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Miles v. Guice

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

September 30, 2019




         This matter is before the court on plaintiff's motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(a) (DE 127) and to strike affidavit of Christopher Rich (DE 145). The matter also is before the court on defendants' motions to seal (DE 133, 141). The issues raised have been fully briefed and in this posture are ripe for decision. For the reasons that follow, the court denies the motion for summary judgment, grants in part and denies in part the motion to strike, and grants the motions to seal.


         The procedural background of this action is set forth in the court's January 22, 2018, order, and is restated in relevant parts here. On August 14, 2013, plaintiff filed a § 1983 action alleging violations of the First Amendment and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., pertaining to his beliefs under the Nation of Gods and Earths (“NGE”).[2] On November 27, 2013, plaintiff filed a verified amended complaint adding claims alleging violations of the Eighth Amendment and Fourteenth Amendment Due Process and Equal Protection Clauses. Plaintiff's amended complaint alleged defendants David Guice (“Guice”), George Solomon (“Solomon”), Larry Dunston (“Dunston”), Kieran Shanahan (“Shanahan”), Betty Brown (“Brown”), and Frank Perry (“Perry), denied his requests for religious accommodation for NGE corporate worship, fasting, possessing religious texts, a vegan diet, and possession of a medallion or flag. Plaintiff seeks monetary and injunctive relief.

         On February 26, 2015, the court dismissed plaintiff's due process claim but allowed the remaining claims to proceed. On September 23, 2016, the court granted summary judgment in favor of defendants, concluding that the undisputed evidence did not establish a violation of RLUIPA or plaintiff's constitutional rights.

         Plaintiff appealed the court's judgment, and on April 21, 2017, the United States Court of Appeals for the Fourth Circuit affirmed in part, vacated in part, and remanded the judgment. The Fourth Circuit affirmed the court's analysis of the underlying claims, except for the treatment of plaintiff's fasting claim. See Miles v. Guice, 688 Fed.Appx. 177, 179 (4th Cir. 2017) (per curiam). For the fasting claim, the court vacated and remanded, concluding failure to accommodate fasting on holy days does present a substantial burden under RLUIPA and should be analyzed under a strict scrutiny standard. Id.

         On May 24, 2017, the court requested further briefing from the parties on whether defendants' asserted failure to accommodate plaintiff's fasting request violated RLUIPA under a strict scrutiny standard. On August 9, 2017, defendants filed a second motion for summary judgment, arguing they satisfied RLUIPA's strict scrutiny standard. The motion was fully briefed.

         On January 22, 2018, the court denied defendants' second motion for summary judgment, concluding that defendants had not demonstrated that the North Carolina Department of Public Safety's (“DPS”) refusal to accommodate plaintiff's fasting requests is the least restrictive means of further a compelling governmental interest. In that same order, the court referred the matter to a magistrate judge for a court-hosted settlement conference and appointed North Carolina Prisoner Legal Services, Inc. (“NCPLS”) to represent plaintiff at the settlement conference.

         The parties were unable to reach settlement at the conference. On March 13 and 14, 2018, NCPLS attorneys entered general notice of appearance on behalf of plaintiff. On April 3, 2018, the court entered case management order, which reopened discovery and established deadlines for completing supplemental discovery and filing pretrial motions. On October 30, 2018, plaintiff filed consent motion for leave to file motion for summary judgment, which the court granted.

         On November 30, 2018, plaintiff filed the instant motion for summary judgment, relying upon a memorandum of law, a statement of material facts, and the following exhibits: 1) expert report of Martin Horn (“Horn”); 2) first supplemental expert report of Horn; 3) second supplemental expert report of Horn; 4) plaintiff's three declarations; 5) Form DC-572 inmate request for religious assistance and supporting documents; 6) DPS Religious Practices Reference Manual; 7) DPS Religious Services Policies and Procedures; 8) defendant Brown's DC-572 Response; 9) Plaintiff's correspondence with DPS and responses; 10) defendants' responses to plaintiff's first set of discovery requests; 11) Security Threat Group Manual; 12) 1996 Five Percenter Security Threat Group Validation Worksheet; 13) 1997-1998 Prison Incidents; 14) 2015-2018 Prison Incidents; 15) DPS conditions of confinement policies and procedures; and 16) DPS special management meals policies and procedures.

         Defendants responded in opposition to the instant motion for summary judgment on January 22, 2019, relying upon a memorandum of law, statement of material facts, and the following exhibits: 1) affidavit of defendants' counsel and attached exhibits documenting plaintiff's criminal and disciplinary history; and 2) affidavit of Christopher Rich (“Rich”), DPS intelligence manager/criminal analyst, and accompanying exhibits. Defendants' opposition also relies upon exhibits filed in support of plaintiff's instant motion for summary judgment, and affidavits of defendants Brown and Dunston filed in support of defendants prior motions for summary judgment.

