Petition for Writ of Certiorari — Jimmy Allen Roberts, Petitioner v. Erik A. Hooks, Secretary, North Carolina Department of Public Safety, et al.

Supreme Court briefFeb 9, 2018

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7062

JIMMY ALLEN ROBERTS,

Plaintiff Appellant,

FRANK L. PERRY, Secretary of Prisons; BETTY BROWN, Chair, Religious

Practices Committee; MIKE SLAGLE,

Defendants Appellees.

Appeal from the United States District Court for the Western District of North Carolina, at

Asheville. Frank D. Whitney, Chief District Judge. (1:16-cv-00034-FDW)

Submitted: December 21, 2017

Decided: December 28, 2017

Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Affirmed by unpublished per curiam opinion.

Jimmy Allen Roberts, Appellant Pro Se. Kimberly D. Grande, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURL&M:

Jimmy Allen Roberts appeals the district court's order denying relief on his 42

U.S.C. § 1983 (2012) complaint. We have reviewed the record and find no reversible error.

Accordingly, we grant Roberts' motion to exceed the page limits, deny his motion to

appoint counsel, and affirm for the reasons stated by the district court. Roberts v. Perry,

No. 1:16-cv-00034-FDW (W.D.N.C. Aug. 1, 2017). We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

FILED: December 28, 2017

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7062

(1: 16-cv-00034-FDW)

JIMMY ALLEN ROBERTS

Plaintiff Appellant

FRANK L. PERRY, Secretary of Prisions; BETTY BROWN, Chair, Religious

Practices Committee; MIKE SLAGLE

Defendants Appellees

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

Is! PATRICIA S. CONNOR, CLERK

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA.

ASHEVILLE DIVISION

1: 16-cv-34-FDW

JIMMY ALLEN ROBERTS,

Plaintiff,

VS.

FRANK L. PERRY, et al.,

Defendants.

THIS MATTER comes before the Court on a Motion for Summary Judgment by

Defendants Betty Brown, Frank L. Perry, and Mike Slagle, (Doc. No. 35).

I. BACKGROUND

Procedural Background

Pro se Plaintiff Jimmy Allen Roberts, a North Carolina state inmate currently

incarcerated at Craggy Correctional Institution ("Craggy") in Asheville, North Carolina, filed

this action on February 16, 2016, pursuant to 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff has

named as Defendants: (1) Frank L. Perry, Secretary of the North Carolina Department of Public

Safety ("NCDPS"); (2) Betty Brown, Director of Chaplaincy Services with the NCDPS; and (3)

Mike Slagle, Administrator of Mountain View Correctional Institution ("MVCI"). Plaintiff

contends that, when he was incarcerated at MVCI, Defendants Perry, Brown, and Slagle violated

the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc, et

seq, by failing to recognize "Nation of Israel" as an approved religion and by limiting the

number of religious texts he can possess. (Id. at 8-19). To summarize Plaintiff's claim, Plaintiff

Case 1:16-cv--00034-FDW Document 41 Filed 08/01/17 Page 1 of 19

argues that he applied for recognition of "Nation of Israel" in 2014 by completing a form DC572. (Id. at 4-7). 1112015, he was informed that the group would not be recognized and that his

religious texts would be limited according to North Carolina Department of Public Safety

("NCDPS") policy. (j). Plaintiff claims this impedes his ability to practice his religion. (Id.).

Plaintiff also claims that he attempted to contact North Carolina Prisoner Legal Services

("NCPLS") in 2015 for legal assistance, but they declined to represent him. (Id. at 19-24).

According to Plaintiff, this constitutes a violation by Defendants of his First Amendment right to

access to the courts. (). Plaintiff requests declaratory and injunctive relief. (Iç.i at 24-29).

Defendants filed the pending summary judgment motion on May 23, 2017. (Doe. No.

35). On May 31, 2017, this 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 motion and of the manner in which evidence could be submitted to the Court.

(Doe. No. 39). On June 1, 2017, Plaintiff filed an "objection," which the Court will treat as his

response to the summary judgment motion. (Doe. No. 40). Plaintiff has attached various

publications and prison policies to his objection.

