MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This matter is before the Court for a recommended ruling on Defendants Betty Brown and Chris Rich’s motion for summary judgment. (Docket Entry 46.) Plaintiff Michael Dwayne Rogers filed a brief in opposition to Defendants’ motion. (Docket Entry 50.) For the reasons that follow, the undersigned will recommend that Defendants’ motion for summaty judgment be granted. I, BACKGROUND Plaintiff, a pro se state prisoner in the custody of the North Carolina Department of Public Safety (“(NCDPS”) and self-proclaimed member of the Nation of Islam (“NOI”), filed

a Complaint pursuant to 42 U.S.C. § 1983 alleging violations of his rights under the First and Foutteenth Amendments of the United States Constitution, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, ef seg. (“RLUIPA”), and the North Carolina Constitution. (See Complaint, Docket Entry 2; see aso Am. Complaint, Docket Entry 18.) As

to the remaining Defendants,! Plaintiff alleges that he was improperly validated as a member of the Security Risk Group (“SRG”) Five Percent Nation of Gods and Earths (“NGE”) in 1998, and Defendant Rich refused to close Plaintiffs file in July 2018 despite the recommendation of SRG officers and as required by prison policy. (See Am. Compl. {J 11- 15, 20-23, 26, 28.) As a result of his continued gang member status, Plaintiffs religious practices wete substantially harmed, he has been denied minimum custody benefits, his rehabilitation efforts have been limited, and he has not had a fair opportunity at parole. (See id. WVf25, 27, 31, 33-34.) In addition, Plaintiff alleges that Defendant Brown has substantially burdened his religious rights by prohibiting programs and services devoted to the NOI, though setvices ate available for other religious organizations. (Id. f/f] 18-19, 35.) On September 27, 2021, Defendants Brown and Rich filed a motion for summary judgment arguing that Plaintiff cannot establish a genuine issue of material fact that Defendants violated his constitutional rights. (Docket Entry 46.) In support of Defendants’ motion, they submitted affidavits on their own behalf along with NCDPS’s policies and ptocedures regarding religious services. (See Betty Brown Affidavit (“Brown Aff”), Docket Entry 48-1; Chris Rich Affidavit (“Rich Aff”), Docket Entry 48-3; NCDPS Policy & Procedures for Religious Setvices (“Religious Services Policy”), Docket Entry 48-2.) As the Director of Chaplaincy Services duting the relevant time herein, Defendant Brown’s duties and responsibilities include formulating and providing professional supervision of chaplaincy setvices. (Brown Aff. { 7(a).) More specifically, she provides guidance and

' All other Defendants have been terminated from this action. (See Docket Entries 21, 28.)

assistance for the religious programs and services to all the facilities within North Carolina ptisons. (Id.; see also Religious Services Policy § .0101(a).) Defendant Brown is the chair of the Religious Practices Committee (“RPC”), a group that determines the creation or modification of religious practices policy, with approval of the Commissioner of Prisons. (Brown Aff. J 8.) The RPC also reviews and makes recommendations regarding a ptisoner’s requests for a teligion that is not officially accommodated by the NCDPS. (Id. §] 9; see also Religious Services Policy § .0108(b).) The RPC considers several things when assessing a new religion including whether requested ptactices or pataphernalia have a recognized role in the faith practice and are sincerely sought for religious reasons, conflicts with valid penological interests, prison accommodation means, and duplication of existing services. (Brown Aff. 9.) Defendant Brown states that the RPC must balance many governmental interests “in a manner least resttictive of inmate religious freedom.” (Id. 10.) She further states that varying accommodations are made for different faith groups because of the unique and individualized nature of religious beliefs in each religious group. (Id. 411.) Ultimately, each faith practice is analyzed separately as the tenets of each faith practice are different. (Id.) Defendant Brown further avers that the NOI is not a recognized religious group that

can hold services within NCDPS facilities. Ud § 14.) Rather, the RPC concluded that Plaintiff's request to practice the NOI could be met through the Islamic services currently ptovided pursuant to NCDPS policy and any individual needs could be experienced through ptivate devotion in his cell. (Id. {[ 15-16.) Defendant Brown also states that Plaintiff was advised that the prison facility would accommodate his faith through publications that he

could purchase. (Id. 17.) However, pteapproval was tequited for any books ordered. Lastly, Defendant Brown contends that she had no petsonal involvement in PlaintifPs SRG designation not does the chaplaincy services make decisions concerning gang classification of ptisonets. (Id. {J 20-21.) Defendant Rich noted that he was previously employed? by the NCDPS as an Intelligence Managet/Criminal Analyst of the Special Operations and Intelligence Unit (“SOTU”) located in Raleigh, North Catolina. (Rich Aff. J 4.) His duties and responsibilities included overseeing the SRG validation and assessment ptocess, helping oversee SRG

