanctioned with confiscation of the material, 15 days in the hole, 180 days of loss computation

time, 180 days of administrative segregation, and designated a “core member” of a STG. (Id. ¶

41.) Plaintiff has applied to the Office of Chaplaincy for NOGE recognition but was unsuccessful.

(Id. ¶ 42.)

Plaintiff is permitted to fast individually but is not allowed to engage in a collective fast.

(DSOMF ¶ 33.) Collective fasting is a significant aspect of NOGE. (PRSOMF ¶ 25.) Plaintiff is

allowed to write letters to individuals about the Nation, but must use the individual’s actual name.

(DSOMF ¶ 34.) Plaintiff is allowed to engage in honor days, individually but not communally. (Id.

¶ 35.) However, other significant aspects of NOGE religious practice, such as congregation

meetings, are prohibited. (PRSOMF ¶ 27.)

Plaintiff filed his original complaint in Middlesex County Superior Court in October 2017.

Defendant NJDOC removed the case to this Court in January 2018. (See ECF No. 1.) The matter

was originally assigned to the Honorable Kevin McNulty, United States District Judge (ret)

(“Judge McNulty”).3 In December 2018, Plaintiff filed his Amended Complaint. (ECF No. 28.)

The Amended Complaint alleges that Defendant Nogan, as Administrator of EJSP, and Defendant

Sweeney, as Associate Administrator of EJSP, have “breached” their responsibility to safeguard

Plaintiff’s rights by “failing to intervene” and permit Plaintiff to practice his religion. (Id. at 13.)

Plaintiff alleges that Defendants Mountcastle-Thomas and Pikunich, who are responsible for the

prison mailroom, have previously confiscated his NOGE reading materials. (Id. at 14.)

In November 2019, Defendants filed a motion to dismiss (ECF No. 55), which Judge

McNulty denied (ECF No. 61). In August 2021, Defendants filed their first motion for summary

judgment. (ECF No. 105.) On September 12, 2022, the Court dismissed with prejudice Plaintiff’s

Religious Land Use and Institutionalized Person Act of 2000 (“RLUIPA”) claims against

Defendants in their individual capacities and Plaintiff’s RLUIPA claims against Defendants in

their official capacities to the extent Plaintiff sought monetary damages. (See ECF Nos. 125, 126.)

The Court denied the remainder of the motion for summary judgment. (Id.)

In July 2024, Defendants filed a motion for partial summary judgment, seeking summary

judgment on Plaintiff’s First Amendment Free Exercise claim and claim for compensatory

damages. (See ECF No. 178.) Plaintiff filed a cross-motion for summary judgment on the

following claims: (1) First Amendment Free Exercise; (2) RLUIPA; (3) Fourteenth Amendment

Equal Protection Clause; and (4) First Amendment Establishment Clause. (See ECF No. 182.)

Defendants opposed Plaintiff’s cross-motion for summary judgment. (ECF No. 184.)

On January 13, 2025, the Court issued a Memorandum and Order, finding that Defendants

failed to oppose Plaintiff’s motion for summary judgment on his RLUIPA claim. (ECF No. 186 at

2.) The Court also found that Plaintiff had adequately raised an Equal Protection Clause and an

3 This matter was reassigned to the undersigned for all further proceedings on June 28, 2021. (ECF No. 93.)

Establishment Clause claims in his Amended Complaint. (Id.) The Court provided Defendants

with an opportunity to file an amended motion for summary judgment addressing Plaintiff’s Equal

Protection Clause and Establishment Clause claims, as well as Plaintiff’s request for summary

judgment on his RLUIPA claim. (See generally id.)

On May 7, 2025, Defendants filed their amended motion for summary judgment. (ECF

Nos. 196, 197.) Plaintiff filed an opposition (ECF No. 204), and Defendants replied in further

support (ECF No. 210). Plaintiff’s cross-motion for summary judgment was filed on July 26, 2024.

