United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' motion for
summary judgment (DE 41), defendants' motion to seal (DE
48), and plaintiff's motion to amend (DE 55). The issues
raised have been fully briefed and are ripe for adjudication.
For the following reasons, this court grants defendants'
motions and denies plaintiff's motion.
OF THE CASE
April 16, 2015, plaintiff, a state inmate, filed this civil
rights action, pro se, pursuant to 42 U.S.C. §
1983 on the basis of the Religious Land Use of
Institutionalized Persons Act of 2000 (“RLUIPA”),
42 U.S.C. §§ 2000cc, et seq. and the First and
Fourteenth Amendments to the U.S. Constitution. Plaintiff
seeks declaratory and injunctive relief, as well as
compensatory and punitive damages. Plaintiff filed a verified
complaint naming the following as defendants:
Wendell B. Jackson (“Jackson”), George T. Solomon
(“Solomon”), Patsy Chavis (“Chavis”),
Kristie Stanback (“Stanback”), Fay Lassiter
(“Lassiter”), Larry Dunston
(“Dunston”), Crystal Atkinson
(“Atkinson”), and James McPherson
(“McPherson”). (See Compl. (DE 1)
September 29, 2015, this court conducted a frivolity review
pursuant to 28 U.S.C. § 1915. This court found that it
did not clearly appear from the face of the complaint that
plaintiff was not entitled to relief, and the matter was
allowed to proceed. On March 4, 2016, plaintiff filed a
motion to appoint counsel, which was denied. On March 9,
2016, a case management order was entered.
October 25, 2016, defendants filed the instant motion for
summary judgment, a memorandum in support (DE 42), a
statement of material facts (DE 43), an appendix to the
statement of material facts (DE 44), a proposed sealed
exhibit (DE 47), and a motion to seal (DE 48). The appendix
to the statement of material facts (DE 44) includes the
following: an article from the Southern Poverty Law Center
(DE 44-1), defendant Dunston's affidavit (DE 44-2),
defendant Lassister's affidavit (DE 44-3), Betty
Brown's (“Brown”) affidavit (DE 44-4), and
two unpublished cases (DE 44-5, 44-6).
November 14, 2016, plaintiff filed a memorandum in opposition
(DE 50), a statement of material facts (DE 51), and an
appendix to the statement of material facts (DE 52). On March
22, 2017, plaintiff filed a motion to amend.
OF THE FACTS
as otherwise noted below, the undisputed facts are as
follows: plaintiff is a prisoner of the State of North
Carolina in the custody of the North Carolina Department of
Public Safety (“NCDPS”). (See Compl. (DE
1) ¶ 3). At the time he initiated this action, plaintiff
was being housed at Tabor Correctional Institution
(“C.I.”) in Tabor City, North Carolina. (See
March 3, 1998, defendant Jackson, formerly a lieutenant at
Foothills C.I., who retired in 2000, interviewed plaintiff
regarding his possible involvement as a member of a Security
Threat Group (“STG”). (See Dunston Aff.
(DE 44-2) Ex. D). In connection with this interview,
defendant Jackson prepared a memorandum to Toney Stamey,
Corrections Administrator I at Foothills C.I. (Id.)
The memo stated the following: plaintiff admitted he was a
Muslim who believed in the teachings of Clarence the 13X,
plaintiff possessed “Five
Percenter” literature; plaintiff admitted he was a
Five Percenter; plaintiff had received 19 prison
infractions since his admission to prison; and
plaintiff explained that he was being held as a slave, white
people are devils, he would not change his beliefs, and he
would be a martyr for his people. (Id.) Defendant
Jackson recommended that plaintiff be validated as a Level
III STG member. (Id.)
March 18, 1998, plaintiff was “validated” by
defendant Jackson as a STG member of the group Nation of Gods and
Earths, widely known as “Five
Percenters.” (See Compl. (DE 1) ¶ 11).
