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 pursuant to Federal Rule of Civil Procedure
56(a) (DE 87). Also before the court is plaintiff's
motion to reopen discovery (DE 92). The issues raised have
been fully briefed and are ripe for adjudication. As
explained below, plaintiff's motion to reopen discovery
is denied and defendants' motion for summary judgment is
OF THE CASE
procedural background is set forth in this court's
September 23, 2016 order, and restated in relevant parts
here. On August 14, 2013, plaintiff filed a § 1983
action claiming violations of the First Amendment and
Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) pertaining to his beliefs under the
Nation of Gods and Earths (“NGE”). On November 27,
2013, plaintiff filed a verified amended complaint adding
claims of alleged violations of the Eighth Amendment and
Fourteenth Amendment Due Process and Equal Protection
Clauses. On July 28, 2014, defendants filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
On February 26, 2015, in response to defendants' motion
to dismiss, the court dismissed plaintiff's due process
claim. On March 2, 2015, the parties received a discovery
deadline of August 3, 2015. On November 2, 2015, defendant
filed a motion for summary judgment arguing that no violation
of plaintiff's constitutional rights had occurred, and
plaintiff responded in opposition.
September 23, 2016, the court determined that plaintiff had
not established any constitutional violations or violations
under RLUIPA for his NGE claims of corporate worship,
fasting, possessing religious texts, a vegan diet, and
possession of a medallion or flag. Plaintiff appealed the
court's judgment, and on April 21, 2017, the Fourth
Circuit affirmed in part, vacated in part, and remanded the
judgment. The Fourth Circuit affirmed the district
court's analysis of the underlying claims, except for the
treatment of plaintiff's fasting claim. See Miles v.
Guice, 688 F. App'x 177, 179 (4th Cir. 2017) (per
curiam). For the fasting claim, the court vacated and
remanded the court's order, holding that failure to
accommodate fasting on holy days does present a substantial
burden under RLUIPA and should be analyzed under a strict
scrutiny standard. Id.
24, 2017, the court requested further briefing from the
parties on whether the defendant prison officials'
asserted failure to accommodate fasting by plaintiff on holy
days violated RLUIPA under a strict scrutiny standard. On
August 9, 2017, defendants filed the instant motion, a second
motion for summary judgment, claiming that they meet the
standard under strict scrutiny, and including the affidavit
of Kelli Harris (DE 89-1), a non-party, to their appendix to
the statement of material facts. In support of their motion,
they also rely upon plaintiff's response in opposition to
defendants' first motion for summary judgment (DE 62-5),
plaintiff's amended complaint (DE 8), and incorporate all
sources relied upon in their first motion for summary
judgment (DE 57), including: defendant Dunston's
affidavit (DE 58), defendant Brown's affidavit (DE 59),
defendant Dunston's supplemental affidavit (DE 67),
defendant Brown's supplemental affidavit (DE 70), and
plaintiff's administrative grievances (DE 1-1).
response, on September 7, 2017, plaintiff filed a motion to
reopen the discovery period and an extension of time to file
a response to defendants' second motion of summary
judgment. Plaintiff states that because of his previous
housing in a restrictive housing unit and his lack of
knowledge regarding the discovery process, he was unable to
conduct discovery. Plaintiff requests an additional discovery
period in order to respond to defendants' instant motion.
In plaintiff's previous response to defendants'
motion for summary judgment (DE 62), plaintiff relied upon
his amended complaint (DE 8) and included the following in
his appendix to his response: administrative grievances (DE
62-1), articles on NGE (DE 62-5), NCDPS procedures for
religious menu accommodations (DE 62-5), his petition for
religious accommodation (DE 62-5), records from a past
investigation (DE 62-5), three declarations providing
statements by other prisoners (DE 62-5), and plaintiff's
own declaration (DE 73-1).
October 13, 2017, defendants responded in opposition to
plaintiff's motion, arguing that plaintiff has not
demonstrated any permissible excuse for not conducting
discovery and that the effect of re-opening discovery would
be prejudicial because two years have passed since the
expiration of the discovery period.
OF THE FACTS
factual background is set forth in this court's September
23, 2016 order, and restated in relevant parts here. Except
as where otherwise identified below, the facts viewed in the
light most favorable to plaintiff may be summarized as
follows. Plaintiff, a state prisoner, challenges
defendants' refusal to accommodate his fasting schedule
on NGE holy days. Plaintiff alleges NGE is a legitimate
religion, founded in New York nearly fifty years ago.
