Kalvin Coward v. John Jabe , 532 F. App'x 328 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6060
KALVIN DONNELL COWARD,
Plaintiff - Appellant,
v.
JOHN JABE, Deputy Director of Operations (VDOC); A. DAVID
ROBINSON, Eastern Regional Director (VDOC); G. F. SIVELS,
Eastern Regional Ombudsman (VDOC); GREGORY L. HOLLOWAY,
Assistant Warden, General Population; CLYDE ALDERMAN,
Assistant Warden, Work Center-Special Housing; R. WOODS,
Institutional Ombudsman; C. HALL, Sergeant of the
Institutional Investigation Unit,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:10-cv-00147-LMB-TRJ)
Submitted: June 19, 2013 Decided: July 5, 2013
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Kalvin Donnell Coward, Appellant Pro Se. Michael Hugh Brady,
Earle Duncan Getchell, Jr., OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kalvin Donnell Coward appeals the district court’s
order granting the Defendants’ motion for summary judgment in
Coward’s 42 U.S.C. § 1983 (2006) action raising claims under the
Religious Land Use and Institutionalized Persons Act (RLUIPA).
We vacate the order and remand for further proceedings.
We review the district court’s order de novo, viewing
the facts and drawing all reasonable inferences therefrom in the
light most favorable to the non-moving party. PBM Prods.,
LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011). A
pro se litigant’s pleadings must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Summary judgment is
properly granted “if 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
relevant inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
After giving notice and a reasonable time to respond,
the district court may grant a motion for summary judgment on
grounds not raised by a party. Fed. R. Civ. P. 56(f). Failure
to give the required notice is reversible error. See Smith v.
Perkins Bd. of Educ., 708 F.3d 821, 831-32 (6th Cir. 2013);
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Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1261,
1263 (11th Cir. 2011).
RLUIPA bars a government from imposing a substantial
burden on an inmate’s religious exercise unless it demonstrates
that the burden is the least restrictive means of furthering a
compelling governmental interest. See 42 U.S.C. § 2000cc-1(a)
(2006); Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir. 2009). A
substantial burden on religious exercise occurs when a
government puts substantial pressure on an adherent to modify
his behavior and violate his beliefs. Lovelace v. Lee, 472 F.3d
174, 187 (4th Cir. 2006) (citations and quotations omitted). In
assessing this burden, courts must not judge the significance of
the particular belief or practice, as RLUIPA bars inquiry into
whether the belief or practice is central to a prisoner’s
religion. Id. at 187 n.2 (citations and quotations omitted).
The plaintiff bears the burden of showing that he
seeks to engage in an exercise of religion and the challenged
practice substantially burdens that exercise. 42 U.S.C.
§ 2000cc-2(b) (2006); Smith, 578 F.3d at 250. Once a plaintiff
carries his burden, the government must prove that the religious
burden is the least restrictive means of furthering a compelling
governmental interest. 42 U.S.C. § 2000cc-1(a); Smith, 578 F.3d
at 250. “As to those elements on which it bears the burden of
proof, a government is only entitled to summary judgment if the
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proffered evidence is such that a rational factfinder could only
find for the government.” Smith, 578 F.3d at 250.
“RLUIPA defines the term religious exercise broadly to
include any exercise of religion, whether or not compelled by,
or central to, a system of religious belief.” Couch v. Jabe,
679 F.3d 197, 200 (4th Cir. 2012) (citations and internal
quotation marks omitted). “Although RLUIPA must be construed in
favor of a broad protection of religious exercise, it must be
applied with particular sensitivity to security concerns.” Id.
at 201 (citations and internal quotation marks omitted). As in
other strict scrutiny contexts, courts have held that the
government must consider and reject other means before
concluding that the policy chosen is the least restrictive
means. See id. at 203—04 (citations omitted).
To determine whether a plaintiff’s beliefs are
protected as a religion, this Court considers “whether they are
(1) sincerely held and (2) religious in nature under [the
plaintiff’s] ‘scheme of things.’” Moore-King v. County of
Chesterfield, 708 F.3d 560, 570-71 (4th Cir. 2013) (quoting
United States v. Seeger, 380 U.S. 163, 185 (1965)). As to the
second prong, the Court asks whether the “beliefs occupy a place
in [the plaintiff’s] life parallel to that filled by the
orthodox belief in God.” Id. at 571 (citations and internal
quotation marks omitted). Protected beliefs must “amount to a
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religious faith as opposed to a way of life.” Id. (citing
Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972)).
