                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-6754


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 R. 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:   February 6, 2012               Decided:    April 12, 2012


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Vacated and remanded by unpublished per curiam opinion.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. Richard Carson Vorhis,
Senior Assistant Attorney General, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
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).

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 Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247,

1261, 1263 (11th Cir. 2011); Liberty Mut. Ins. Co. v. Pella

Corp., 650 F.3d 1161, 1178 (8th Cir. 2011).

                                        3
            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) (quotations and citations 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 (quotations and citations 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.          Id. § 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

proffered evidence is such that a rational factfinder could only

find for the government.”        Smith, 578 F.3d at 250.

                                        4
            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    showing      his    exercise     of    religion      was

substantially burdened as to claims three and four challenging

Defendants’      confiscation      of    his   literature        as     gang    material.

Because Coward contended that he had exhausted his remedies, the

district court considered claims one and two on their merits in

the interest of justice and in deference to his pro se status.

            The district court assumed that NOGE was covered by

RLUIPA    and    determined      that   Coward       had    demonstrated        that   the

Defendants’      refusal    to   place    NOGE       on    the   list    of    recognized

religions was a substantial burden on his religious exercise

because he could not partake in any of the activities that were

his duty as a NOGE member.              However, the district court granted

summary judgment to 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      the       compelling     governmental

interest of security in the prison environment.                           The district

court granted summary judgment to Defendants on claims three and

four based on its determination that Coward had offered no facts

                                          5
to demonstrate that he felt pressure to modify his behavior or

change his beliefs as a result of Defendants’ confiscation of

his NOGE materials, and he failed to bear his burden of proving

his exercise of religion was substantially burdened.

           We have reviewed the record and the parties’ briefs

and conclude that the district court erred in granting summary

judgment on different grounds than those raised in the motion

for summary judgment without notice and a reasonable time to

respond.   See Fed. R. Civ. P. 56(f).              We further conclude that

Defendants did not demonstrate in the summary judgment record

that their refusal to recognize NOGE as a religion was the least

restrictive   means      of     furthering   a     compelling     governmental

interest, given the district court’s assumption that NOGE is

covered by RLUIPA.       See Smith, 578 F.3d at 254.              Moreover, we

are unable to conclude that there is no genuine dispute as to

any material fact and Defendants are entitled to judgment as a

matter of law 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.

See Fed. R. Civ. P. 56(a); Lovelace, 472 F.3d at 187-89.

           Accordingly, we vacate the district court’s order and

remand for further proceedings consistent with this opinion.                We

dispense   with   oral        argument   because    the   facts     and   legal



                                         6
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




                                7
