United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge '
MATTER comes before the Court on Defendants'
Motion for Summary Judgment, (Doc. No. 33).
se Plaintiff filed this action pursuant to 42 U.S.C.
§ 1983 and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”). The Amended Complaint
passed initial review, (Doc. Nos. 16, 17), and Plaintiff
previously filed a Motion for Summary Judgment that was
denied, (Doc. Nos. 26, 27). Defendants have now filed a
Motion for Summary Judgment that is before the Court for
Amended Complaint  (Doc. No. 16)
se Plaintiff, who is currently incarcerated at the
Franklin Correctional Center, filed this action pursuant to
42 U.S.C. § 1983 and RLUIPA for incidents that allegedly
occurred at Mountain View Correctional Institution. He names
as Defendants the North Carolina Secretary of Prisons Eric
Hooks (formerly Frank L. Perry), and the following employees
of Mountain View C.I.: Administrator Mike Slagle, Mailroom
Supervisor Lynn Ollis, and Correction Officer Grear.
alleges in his verified Amended Complaint that five religious
books arrived for him at Mountain View C.I. on June 24, 2016.
They were authored by Pastor Everett Ramsey of Faith Baptist
Church, and they were published by James Nelson Publishers
and/or Pastor Ramsey and satisfied the DPS definition of
“published.” Defendant Ollis rejected the
publications because they did not come from a legitimate
publisher or marketer and Plaintiff appealed. On June 26,
2016, Plaintiff sent Defendant Slagle a request form
informing him of Ollis' actions but he failed to respond
or take any remedial action, which shows deliberate
indifference. On July 12, 2016, Plaintiff sent a letter to
Perry notifying him of Ollis' actions and he failed to
respond or take any remedial action, which shows deliberate
indifference. On July 21, 2016, Plaintiff filed a grievance
and received an unsatisfactory response and he appealed
through step-3, which was denied.
August 15, 2016, Correctional Officer Grear confiscated
Volume 2 of Lawrence Buchard's “The Covenant
Heritage Series” from Inmate Eddie Money. Plaintiff
informed Defendant Grear that he had loaned the book to
Inmate Money as authorized by DPS policy. However, Grear said
the book was Aryan Brotherhood material and therefore
contraband. The book is religious regarding his ancestral
religious practice and does not contain any gang-related
subject-matter. Confiscation was the sole product of
Grear's hatred of Plaintiff because of his race and
ancestral religion and tries to use the security policies to
punish Plaintiff. Plaintiff had received the book while at
Avery C.I through proper mailroom screening. It was also
inspected upon his arrival at Mountain View C.I., and he had
it for over a year at Mountain View C.I. where it was
inspected repeatedly without incident. Plaintiff was allowed
to receive Volumes 4 and 5 of the book. Plaintiff filed a
grievance September 7, 2016, received an unsatisfactory
response, and appealed through step-3 which was denied.
incoming correspondences with Ed Sommerville suddenly stopped
while Plaintiff was housed at Mountain View C.I., without
notice. Plaintiff came to suspect that Defendant Ollis was
responsible. This suspicion was confirmed on June 6, 2016,
when Plaintiff found out that Sommerville's
correspondences had been returned to him by mailroom staff.
On July 11, 2016, Plaintiff wrote to Ollis on a request form
and asked her to explain why the religious and political
articles had been returned without notice or due process
procedures, which are mandatory. On July 13, 2016, Defendant
Ollis rubber stamped the request, saying the mailings had
been returned due to absence of prisoner number in the
address, which is untrue. On July 15, 2016, Plaintiff wrote
to Defendant Perry informing him of Defendant Ollis'
abuses but he did not respond or take any remedial action,
which shows deliberate indifference. On October 22, 2016,
after Plaintiff was transferred to Craggy C.I., he received
two letters from Sommerville informing another Mountain View
C.I. inmate of his futile attempts to mail religious and
political printouts to Plaintiff. Plaintiff filed another
grievance on October 22, 2016, which was returned without
processing as untimely.
began studying Christian literature in 2001, received
“Theophany” in 2004 which altered the course of
his life, was invited to enroll in a “prototypical
Seminary Extension Program” in 2007, and in 2009,
received ordination from the Ministerial Seminary of America,
adopted a “Christian identity, ” and began
incorporating the “Hebrew Roots Movement” into
his belief system, in May 2017 he was given the opportunity
to prepare lesson plans and conduct weekly Sabbath services,
and in 2018, he became the first officially designated
“faith helper” in the Western District of North
Carolina. (Doc. No. 16 at 14-16, 22). Yaweh grants his chosen
people who make the study of scripture the primary focus of
their daily lives. (Doc. No. 16 at 18). Plaintiff's
ability to perform these “divinely assigned
duties” is measured by the amount of “curricular
information that he is allowed to access, research, and
assimilate in the advancement of his own spiritual
maturation….” (Doc. No. 16 at 18). When the
sources of information diminish, the practice of his religion
is diminished. The confiscated material does not advocate
violence and no rational relationship between stopping
incoming religious publications and a compelling government
interest, which has substantially burdened his religious
practice. (Doc. No. 16 at 20).
requested judicial notice of the absence of hate, violence,
white supremacist, racism, anti-Semitism, domestic terrorism,
criminal activity from his beliefs, and that the
Defendants' grievance responses are silent regarding a
compelling government interest.
requested costs, injunctive relief, and “all punitive
or remedial relief this court deems appropriate.” (Doc.
