Filed: Feb. 27, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6793 INFINITE ALLAH, Plaintiff – Appellant, v. THE COMMONWEALTH OF VIRGINIA, Defendant – Appellee. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:12-cv-00033-JPJ-PMS) Argued: December 10, 2014 Decided: February 27, 2015 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: James Arthur
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6793 INFINITE ALLAH, Plaintiff – Appellant, v. THE COMMONWEALTH OF VIRGINIA, Defendant – Appellee. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:12-cv-00033-JPJ-PMS) Argued: December 10, 2014 Decided: February 27, 2015 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: James Arthur ..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6793
INFINITE ALLAH,
Plaintiff – Appellant,
v.
THE COMMONWEALTH OF VIRGINIA,
Defendant – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:12-cv-00033-JPJ-PMS)
Argued: December 10, 2014 Decided: February 27, 2015
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James Arthur DeVita, LAW OFFICE OF JAMES A. DEVITA,
Arlington, Virginia, for Appellant. Stuart Alan Raphael, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee. ON BRIEF: Mark R. Herring, Attorney General, Cynthia
E. Hudson, Chief Deputy Attorney General, Linda L. Bryant,
Deputy Attorney General, Public Safety & Enforcement, Richard C.
Vorhis, Senior Assistant Attorney General, Kate E. Dwyre,
Assistant Attorney General, Trevor S. Cox, Deputy Solicitor
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Plaintiff Infinite Allah, an inmate with the Virginia
Department of Corrections (“VDOC”), affiliates with the Nation
of Gods and Earths (“NGE”). In October 2012, the plaintiff
initiated a civil action against the Commonwealth of Virginia
(the “Commonwealth”) in the Western District of Virginia,
contending that NGE is a religion, and that VDOC’s policies and
procedures (the “VDOC Policies”) substantially burden his
religious exercise, in contravention of the Religious Land Use
and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to
2000cc-5 (the “RLUIPA”). 1 Following a three-day bench trial
conducted in October 2013, the district court issued an opinion
setting forth its findings of fact and conclusions of law, and
granting judgment to the Commonwealth. See Allah v. Virginia,
No. 2:12-cv-00033 (W.D. Va. Apr. 28, 2014), ECF No. 79 (the
1
Regarding the religious exercise of institutionalized
persons, the RLUIPA provides, in pertinent part:
No government shall impose a substantial burden on the
religious exercise of a person . . . confined to an
institution, . . . unless the government demonstrates
that imposition of the burden on that person —
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000cc-1(a).
3
“Opinion”). The plaintiff has appealed, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291. As explained below,
we are satisfied to affirm the judgment on the basis of the
well-reasoned Opinion of the district court.
I.
The plaintiff asserts that the Commonwealth, through VDOC,
has implemented policies that substantially burden his right to
exercise his religion — namely, NGE. In advancing that
assertion, the plaintiff maintains that NGE should properly be
accepted as a religion, and that his beliefs in that religion
are sincerely held. The plaintiff further contends that the
VDOC Policies have substantially burdened his religious
exercise, in contravention of the RLUIPA, in five respects:
(1) by classifying NGE as a gang; (2) by restricting NGE members
from meeting communally; (3) by prohibiting the plaintiff from
wearing NGE-related clothing, including a hat and a medallion;
(4) by not providing the plaintiff with pork- and tuna-free
meals, as required by NGE; and (5) by preventing the plaintiff
from receiving copies of NGE publications. By his operative
Amended Complaint, the plaintiff seeks injunctive relief against
the Commonwealth, along with recovery of his costs and
attorney’s fees.
4
The district court denied the Commonwealth’s motion to
dismiss the Amended Complaint for failure to state a claim upon
which relief can be granted, as well as a later motion for
summary judgment. The court then, in late 2013, conducted a
three-day bench trial. By its Opinion of April 28, 2014, the
court granted judgment to the Commonwealth.