Factual Background

Defendants' Summary Judgment Materials

To support the summary judgment motion, Defendants rely on all pleadings, exhibits, and

other documents incorporated into the record, including the affidavits of Defendants Brown and

Slagle. In her affidavit, Defendant Brown states that, as Director of Chaplaincy services, she has

encountered only one request related to Nation of Israel and that request was from inmate

Plaintiff. (Doe. No. 37 at ¶ 7: Brown Aff.)._Brown asserts that she has never met Plaintiff and

only engaged in limited correspondence with him because Chaplain Edwards was tasked with

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communicating with Plaintiff about his request. (Id. at ¶J 4, 5, 8). According to Brown, Plaintiff

completed a form DC-572, or a Request for Religious Assistance, and the form was transmitted

to Brown's office in September 2014. (Id. at IT 9-11; Ex. A). The request was then forwarded

to the Religious Practices Committee ("RPC") on October 2, 2014, in accordance with Religious

Services Policy procedures. (Id. at ¶IJ 10, 14; Ex. A, B).

The form indicates that Plaintiff was seeking recognition of "Nation of Israel" as a

religion and includes information from two pastors about the group. Qd. at ¶J 11-12). The

pastors, who are in Kentucky and Missouri, do not indicate that they have ever met Plaintiff.

(Doc. No. 37-1 at 8-9). The Nation of Israel information supported by the pastors indicates that

church membership is limited to "racially pure Anglo-Saxon" individuals—meaning whites only,

and the information further refers to Jews as a "mongrel race." (Ld. at 11, 13). The church also

allows inmates to serve as priests. (Id. at 13). Brown asserts in her affidavit that, although she

does not substantively consider DC-572s, she does cursorily review them before forwarding

them to the RPC. (Doc. No. 37 at ¶J 13-14, Ex. B). Brown opines that neither the group's racist

ideology nor the sanctioning of inmates as priests is conducive to correctional settings. (Ld. at ¶

13).

On November 12, 2014, Plaintiff requested to know the status of his DC-572. (I4 at ¶

16, Ex. D). On December 16, 2014, Brown responded that the RPC was considering Plaintiffs

request. (Id. at ¶ 17, Ex. D). On December 4, 2014, the RPC determined that, because of the

group's discriminatory rhetoric and Plaintiffs security threat status, Nation of Israel would not

be recognized for purposes of the Religious Practices Manual ("RPM"). (Ld. at ¶ 18, Ex. E).

Specifically, the RPC concluded that Nation of Israel does not necessarily hold itself out to be

religious group separate from Christianity or Messianic Judaism requiring a need for separate

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recognition. (L4. at 23). Further, the RPC concluded—from the group's and Plaintiffs own

submitted materials—that the group is a white supremacist or racially exclusive organization

which excludes non-whites from membership.

(4.). The RPC also concluded that Plaintiff, who

was designated as a Messianic Jewish inmate, was permitted to worship that faith in whatever

fashion his custody level permitted, including receiving a Kosher diet, as long as he is not

disruptive or presenting a threat to the institution. (Id. at

¶IJ 24, 25, 27). The RPC also noted that

Plaintiff could be accommodated though private devotion and Messianic Jewish or Christian

services because Messianic Jewish designation and his beliefs appeared consistent with those

faith practices. (Id.).

After Brown was informed of the December 2014 RPC meeting, she requested that

Chaplain Edwards meet with Plaintiff in January 2015 to inform him of the RPC's

¶ 20). In May 2015, Plaintiff wrote to Brown again and requested to

appeal the RPC' s determination. (4. at ¶ 21, Ex. F). Edwards again spoke with Plaintiff and

informed him of the RPC consensus. (Id. at ¶ 22, Ex. F).

determination. (4. at

As to Plaintiffs challenge to his designated security status, Brown states in her affidavit

that neither she nor the RPC make determinations related to security threat or risk groups

("STG" or "SRG") and did not designate Plaintiff as a member of either group. (4. at 26).

Brown further states that neither she nor the RPC make determinations related to the

permissibility of publications. (Id. at 28). She states, however, that Plaintiff would be able to

receive any publications, including Nation of Israel publications, as long as they were approved

by the review policy set forth by the publications policy and committee. Generally, to receive

publications, the materials must be free of gang-related information, racist information, violence,

and the like. (Id. at 29). Brown asserts that she did not review any materials indicating that

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Plaintiff was prohibited from possessing appropriate religious material. (Icj. at ¶ 30). Brown

also did not see any information indicating that Nation of Israel beliefs require Plaintiff to

possess more religious materials than other inmates. (j). Facilities make determinations on

how many religious texts that inmates may possess based on the facility's security and

operational needs. (Id.).

