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Rogers v. Jackson

United States District Court, E.D. North Carolina, Western Division

September 25, 2017

MICHAEL DWAYNE ROGERS, Plaintiff,
v.
WENDELL B. JACKSON, GEORGE T. SOLOMON, PATSY CHAVIS, KRISTIE STANBACK, FAY LASSITER, LARRY DUNSTON, CRYSTAL ATKINSON, and JAMES McPHERSON, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This 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.

         STATEMENT OF THE CASE

         On 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[1] 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) ¶¶ 4-10).

         On 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.

         On 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).

         On 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.

         STATEMENT OF THE FACTS

         Except 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 id.)

         On 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”[2] literature; plaintiff admitted he was a Five Percenter; plaintiff had received 19 prison infractions[3] 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.)

         On March 18, 1998, plaintiff was “validated” by defendant Jackson as a STG[4] member of the group Nation of Gods and Earths, widely known as “Five Percenters.”[5] (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. (Id.)

         Inmates 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 “validation.” (Id.)

         Plaintiff 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[6] (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.[7] (See id. ¶¶ 12-16).

         Around October 2006, defendant Dunston “shipped” plaintiff to the Security Threat Group Management Unit (“STGMU”)[8] 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.[9] (See id. ¶ 23).

         In 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.[10](See id. ¶ 26, Exs. E, F).

         On 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.”[11] (See Id. ¶ 36). On June 8, 2012, and June 11, 2012, certain issues of “The Final Call” were banned without review.[12] (See id. ¶¶ 37-38). On July 2, 2014, certain issues of “The Final Call” were censored by defendant Chavis. (See id. ¶ 48.5).

         Defendants 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).

         When 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 decision. (Id.)

         On 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).

         Plaintiff 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).

         DISCUSSION

         A. Standard of Review

         Summary 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).

         Once 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).

         “[A]t 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.”).

         Nevertheless, “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.

         B. Analysis

         1. Plaintiff's Motion to Amend

         In 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.

         2. Defendants' Motion to Seal

         Defendants 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 inmates.[13] (Id.)

         The 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.

         2. Defendants' Motion for Summary Judgment

         Defendants 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 ...


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