Pursuant to Rule 52 of the Federal Rules of Civil
Procedure, the Opinion sets forth, inter alia, the district
court’s factual findings, which are binding on appeal unless
clearly erroneous. Those findings were predicated on the
court’s assessment of the evidence presented by the parties at
trial. 2 More specifically, the court “[took] into account the
rationality and internal consistency of the testimony, the
extent of detail and coherent nature of the testimony, the
manner of testifying by the witnesses, and the degree to which
the subject testimony is consistent or inconsistent with other
evidence in this case.” See Opinion 3. The court’s factual
findings were that:
1. The plaintiff is a prison inmate in the custody of
VDOC, an agency of the Commonwealth.
2
At trial, the plaintiff offered the testimony of nine
inmates who are NGE members, as well as an expert witness who
opined that NGE is a religion. The Commonwealth presented
testimony from four VDOC officials and its own expert, who
testified that NGE is not a religion.
5
2. The plaintiff is a follower of NGE, also known as
the Five Percenters, a group containing adherents both
inside and outside of prison.
3. Among other teachings, NGE asserts that black men
are the only divinity. NGE posits that the world’s
population is divided into three categories: “[T]he
Ten Percent who teach the Eighty–Five Percent to
believe in a mystery God that can not [sic] be seen
and the Five Percent who do not believe in the
teachings of the Ten Percent . . . .” (Am. Compl.
¶ 6.) The “Five Percent” refers to members of NGE. A
principal tenet of NGE is the racial superiority of
its members, a doctrine that has considerable
potential for violence in the modern prison setting.
4. VDOC does not recognize NGE as a religious group
at any of its prison facilities and does not allow NGE
members to communally meet, wear special clothing, or
possess NGE materials and publications, nor does it
provide a special diet for NGE members.
5. Whether or not NGE is considered a bona fide
religion, it has acted as a prison gang that would
pose a threat to the safety and security of VDOC
prison facilities if treated as other religious
groups. Inmates affiliated with NGE have a
demonstrated history of violence and racism.
6. Communal meetings of NGE members would pose a
danger to the safe and secure operation of VDOC prison
facilities. Such meetings present a heightened risk
of violence as compared to other groups, and would
require a degree of supervision that is not
practically feasible.
7. Identifiable NGE clothing, such as NGE hats and
medallions, serve as gang identifiers and aid in
recruitment and power displays by NGE gang members,
contrary to the safety and security of the prison.
8. VDOC’s current policies and procedures allow the
plaintiff meals in general accordance with his claimed
religious preferences and any deviation therefrom is
de minimus and causes no burden to the plaintiff’s
exercise of religion.
6
9. NGE materials are often handwritten, and can vary
from copy to copy. Whether handwritten or typed, most
contain racist and/or violent sentiments.
Additionally, most contain codes that have the
potential to aid inmates in passing messages that
circumvent safety and security in the prison.
10. The principal publication of NGE, called The Five
Percenter, often contains codes, and racist or violent
sentiments. It is frequently disallowed for inmate
use by VDOC for these reasons, although it is
generally reviewed on an issue-by-issue basis.
See Opinion 4-5 (alterations in original).
Moving to the legal issues presented, the district court
recognized that, to succeed on a RLUIPA claim, a plaintiff bears
the initial burden to establish that “the policy or practice
[being challenged] substantially burdens his exercise of
religion.” See Opinion 7 (citing Couch v. Jabe, 679 F.3d 197,
200 (4th Cir. 2012)). The court declined to rule on whether the
plaintiff satisfied his burden in that regard, however, and
specifically did not make findings as to: (1) whether NGE is a
religion under the RLUIPA; (2) whether the plaintiff’s beliefs
were sincerely held; and (3) whether the VDOC Policies
substantially burdened the plaintiff’s religious exercise.
Rather, the court simply assumed the plaintiff’s allegations on
those issues were true, with the exception of whether the VDOC
Policies relating to diet constitute a substantial burden.