The “validation” of a STG member takes place
through a point system and requires evidence of participation
in several different categories, including identifying
tattoos, disciplinary infractions related to gang activity,
or the use of gang “symbols.” (See
Dunston Aff. (DE 44-2) ¶ 7.) When an inmate self-admits
participation in a STG it can be sufficient for the inmate to
be validated. (Id.) The designation of levels I, II,
or III is assigned to an inmate after an assessment of that
inmate's relationship to the STG, in addition to his
behavior while incarcerated. (Id.) Validation status
is reviewed bi-annually at Levels I and II and once per year
at Level III. (Id. ¶ 8). The purpose of the
review is to assess behavior, and the reviews are completely
individualized. (Id.) In fact, at each review,
inmates are afforded the opportunity to be heard or present
evidence regarding their validation status. (Id.)
Inmates may also request a review of their validation status.
are identified as members of a STG through an extensive
process. (See Dunston Aff. (DE 44-2) ¶ 6).
Initially, an investigation is done at the facility level by
a facility intelligence officer. (Id.) The results
are reviewed by the facility head and then the division
official for that facility. (Id.) Inmates are
“validated” at three different levels, and Level
III is the “highest” level. (Id.) Before
an inmate is “validated, ” he or she will receive
notification of the validation and an opportunity to present
their own information or otherwise dispute the
asserts that although he was validated as the member of a
STG, he is a follower of the religious community Nation of
Islam (“NOI”). (See Compl. (DE 1) ¶
25). Both NOI and Five Percenters study The Supreme
Wisdom Lessons (see id. ¶ 26), and both
groups are legally recognized outside NCDPS (see id.
¶ 27). Plaintiff alleges that based on his STG
designation, he is subjected to the following: a monthly
urinalysis test; a maximum of two telephone calls per month;
restricted to non-contact visits only from immediate family;
regular, random searches, including strip searches; and
outgoing mail is screened. (See id. ¶¶ 12-16).
October 2006, defendant Dunston “shipped”
plaintiff to the Security Threat Group Management Unit
(“STGMU”) at Foothills C.I. (See id. ¶
17). Plaintiff spent the first 72 hours in segregation.
(See id. ¶ 18). Following his time in
segregation, plaintiff was placed in “phase one”
of the program. (See id. ¶ 19). Each phase is
90 days, and there are three phases. (See Compl. (DE
1) ¶ 20). Plaintiff spent most of each day in his cell.
(See id. ¶ 21). For the first six months,
recreation was in a cage with other inmates who had been
identified as gang members in his phase. (See id.
¶ 22). On October 1, 2007, plaintiff completed
STGMU. (See id. ¶ 23).
January 2008, plaintiff's STG Validation Level was
reduced from III to II. (See Dunston Aff. (DE 44-2)
¶ 26). Plaintiff's Level was increased back to III
after he was convicted of assaulting an inmate with a weapon.
(See id. ¶ 26). Since January 2009, plaintiff
has remained on Level III.(See id. ¶ 26,
Exs. E, F).
April 27, 2012, defendant Stanback disapproved of certain
issues of Volume 31 of “The Final Call, ” which
is a NOI religious periodical. (See Compl. (DE 1)
¶ 35). On May 30, 2012, defendant Lassiter
“approve[d] the disapproval” of certain issues of
“The Final Call.” (See Id. ¶ 36).
On June 8, 2012, and June 11, 2012, certain issues of
“The Final Call” were banned without
review. (See id. ¶¶ 37-38).
On July 2, 2014, certain issues of “The Final
Call” were censored by defendant Chavis. (See
id. ¶ 48.5).
explain that in order to maintain safety and security,
materials received by inmates are examined to determine
whether the material contains gang-related information,
racist information, or violence. (See Lassiter Aff.
(DE 44-3) ¶ 5, Ex. A). Because the prohibited materials
can lead to violence and criminal activity within the prison,
they are banned in a manner consistent with the Publications
Received/Possessed by Inmates Policy (“Publications
Policy”). (See id. ¶ 5, Ex. A).
material is rejected under the Publications Policy, the
inmate is informed and given the opportunity to appeal the
facility's decision to the Publications Review Committee.
(See i d . ¶ 6) . On appeal, the Publications
Review Committee can accept, reject, or modify the
facility's decision. (Id.) If the Publications
Review Committee modifies or rejects the decision of the
facility, it will then notify the publisher and give it 15
days to ask for a review of its decision. (Id.) In
the event that no request for review is filed in 15 days, the
Publications Review Committee will notify both the facility
head and the inmate of the decision and the basis for the
February 5, 2015, plaintiff attempted to assault a
correctional officer at Tabor C.I. (See Dunston Aff.