(ECF No. 182.) Defendants filed an opposition (ECF Nos. 194, 195), and Plaintiff filed a reply

(ECF No. 204). The motions are now ripe for resolution.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that “[t]he court shall grant summary

judgment 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.” The substantive law identifies what facts are

material, and “[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A material fact raises a “genuine” dispute “if the evidence is such

that a reasonable jury could return a verdict for the non[-]moving party.” Williams v. Borough of

W. Chester, 891 F.2d 458, 459 (3d Cir. 1989) (citation omitted).

The Court must consider all facts and their logical inferences in the light most favorable to

the non-moving party. See Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

The Court will not “weigh the evidence and determine the truth of the matter,” but will determine

whether a genuine dispute necessitates a trial. Anderson, 477 U.S. at 249. Nor will the Court

“resolve factual disputes or make credibility determinations.” Rhodes v. Marix Servicing, LLC,

302 F. Supp. 3d 656, 661 (D.N.J. 2018) (quoting Siegel Transfer, Inc. v. Carrier Express, Inc., 54

F.3d 1125, 1127 (3d Cir. 1995)). Although the moving party bears the initial burden of showing

the absence of a genuine dispute of material fact, meeting this obligation shifts the burden to the

non-moving party to “set forth specific facts showing that there is a genuine [dispute] for trial.”

Anderson, 477 U.S. at 250. The Court must grant summary judgment if the non-moving party fails

to demonstrate proof beyond a “mere scintilla” of evidence that a genuine dispute of material fact

exists. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

Furthermore, “a party does not raise a genuine [dispute] of material fact by speculation and

conclusory allegations.” Dunkin’ Donuts Inc. v. Patel, 174 F. Supp. 2d 202, 210 (D.N.J. 2001)

(citation omitted).

III. DISCUSSION

A. Defendants’ Amended Motion for Summary Judgment

In their amended motion for summary judgment, Defendants argue that they are entitled to

summary judgment on Plaintiff’s RLUIPA claim because the STG policy is the least restrictive

means of furthering a compelling interest. (ECF No. 196-1 at 19-27.) Defendants argue that the

individual defendants in their individual capacities are entitled to summary judgment on Plaintiff’s

Section 1983 claims because they are entitled to qualified immunity, and Plaintiff has not shown

Defendants’ personal involvement. (Id. at 31-47.) Finally, Defendants contend that the individual

defendants in their official capacities are entitled to summary judgment on Plaintiff’s demands for

prospective injunctive relief because each lacks the requisite authority to provide relief. (Id. at 28-

31.) The Court addresses each argument in turn.

1. RLUIPA

First, Defendants argue that Plaintiff’s RLUIPA claim must be dismissed because the STG

policy is the least restrictive means of furthering a compelling interest. (ECF No. 196-1 at 19-27.)

The Court disagrees.

“Congress passed RLUIPA to grant heightened protection to prisoners from burdens

imposed by the government.” Washington v. Klem, 497 F.3d 272, 276 (3d Cir. 2007). The statute

forbids the government from imposing “a substantial burden” on a prisoner’s religious exercise

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). A substantial burden

under RLUIPA exists where: (1) a follower is forced to choose between following the precepts of

his religion and forfeiting benefits otherwise generally available to other inmates, versus

abandoning one of the precepts of his religion to receive a benefit; or (2) the government puts

substantial pressure on an adherent to substantially modify his behavior to violate his beliefs. Klem,

497 F.3d at 280. Therefore, to establish a prima facie case of a RLUIPA violation, a prisoner must

initially demonstrate that a substantial burden has been placed on his or her exercise of religious

beliefs. See Robinson v. Superintendent Houtzdale SCI, 693 F. App’x. 111, 115 (3d Cir. 2017)

(“The threshold question in any . . . RLUIPA case is whether the prison’s challenged policy or

practice has substantially burdened the practice of the inmate-plaintiff’s religion.”) (citing

Washington, 497 F.3d at 277–78).

Where the prisoner meets his burden of showing that the prison’s policy substantially

burdened his exercise of religion, the burden shifts to the prison to show its policy “(1) [was] in

furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of

furthering that compelling governmental interest.” Payne v. Doe, 636 F. App’x. 120, 125 (3d Cir.

2016) (quoting § 2000cc–1(a)).

