                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 14-6793


INFINITE ALLAH,

                  Plaintiff – Appellant,

           v.

THE COMMONWEALTH OF VIRGINIA,

                  Defendant – Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:12-cv-00033-JPJ-PMS)


Argued:   December 10, 2014                 Decided:   February 27, 2015


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:   James Arthur DeVita, LAW OFFICE OF JAMES A. DEVITA,
Arlington, Virginia, for Appellant. Stuart Alan Raphael, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee. ON BRIEF: Mark R. Herring, Attorney General, Cynthia
E. Hudson, Chief Deputy Attorney General, Linda L. Bryant,
Deputy Attorney General, Public Safety & Enforcement, Richard C.
Vorhis, Senior Assistant Attorney General, Kate E. Dwyre,
Assistant Attorney General, Trevor S. Cox, Deputy Solicitor
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Plaintiff    Infinite      Allah,       an     inmate    with     the   Virginia

Department of Corrections (“VDOC”), affiliates with the Nation

of Gods and Earths (“NGE”).                In October 2012, the plaintiff

initiated a civil action against the Commonwealth of Virginia

(the       “Commonwealth”)   in    the     Western          District    of     Virginia,

contending that NGE is a religion, and that VDOC’s policies and

procedures       (the   “VDOC     Policies”)          substantially       burden    his

religious exercise, in contravention of the Religious Land Use

and    Institutionalized        Persons        Act,    42     U.S.C.    §§ 2000cc     to

2000cc-5 (the “RLUIPA”). 1           Following a three-day bench trial

conducted in October 2013, the district court issued an opinion

setting forth its findings of fact and conclusions of law, and

granting judgment to the Commonwealth.                      See Allah v. Virginia,

No. 2:12-cv-00033 (W.D. Va. Apr. 28, 2014), ECF No. 79 (the


       1
        Regarding the religious exercise of institutionalized
persons, the RLUIPA provides, in pertinent part:

       No government shall impose a substantial burden on the
       religious exercise of a person . . . confined to an
       institution, . . . unless the government demonstrates
       that imposition of the burden on that person —

              (1)   is   in    furtherance              of      a      compelling
              governmental interest; and

              (2) is the least restrictive means of furthering
              that compelling governmental interest.

42 U.S.C. § 2000cc-1(a).



                                           3
“Opinion”).          The   plaintiff        has    appealed,        and    we     possess

jurisdiction pursuant to 28 U.S.C. § 1291.                    As explained below,

we are satisfied to affirm the judgment on the basis of the

well-reasoned Opinion of the district court.



                                            I.

       The plaintiff asserts that the Commonwealth, through VDOC,

has implemented policies that substantially burden his right to

exercise    his      religion    —    namely,       NGE.       In    advancing       that

assertion, the plaintiff maintains that NGE should properly be

accepted as a religion, and that his beliefs in that religion

are sincerely held.             The plaintiff further contends that the

VDOC     Policies      have     substantially         burdened       his        religious

exercise,       in   contravention     of    the    RLUIPA,    in    five       respects:

(1) by classifying NGE as a gang; (2) by restricting NGE members

from meeting communally; (3) by prohibiting the plaintiff from

wearing NGE-related clothing, including a hat and a medallion;

(4) by    not    providing      the   plaintiff      with   pork-     and       tuna-free

meals, as required by NGE; and (5) by preventing the plaintiff

from receiving copies of NGE publications.                         By his operative

Amended Complaint, the plaintiff seeks injunctive relief against

the    Commonwealth,       along      with       recovery     of    his     costs    and

attorney’s fees.



                                            4
     The        district     court     denied        the   Commonwealth’s          motion      to

dismiss the Amended Complaint for failure to state a claim upon

which relief can be granted, as well as a later motion for

summary judgment.             The court then, in late 2013, conducted a

three-day bench trial.               By its Opinion of April 28, 2014, the

court granted judgment to the Commonwealth.