Having assumed that the plaintiff satisfied his initial
burden, the district court explained that, under the RLUIPA, the
7
government was obliged to carry the burden of proving “that the
challenged policy is the least restrictive means of furthering a
compelling governmental interest.” See Opinion 7 (citing Couch,
679 F.3d at 200). Relevant here, the Supreme Court has
recognized that prison security constitutes a compelling state
interest, and that the RLUIPA requires “‘due deference to the
experience and expertise of prison . . . administrators in
establishing necessary regulations and procedures to maintain
good order, security and discipline, consistent with
consideration of costs and limited resources.’”
Id. at 9-10
(quoting Cutter v. Wilkinson,
544 U.S. 709, 723 (2005)). In
assessing whether a given policy or procedure constitutes the
least restrictive means of achieving a compelling interest such
as prison security, the test is whether the government has
sufficiently explained its policy in that respect, and whether
the government acknowledged and considered less restrictive
alternatives.
Id. at 19 (citing
Couch, 679 F.3d at 203;
Lovelace v. Lee,
472 F.3d 174, 190 (4th Cir. 2006)).
Applying those legal principles to its factual findings,
the district court then drew the following legal conclusions:
1. This court has subject-matter jurisdiction and
personal jurisdiction over the parties.
2. The Commonwealth has proved by a preponderance of
the evidence that the asserted burdens on the
plaintiff are in furtherance of a compelling state
8
interest, and the least restrictive means of
furthering that compelling state interest.
3. VDOC’s categorization of NGE as a gang and
security threat group is similarly supported by the
evidence and is an appropriate security measure that
is the least restrictive means of furthering a
compelling state interest in prison safety.
4. Due to staff limitations and safety risks to staff
and inmates, a complete ban on NGE communal meetings
is the least restrictive means of furthering a
compelling state interest in prison safety.
5. Because NGE hats and medallions can serve as . . .
gang identifiers and aid in gang recruitment, a
complete ban on NGE hats and medallions is the least
restrictive means of furthering a compelling state
interest in prison safety.
6. VDOC’s decision not to offer a specific diet for
the plaintiff does not burden his exercise of
religion.
7. Due to the inability of VDOC to review all
handwritten NGE materials, and the frequency with
which typed and handwritten NGE materials contain
codes, racist sentiments, and/or violent sentiments,
the decision of VDOC to ban such NGE materials is the
least restrictive means of furthering a compelling
state interest in prison safety.
8. The policy of VDOC to refuse possession by inmates
of The Five Percenter containing material not in
compliance with VDOC standards is the least
restrictive means of furthering a compelling interest
in prison safety.
9. The plaintiff has not proved a violation of his
rights under RLUIPA and is not entitled to relief.
See Opinion 25-27. Predicated on the findings of fact and
conclusions of law spelled out in the Opinion, the court denied
the plaintiff’s requests for relief and awarded judgment to the
Commonwealth. This appeal ensued.
9
II.
The plaintiff advances several contentions in his appeal.
He challenges the district court’s finding that NGE has acted as
a prison gang and has posed a threat to the safety and security
of the VDOC’s prisons. The plaintiff further maintains that the
court erred in concluding that the VDOC Policies are the least
restrictive means of furthering a compelling interest. Finally,
the plaintiff requests that we rule on the three issues that the
court assumed in his favor: namely, that NGE is a religion for
purposes of the RLUIPA; that the plaintiff holds sincere
religious beliefs; and that the VDOC Policies have substantially
burdened the plaintiff’s religious exercise. 3 Consistent with
the position of the district court, we decline to do so.
In sum, the plaintiff asks that we reverse the judgment in
favor of the Commonwealth and determine instead that judgment
should have been awarded to him. Having carefully examined the
record and assessed the parties’ written submissions together
with the argument of counsel, we discern no reversible error.
We are therefore content to affirm the judgment on the cogent
3
As specified by its conclusion of law number 6, the
district court reached the issue of substantial burden solely
with respect to the VDOC Policies relating to diet, and rejected
the plaintiff’s contention in that regard. See supra at 9.
10
reasoning spelled out in the well-crafted Opinion of the
district court.
AFFIRMED
11