(See Am. Compl. ¶ 12); (Pl.'s Dec. (DE
73-1) ¶ 4). Plaintiff alleges, as an adherent to NGE,
that he needs to keep a strict diet, which includes fasting
on holy days. (See Am. Compl. ¶ 15). According
to plaintiff, there are four NGE holy days. (See id.
¶ 19). Two of the four holy days are also observed by
the Nation of Islam (“NOI”). (See id.
¶¶ 15, 19). On these holy days, plaintiff alleges
that he “is placed in a position to follow his beliefs
in observing holy days and save his food in light of policy
by violating policy [ . . .] Therefore when Holy Days
approach he has to choose to save his food or eat his food,
which both options are violating a policy or a tenant. Thus
plaintiff eats nothing.” (Id. ¶ 35).
Adversely, defendants contend that “fasting is not a
practice or religious exercise of the NGE or the Five
Percenters.” (Def.s' Mem. (DE 90) 7).
not recognized by the North Carolina Department of Public
Safety (“NCDPS”) as a religion. (Brown Aff.
¶ 10). Plaintiff did seek religious recognition for NGE,
but NCDPS denied his petition. (See id. Ex. C). In
their decision to deny religious recognition, the Religious
Practice Committee (“RPC”) concluded the
“Five Percenters” were not a religion, based upon
their own materials which “unequivocally states that
they are not a religion, but a culture. They have been
determined to be a violent hate group by security
professionals.” (Brown Suppl. Aff. ¶ 10). NCDPS
designates NGE as a Security Threat Group (“STG”)
with connections to the gang, the United Blood Nation
(“UBN”). (Dunston Aff. ¶¶ 7-9).
Defendants assert Five Percenters are engaged in violence and
gang culture within the North Carolina prison system.
Specifically, as of October 30, 2011, defendants classified
plaintiff as a Five Percenter, Level III UBN member, and High
Security Maximum Control prisoner because of his
“pattern of behavior” and two assault incidents,
taking place in 2007 and 2009. (See Dunston Suppl.
Aff. ¶¶ 12, 13). Aside from plaintiff's
actions, defendant Dunston provides two examples over the
past four years involving “Five Percenter”
violence, the first involving a Five Percenter and UBN member
at Alexander Correctional, and the second incident involving
a Five Percenter at Tabor Correctional. (Id.
¶¶ 19-20). Additionally, defendant Brown cites one
example from the South Carolina prison system involving
“Five Percenters” and violence that occurred
nearly twenty years ago. (See Brown Aff. ¶ 13).
also assert the NGE's beliefs are racist. (Id.).
Further, defendant Brown states “Five Percenters”
are banned “in almost every correctional system in the
nation.” (Brown Suppl. Aff. ¶ 15). Defendant
Brown also asserts that she “personally, do[es] not
know of any correctional system that recognize[s] NGE as a
religion.” (Id. ¶ 16). Defendant Dunston
states, “[t]hey are not a religion nor do they hold
themselves out to be. This is a belief shared by nearly every
correctional system in the United States.” (Dunston
Suppl. Aff. ¶ 23).
NGE is not recognized as a religion by NCDPS, they are not
entitled to religious accommodations, such as fasting.
(See Harris Aff. ¶¶ 16, 23). Islam is a
NCDPS recognized religion. (Brown Aff. ¶ 19). As such,
fasting for Ramadan is accommodated. During Ramadan,
“Correctional Food Services staff must develop a plan
and menu that can be prepared for pre-dawn and post-sunset
meals. This requires each facilities food service staff to
prepare meals early during Ramadan, causing inmates and staff
to report to work early. It also requires that the evening
meal be served late to Muslim inmates, which again, disrupts
the operations of the food services staff and the
correctional staff assigned to escort inmates to and [from]
the facility dining hall. For inmates in single-cell or
restrictive housing, their meals must be prepared and
packaged by food services staff ahead of regularly scheduled
meals and must be served by correctional services staff ahead
of all other inmate meals.” (Harris Aff. ¶ 12).
“[i]n order to supplement the caloric intake of fasting
inmates, food service staff are also required to package
additional supplemental pack-out meals for inmates to consume
in their cells. (Id. ¶ 13).
Motion to Reopen Discovery
plaintiff's motion to reopen discovery, the motion is
DENIED. Plaintiff fails to show good cause, where plaintiff
did not conduct discovery during the entire discovery period.
Plaintiff's restricted ...