LOUISE W. FLANAGAN, District Judge.
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").
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.
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.
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. (
The court has previously summarized plaintiff's NGE beliefs and associated fasting practices as follows:
(September 23, 2016, order (DE 74) at 4-5).
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. (
DPS officials have also recovered a document titled "The Manifestations of the Supreme Alphabets" from NGE adherents which redefines terms traditionally used by Islam. (Rich Aff. Ex. E (DE 140-3)). The document defines "A-Allah God" as "the rightful given name of the Asiatic Blackman, being God" and the "Ruler" as the "law maker." (
DPS has also determined that NGE is closely associated with the United Blood Nation ("UBN"), a violent gang, and that members of the UBN use their NGE association as a guise to support gang-related activity. (
DPS has validated plaintiff as a member of both the UBN gang and the Five Percenters (which as noted DPS considers a security threat group), and designated him an STG Level III, the highest STG classification reserved for the most dangerous gang members. (Dunston Aff. (DE 58) ¶¶ 11, 16). During plaintiff's second validation process, plaintiff admitted to being a "triple O" member of the UBN, and was found in possession of 17 pages of UBN materials which contained his handwriting. (Dunston Suppl. Aff. (DE 67) ¶ 13 & Exs. C, D, E, F (DE 67-1, -2, -3, -4)).
Based on the above incidents and NGE literature espousing racists views, defendants have rejected plaintiff's requests to fast on NGE holy days and for recognition of NGE as a religion. (DPS Grievance Resp. (DE 1-1); Brown Suppl. Aff. (DE 70) ¶¶ 9-14).
In his expert report, Horn noted that NGE is a belief system that broke away from NOI in 1964. (Horn Report (DE 130-1) at 9). However, "many of the theological accoutrements of Black Muslim belief remain [in NGE belief]: many read the Qur'an and Elijah Muhammad's writings (especially his "Message to the Black Man"), and they hold to the exclusive divinity of black men." (
(
Horn also opined that inmates "of all different religions" participate in assaults, and therefore the fact that a member of a particular religion assaulted another inmate does not mean the religion itself should not be recognized by the prison system. (
Horn noted that correctional departments in 14 states — Alabama, Connecticut, Illinois, Iowa, Maryland, Massachusetts, Michigan, Montana, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, and Rhode Island — recognize NGE as a religion and allow members to practice the religion in their facilities. (
Plaintiff moves to strike the Rich affidavit submitted in support of plaintiff's motion for summary judgment. Plaintiff argues defendants first disclosed Rich as a potential witness in this action on November 30, 2018, over a month after the deadline set in the scheduling order for supplementation under Federal Rule of Civil Procedure 26(e). Plaintiff also argues the Rich affidavit is improper opinion testimony.
Rule 26(a)(1)(A), in relevant part, instructs that "a party must . . . provide to the other parties: (I) the name and, if known, the address and telephone number of each individual likely to have discoverable information." Further, Rule 26(e)(1) provides that
If a supplemental disclosure is not made in accordance with Rule 26(e), the remedy is to exclude the improper disclosure from trial "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). "District courts are accorded broad discretion in determining whether a party's nondisclosure or untimely disclosure of evidence is substantially justified or harmless."
Defendants' failure to supplement its Rule 26(a) disclosure by identifying Rich as a potential witness is harmless under these circumstances. As defendants explain, Rich was identified in defendants' timely interrogatory responses as the person who currently supervises DPS's procedures for identifying a group as a STG. (DE 148-1 at 6). Morever, Rich provided verified answers to plaintiff's interrogatories, and plaintiff had ample time in discovery to depose him after defendants produced the interrogatory responses. (
Plaintiff also argues the Rich affidavit should be excluded because it contains improper opinion testimony, and Rich was not disclosed as an expert witness pursuant to Rule 26(a)(2). Defendants agree they did not disclose Rich as an expert, but argue the testimony is proper lay witness testimony. Defendants concede however, that the last three sentences of paragraph 17 of the affidavit should be stricken as improper expert opinion testimony.
Federal Rule of Evidence 701 provides that,
"Because Rule 701 does not distinguish between expert and lay witnesses, but rather between expert and lay testimony, the line between lay opinion testimony under Rule 701 and expert testimony under Rule 702 is a fine one."
Here, the Rich affidavit is based on his "personal knowledge" as a DPS intelligence manager/criminal analyst. (Rich Aff. (DE 139-4) ¶ 3). As part of his routine employment duties, Rich "monitor[s] and investigate[s] matters relating to [STGs]" within DPS prisons. (
The substance of the affidavit also does not reflect expert opinion testimony. Rich attests that DPS considers NGE a violent and racist group and explains why DPS came to that conclusion by summarizing relevant documents from the NGE validation file. (
As noted, defendants concede the last three sentences of paragraph 17 of the Rich affidavit should be stricken as improper opinion testimony. The court therefore grants the motion to strike in part, strikes the relevant sentences, and denies the motion in all other respects. The court will not consider the last three sentences of paragraph 17 for purposes of deciding the instant summary judgment motion.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."
Only disputes between the parties over facts that might affect the outcome of the case properly preclude entry of summary judgment.
Nevertheless, "permissible inferences must still be within the range of reasonable probability, . . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary inference is so tenuous that it rests merely upon speculation and conjecture."