A prisoner plaintiff’s RLUIPA claim must be considered in light of the Supreme Court’s

decision in Holt v. Hobbs.4 There, prison officials argued that the prison’s grooming policy

represented the least restrictive means of furthering a broadly formulated interest in prison safety

and security, but the Supreme Court stated that RLUIPA “contemplates a ‘more focused’ inquiry

and ‘requires [prison officials] to demonstrate that the compelling interest test is satisfied through

application of the challenged [policy]’ ‘to the person’—the particular claimant whose sincere

exercise of religion is being substantially burdened.” Holt, 574 U.S. at 363. In this case, the

challenged policy is the enforcement of the NJDOC’s classification of NOGE as a STG, resulting

in Plaintiff’s inability to possess NOGE literature or paraphernalia, use NOGE hand-signs or

signals, participate in NOGE meetings or gatherings, send, or receive NOGE-related

correspondence, or recruit others to join NOGE. (See ECF No. 28 at 16.)

First, Defendants argue that Plaintiff has failed to show that they have substantially

burdened his religious exercise under RLUIPA. Defendants claim that Plaintiff “addresses only

the dictates of the NOGE system of beliefs, and does not expound on what his personal beliefs

require of him.” (ECF No. 196-1 at 21.) However, Plaintiff testified about the many burdens

imposed on his religious exercise. Specifically, Plaintiff testified that as an adherent of the NOGE,

he is required to keep a physical copy of a “Book of Life,” which consists of “120 degrees, supreme

mathematics, supreme alphabets, and the [] histories.” (ECF No. 178-4, Pl. Dep. at 45:16-22.)

Plaintiff testified that although he is allowed to fast individually, he is supposed to do “communal

fast where [they] would . . . go through the teachings and then break fast together,” which is not

4 574 U.S. 352 (2015).

allowed. (Id. at 55:20 to 56:3.) Plaintiff testified that the communal fast is “important because . . .

there’s always an educational component where adherents, better knowers in that particular

institutional is teaching before and after the fast is broken.” (Id. at 57:17-23.) Plaintiff also testified

that he is not permitted to speak “the language” of NOGE. (Id. at 60:18 to 61:16.) For summary

judgment, Plaintiff has shown that the STG restrictions on NOGE place a substantial burden on

Plaintiff’s religious exercise under RLUIPA.

Defendants next argue that the STG classification and restrictions on the NOGE followers

are (1) in furtherance of a compelling governmental interest, and (2) are the least restrictive means

of furthering that interest. (ECF No. 196-1 at 22-27.) Defendants argue that NJDOC has a

compelling interest in maintaining safety and security within the prison. (Id. at 22.) Defendants

submit that in 1997, former Commissioner of the NJDOC William H. Fauver designated NOGE

as a STG, following an investigation conducted by an NJDOC investigator, Ronald Holvey. (Id.)

Investigator Holvey’s report (“the Holvey Report”) provided evidence of “large scale coordinated

violent behavior perpetrated by NOGE adherents between 1990 and 1997.” (Id. at 22-23, citing

DSOMF ¶¶ 14-28.) The Holvey Report cited to many incidents that were linked to NOGE

members throughout New Jersey State Prison, EJSP, Northern State Prison, Southern State

Correctional Facility, Mountainview Youth Correctional Facility, Albert C. Wagner Youth

Correctional Facility, and Riverfront State Prison. (Id.)

To satisfy RLUIPA’s compelling interest prong, the government may not rest on only

“broadly formulated [institutional] interests,” Ramirez v. Collier, 595 U.S. 411, 427 (2022)

(quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014)); it instead must identify

its policy objectives with respect to “the particular claimant whose sincere exercise of religion is

being substantially burdened,” Holt, 574 U.S. at 363 (quoting Burwell, 573 U.S. at 726). Plaintiff

submits that the Holvey Report and the incidents cited therein are outdated, as they are from nearly

three decades ago. (ECF No. 204 at 16-19.) Plaintiff argues that based on the outdated nature of

the Holvey Report, it does not support the Defendants’ position that there is a current compelling

governmental interest in classifying NOGE as a STG. (Id.) Defendants admit that since the NJDOC

designated NOGE as a STG in 1997, the NJDOC is unaware of any violent or disruptive behavior

linked to the actions of NOGE as a group. (DSOMF ¶ 31.) Additionally, since January 1998, the

number of self-identified NOGE adherents within the NJDOC system has declined from just over

900, to just over 100 in March 2019. (Id. ¶ 32.)

