by Matt Clarke

On December 13, 2023, the U.S. Court of Appeals for the Fourth Circuit held that a group of North Carolina prisoners can be treated like adherents of a religion even if the group denies the “religion” label. The case is one of three in which the state Department of Public Safety (DPS) may be forced to re-evaluate prisoner adherence to Nations of Gods and Earths (NGE), a so-called “Black supremacist” group recently deemed a “security risk group” (SRG).

The state has three federal district courts, with state prisoner challenges pending in each to its NGE policy. The court in the Eastern District of North Carolina denied summary judgment to DPS on September 21, 2022, in Jonathan A. Fuller’s pro se claim that refusing to recognize NGE as a religion violated his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq.

DPS officials identified Fuller as an adherent of NGE, which it considered an SRG, and he was validated as a Level III SRG member. That resulted in increased scrutiny of his mail and limited him to non-contact visits with close family members only. He was also subjected to more frequent searches and drug tests. Though the validation was supposedly reviewed annually, Fuller was charged with an average of six disciplinary actions each year, and their number and nature was used as a reason to keep him at Level III.

Fuller’s civil rights action alleged that DPS’s refusal to recognize NGE violated the First Amendment’s Freedom of Religion Clause and RLUIPA. He also said his SRG validation violated the Fourteenth Amendment’s Due Process Clause. Specifically, Fuller alleged that DPS had designated NGE a security threat “without adequate knowledge or understanding” and based on “one or two incidents that occurred [twenty] plus years ago.” He further alleged that DPS conflated NGE with United Blood Nation, a violent gang that “stole NGE’s symbols and text to create their own language.” Defendants responded with a motion for summary judgment.

Case Cited From Neighboring Virginia

The district court then recited factual findings regarding NGE beliefs from a case in neighboring Virginia, Coward v. Robinson, 276 F.Supp.3d 544 (E.D Va. 2017). Noting that adherents “believe that every black man is his own god and should learn to live righteously through study and self-mastery,” that court had said “[i]n the NGE community, black men are referred to as ‘Allah’ or ‘God’ and women are referred to as ‘Earth.’” NGE adherents may be known as “Five Percenters” because of a belief, also taught by Nation of Islam (NOI), that just 5% of society is “enlightened and rejects the belief in a false, unseen deity, instead recognizing the truth of God as the Black Man.” Another 10% of people, a group referred to as “devils,” become rich and enslave the other 85%, using belief in the unseen deity as a tool of enslavement.

NGE adherents study the Bible, the Qur’an and other literature, including NGE periodicals. They abstain from eating pork and scavenger animals, generally following a Kosher, Halal or Vegan diet, and using the sun, moon, a star, and the number seven as symbols on their “Universal Flag,” which is displayed during events and on honor days. The Coward court also noted that 15 state prison systems already recognized NGE as a religion. As PLN reported, it then ordered Virginia to do so and awarded the plaintiff over $338,000 in attorney fees and costs. [See: PLN, May 2018, p.25.]

Returning to Fuller’s case, the district court held that the restrictions he was subject to were not a “atypical” and did not pose “significant hardship,” so he had failed to identify a protected liberty interest that was infringed upon by his Level III SRG validation. It therefore, granted Defendants summary judgment on the due process claim.

However, there was a material fact issue in dispute regarding whether NGE is a religion, the district court said. Therefore, summary judgment was not appropriate for the First Amendment and RLUIPA claims, so that DPS motion was denied. North Carolina Prisoner Legal Services was ordered to assist Fuller in a settlement conference; however, no settlement was reached. See: Fuller v. Hooks, USDC (E.D.N.C.), Case No. 5:19-ct-03377.

Two More Suits Proceed

Meanwhile, another pro se state prisoner, Michael Dwayne Rogers, sued DPS in federal court for the Middle District of North Carolina over his continued SRG assessment because of adherence to NGE. That district court granted Defendants’ summary judgment in the case on August 11, 2022, saying that “DPS’s measures in restricting the programs and services of the NOI and the prohibition on the NGE are the least restrictive means to serve their compelling and penological interest in institutional security and safety.” See: Rogers v. N.C. Dep’t of Pub. Safety, 2022 U.S. Dist. LEXIS 143955 (M.D.N.C.).

Rogers also turned to the Fourth Circuit, which had agreed to hear an appeal from the state’s other federal court for the Western District of North Carolina. The Western District had dismissed a challenge to the DPS policy by another pro se state prisoner who is an NGE adherent, Corey D. Greene, after he said that NGE must not be “misconstrued as a religion.” Taking that at face value, the district court denied his claim, reasoning there could be no RLUIPA violation if there was no “religion” that was harmed.

The Fourth Circuit reversed and remanded that case, saying “Greene’s statement wasn’t an ‘intentional and unambiguous waiver[] that release[d] the opposing party from its burden to prove the facts necessary to establish the waived conclusion of law,’” the Court said, quoting Minter v. Wells Fargo Bank, N.A., 762 F.3d 339 (4th Cir. 2014). “To the contrary, Greene has consistently maintained that he asserts rights under RLUIPA and the First Amendment for being denied the ability to practice his faith or belief system, even if NGE eschews the label of ‘religion,’” the Court said, citing Holt v. Hobbs, 574 U.S. 352 (2015). “And in RLUIPA, Congress ‘defined religious exercise capaciously’ and ‘mandated that this concept shall be construed in favor of a broad protection of religious exercise.’” See: Greene v. Lassiter, 2023 U.S. App. LEXIS 32932 (4th Cir.).

DPS apparently told the district court hearing Fuller’s case that its policy regarding NGE had changed; however, there has been no such formal announcement. Meanwhile the action was stayed for the outcome of Rogers’ case at the Fourth Circuit, which will likely closely track the Court’s ruling in Greene’s suit. See: Rogers v. Rich, USCA (4th Cir.), Case No. 22-7167. PLN will update developments in all three suits as they are available. 

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