ptograms and policy, gathering and disseminating criminal intelligence, and working with both internal and external entities for investigative purposes. (Id. §[ 5.) He further states that the NCDPS Security Manual specifically defines Security Threat Group (“STG”) associates to include those known to participate in the illegal activities of a and also those inmates “being watched or observed to gather evidence or intelligence to support validation as an STG/STI member.” (Id. J 10.) Defendant Rich explained that an inmate is initially given a STG designation based on extensive reseatch and documentation of a membet’s behavior by facility intelligence officers in the field. (Id. {[9.) The facility intelligence officer then completes an investigation which is subject to review by the facility head, and prior to “validation,” the prisoner receives notification of their validation with an opportunity to dispute it. (id) Once

intetest, which is the safety of inmates.” Rogers, 2017 WL 4246866, at *9. Further, the Fourth Circuit has “observed that a federal intelligence summary concluded the Five Percentets were ‘a tadical Islamic sect/ctiminal group that is often boldly racist in its views, prolific in its ctiminal activities, and operates behind a facade of cultural and religious rhetoric.’ ” Incumaa v. Stirling, 791 F.3d 517, 520 n.3 (4th Cir. 2015), as amended uly 7, 2015).’ Ultimately, based

on the evidence presented here, considered in the light most favorable to Plaintiff, the NCDP%$’s measutes in restricting the programs and setvices 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. Thus, PlaintifPs RLUIPA and First Amendment claims fail.° B. Due Process Claim Plaintiff asserts that he was deprived of due process because his continued gang member status has caused him atypical and significant hardship including the inability to rehabilitate himself and the lack of a fair opportunity at parole. (See Am. Compl. {ff} 25, 27, 30-32, 34.) Defendants Brown and Rich contend that Plaintiff has not and cannot present admissible evidence sufficient to suppott a due process violation. (Docket Entry 47 at 16-19.) To state aptocedural due process claim, Plaintiff must demonstrate that he “had a constitutionally cognizable life, liberty, or property interest.” Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013) (citation omitted). Plaintiff must then show that he was deprived of that interest by Defendants and “that the procedures [they] employed were constitutionally inadequate.” Id. (internal quotations and citation omitted). “[WJhile a state statute ot policy may create liberty interests giving tise to Due Process protection, this is so only if the denial of such an interest imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Prieto v. Clarke, 780 F.3d 245, 249 (4th Cir. 2015) (internal quotations and citation omitted). Here, Plaintiffs arguments surrounding his validation as an NGE member, continued improper classification, and failute to review his SRG status do not demonstrate a due process violation. Fitst, as previously stated, Defendant Brown was not personally involved in any decisions telated to the SRG designation of Plaintiff. (Brown Aff. Jf] 20-21.) As to Defendant Rich, his was not employed with the NCDPS when Plaintiff was initially validated in 1998. (See Rich Aff. { 2 (employed since 2004).) During annual reviews since 2015, Plaintiff continued to meet the criteria for validation as a SRG member and thus has remained such throughout his incarceration. (Id. {J 12-14.) Defendant Rich last reviewed Plaintiff's SRG file

on July 5, 2017, before other SOIU staff were assigned to the case. (Id. {| 20.) Based on the NCDPS policies at that time, “the SRG membership was not removed from an inmate due to the secutity tisk that could pose to staff or operations.” (Id. {| 21.) Defendant Rich admits that the NCDPS was in the process of developing a new policy such that inmates tenunciate their SRG membership and have the SRG notation removed from their file, but such changes were not in place during his final review of Plaintiff's case. (Id) The evidence here does not demonstrate a violation of Plaintiffs due process rights by any actions of Defendant Rich. Plaintiff's continued SRG status was because he met the ctiteria for such validation based on the policy in place at the time of Defendant Rich’s review. Plaintiff argues that during the July 2018 review of his SRG status, he was awate of a way in which inmates could “lower their SRG level,” though the process was not afforded to him

even though facility intelligence officers recommended his SRG status be removed. (See Docket Entry 50 at 16; see also Rogets Decl. 415, Docket Entry 50 at 32-33.) Even if this were

ttue, Defendant Rich did not personally review Plaintiffs SRG case since July 2077, after which other SOIU staff were assigned to review the case. (See Rich Aff. ] 20.) Moreover, Defendant Rich admits that the NCDPS was in the process of developing new policies regarding inmates with SRG designations. (Id. J] 21.) Nevertheless, such new changes wete not in place during his final review of Plaintiffs 2017 file. (Id) As such, thete is no due

ptocess violation on the part of Defendant Rich and Defendants ate entitled to summaty judgment on such claim. C. Official Capacity Claims Defendants also argue that to the extent Plaintiff seeks monetary damages against them in their official capacities, it is barred by the doctrine of sovereign immunity. (Docket Entry 47 at 19-20.) The Eleventh Amendment prohibits actions in federal court by individuals against a state unless the state has consented to suit ot unless Congress has lawfully abrogated the states’ Eleventh Amendment immunity. Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir.