         On February 4, 2019, plaintiff filed reply in further support of the instant motion for summary judgment, and the instant motion to strike the affidavit of Rich. In support of the motion to strike, plaintiff relies upon a memorandum of law and the following: 1) plaintiff's expert designation of Horn; 2) expert report of Horn; 3) defendants' initial disclosures; and 4) defendants' supplemental disclosures. The motion to strike was fully briefed.


         As plaintiff moves for summary judgment, the court recounts the facts in the light most favorable to defendants.

         A. Plaintiff's NGE Beliefs

         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. (DE 8) ¶ 12; Pl.'s Decl. (DE 73-1) ¶ 4). Plaintiff has been an adherent of NGE since 2004. (Pl.'s Decl. (DE 130-4) ¶ 3).

         The court has previously summarized plaintiff's NGE beliefs and associated fasting practices as follows:

[T]he NGE is a group that does not have “an organizational structure or hierarchy[, ]” and that is similar to the [Nation of Islam (“NOI”)] religion. ([Am. Compl. (DE 8)] ¶¶ 12-18, 23.) Because DPS does not recognize NGE as a religion, plaintiff may not designate NGE as his religious faith preference. (Brown Aff. [DE 59] ¶ 10). Plaintiff, instead, has designated his religious faith preference as Islam. (Id. Ex. B). As a result, plaintiff may, within the parameters [of] his custody classification level, possess Islamic literature, request dietary accommodations consistent with the Islamic faith, participate in Islamic feasts, or participate in Islamic religious corporate worship. (Id. ¶¶ 15-16). Plaintiff also maintains the freedom to practice the Islamic faith, while following the teachings, directives, or preferences of NGE. (Id. ¶ 18).
Plaintiff admits that NGE and NOI contain many similarities. For instance, both groups believe that “the white man is the devil made from a process of Eugenics known to both groups as Grafting.” (Am. Compl. [DE 8] ¶ 15). NGE and NOI, however, are distinguishable on the ground that NGE permits white inmates to practice its beliefs, while NOI does not. (Id. ¶ 24). Plaintiff states that the NGE is not “anti-white or pro black but anti-devilishment and pro-righteousness.” (Id. ¶ 24). NGE and NOI also use the same central texts including “120 Degrees, ” “Supreme Mathematics, ” and “Supreme Alphabet.” (Id. ¶ 16.) NGE members, however, also study secondary texts including literature published by the “Allah School in Mecca, ” the “Allah Youth Center in Mecca, ” “The Sun of Man Publications, ” “Supreme Design Publishing, ” and “A-Team Publishing.” (Id. ¶ 20.) NGE members must study the primary and secondary texts in conjunction “to get a deeper meaning in the teachings.” (Id.) In addition to similar publications studied by NGE and NOI, both groups observe the practice of fasting in observance of the holy days. (Id. ¶ 19).

(September 23, 2016, order (DE 74) at 4-5).[3] NGE members observe the following holy days: 1) the birth and death of [NGE] founder, Clarence 13x; 2) the birthday of NOI founder W.D. Ford; and 3) the birthday of Elijah Muhammad. (Pl's Decl. (DE 130-4) ¶ 13). “Five Percenters in accords to the NGE belief system in observance of Holy days fast from sunrise till sunset as well as come together and break the fast with a celebratory feast in commemoration of the Holy Ones['] accomplishments.” (Am. Compl. (DE 8) ¶ 19).

         B. DPS Policies Concerning NGE

         DPS classifies NGE as a security threat group (“STG”), based on past instances in which NGE adherents assaulted other inmates and corrections staff, and participated in other criminal activity within corrections institutions. (Dunston Aff. (DE 58) ¶ 7). Furthermore, NGE literature recovered from adherents in DPS custody includes racist and inflammatory views. (Id. ¶ 9; Rich Aff. (DE 139-4) ¶¶ 8-17). For example, an NGE document titled “lost-Found Muslim Lesson” contains the following statements:

1) Black males are “the father of all civilization” and “owner of all the earth, ” while Caucasians are “the devil” (Rich Aff. (DE 139-4) ¶¶ 8, 11; Rich Aff., Ex. F (DE 140-4) at 2-5, 7-14);
2) “[A]ny Muslim will murder the devil because he is a snake and if he is allowed to live he would only sting someone else” (Rich Aff., Ex. F (DE 140-4) at 6);
3) Caucasians are “weak and wicked, ” and cause black people to “fight and kill one another” (Id. at 2);
4) “[T]here would not be any peace” between NGE adherents and ...

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