Defendants do not provide any current evidence. Rather, they argue that because the

restrictions worked, there is now an absence of current evidence to support the need for the

restrictions. (ECF No. 198-1 at 24-25; ECF No. 210 at 8.) Defendants admit that there have been

no recorded incidents of violent behavior by a NOGE member in almost 30 years, and that the

number of members across all NJDOC facilities has been reduced to 100 inmates. (DSOMF ¶¶ 31-

32.) Moreover, Defendants have not shown that Plaintiff himself is a danger to EJSP. Holt, 574

U.S. at 363 (internal quotations omitted) (“the compelling interest test is satisfied through

application of the challenged law to the person—the particular claimant whose sincere exercise of

religion is being substantially burdened.”) In fact, Plaintiff submits that in over thirty years of

imprisonment, Plaintiff has not been cited for a violent infraction. (PSOMF ¶ 36.) There is a

genuine dispute of material fact on whether the government’s interest is compelling. Therefore,

Defendants’ amended motion for summary judgment is denied as to Plaintiff’s RLUIPA claim.

2. Qualified Immunity

As explained at length above, Plaintiff’s First Amendment Free Exercise Clause and

Establishment Clause claims, and Fourteenth Amendment Equal Protection Clause claim arise out

of the restrictions placed on Plaintiff based on the STG classification of NOGE. In his Amended

Complaint, Plaintiff argues that NJDOC’s designation of NOGE as a STG and the resulting blanket

ban on literature and activities impose a burden on Plaintiff’s religious practice in violation of the

First and Fourteenth Amendments. (See ECF No. 28 at 8-9, 17-18.) Defendants argue that they are

entitled to qualified immunity on Plaintiff’s First Amendment Free Exercise Clause and

Establishment Clause, and Fourteenth Amendment Equal Protection Clause claims. (ECF No. 196-

1 at 35-46.) Defendants contend they are entitled to qualified immunity because no law clearly

established that designating NOGE a STG violated Plaintiff’s constitutional rights. (See id.)

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). There is

a two-step inquiry into whether qualified immunity applies: (1) whether the official’s conduct

violated a constitutional or federal right; and (2) whether the right at issue was clearly established.

Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated in part by Pearson v. Callahan, 555 U.S. 223

(2009). The court may grant qualified immunity on either prong. See, e.g., Pearson, 555 U.S. at

243-245 (evaluating only Saucier’s second prong and holding that law enforcement officers were

entitled to qualified immunity because the unlawfulness of their conduct was not clearly

established).

Qualified immunity applies only to defendants in their individual capacities. Williams v.

Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 572 n.151 (3d Cir. 2017). Qualified immunity also protects

only against claims seeking damages. See Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d Cir.

2006).

“A clearly established right is one that is sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Kane v. Barger, 902 F.3d 185,

194 (3d Cir. 2018) (citations omitted). The Supreme Court reiterated “the longstanding principle

that ‘clearly established law’ should not be defined ‘at a high level of generality.” White v. Pauly,

137 S. Ct. 548, 552 (2017). To determine if the “right at issue” was “clearly established” at the

time of the alleged misconduct, the right at issue must be defined “at the appropriate level of

specificity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012). However, “it need not be the

case that the exact conduct has previously been held unlawful so long as the contours of the right

are sufficiently clear.” Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017); see also Hope v.

Pelzer, 536 U.S. 730, 741 (2002). Courts “typically look to Supreme Court precedent or a

consensus in the Courts of Appeals to give an officer fair warning that his conduct would be

unconstitutional.” Kedra, 876 F.3d at 450.

First, the Court must define the right at issue with the appropriate level of specificity.

Plaintiff’s First and Fourteenth Amendment claims are based on his argument that he faces

substantial burdens on his religious exercise due to the NJDOC’s designation of NOGE as a STG.

(See ECF No. 182-1 at 29-30.) Plaintiff acknowledges that the STG classification is what led to

the restrictions on Plaintiff’s ability to practice his faith. (See id.) The restrictions on Plaintiff are

STG policy restrictions. As such, the right at issue here is whether Plaintiff, as a NOGE adherent,

has a constitutional right not to be designated a member of a STG.

The Court must now determine if that right is “clearly established.” Defendants argue that

“no prior case in this Circuit demonstrates that NOGE has the constitutional right not to be

designated an STG.” (ECF No. 196-1 at 45.) Defendant argues that “to the contrary, prior case law

repeatedly upheld the STG designation under the Constitution and/or other laws.” (Id.) Defendants

argue that, based on current binding Third Circuit precedent, a reasonable officer would not have

known they were violating Plaintiff’s constitutional rights under free exercise, establishment, and

equal protection clauses of the First and Fourteenth Amendment by designating NOGE as a STG.