Finally, Brown asserts that DPS has refused to recognize Nation of Israel as a group

because of its hateful, racist, and separatist rhetoric, as established and documented in its own

literature. (Ld. at ¶ 31). Brown further opines that groups espousing racist ideals are not suitable

to DPS recognition because the violence and racist ideals promoted by the groups are not

suitable in a correctional setting. (TcJ at ¶ 32). Such groups are usually intended to instill

violence, revolt, and racism against non-white individuals. (Id.).

In support of the summary judgment motion, Defendants have also submitted the

affidavit of Defendant Slagle, current Administrator of MVCI. (Doc. No. 36 at ¶ 3: Slagle Aff.).

He was not the Administrator of MVCI before 2015, but was employed at the facility. (Id. at ¶

4). Slagle asserts that he had no interactions with Plaintiff while he was housed at MVCI, and he

denies that he personally infringed on Plaintiffs religious rights or blocked his access to legal

representation. ([4 at ¶ 12). He also denies that MVCI staff violated Plaintiffs religious rights

or impeded his access to legal representation. (Ii).

Slagle states in his affidavit that, as to Plaintiffs DC-572, MVCI staff met their

obligations to process and forward the DC-572 for review by the RPC. (Id. at ¶ 5). MVCI staff

were not involved in the outcome of the DC-572, as the RPC made that determination. (I4 at ¶

6). Slagle further asserts that MVCI staff appropriately responded to and addressed each of

Plaintiffs grievances related to his claims. (4, at ¶J 6-8). As to Plaintiffs grievance regarding

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religious materials or excessive books, Slagle determined that staff responded attentively to the

complaints and that the responses were consistent with MVCI Standard Operating Procedures

("SOPs"), which allow inmates to possess ten books at any given time, plus approved reading

material for their declared religion. (I4 at ¶ 8, Ex. A, F). Books of an unrecognized religion

would not fall within the "approved reading material" from the Religious Practices Manual.

(Id).

As to Plaintiffs claims about legal representation, Slagle denies that MVCI staff hqs

impeded Plaintiffs right to access the courts and Slagle notes that, in fact, Plaintiff was

disciplined in 2016 for providing legal assistance to another inmate. (Id. at ¶ 10: Ex. Q.

As to Plaintiffs designation in a Security Risk Group ("SRG") for white supremacy,

Slagle states that he did not participate in Plaintiffs SRG classification. (Id. at ¶ 9, Ex. B). The

documents supporting the SRG classification indicate that Plaintiff has tattoos associated with

white supremacy groups. (Doc. No. 36-2 at 2).

Slagle further attests that Plaintiff was found in possession of white supremacy materials

on March 16, 2016. (Doc. No. 36 at 1 13). Specifically, MVCI staff carried out a routine search

on Plaintiffs cell and discovered materials appearing to be SRG-related, specifically white

supremacist. (). Specifically, staff located one book, two pamphlets, and some printed

materials stapled together. (Ici at ¶ 14; Doc. No. 36-5: Ex. E, Seized Materials). Slagle asserts

that the printed materials contained the words "White Warrior," "KKK," and "Ku Klux Klan."

(). The materials also contained anti-Jewish rhetoric, including entire sections of a newsletter

called "Why We Hate Jews." (Id.). Slagle asserts that the materials further espoused violent

views of stopping the "integration" or mixing of races and stating they are aimed at equipping

individuals to "advance" the "Kingdom of God." See (Id.). According to Slagle, such materials

rol

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are not suitable for Plaintiff's possession in the prison system because they teach and espouse

racist ideals and contain hateful, separatist rhetoric, including statements denouncing intermixing races, the Jewish faith, and African-Americans. (Doc. No. 36 at ¶ 15). Slagle opines that

promotion of such ideas would lead to tension and unrest in the inmate population between

inmates of different races, as well as with inmates and staff of different races. (Içi at ¶ 17).

According to Slagle, this would directly pose a risk to prisons, staff, and public in North

Carolina. (Id.). Slagle asserts that he reviewed the materials, determined that they were SRGrelated, and retained them as contraband. (Içj, at ¶ 15, Ex. B).

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. The nonmoving party must

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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. DISCUSSION

A. Plaintiff's RLUIPA and First Amendment Claims Based on Failure to Recognize

Nation of Israel and Restriction on Plaintiff's Right to Possess Religious Texts

As noted, Plaintiff purports to bring a claim arising under RLUIPA. The Court will

further assume, for the purposes of this summary judgment motion, that Plaintiff also intended to

bring a claim for a violation of his right to exercise his religion under the First Amendment.

First, 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—(I) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C.

§ 2000cc-1(a). "RLUIPA thus protects institutionalized persons who are unable freely to attend

to their religious needs and are therefore dependent on the government's permission and

accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721 (2005).