No. 16 at 29).
Defendants' Motion for Summary Judgment
(Doc. No. 33)
argue that Plaintiff has failed to demonstrate the existence
of a genuinely disputed material fact that the conduct he
complains of is substantially burdensome to the exercise of
his religion. The policy at issue placed restrictions on
religious exercise and made it more difficult but did not
pressure Plaintiff to violate or abandon the precepts of his
religion. Plaintiff admits that he had access to other
volumes of the legal materials to study his faith. Further,
the publication and mail policies at issue are valid because
they are reasonably related to the legitimate penological
interests of controlling contraband and security problems.
Plaintiff has also provided no genuine issue of material fact
to show that Defendants acted with the requisite intent.
cannot proceed on claims against Defendant Perry on the
theory of respondeat superior because there is no
such liability under § 1983. He cannot proceed against
Defendants Perry or Slagle on the theory of supervisory
liability because the allegations fail to show that either of
these Defendants had knowledge of a pervasive or unreasonable
risk of constitutional injury to Plaintiff.
cannot recover monetary damages from Defendants in their
official capacities because they are barred by the Eleventh
Amendment and Defendants are entitled to qualified immunity
from any claims for monetary damages in their individual
capacities because their conduct was neutral and rational.
Further, Plaintiff has not demonstrated any compensable
damages for the alleged violation of his First Amendment
rights aside from possibly asserting emotional distress or
mental anguish and are not reasonably quantifiable.
Plaintiff's Response (Doc. No. 37)
Court issued an Order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), on
April 26, 2019 informing Plaintiff of the legal standards
applicable to summary judgment motions and ordering him to
file a response within 14 days. (Doc. No. 36). The Court
cautioned Plaintiff that “[f]ailure to to file a timely
and persuasive response will likely lead to the relief that
Defendant [Harwood] seeks.” (Doc. No. 36 at 3).
file a Response to the Motion for Summary Judgment that
attempted to state a claim for denial of access to the
courts, which was denied, and was construed in part as a
Motion for Extension of Time to Respond, which was granted
until June 7, 2019. (Doc. Nos. 37, 38). That time limit has
expired and Plaintiff has not filed any further
Affidavit of Michael A. Slagle (Doc. No.
Slagle is the Superintendent of Mountain View C.I. He is
familiar with NCDPS policies and procedures and is trained
and experienced in the management of inmates like Plaintiff.
As the Superintendent, Slagle has access to the Offender
Population Unified System (“OPUS”), an electronic
database containing comprehensive inmate records as well as
NCDPS policies and procedures, Mountain View Standard
Operating Procedure (“SOP”) and documents related
to the religious services and practices at Mountain View.
Slagle searched his records and found a letter from Plaintiff
dated December 9, 2016; he did not find any correspondence
from Plaintiff dated June 26, 2016. Anytime Slagle receives
correspondence from an offender he takes it seriously and
either investigates it, provides a response, or forwards it
to the appropriate section for review and response. He does
not ignore or dispose of any offender correspondence directed
reviewing Plaintiff's records, he reviewed documents that
show Plaintiff appealed the decision to reject publications
that were sent to him from Faith Baptist Church because they
did not meet the guidelines to be considered approved from a
legitimate marketer and/or distributor. Plaintiff's
appeal was forwarded to the Inmate Publication Review
Committee which reviewed the publications and determined that
the source of the publications/materials was not a legitimate
publisher or distributor of publication material. Plaintiff
chose to destroy the publications on August 2, 2016.
policy provides procedures for how offenders confined at
facilities such as Mountain View can receive and possess
publications that include hardback and paperback books,
newspapers, magazines, newsletters, and vendor catalogues.
The NCDPS publication policy is “necessary to control
security problems caused when contraband such as drugs,
weapons, money, and tools that can be used to effect an
escape are smuggled in books, magazines, and newspapers from
unvetted sources or visitors.” (Doc. No. 35-1 at 3).
These searches are done to “reduce and prevent the
incidents of contraband, to include drugs and weapons, which
compromise the safety of the inmate and officers in the
facility. (Doc. No. 35-1 at 3-4).
at Mountain View receive large quantities of mail on a weekly
basis for the 908 offenders housed there. It is estimated
that thousands of pieces of mail are received on a weekly
basis. All incoming mail is searched per policy and staff
find contraband in the mail frequently consisting of items
such as drugs, tobacco, and Security Risk Group
paraphernalia. Recently, staff found a large quantity of
drugs coming through the mail disguised as religious material
from a church, “showing the need for a strong policy
regarding who and where mail and publications can be received
from.” (Doc. No. 35-1 at 4).
Superintendent, Slagle is responsible for developing and
implementing a facility contraband control procedure
consistent with NCDPS Contraband Control Policy (Exhibit D).
(Doc. No. 35-1 at 4). Mountain View's SOP regarding
prisoner personal property includes rules related to
religious materials and unauthorized property or contraband
(Exhibit E) and a policy on religious activities that
includes rules related to religious items and practices
policies and procedures and Mountain View SOPs related to
inmate mail privileges, receipt and possession of
publications, contraband control, and the possession of
religious materials or items “were not promulgated with
any intent to discriminate against Plaintiff or his religious
faith, but are necessary to maintain the safety of the
inmates and officers in the facility.” (Doc. No. 35-1
at 5). Slagle denies that, in performing his duties as the
Superintendent at Mountain View, that he “violated ...