As Defendants note, in Fraise v. Terhune, the Third Circuit held that the designation of

NOGE as a STG did not violate the Constitution. 283 F.3d 506 (3d. Cir. 2002). The Third Circuit

explained that the STG policy was promulgated based on the NJDOC facing “increasing gang

violence in correctional facilities.” Fraise, 283 F.3d at 509. The Third Circuit summarized the

following regarding the STG policy:

The STG Policy defines a STG as:

A group of inmates, designated by the

Commissioner, who may gather together regularly

and informally, possessing common characteristics,

interests and goals which serve to distinguish the

group or group members from other inmate groups

or other inmates and which, as a discrete entity, poses

a threat to the safety of staff, other inmates, the

community, and/or damages to, or destruction of

property, and/or interrupting the safe, secure and

orderly operation of the correctional facility(ies).

. . .

The STG Policy lists several factors that the Intelligence Section takes into

account in considering whether a group should be designated as an STG. []

These include the following characteristics of the group: (1) its history and

purpose; (2) its organizational structure; (3) the propensity for violence of

the group and its members; (4) actual or planned acts of violence reasonably

attributable to the group; (5) other illegal or prohibited acts reasonably

attributable to the group; (6) the “[d]emographics of the group,” including

its size, location, and pattern of expansion or decline; and (7) the degree of

threat that the group poses. [] Designation of a group as an STG has the

effect of prohibiting inmates from engaging in activities related to the

group. Under prison regulations, it is a serious infraction for an inmate to

“participat[e] in an activity related to a security threat group,” N.J.A.C.

10A:4–4.1(.010), or to “possess[ ] or exhibit [ ] anything related to a security

threat group.” N.J.A.C. 10A:4–4.1(.011). It is also a serious infraction for

an inmate to attempt to do either of the above. See N.J.A.C. 10A:4–

4.1(.803).

Id. at 509-10. The Third Circuit noted that, based on the Holvey Report, the “Five Percent Nation

[also known as NOGE] became such a strong presence in New York prisons that Hispanic inmates

were prompted to form their own gang, known as the Latin Kings, to protect themselves from

attacks by Five Percenters.” Id. at 512. “The Five Percent Nation became active in New Jersey

prisons in the early 1980s and has since become the largest group in the state’s prison system.” Id.

The Fraise Court considered and denied the plaintiffs’ First Amendment Free Exercise

claim, noting that under the first Turner5 factor a “prison regulation fails this prong if it ‘promotes

an interest that is illegitimate or not neutral, or . . . bears no ‘valid, rational connection’ to the

asserted interest.’” Fraise, 283 F.3d at 516 (citing Waterman v. Farmer, 183 F.3d 208, 214 (3d

Cir. 1999) (quoting Turner v. Safely, 482 U.S. 78, 89–90 (1987)). The Third Circuit found that the

STG policy is “entirely neutral and does not in any way take religion into account.” Id. The Third

Circuit found that three of the four Turner factors “weigh strongly in favor of the STG Policy.” Id.

at 521.

The Third Circuit also denied the plaintiffs’ Fourteenth Amendment equal protection

claim, finding the NOGE’s designation as a STG does not violate equal protection. Id. at 521-22.

The Fraise Court explained that the STG policy makes no reference to religion, and that the Court

5 In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court set out the standard for assessing prison regulations that

restrict inmates’ constitutional rights. Under Turner, a regulation passes muster if it is reasonably related to legitimate

penological interests. See 482 U.S. at 89. Turner instructs courts to weigh four factors when applying this standard:

(1) whether the regulation bears a “valid, rational connection” to a legitimate and neutral governmental objective; (2)

whether prisoners have alternative ways of exercising the circumscribed right; (3) whether accommodating the right

would have a deleterious impact on other inmates, guards, and the allocation of prison resources generally; and (4)

whether alternatives exist that “fully accommodate[ ] the prisoner’s rights at de minimis cost to valid penological

interests.” Id. at 91.

was not “aware of any evidence in the record that suggests that religion plays any role in STG

designation decision.” Id.