Under RLUIPA, the plaintiff must initially show that the challenged policy substantially burdens

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his exercise of his religion. See 42 U.S.C. § 2000cc-2(b); Holt v. Hobbs, 135 S. ct. 853, 862

(2015). The statute defines "religious exercise" as "any exercise of religion, whether or not

compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A); Smith v.

Ozmint, 578 F.3d 246, 251 (4th Cir. 2009). A "substantial burden' is one that puts substantial

pressure on an adherent to modify his behavior and to violate his beliefs, []or one that forces a

person to choose between following the precepts of her religion and forfeiting governmental

benefits, on the one hand, and abandoning one of the precepts of her religion on the other hand."

Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (quotations, citation, and alterations omitted).

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

prove that "the burden in question is the least restrictive means of furthering a compelling

governmental interest." Ozmint, 578 F.3d at 250. "RLUIPA adopts a.. strict scrutiny'

standard." Couch v. Jabe, 679 F.3d 197, 203 (4th Cir. 2012) (quoting and citing Lovelace, 472

F.3d at 198 n.8). Under RLUIPA, the court must give "due deference to the experience and

expertise of prison and jail administrators in establishing necessary regulations and procedures to

maintain good order, security and discipline, consistent with consideration of costs and limited

resources." Cutter, 544 U.S. at 723 (quotation omitted). "However, 'a court should not rubber

stamp or mechanically accept the judgments of prison administrators.'

Rather, due deference

will be afforded to those explanations that sufficiently 'take[] into account any institutional need

to maintain good order, security, and discipline." Couch, 679 F.3d at 201 (quoting Lovelace,

472 F.3d at 190).

As for Plaintiffs 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

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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."1

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. "As a result, if prison officials demonstrate that a challenged policy is

pursuing a legitimate governmental objective, and demonstrates some minimally rational

relationship between that objective and the means chosen to achieve that objective," courts must

approve of those means. Lee v. Johnson, 793 F. Supp. 2d 798, 805 (W.D. Va. 2011) (quoting

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. Thus, the First Amendment affords less

protection to an inmate's free-exercise rights than does RLUIPA. I4 The initial burden on the

inmate is the same under both RLUIPA and the First Amendment—i.e., to show that his right to

free exercise of religion has been substantially burdened. Brown v. Ray, 695 F. Supp. 2d 292,

300 (W.D. Va. 2010). However, if a plaintiff fails to present evidence of a RLUIPA violation

sufficient to survive summary judgment, it follows that his First Amendment claim also fails.

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I -

Hines v. S.C. Dep't of Corrs., 148 F.3d 353, 358 (4th Cir. 1998) (internal quotation marks

omitted)). "Several factors are relevant to this reasonableness determination, including whether

there is a logical connection between the asserted interest and the challenged policy, whether

accommodating the inmate's rights would severely impact allocation of prison resources, and

whether inmates retain alternative means of exercising their religious rights." Id.

1. Group Recognition

In support of their summary judgment motion, Defendants first argue that the materials

submitted by Plaintiff with his Complaint and with his DC-572 indicate that Nation of Israel is

not a separate religion for purposes of recognition and that Plaintiff has, therefore, has not

proven that his rights have been violated under either RLUIPA or the First Amendment. The

Court agrees, as these materials indicate that Nation of Israel is a group comprised of Messianic

Jewish and Christians who disagree with the mixing of races, rather than a separate religion.

(Doc. No. 1-2 at 3-7; Doc. No. 37, Ex. A at 10-11). Plaintiffs materials used to support his DC572 include a letter from Pastor Donald Elmore, stating that Plaintiff is capable of leading the

"functions of a Christian Church." (Doc. No. 37-1 at 9). It appears that the premise and

practices of the group lie in the same texts studied by both Messianic Jewish and Christian faith

groups; however, their interpretations as of the texts differ, primarily in that Nation of Israel

promotes white supremacy and anti-Semitism—racist ideologies that Nation of Israel appears to

contend are supported by Biblical scripture. See (Doc. No. 1-2 at 3-7; Doc. No. 37; Doc. No. 371 at 10-11: Ex. A). That is, according to Nation of Israel's own Statement of Beliefs: "The

Nation of Israel.

is comprised mainly of former Christians and Messianics, who have come to

recognize that modern Judeo Christianity in its 3,000 plus cultic variations, i.e., denominations is

counter conductive to the religion depicted in Scripture." (Doc. No. 37-1 at 10). Further,

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Plaintiff has not alleged a substantial burden on his ability to practice his beliefs according to the

Nation of Israel, given that he is designated a Messianic Jewish inmate and is capable of

participation in both Messianic Jewish and Christian services. $

(Doc. No. 37 at IT 17-18).