     Pursuant          to    Rule    52     of       the   Federal         Rules    of    Civil

Procedure,       the     Opinion     sets    forth,        inter     alia,    the    district

court’s factual findings, which are binding on appeal unless

clearly     erroneous.             Those    findings          were    predicated         on   the

court’s assessment of the evidence presented by the parties at

trial. 2    More specifically, the court “[took] into account the

rationality        and      internal      consistency         of     the    testimony,        the

extent     of    detail      and    coherent         nature    of    the    testimony,        the

manner of testifying by the witnesses, and the degree to which

the subject testimony is consistent or inconsistent with other

evidence in this case.”                See Opinion 3.                The court’s factual

findings were that:

     1. The plaintiff is a prison inmate in the custody of
     VDOC, an agency of the Commonwealth.


     2
       At trial, the plaintiff offered the testimony of nine
inmates who are NGE members, as well as an expert witness who
opined that NGE is a religion.        The Commonwealth presented
testimony from four VDOC officials and its own expert, who
testified that NGE is not a religion.



                                                 5
2. The plaintiff is a follower of NGE, also known as
the Five Percenters, a group containing adherents both
inside and outside of prison.

3. Among other teachings, NGE asserts that black men
are the only divinity.    NGE posits that the world’s
population is divided into three categories:     “[T]he
Ten Percent who teach the Eighty–Five Percent to
believe in a mystery God that can not [sic] be seen
and the Five Percent who do not believe in the
teachings of the Ten Percent . . . .”      (Am. Compl.
¶ 6.) The “Five Percent” refers to members of NGE. A
principal tenet of NGE is the racial superiority of
its   members,  a   doctrine   that  has   considerable
potential for violence in the modern prison setting.

4.   VDOC does not recognize NGE as a religious group
at any of its prison facilities and does not allow NGE
members to communally meet, wear special clothing, or
possess NGE materials and publications, nor does it
provide a special diet for NGE members.

5.   Whether or not NGE is considered a bona fide
religion, it has acted as a prison gang that would
pose a threat to the safety and security of VDOC
prison facilities if treated as other religious
groups.     Inmates   affiliated   with   NGE have a
demonstrated history of violence and racism.

6.   Communal meetings of NGE members would pose a
danger to the safe and secure operation of VDOC prison
facilities.   Such meetings present a heightened risk
of violence as compared to other groups, and would
require   a  degree   of   supervision  that  is   not
practically feasible.

7.   Identifiable NGE clothing, such as NGE hats and
medallions, serve as gang identifiers and aid in
recruitment and power displays by NGE gang members,
contrary to the safety and security of the prison.

8.   VDOC’s current policies and procedures allow the
plaintiff meals in general accordance with his claimed
religious preferences and any deviation therefrom is
de minimus and causes no burden to the plaintiff’s
exercise of religion.



                          6
       9. NGE materials are often handwritten, and can vary
       from copy to copy. Whether handwritten or typed, most
       contain     racist    and/or     violent     sentiments.
       Additionally,   most  contain   codes   that   have  the
       potential to aid inmates in passing messages that
       circumvent safety and security in the prison.

       10. The principal publication of NGE, called The Five
       Percenter, often contains codes, and racist or violent
       sentiments.   It is frequently disallowed for inmate
       use by VDOC for these reasons, although it is
       generally reviewed on an issue-by-issue basis.

See Opinion 4-5 (alterations in original).

       Moving to the legal issues presented, the district court

recognized that, to succeed on a RLUIPA claim, a plaintiff bears

the initial burden to establish that “the policy or practice

[being    challenged]     substantially          burdens     his     exercise    of

religion.”      See Opinion 7 (citing Couch v. Jabe, 679 F.3d 197,

200 (4th Cir. 2012)).        The court declined to rule on whether the

plaintiff    satisfied    his    burden     in   that   regard,     however,    and

specifically did not make findings as to:                (1) whether NGE is a

religion under the RLUIPA; (2) whether the plaintiff’s beliefs

were     sincerely   held;       and    (3) whether        the     VDOC    Policies

substantially     burdened       the    plaintiff’s        religious      exercise.

Rather, the court simply assumed the plaintiff’s allegations on

those issues were true, with the exception of whether the VDOC

Policies relating to diet constitute a substantial burden.