Defendants also cite two New Jersey state court cases that upheld the NOGE STG

designation. (ECF No. 196-1 at 45, citing Venable v. New Jersey Department of Corrections, 2021

WL 1941843 (N.J. App. Div. May 14, 2021) (upholding disciplinary sanctions against inmate for

possessing NOGE materials because NOGE is designated an STG); Lewis v. New Jersey State

Parole Board, 2019 WL 952032 (N.J. App. Div. Feb. 26, 2019) (upholding Board’s denial of

parole, in part, by rejecting the inmate’s argument that the Board “demonstrated bias by suggesting

he belonged to a gang due to his membership in the Five Percent Nation a/k/a Nation of Gods and

Earths”).

Plaintiff did not oppose this portion of Defendants’ amended motion for summary

judgment. Rather, Plaintiff only argues that the individual Defendants are not entitled to qualified

immunity on Plaintiff’s RLUIPA. (ECF No. 204 at 31-32.) However, Defendants have not moved

for qualified immunity on Plaintiff’s RLUIPA claim.

On the Court’s own research, there is no consensus among other circuit court cases finding

that a STG designation violates constitutional rights. In Johnson v. Stewart, the Sixth Circuit found

the “designation of the Nation of Gods and Earths as an STG and the corresponding ban on the

Five Percenter newspaper are constitutionally permissible.” 2010 WL 8738105 at * 2 (6th Cir. May

5, 2010). The Sixth Circuit found that “the defendants put forth evidence that the Nation of Gods

and Earths was designated as an STG because it holds racial supremacist views and has been linked

to violence and gang-related activity in other prison systems.” Id. (citing Fraise, 283 F.3d at 516–

21 (applying the Turner test to conclude that the designation of this group as a security threat was

reasonable); In re Long Term Admin. Segregation of Inmates Designated as Five Percenters, 174

F .3d 464, 469–71 (4th Cir. 1999) (same). Conversely, although not a circuit court case, the United

States District Court of the Southern District of New York denied summary judgment under the

more stringent RLUIPA standard, stating the court could not find that the department of corrections

classification of the “Nation as a security threat group and absolute ban on Nation literature further

a compelling security interest and is the least restrictive means of doing so.” Marria v. Broaddus,

2003 WL 21782633 at *18 (S.D.N.Y. July 31, 2003). The Southern District of New York court

noted that the Third Circuit in Fraise and the Fourth Circuit in In re Long Term Administrative

Segregation of Inmates Designated as Five Percenters applied a more deferential standard of

review than that required in the RLUIPA analysis. Id. at *18, fn. 37. As such, the Court finds that

there is no consensus among other Circuit courts on this issue.

Plaintiff’s First and Fourteenth Amendment claims rely on whether the NJDOC’s

designation of NOGE as a STG and the resulting ban on literature and activities violated Plaintiff’s

constitutional rights. As explained above, the currently binding Third Circuit precedent found that

the STG designation is facially neutral and not related to religion. Therefore, the Third Circuit

found no constitutional violation in the STG designation of NOGE. Defendants argue, and the

Court agrees, that based on the state of law in the Third Circuit and the state of New Jersey, a

reasonable officer would not clearly know that they were violating Plaintiff’s rights under the

establishment, free exercise, and equal protection clauses of the First and Fourteenth Amendments

by designating NOGE as a STG and applying to resulting STG restrictions.

Defendants are entitled to qualified immunity on Plaintiff’s First Amendment Free

Exercise Clause and Establishment Clause claims and his Fourteenth Amendment Equal Protection

Clause claim. Therefore, Defendants’ amended motion for summary judgment is granted as to this

issue, and Plaintiff’s First Amendment Free Exercise Clause, First Amendment Establishment

Clause, and Fourteenth Amendment Equal Protection Clause claims against Defendants in their

individual capacities seeking damages are dismissed with prejudice.

3. Injunctive Relief

Defendants’ final argument is that they are entitled to summary judgment on Plaintiff’s

RLUIPA and Section 1983 claims for injunctive relief, because “none of these Defendants have

or had a direct connection to, or responsibility for, the STG designation of NOGE.” (ECF No. 196-

1 at 28-31.)

