On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-5546-04.
The opinion of the court was delivered by: Kestin, P.J.A.D. (retired and temporarily assigned on recall).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 27, 2007
Before Judges Kestin, Weissbard and Lihotz.
Plaintiff, Mortimer Hetsberger, appeals from the summary judgment dismissal of his single-count complaint filed against the Department of Corrections (DOC or the Department) and the Commissioner of the Department. The only claim for relief asserted in the complaint charged that Department regulations and actions "impose a substantial burden on plaintiff's religious exercise, in violation of the Religious Land Use and Institutionalized Persons Act of 2000, [(RLUIPA)], 42 U.S.C.A. § 2000cc-1"; however, in the complaint's "preliminary statement," plaintiff also invoked 42 U.S.C.A. § 1983. Plaintiff sought an injunction permitting him to participate in practices he outlined in the complaint that he viewed as central to his religious beliefs, and he also sought $100,000 in compensatory damages.
In a letter opinion dated April 10, 2006, the motion judge expressed the reasons for his ruling dismissing the claim for injunctive relief.*fn2 The rationale employed relied solely on two cases addressing claims of First Amendment violations. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed. 2d 64 (1987), predated the adoption of RLUIPA; and Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002), did not consider that relatively recently enacted statute, noting that such issues had not been raised. See id. at 515 n.5. The judge in the instant matter made no mention of RLUIPA or of the allegations of the complaint invoking that statute.
The criteria governing RLUIPA claims are different in particular ways from those standards employing First Amendment considerations. In order to apply RLUIPA standards, a determination must be made, not only that a compelling State interest is involved, but also as to whether the Department's policies represent the least restrictive means of furthering the compelling governmental interest. Accordingly, we vacate the order of dismissal and remand for a determination whether genuine issues of material fact exist in respect of the standards of RLUIPA, and for such proceedings as may be necessary to resolve those issues.
In reviewing summary judgment orders, we apply the same standards that govern the trial courts. Prudential Property & Casualty Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In determining whether a genuine issue of material fact exists, the matter must be viewed in the factual light most favorable to the non-moving party. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Throughout the pendency of this matter, plaintiff has been an inmate in one or another of the Department's correctional facilities. On July 12, 2003, plaintiff became a member of the Nation of Gods and Earths, known variously as "the Nation," the "Five Percent Nation," or the "Five Percenters." This group is perceived by DOC officials to be a security threat, and plaintiff has been disciplined administratively for possessing the group's materials.
Plaintiff purports to be a sincere believer in the Nation's teachings. Since becoming a member, plaintiff has considered himself "resurrected from a life of total unrighteousness." Plaintiff asserts: "[a]lthough the Nation is technically a religion, all members refrain from using that term in describing the Nation because the term "religion" generally connotes belief in a mystery God which the Nation's doctrine specifically rejects."
As a member, plaintiff is "required and compelled to practice certain activities," including:
(a) teaching others about the knowledge of who God is, (b) study the Supreme Mathematics, Supreme Alphabets, 120 Degrees, Universal Flag, monthly National Statements, and newspaper periodicals, (c) observe holy days, which include the anniversaries of the birth and death of our founder, Clarence 13X Smith, also known as Father Allah, and the birthdays of Elijah Muhammad and Fard Muhammad, (d) conduct Civilization Classes, in which senior members educate newer members about the lessons and how they can be applied, and (e) gather monthly for "Parliaments" and "Rallies", during which members make collective decisions and help one another learn their lessons.
According to plaintiff, the recited activities are "compelled by, and central to, the Nation's system of religious beliefs."
Plaintiff asserts that, as a result of the Nation having been designated by the Department as a security threat group (STG) on March 4, 1998, "it is a serious prison infraction for plaintiff to participate in Nation activities or to exhibit anything related to the Nation, including lessons, literature, and periodicals"; or for him to attempt to engage in such activities.
Also according to plaintiff, if an inmate is found to be a member of the Nation, the inmate can be assigned to the Security Threat Group Management Unit (STGMU). In STGMU, an inmate loses reduced custody status and remains in maximum custody until successfully completing "a three-phase behavior modification and education program."
To complete that program, a Nation member "must sign a form renouncing affiliation" with the Nation. Plaintiff asserts that these policies "totally prevent [him] from exercising his religious beliefs, and impose a substantial burden on [his] religious exercise."
Plaintiff further alleges that "inmates of other religions[,] such as Muslims[,] are a greater [STG], not only because they commit a greater number of infractions than members of the Nation, but because the infractions they commit are more serious in nature." Moreover, he asserts "[t]he Nation does not advocate violence or disruptive behavior but encourages all members to be law abiding. Members of the Nation who violate prison rules are, therefore, also violating Nation principles."
In support of its summary judgment motion, the Department submitted several certifications. Among these was one from Roland Holvey, a Principal Investigator within the Department's Intelligence Section, Special Investigation Division. Holvey's duties included "monitoring  gangs or [STGs] within [DOC,] identif[ying] inmates as members of gangs or [STGs,]" and referring the names of those inmates to the committee that decides whether to place those inmates in the STGMU. Holvey was a member of national and regional law enforcement organizations that performed similar work in identifying and investigating gangs and STGs. He had conducted extensive research investigation into the various STGs designated by the Department, including the Nation. Between 1994 and 1997, Holvey collected data on incidents involving members of the Nation, which Holvey compiled in a December 1997 report that was used to support the Department's designation of the Nation an STG. In making his assessment of the Nation as an STG, Holvey considered the following events:
(a) In August 1990, at the New Jersey State Prison, seven inmates were charged with attempted murder of staff after a planned attack. A captain was stabbed seven times and two corrections officers were severely beaten. One of the inmates charged and convicted of aggravated assault was a [Nation] member . . . .
(b) In May 1993[,] at East Jersey State Prison, an anonymous letter was received threatening the lives of custody staff . . . .
An investigation revealed that the threat came from an unidentified [Nation] member . . . . It was learned that there were approximately forty members in the gang in the prison and that they planned to meet en-masse to celebrate the anniversary of the death of their founder, Clarence Smith.
(c) In December 1993[,] at Northern State Prison, a group of thirty to thirty-five inmates participated in a group demonstration in the gymnasium during afternoon recreation. The group gathered in a large circle and ...