United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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.
OF THE CASE
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”). 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
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
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.
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.
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
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.
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.
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.
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.
OF THE FACTS
plaintiff moves for summary judgment, the court recounts the
facts in the light most favorable to defendants.
Plaintiff's NGE Beliefs
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).
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). 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).
Policies Concerning NGE
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 ...