Courts in this Circuit have found that in official capacity suits brought under Section 1983,

“[c]laims for prospective injunctive relief are permissible provided the official against whom the

relief is sought has ‘a direct connection to, or responsibility for, the alleged illegal action.’”

Nicholas v. New Jersey, 2014 WL 3694149, at *3 (D.N.J. July 23, 2014) (quoting Hussmann v.

Knauer, 2005 WL 435231, at *6 (E.D.Pa. Feb. 23, 2005) (quoting Davidson v. Scully, 148

F.Supp.2d 249, 254 (S.D.N.Y.2001)).)

Defendants submit that the New Jersey Administrative Code specifies that “[o]nly the

Commissioner or Deputy Commissioner shall be authorized to designate a group of inmates as a

security threat group.” (ECF No. 196-1 at 30, quoting N.J. Admin. Code. § 10A:3-11.5.)

Defendants argue that because none of the Defendants hold the position of Commissioner or

Deputy Commissioner, they do not have the authority to provide Plaintiff with the injunctive relief

of removing the NOGE designation as a STG. (Id.) Plaintiff does not squarely address this

argument in his opposition brief. (See generally ECF No. 204.)

Plaintiff seeks removal of NOGE’s STG designation and the ability for Plaintiff to practice

his NOGE activities. (See ECF No. 28 at 18.) The New Jersey Administrative Code designates

only the Commissioner or Deputy Commissioner with the authority to designate security threat

groups. However, Defendants do not contend that Defendants Nogan and Sweeney, as

administrators at EJSP, are unable to provide any relief to Plaintiff and merely argue that they are

unable to remove the STG designation. It is unclear whether Defendants Nogan and Sweeney could

provide religious accommodations without removing the STG designation from NOGE. The Court

agrees, however, that based on the record before the Court, it does not appear that Defendants

Mountcastle-Thomas or Pikunich, as EJSP mailroom employees, could provide Plaintiff with any

relief sought. Therefore, Defendants’ amended motion for summary judgment on this issue is

denied as to Defendants Nogan and Sweeney and granted as to Defendants Mountcastle-Thomas

and Pikunich. As such, Plaintiff’s claims for injunctive relief against Defendants Mountcastle-

Thomas and Pikunich are dismissed with prejudice.

B. Plaintiff’s Cross-Motion for Summary Judgment

In support of his cross-motion for summary judgment, Plaintiff makes several arguments.

Specifically, Plaintiff moves for summary judgment on his RLUIPA, First Amendment Free

Exercise Clause and Establishment Clause claims, arguing that Defendants have failed to show a

compelling governmental interest in imposing substantial burdens on his religious exercise. (See

ECF No. 182-1 at 22-26, 28-31.) Plaintiff also moves for summary judgment on his Fourteenth

Amendment Equal Protection claim, arguing that the disparate treatment is not reasonably related

to a legitimate penological interest. (Id. at 32-34.)

1. First Amendment Free Exercise Clause and Establishment Clause

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

establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. The

Free Exercise Clause of the First Amendment applies to the states through the Fourteenth

Amendment. Cantwell v. State of Conn., 310 U.S. 296, 303 (1940). “Inmates clearly retain

protections afforded by the First Amendment . . . including its directive that no law shall prohibit

the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citation

omitted). Sincerely held beliefs, religious in nature, are entitled to constitutional protection, but

“the fact of incarceration and the valid penological objectives of deterrence of crime, rehabilitation

of prisoners, and institutional security justify limitations on the exercise of constitutional rights by

inmates.” DeHart v. Horn, 227 F.3d 47, 50–51 (3d Cir. 2000). A prison regulation alleged to

impinge upon an inmate’s First Amendment rights “is valid if it is reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89. Plaintiff argues that the STG classification burdens

NOGE practice without a justification reasonably related to legitimate penological interests. (ECF

No. 182-1 at 29-30.)

The First Amendment also prohibits the government from establishing a religion. “The

clearest command of the Establishment Clause is that one religious denomination cannot be

officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). When a state law

establishes a denominational preference, courts must “treat the law as suspect” and apply “strict

scrutiny in adjudging its constitutionality.” Id. “The government bears the burden to show that the

relevant law, or application thereof, is ‘closely fitted to further a compelling governmental

interest.’” Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission,

605 U.S. 238, 248 (2025) (quoting Larson, 456 U.S. at 251). Plaintiff argues that the classification

of NOGE as a STG, while allowing other religious groups to practice without similar restrictions,

constitutes discriminatory treatment without a secular purpose and shows preference for certain

religions. (ECF No. 182-1 at 30-31.)