Defendants further note that, according to the Southern Poverty Law Center, which

researches and tracks right-wing, extremist hate groups in America, the "Church of Israel" and

Pastor Gayman are "leading ideologues of the racist and anti-Semitic Christian Identity

religion[.]" See (Doc. No. 38-1 at 1: Appendix A to Mem.; Doc. No. 38-2: Appendix B to

Mem.). According to the Anti-Defamation League of America, Dan Gayman was associated

with violent individuals and violent attacks such as those by Eric Rudolph, who was convicted of

detonating bombs at the 1998 Olympics and an abortion clinic. See (Doc. No. 38-3 at 8:

Appendix C to Mem.). Defendants contend that the sources consulted for Defendants' attached

appendices concur that Dan Gayman, his congregation, the Nation of Israel, and the Christian

Identity movement are the same. $

(Doc. No. 38-4: Appendix D to Mem.). The Anti-

Defamation League materials further state that, within the Christian Identity movement,

"[o]verall level of criminal activity is high, ranging from hate crimes to acts of terrorism." See

(Doc. No. 38-3 at 2).

This Court finds that Defendants have presented evidence on summary judgment

showing that Nation of Israel is not a separate religion for purposes of recognition in the North

Carolina prisons. Rather, it is a group that espouses racist, white supremacy ideologies, and it is

a part of the so-called "Christian Identity" movement. In any event, assuming for purposes of

discussion that Nation of Israel is recognizable as a religion, it is well settled that RLUIPA does

not require a prison to accommodate a religious practice that jeopardizes institutional security,

and Defendants have presented ample evidence on summary judgment that this group does

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jeopardize institutional security. See Cutter v. Wilkinson, 544 U.S. 724, 722 (2005) ("We do not

read RLUIPA to elevate accommodation of religious observances over an institution's need to

maintain order and safety."). Courts have repeatedly held that religious materials or groups

possessing violent or racist messages are not entitled to religious protections. Brown v. D.O.0

265 F. App'x 107, 110 (3rd Cir. 2008) (confiscation of Five Percenter newspapers did not violate

the plaintiffs rights where newspapers included articles with revolutionary and anti-government

messages); Cartwright v. Meade, No. 7:08-cv-250, 2008 WI, 2944668, at n.2 (W.D. Va. July 31,

2008) (holding in dicta that classification of Five Percenters as a security threat group and

resulting confiscation of their materials did not state a claim under RLUIPA where there was no

showing that plaintiff was substantially burdened in the exercise of his religion); Bells v. Ozmint,

No. 6:06-2266, 2007 WL 1862668, at *3 (D.S.C. June 6, 2007) (confiscation of Five Percenter

material did not violate RLUIPA).

Here, Defendants have presented evidence on summary judgment showing that they have

given appropriate consideration to lesser restrictive alternatives to the ban of Nation of Israel as a

religious group or organization within North Carolina prisons and have offered substantive,

relevant explanations for why the group is not permitted to gain recognition as a religion.

Moreover, Defendants' evidence, through the affidavits of Brown and Slagle, indicates that the

RPC considered the group and concluded that, while the group was not suitable for official

recognition, Plaintiff could worship his faith in whatever fashion his custody level permitted.

(Doc. No. 37 at ¶ 24). This would include private worship as to whatever his personal

interpretation of his faith is—whether that be based on Nation of Israel beliefs or not—as long as

he is not disruptive or presenting a threat to the institution and receipt of published materials so

long as they were deemed acceptableby the publications policy. (Id. at ¶ 25).

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In response to Defendants' arguments on summary judgment, Plaintiff does not deny that

Nation of Israel is a racist and exclusionary group that promotes white supremacy. Instead, he

argues that the group's racist message is justified because its "exclusionary rule" is mandated by

various passages in the Bible and it also serves security purposes. That is, Plaintiff argues that

the group's racist beliefs merely reflect "a firmly held religious conviction founded upon a clear

and unambiguous scriptural mandate to wit; Exodus 19:56; Deuteronomy 7:3-6; Ezra, Chapters

9-10 et seq.; Nehemiah 13:1-3, 24 et seq. Further, from a security standpoint, such exclusion is

necessary to prevent militant black religious groups harboring violent gang members from

entering and disrupting services." (Doc. No. 40 at 2). Plaintiff also argues that prison officials

"condone[] the practices of black religious groups" that foster racist attitudes against whites.