(DE 44-2) ¶ 27, Ex. G). As plaintiff was being escorted
out of the housing unit, he attempted to head-butt the
officer. (See id. ¶ 27, Ex. G). Plaintiff also
stated that he was going to “beat Officer Garrell's
ass, ” called Officer Garrell a “Black Devil,
” and called Sergeant Strickland a “White
Devil.” (See id. ¶ 27, Ex. G).
contends that there is no religious service or program
devoted to NOI prisoners, even though there are programs and
chaplaincy services provided for other religions.
(See Compl. (DE 1) ¶ 30).
Standard of Review
judgment is appropriate where “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). The party seeking summary judgment
“bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
the moving party has met its burden, the non-moving party
must then “come forward with specific facts showing
that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (internal quotation
omitted). Only disputes between the parties over facts that
might affect the outcome of the case properly preclude the
entry of summary judgment. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (holding that a
factual dispute is “material” only if it might
affect the outcome of the suit and “genuine” only
if there is sufficient evidence for a reasonable jury to
return a verdict for the non-moving party).
the summary judgment stage the [court's] function is not
[itself] to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Id. at 249. In determining whether
there is a genuine issue for trial, “evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in [non-movant's] favor.”
Id. at 255; see United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (“On summary
judgment the inferences to be drawn from the underlying facts
contained in [affidavits, attached exhibits, and depositions]
must be viewed in the light most favorable to the party
opposing the motion.”).
“permissible inferences must still be within the range
of reasonable probability, . . . and it is the duty of the
court to withdraw the case from the [factfinder] when the
necessary inference is so tenuous that it rests merely upon
speculation and conjecture.” Lovelace v.
Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982)
(quotations omitted). Thus, judgment as a matter of law is
warranted where “the verdict in favor of the non-moving
party would necessarily be based on speculation and
conjecture.” Myrick v. Prime Ins. Syndicate,
Inc., 395 F.3d 485, 489 (4th Cir. 2005). By contrast,
when “the evidence as a whole is susceptible of more
than one reasonable inference, a [triable] issue is created,
” and judgment as a matter of law should be denied.
Id. at 489-90.
Plaintiff's Motion to Amend
plaintiff's motion to amend, he argues that the object of
NOI and Five Percenters is to “straighten out the plan
that is confused now about the origin of man.”
(See Mot. Amend (DE 55) at 2). Plaintiff's
motion to amend must be denied as futile because it fails to
allege any new facts or argument with legal meaning. See
Foman v. Davis, 371 U.S. 178, 182 (1962) (recognizing
that leave to amend should be “freely given when
justice so requires” absent some reason like futility
of the amendment). Consequently, plaintiff's motion to
amend must be denied.
Defendants' Motion to Seal
seek to seal documents that are prohibited in NCDPS prison
facilities based on the security risk created by the racist
and hate rhetoric contained therein. (See Mot. Seal
(DE 48) at 2). Defendants argue that the exhibits contain
materials that would pose a security risk if disclosed to
court considers defendants' motion under the governing
standard and determines that the exhibits should be sealed.
See Doe v. Pub. Citizen, 749 F.3d 246, 271-73 (4th
Cir. 2014) (setting forth the proper analysis on a motion to
seal). In particular, the documents at issue have been deemed
a threat to institutional security by NCDPS officials and are
not permitted to be possessed by inmates. Therefore,
defendants' motion to seal is GRANTED. See e.g.,
Brown v. Ray, 695 F.Supp.2d 292, 307-08 (W.D. Va.
2010) (granting motion to seal “Final Call”
publication). The clerk is DIRECTED to maintain (DE 47-1)
through (DE 47-5) under seal.
Defendants' Motion for Summary Judgment
move for summary judgment on the basis that there are no
genuine issues of material fact and they are entitled to
judgment as a matter of law. (See Mot. Summ. J. (DE
41) at 1). Defendants further contend that qualified immunity