2003). The doctrine of sovereign immunity undet the Eleventh Amendment applies not only to actions in which the State of North Carolina is a named defendant, but also to actions against its departments, institutions, and agencies. DeMurry v. N.C. Dept of Corrs., 195 N.C. App. 485, 492-93, 673 S.E.2d 374, 380-81 (2009). Additionally, in North Carolina, “[a]ctions against officers of the State in their official capacities are actions against the State for the

purposes of applying the docttine of [sovereign] immunity.” Green v, Kearney, 203 N.C. App. 260, 268, 690 S.E.2d 755, 762 (2010) (citation omitted). Indeed, “[w]here [Section 1983's] provisions allow for suit against a ‘person,’ and in suits for money damages, neither the state

not a state agency is deemed a ‘petson,’ [thus] this claim cannot be maintained by plaintiff against [the State].” Savage v. N. Carolina Dep't of Corr, No. 5:06-CV-171-FL, 2007 WL 2904182, at *5 (E.D.N.C. Sept. 29, 2007) (unpublished). Here, to the extent Plaintiff has filed suit against Defendants in their official capacities, it would be against the NCDPS. Green, 203 N.C. App. at 268, 690 S.E.2d at 762. ‘The NCDPS,

as an agency of the State of North Carolina, has not consented to suit nor waived immunity. Thus, Defendants should be entitled to summaty judgment on Plaintiffs claims to the extent he seeks monetary damages against them in their official capacities under § 1983."

0 As to any claim under RLUIPA, the Fourth Circuit has held that RLUIPA only authorizes injunctive relief against a state official, irrespective of whether the individual is sued in his or her individual or official capacity. See Wall v. Wade, 741 F.3d 492, 496 n.5 (4th Cir. 2014) (“We note at the forefront that Congress did not authorize damages claims against state officials under RLUIPA.); See Sossamon v. Texas, [563] U.S. [277, 284-88]... (2011) (prohibiting damages claims against state officials in their official capacity); Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009) (same for individual capacity) Therefore, the plaintiff's only potential remedies under RLUIPA are equitable.”). As pteviously stated, Plaintiffs RLUIPA claim fails.

D. Qualified Immunity Lastly, Defendants atgue that they ate entitled to qualified immunity for any money damages in their individual capacity. (Docket Entry 47 at 20.) Under the doctrine of qualified immunity, “government officials performing discretionary functions generally ate shielded from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitegerald, 457 U.S. 800, 818 (1982); see also Ridpath v. Bd. of Governors Marshall Unw., 447 F.3d 292, 306 (4th Cir. 2006) (“Qualified immunity shields government officials performing discretionary functions from personal-capacity liability for civil damages under § 1983[.]”). Thus, the traditional two-step qualified immunity inquity requires a court to determine: “(1) whether the official violated a constitutional right; and if so, (2) whether the right was ‘clearly established’ at the time of its violation.” Rock for Life-UMBC v. Hrabowski, 411 F. App’x 541, 547 (4th Cir. 2010) (citation omitted). In evaluating qualified immunity, a court initially may determine whether the plaintiff has alleged or shown a violation of a constitutional right at all. See Pearson v. Callahan, 555 U.S. 223 (2009)." Here, Plaintiff has not demonstrated a constitutional violation. Thus, Defendants ate entitled to qualified immunity. See Abney v. Coe, 493 F.3d 412, 415 (4th Cir. 2007) (finding that [an official] did not violate any tight, he is hardly in need of any immunity and the analysis ends tight then and there”).

"Tn Pearson, the Supreme Court overruled the mandatory two-step sequence adopted in Sancier v. Katz, 533 U.S. 194 (2001), in analyzing qualified immunity. Thus, after Pearson, courts ate free “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances ....” Pearson, 555 U.S. at 236.

Ill. CONCLUSION For the reasons stated herein, IT IS RECOMMENDED that Defendants Betty Btown and Chris Rich’s Motion for Summaty Judgment (Docket Entry 46) be GRANTED and that this action be dismissed.

| Joe L. Webster United States Magistrate Judge August 11, 2022 Durham, North Carolina