       Having   assumed   that    the   plaintiff       satisfied    his    initial

burden, the district court explained that, under the RLUIPA, the



                                        7
government was obliged to carry the burden of proving “that the

challenged policy is the least restrictive means of furthering a

compelling governmental interest.”                    See Opinion 7 (citing Couch,

679    F.3d    at     200).        Relevant         here,    the    Supreme    Court     has

recognized that prison security constitutes a compelling state

interest, and that the RLUIPA requires “‘due deference to the

experience      and     expertise        of    prison       . . .    administrators       in

establishing        necessary      regulations        and    procedures       to   maintain

good     order,        security       and          discipline,        consistent         with

consideration of costs and limited resources.’”                              Id. at 9-10

(quoting Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)).                                   In

assessing whether a given policy or procedure constitutes the

least restrictive means of achieving a compelling interest such

as    prison   security,      the     test     is     whether       the   government     has

sufficiently explained its policy in that respect, and whether

the    government      acknowledged           and    considered       less    restrictive

alternatives.          Id.    at    19    (citing       Couch,      679   F.3d     at    203;

Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006)).

       Applying those legal principles to its factual findings,

the district court then drew the following legal conclusions:

       1.   This court has subject-matter jurisdiction                             and
       personal jurisdiction over the parties.

       2. The Commonwealth has proved by a preponderance of
       the evidence that the asserted burdens on the
       plaintiff are in furtherance of a compelling state


                                               8
      interest,   and   the   least  restrictive         means     of
      furthering that compelling state interest.

      3.    VDOC’s categorization of NGE as a gang and
      security threat group is similarly supported by the
      evidence and is an appropriate security measure that
      is the least restrictive means of furthering a
      compelling state interest in prison safety.

      4. Due to staff limitations and safety risks to staff
      and inmates, a complete ban on NGE communal meetings
      is the least restrictive means of furthering a
      compelling state interest in prison safety.

      5. Because NGE hats and medallions can serve as . . .
      gang identifiers and aid in gang recruitment, a
      complete ban on NGE hats and medallions is the least
      restrictive means of furthering a compelling state
      interest in prison safety.

      6.   VDOC’s decision not to offer a specific diet for
      the plaintiff does not burden his exercise of
      religion.

      7.    Due to the inability of VDOC to review all
      handwritten NGE materials, and the frequency with
      which typed and handwritten NGE materials contain
      codes, racist sentiments, and/or violent sentiments,
      the decision of VDOC to ban such NGE materials is the
      least restrictive means of furthering a compelling
      state interest in prison safety.

      8. The policy of VDOC to refuse possession by inmates
      of The Five Percenter containing material not in
      compliance   with  VDOC   standards  is   the   least
      restrictive means of furthering a compelling interest
      in prison safety.

      9.   The plaintiff has not proved a violation of his
      rights under RLUIPA and is not entitled to relief.

See   Opinion   25-27.   Predicated    on   the   findings   of   fact   and

conclusions of law spelled out in the Opinion, the court denied

the plaintiff’s requests for relief and awarded judgment to the

Commonwealth.    This appeal ensued.

                                  9
                                  II.

     The plaintiff advances several contentions in his appeal.

He challenges the district court’s finding that NGE has acted as

a prison gang and has posed a threat to the safety and security

of the VDOC’s prisons.     The plaintiff further maintains that the

court erred in concluding that the VDOC Policies are the least

restrictive means of furthering a compelling interest.             Finally,

the plaintiff requests that we rule on the three issues that the

court assumed in his favor:      namely, that NGE is a religion for

purposes   of   the   RLUIPA;   that    the   plaintiff    holds   sincere

religious beliefs; and that the VDOC Policies have substantially

burdened the plaintiff’s religious exercise. 3            Consistent with

the position of the district court, we decline to do so.

     In sum, the plaintiff asks that we reverse the judgment in

favor of the Commonwealth and determine instead that judgment

should have been awarded to him.        Having carefully examined the

record and assessed the parties’ written submissions together

with the argument of counsel, we discern no reversible error.

We are therefore content to affirm the judgment on the cogent




     3
       As specified by its conclusion of law number 6, the
district court reached the issue of substantial burden solely
with respect to the VDOC Policies relating to diet, and rejected
the plaintiff’s contention in that regard. See supra at 9.



                                   10
reasoning   spelled   out   in   the    well-crafted   Opinion   of   the

district court.

                                                                 AFFIRMED




                                   11