(j). Finally, Plaintiff contends that Defendants fabricated some of the evidence to support the

summary judgment motion. He contends specifically that some of the allegedly racist literature

found in Plaintiffs cell was not actually confiscated from his cell. (Id. at 11)

None of Plaintiffs contentions in his response raise a genuine issue of material dispute as

to his RLUIPA and First Amendment claims against Defendants based on the prison's refusal to

recognize Nation of Israel as an approved religion in the prison and Defendants are therefore

entitled to summary judgment as to this claim. Most significantly, Plaintiff has presented no

evidence on summary judgment to show how any conduct by Defendants is preventing him from

exercising his purported religion.' That is, Plaintiff has not presented any evidence that

Furthermore, specifically as to Plaintiffs RLUIPA claim, while RLUIPA authorizes

injunctive and declaratory relief, it does not waive the NCDPS' Eleventh Amendment immunity,

nor does it authorize suits for money damages against prison officials, whether in their official or

individual capacities. Rendelman v. Rouse, 569 F.3d 182, 187 (4th Cir. 2009); accord Sossamon

v. Texas, 131 S. Ct. 1651, 1663 (2011). Lastly, to state a RLUIPA claim against an individual, a

plaintiff must establish that they acted with the requisite intent. That is, in the RLUIPA context,

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Defendants have in any way hampered his ability to participate in both Messianic Jewish and

Christian services,, or his ability to continue practicing his white supremacist and anti-Semitic

beliefs, however deplorable they may be. In other words, Plaintiff points to no specific religious

practices that he is being deprived of participating in. On the other hand, Defendants have

presented evidence that Plaintiff can fulfill his religious duties by continuing to participate in

Messianic Jewish and Christian services in prison. While attending these services and

observances, Plaintiff is certainly free to entertain whatever racist and anti-Semitic thoughts he

wishes to entertain. This Court simply will not, however, order the North Carolina prisons to

officially recognize as a religion a group that espouses hateful and racist rhetoric, thus subjecting

this group to certain protections under prison regulations and policies. Moreover, as noted, the

Court finds most compelling the reasons given by Defendants for refusing to recognize Nation of

Israel—that recognizing such a group as an approved religion would no doubt jeopardize

institutional security. In sum, Defendants are entitled to summary judgment as to this claim.

2. Restrictions on Possession of Religious Texts

As part of his claim, Plaintiff also contends that Defendants violated his rights by

restricting his possession of religious texts. In support, Plaintiff broadly alleges that the numeric

restriction on the publications he is permitted to possess is unconstitutional. This claim fails.

The only materials seized from Plaintiff were outlined by Slagle as racist and violent—they were

not seized because they were excessive. See (Doc. No. 36 at IT 14-15, Ex. E). Moreover, the

materials speak for themselves as to why restrictions on such materials are necessary, as they

such claim requires more than negligence and is satisfied by intentional conduct. Lovelace v.

Lee, 472 F.3d 174, 194-95 (4th Cir. 2006). Here, Plaintiff has failed to establish such intent by

Defendants, and his claims against them fail for this additional reason.

Case 1:16-cv-00034-FDW Document 41 Filed 08/01/17 Page 15 of 19

contain violent, racist, and gang-related materials. (j). Thus, the prison's restrictions on

Plaintiff's ability to possess these materials serve a compelling governmental interest of

maintaining institutional safety and security. (Ld. at ¶J 16-18). Accord Bruton v. McGinnis, 110

F.3d 63 (6th Cir. 1997) (unpublished) (concluding that "[t]he district court properly found that

the ownership of materials and symbols associated with the hatred of blacks and Jews could

incite violence among a segment of society already prone to violence. [The Plaintiff] was

allowed to order, from an approved vendor,, other. Christian Identity, materials less likely to incite

violence."); Borzych v. Frank, 439 F.3d 388, 391 (7th Cir. 2006) (upholding a ban on religious

publications that "promote violence to exalt the status of whites and demean other races")

Furthermore, Defendants have shown on summary judgment that Plaintiff was permitted to order

Nation of Israel materials that meet the publications policy and which do not promote racist or

violent ideas. In response, Plaintiff has simply not raised a genuine issue of disputed fact as to

his claim that his constitutional rights were violated based on the prison's restriction on his right

to possess certain religious texts.