Defendants moved for summary judgment on the grounds
that Coward had failed to properly exhaust his administrative
remedies as to claims one and two of his complaint challenging
Defendants’ refusal to recognize his group, the Nation of Gods
and Earths (NOGE), as a religion, and that Coward had failed to
sustain his burden of proving his exercise of religion was
substantially burdened as to claims three and four challenging
Defendants’ confiscation of his literature as gang material.
For purposes of summary judgment, Defendants assumed that NOGE
is a religion and that Coward is a sincere adherent.
The district court initially granted summary judgment
to the Defendants on claims one and two on the grounds that
Defendants had demonstrated that their policy of classifying
NOGE as a gang and not a religion was the least restrictive
means of furthering a compelling governmental interest; and the
court granted summary judgment to the Defendants on claims three
and four based on its determination that Coward failed to prove
his exercise of religion was substantially burdened. We vacated
the district court’s order after concluding that the district
court granted Defendants’ motion on different grounds without
the notice required under Fed. R. Civ. P. 56(f); the Defendants
had not demonstrated in the summary judgment record that their
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refusal to recognize NOGE as a religion was the least
restrictive means of furthering a compelling governmental
interest; and we were unable to conclude there was no genuine
dispute of material fact as to whether the confiscation of
Coward’s NOGE materials under a policy of zero tolerance to
gangs and gang literature was a substantial burden on his
religious exercise. We remanded the case to the district court
for further proceedings consistent with our opinion.
On remand, the district court sua sponte stayed the
case pending our decision in Versatile v. Johnson, 474 F. App’x
385 (4th Cir. 2012), aff’g 2011 WL 5119259 (E.D. Va. Oct. 27,
2011), cert. denied, 133 S. Ct. 1261 (2013). In Versatile, we
affirmed on the reasoning of the district court its decision
accepting the recommendation of the magistrate judge and denying
relief on another plaintiff’s RLUIPA claims concerning NOGE.
The district court adopted the magistrate judge’s finding after
conducting evidentiary hearings that the plaintiff failed to
sustain his burden to show his beliefs were religious in nature
for the purposes of his particular claim, but the court did not
hold that NOGE was not a religion in all cases or decide the
ultimate issue of whether NOGE occupies a place in the lives of
its members parallel to that filled by the orthodox belief in
God in religions more widely accepted in the United States. The
district court also accepted the magistrate judge’s finding that
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even if NOGE was a religion, the defendants demonstrated their
regulations on publication approval were the least restrictive
means of furthering a compelling state interest.
After our decision issued, the district court in this
case sua sponte granted Defendants’ original motion for summary
judgment based on Versatile. The district court concluded that
our decision rendered Coward’s argument “moot,” and his claims
concerning Defendants’ failure to recognize NOGE as a religion
and decision to confiscate NOGE materials did not trigger
protection under RLUIPA “[b]ecause it has been determined that
NOGE is not a religion.” Alternatively, the district court
noted that it would grant summary judgment to the Defendants on
claims three and four based on the district court’s holding in
Versatile that the defendants in that case demonstrated their
regulations on publication approval were the least restrictive
means of furthering a compelling state interest.
On appeal, Coward contends that the district court
erred in granting summary judgment to the Defendants based on
Versatile and in ignoring our instructions to hold further
proceedings consistent with our opinion. We agree. The
district court erred by treating Versatile as controlling
authority that NOGE is not a religion under RLUIPA in all cases,
and the court again granted summary judgment on a ground not
raised by a party without allowing the parties an opportunity to
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be heard. The court alternatively indicated that it would adopt
findings of fact from Versatile rather than basing its decision
on the record in this case. However, only indisputable facts
may be judicially noticed. See Fed. R. Evid. 201(b); Nolte v.
Capital One Fin. Corp., 390 F.3d 311, 317 n.* (4th Cir. 2004).
Accordingly, we vacate the district court’s order and
remand for further proceedings consistent with this opinion.
Specifically, we direct the district court to allow the parties
an opportunity to supplement the summary judgment record with
additional arguments and materials. Then, if the district court
should still wish to grant summary judgment on grounds not
raised by a party or to judicially notice any facts, the court
should provide the parties with notice and an opportunity to be
heard. See Fed. R. Civ. P. 56(f); Fed. R. Evid. 201(e). We
express no opinion on whether NOGE is a religion under RLUIPA.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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