In relevant part, RLUIPA provides:
(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). "RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion."
Under RLUIPA, the plaintiff bears the initial burden of showing that the challenged policy substantially burdens his exercise of his religion.
Once the inmate makes a prima facie showing, the burden shifts to the government to prove that "the burden in question is the least restrictive means of furthering a compelling governmental interest."
Plaintiff moves for summary judgment on each element of his RLUIPA claim. As noted, plaintiff bears the burden of establishing that his fasting request is a "religious exercise" protected by RLUIPA. Although RLUIPA defines "religious exercise" to include "any exercise of religion" the statute does not define the term religion.
Determining whether a particular belief system qualifies as a religion is "a most delicate question."
Beginning with the second prong, whether the beliefs are "religious in nature" the court must determine whether plaintiff's beliefs "occupy a place in [his] life `parallel to that filled by orthodox belief in God.'"
Here, the parties are in sharp disagreement about whether NGE qualifies as a religion or a secular hate group. Accepting defendants' evidence as true and drawing all reasonable inferences in their favor, the court concludes a genuine issue of material fact exists as to whether NGE qualifies for religious protection under the Constitution. As defendants emphasize, NGE's own materials state they are "not a religion" but a "way of life" and that "God" is the "Asiatic black man, who's rightful name is Allah." (Rich Aff. (DE 139-4) ¶ 5; Rich Aff., Ex. D (DE 140-2)). Where NGE's own materials describe it as a "way of life" and state it is "not a religion," the court agrees with defendants that this creates a factual issue on the question of whether NGE qualifies as a religion.
Defendants have also submitted evidence suggesting NGE teaches racial supremacy and directs adherents to murder Caucasians. (Rich Aff., Ex. F (DE 140-4) at 6). According to defendants, NGE also is affiliated with the UBN, a violent street gang, of which plaintiff himself is a validated member. (Dunston Aff. (DE 58) ¶¶ 7-9, 16-17). Based on this evidence, DPS has determined that NGE is a black supremacist group that openly advocates violence against Caucasians. (Rich Aff. (DE 140-4) ¶¶ 4-16). Assuming defendants' evidence is true, the court agrees that a group whose organizing principle teaches racial supremacy of black men, that disclaims any references to itself as a "religion," and advocates racial violence would not "occupy a place in [the plaintiff's] life `parallel to that filled by orthodox belief in God.'"
The court recognizes plaintiff has submitted evidence disputing defendants' claims that NGE does not qualify as a religion. As noted, Horn's expert report states that NGE texts "speak[] to the ultimate questions of human existence and life and occupies a place in the hearts, minds, and lives of its adherents akin to that filled by orthodox belief in God in more mainstream religions." (Horn Report (DE 130-1) at 6). Plaintiff also has testified that his beliefs occupy a place in his life similar to orthodox religion. (Pl.'s Decl. (DE 130-4) ¶¶ 4, 11, 13). This evidence creates a genuine issue of material fact as to whether NGE deserves constitutional protection as a religion, resolution of which must be left to the factfinder.
Defendants also assert there is a genuine issue of material fact with respect to whether plaintiff sincerely holds beliefs in NGE, which is also required to establish that NGE qualifies as a religion in this action.
Where the court finds genuine issues of material fact preclude summary judgment on the issue of whether NGE qualifies as a religion, the court does not address the remaining elements of plaintiff's prima facie case or whether defendants have established that prohibiting plaintiff from fasting on NGE holy days is the restrictive means of serving a compelling governmental interest. Under RLUIPA, plaintiff must make a threshold showing that he engaged in a "religious exercise" and that defendants refusal to accommodate that request is a substantial burden on his exercise of "religion." 42 U.S.C. § 2000cc-5(7)(A) (defining religious exercise);
Defendants move to seal certain exhibits submitted in support of the instant motions for summary judgment that contain highly confidential materials related to DPS policies for classification of STGs. The public has received adequate notice of the motions to seal. Regarding the documents the parties seek to seal in their entirety, no less drastic alternative to sealing is available because the confidential information appears throughout the filings sought to be sealed. Defendants' interests in maintaining the confidentiality of the records, which contain highly sensitive security policies and related documents, outweighs any public interest in disclosure. Accordingly, the court grants the motions to seal.
Where plaintiff's RLUIPA claim remains, this case now is ripe for entry of an order governing deadlines and procedures for final pretrial conference and trial. The parties are DIRECTED to file within 21 days from the date of this order a joint status report informing of 1) estimated trial length; 2) particular pretrial issues which may require court intervention in advance of trial, if any; and 3) at least three suggested alternative trial dates. The court also requests the parties' position(s) on whether a bench trial is appropriate in these circumstances where the only relief available under RLUIPA is equitable.
Based on the foregoing, the court DENIES plaintiff's motions for summary judgment (DE 127) and GRANTS in part and DENIES in part plaintiff's motion to strike (DE 145). The court also GRANTS defendants' motions to seal (DE 133, 141) and DIRECTS the clerk to maintain docket entries 131 and 140 under seal until further order of the court. The parties are DIRECTED to file status reporting regarding pretrial and trial activities as set forth herein within
SO ORDERED.