Plaintiff's Claim for Violation of His First Amendment Right to Access to the

Courts

Plaintiff also purports to bring a First Amendment claim for a violation of his right to

access to the courts. Federal courts have long recognized that inmates have a fundamental right

to access to the courts and protect that right "by prohibiting state prison officials from actively

interfering with inmates' attempts to prepare legal documents." Lewis v. Casey, 518 U.S. 343,

350 (1996); Michau v. Charleston Cnty., 434 F.3d 725, 728 (4th Cir. 2006). "[M]eaningful

access to the courts is the touchstone." Lewis at 351. Thus, to sustain a claim of denial of access

to the courts, a prisoner must show actual injury, i.e., that the prisoner's efforts to pursue a legal

111.1

Case 1:16-cv-00034-FDW Document 41 Filed 08/01/17 Page 16 of 19

claim were hindered. Id. at 351-52; accord O'Dell v. Netherland, 112 F.3d 773, 776 (4th Cir.

1997) (holding an inmate wishing to establish an unconstitutional burden on his right of access to

the courts must show actual injury to the capability of bringing contemplated challenges to

sentences or conditions of confinement before the courts). This right does not extend to include

the right to "litigate effectively once in court." Lewis, 518 U.S. at 354 (disclaiming language in

Bounds v. Smith, 430 U.S. 817, 825 (1977), suggesting otherwise).

An inmate may not rely on conclusbry allegations but, instead, must identify the specific

claim he has been unable to pursue or the specific procedural default arising from official

interference. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Specificity is necessary so

that prison officials are not required to file unnecessary responses to speculative allegations. Id.

See Michau, 434 F.3d at 728 (where the denial of access to courts claim failed because the

plaintiff did not specifically explain how he was injured by any limitations on his access to the

law library); Harden v. Bodiford, 442 F. App'x 893, 896 (4th Cir. 2011) (finding that an inmate

cannot rely on conclusory allegations to establish a claim of denial of access to the courts). In

fact, inmates have no absolute constitutional right to representation and "NCPLS attorneys are at

liberty to use their professional judgment and are not obligated to undertake representation in

virtually every case brought by inmates." Salters v. Butler, No. 5:06-CT-3073-H, 2006 WL

4691237, at *1 (E.D.N.C. Oct. 9, 2006) (unpublished).

Here, Plaintiff does not state how Defendants have impeded his access to the courts, aside

from broadly speculating that Defendants are somehow responsible for the actions of NCPLS.

These allegations do not plausibly give rise to an entitlement to relief for denial of access to the

courts. Furthermore, Plaintiff does not plead an actual injury. Instead, Plaintiff claims that

NCPLS' denial of representation amounts to a constitutional injury, which he contends is

Case 1:16-cv-00034-FDW Document 41 Filed 08/01/17 Page 17 of 19

somehow attributable to Defendants, but he does not explain how. Plaintiff does not claim that

there was or is an impediment to his ability to communicate with the courts or file papers, that

NCDPS' policies prevented him from accessing or communicating with the courts, or that

Defendants have impeded his ability to communicate with NCPLS or private counsel. In sum,

Plaintiffs allegations falls woefully short of establishing liability against Defendants for some

alleged deprivation of access to the courts. In sum, as with his RLUIPA claim, Plaintiff has not

come forward with evidence on summary judgment raising a genuine dispute of material fact as

to whether Defendants violated his right to access to the courts. Therefore, Defendants are

entitled to summary judgment as to this claim.

IV. CONCLUSION

Plaintiff has failed to raise a genuine issue of material fact as to whether Defendants

violated his rights to practice his religion under the RLUIPA or the First Amendment, or his First

Amendment right to access to the courts. Defendants are therefore entitled to summary

judgment.'

Finally, Defendants also contend that Plaintiffs claims, which are for only declaratory and

injunctive relief, are moot because Plaintiff has been transferred away from MVCI. The Court

does not address Defendants' argument regarding mootness because the Court concludes that, in

any event, Defendants are entitled to summary judgment on the merits.

Case 1:16-cv-00034-FDW Document 41 Filed 08/01/17 Page 18 of 19

i-.'-.

----

---

-..

IT IS, THEREFORE, ORDERED that:

Defendants' Motion for Summary Judgment, (Doe. No. 35), is GRANTED, and this

action is dismissed with prejudice.

The Clerk is respectfully instructed to terminate this action.

;igned: August 1, 2017

;_4

:rank D. Whitney

hief United States District Judge

Case 1:16-cv-00034-FDW Document 41 Filed 08/01/17 Page 19 of 19

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1: 16-cv-34-FDW

JIMMY ALLEN ROBERTS,

Plaintiff,

] 1)) M

VS.