As discussed at length above, the record before the Court presents an issue of material fact

regarding whether prison safety is a current compelling governmental reason justifying the STG

restrictions placed on Plaintiff’s NOGE practice. Therefore, Plaintiff is not entitled to summary

judgment on his First Amendment claims.6

2. Fourteenth Amendment Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment provides that “no State . . .

shall deny to any person within its jurisdiction the equal protection of the laws[.]” See U.S. Const.

amend. XIV. This is, “essentially[,] a direction that all persons similarly situated should be treated

alike.” See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citation

omitted). To state a Fourteenth Amendment equal protection claim, a prisoner must allege “that

he was treated differently than other similarly situated inmates, and that this different treatment

was the result of intentional discrimination based on his membership in a protected class[.]” Mack

v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016). An equal protection claim can also be

asserted under a “class of one” theory, whereby a plaintiff alleges that a state actor intentionally

treated him differently from others who are similarly situated, “and there is no rational basis for

the difference in treatment.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).

“[W]hen an inmate asserts an equal protection claim based on the allegedly disparate treatment of

different religious groups, the governing standard is whether the disparate treatment is ‘reasonably

related to legitimate penological interests.’” Fraise v. Terhune, 283 F.3d 506, 521 (3d Cir. 2002)

(quoting DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000) (en banc)).

Here, the Amended Complaint asserts an equal protection claim based on Plaintiff’s

membership in a protected class—that is, his religious affiliation of NOGE. Plaintiff argues that

Defendants discriminated against Plaintiff and treated him differently from other religious groups

6 The Court has dismissed Plaintiff’s First Amendment claims against Defendants in their individual capacity for

monetary damages based on Defendants’ entitlement to qualified immunity. Therefore, Plaintiff’s First Amendment

Free Exercise Clause and Establishment Clause claims for injunctive relief remain.

of inmates because of his membership in NOGE. (ECF No. 182-1 at 32-34.) More specifically,

Plaintiff alleges that Defendants discriminated against him and treated him differently by placing

the STG classification on him and not on any other religious groups of inmates, such as those

practicing Asatru beliefs. (Id.) Plaintiff argues that prison safety is not a compelling justification

for this disparate treatment. (Id. at 33.) Defendants oppose summary judgment, arguing that in

Fraise, the Third Circuit upheld the lower court’s dismissal of plaintiff’s equal protection claim,

finding that “[i]in view of greater propensity for violence demonstrated by members of [NOGE],

we hold that the group’s designation as an STG does not violate equal protection.” (ECF No. 196-

1 at 37, quoting Fraise, 283 F.3d at 522.)

In Fraise, the Third Circuit affirmed the dismissal of plaintiff’s equal protection claim. 283

F.3d 521-22. However, here, Defendants present the 1997 Holvey Report in support of the position

that Defendants have a legitimate penological interest in maintaining prison safety, while Plaintiff

submits that, in over thirty years of imprisonment, he has not been cited for a violent infraction

and there are no recent incidents of violence by NOGE adherents at EJSP. Again, as explained

above, the Court finds there is an issue of material fact regarding whether the disparate treatment

of NOGE members is related to a current legitimate penological interest, i.e., prison safety. As

such, Plaintiff’s cross-motion for summary judgment is denied as to this claim.

IV. CONCLUSION

For the reasons set forth above, Defendants’ amended motion for summary judgment (ECF

No. 196) is GRANTED in part. Plaintiff’s Section 1983 claims against Defendants in their

individual capacity for monetary damages are DISMISSED with prejudice. Plaintiff’s RLUIPA

and Section 1983 claims against Defendants Mountcastle-Thomas and Pikunich for injunctive

relief are DISMISSED with prejudice. Plaintiff’s RLUIPA and Section 1983 claims against

Defendants NJDOC, Nogan, and Sweeney for injunctive relief remain. Plaintiff’s cross-motion for

summary judgment (ECF No. 182) is DENIED. An appropriate Order accompanies this Opinion.

DATED: November 4, 2025

________________________

JULIEN XAVIER NEALS

United States District Judge