FRANK L. PERRY, et al.,

Defendants.

THIS MATTER is before the Court sua sponte regarding the filing of a summary

judgment motion by Defendants Betty Brown, Frank L. Perry, and Mike Slagle, (Doc. No. 35).

In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advises

Plaintiff, who is proceeding pro se, of the heavy burden that he carries in responding to the

motion.

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.

5 6(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).

Case 1:16-cv-00034-FDW Document 39 Filed 05/31/17 Page 1 of 3

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

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

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

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

present sufficient evidence from which "a reasonable jury could return a verdict for the

nonmoving party." Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County,

Md., 48 F.3d 810, 818 (4th Cir. 1995).

If Plaintiff has any evidence to offer to show that there is a genuine issue for trial, he

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. Federal Rule of Civil Procedure 56(c) provides

that:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed

must support the assertion by:

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

electronically stored information, affidavits or declarations, stipulations (including those made

for purposes of the motion only), admissions, interrogatory answers, or other materials; or

showing that the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that

the material cited to support or dispute a fact cannot be presented in a form that would be

admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider

other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion

must be made on personal knowledge, set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on the matters stated.

An affidavit is a written statement under oath; that is, a statement prepared in writing and

sworn before a notary public. An unswom statement, made and signed under the penalty of

Case 1:16-cv-00034-FDW Document 39 Piled 05/31/17 Page 2 of 3

perjury, may also be submitted. Affidavits or statements must be presented by Plaintiff to this

Court no later than fourteen (14) days from the date of this Order, and must be filed in duplicate.

Plaintiffs failure to respond may result in Defendants being granted the relief Defendants

seek by way of summary judgment.

IT IS, THEREFORE, ORDERED that:

Plaintiff shall respond to the pending motion within 14 days of entry of this

Order. Failure to file a timely and persuasive response will likely lead to the

relief Defendants seek by way of summary judgment.

Signed: May 31, 2017

Frank D. Whitney

Chief United States District Judge

Case 1:16-cv-00034-FDW Document 39 Piled 05/31/17 Page 3 of 3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:17cv133-FDW

CYNTHIA D. THORTON,

)

Respondents.

)

DAVID MICHAEL WILSON,

Petitioner,

VS.

ORDER

THIS MATTER is before the Court upon Petitioner David Michael Wilson's pro se

Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Also before the

Court is Petitioner's Motion to proceed in forma pauperis. (Doc. No. 2.)

Petitioner is a prisoner of the State of North Carolina. He filed the instant habeas Petition

on May 19, 2017.

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts

directs district courts to examine habeas petitions promptly. Rule 4, 28 U.S.C.A. foll. § 2254.

When it plainly appears from any such petition and any attached exhibits that the petitioner is not

entitled to relief, the reviewing court must dismiss the petition. Id.

Rule 2(c) of the Rules Governing Section 2254 Cases requires a Petitioner to specify all

the grounds for relief available to him and to state the facts that support each ground for relief.

Rule 2(c), 28 U.S.C.A. foil. § 2254. Petitioner has done neither. The Petition merely lists a

partial procedural history of Petitioner's state proceedings. It is, therefore, impossible for the

Court to determine whether Petitioner is entitled to any relief.

The Petition for Writ of Habeas Corpus shall be dismissed without prejudice. Should

Case 1:17-cv-00133-FDW Document 3 Filed 05/31/17 Page 1 of 2

Petitioner wish to file a § 2254 habeas petition in the future, he must specify grounds for relief

and state the facts that support each ground for relief or risk having his habeas petition dismissed

a second time for failing to supply enough information to survive initial review.

IT IS, THEREFORE, ORDERED that:

The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No.

1) is DISMISSED WITHOUT PREJUDICE;

Petitioner's Motion to proceed in forma pauperis (Doc. No. 2) is GRANTED for

the limited purpose of this Court's review;

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court

declines to issue a certificate of appealability as Petitioner has not made a

substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2);

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c),

a petitioner must demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong); Slack v. McDaniel,

529 U.S. 474, 484 (2000) (holding that when relief is denied on procedural

grounds, a petitioner must establish both that the correctness of the dispositive

procedural ruling is debatable, and that the petition states a debatably valid claim

of the denial of a constitutional right).

Signed: May 31, 2017

Frank D. Whitney

Chief United States District Judge

Case 1:17-cv-00133-FDW Document 3 Filed 05/31/17 Page 2 of 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.