                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-7447


ANTOINE MONTEZ MILES,

                Plaintiff - Appellant,

          v.

DAVID GUICE; GEORGE SOLOMON; LARRY DUNSTON; KIERAN SHANAHAN,
Secretary of the Department of Public Safety; BETTY BROWN,
Director of Chaplaincy; FRANK PERRY,

                Defendants - Appellees,

          and

GWEN NORVEIL,

                Defendant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:13-ct-03193-FL)


Submitted:   March 21, 2017                 Decided:   April 21, 2017


Before GREGORY, Chief Judge,        WILKINSON,   Circuit   Judge,   and
DAVIS, Senior Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Antoine Montez Miles, Appellant Pro Se.    Kimberly D. Grande,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Antoine Montez Miles, a North Carolina prisoner and member

of the Nation of Gods and Earths (NGE), sued officials of the

North    Carolina       Department      of   Public    Safety     under   42    U.S.C.

§ 1983 (2012).          He alleged that certain officials violated his

rights     under    the     Religious        Land   Use     and   Institutionalized

Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5 (2012),

and the First, Eighth, and Fourteenth Amendments by designating

NGE as a Security Threat Group, not a religion.                     The designation

resulted from NGE’s ties to a gang, the United Blood Nation, but

NGE     members    do     engage   in    practices        often    associated     with

religions.        In his § 1983 complaint, Miles sought to engage in

certain    of     those    practices,        including    eating    a   vegan   diet,

fasting on NGE holy days, and studying NGE texts.

      In   response       to   Miles’    claims,      the    officials    moved    for

summary judgment, and the district court granted the motion.                        We

review a district court’s award of summary judgment de novo,

viewing the facts and inferences reasonably drawn from those

facts in the light most favorable to the nonmoving party.                         Core

Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310, 320 (4th Cir.

2014).     A court may only award summary judgment when no genuine

dispute of material fact remains and the record shows that the

moving party is entitled to judgment as a matter of law.                          Fed.

R. Civ. P. 56(a).              On appeal, Miles challenges the district

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court’s grant of summary judgment on his claims under RLUIPA,

the Eighth Amendment, and the Equal Protection Clause of the

Fourteenth Amendment.

       Section 3 of RLUIPA protects prisoners’ right to exercise

their religion.            42 U.S.C. § 2000cc-1(b)(1).              To prevail under

RLUIPA, a prisoner must first make a prima facie showing that a

state      substantially          burdened    his     religious      exercise.          See

Lovelace      v.    Lee,    472    F.3d    174,     187    (4th   Cir.   2006).      “[A]

substantial burden on religious exercise occurs when a state or

local government, through act or omission, ‘put[s] substantial

pressure on an adherent to modify his behavior and to violate

his beliefs.’”            Id. at 187 (citing Thomas v. Review Bd. of Ind.

Employment         Sec.    Div.,    450    U.S.     707,   718    (1981)).     After     a

prisoner makes a prima facie showing of a substantial burden,

the government’s position must survive strict scrutiny.                           Id. at

186.    Strict scrutiny requires the state to show that its policy

is   the     “least       restrictive      means     of    furthering    a   compelling

governmental interest.”             Id. at 189.

       The    district       court        assumed    that     NGE   qualifies      as    a

religion, but ruled that the policies toward NGE practices did

not substantially burden Miles’ exercise of religion.                             Neither

the lack of access to the vegan diet, see Acoolla v. Angelone,

No. 7:01-CV-01008, 2006 WL 2548207, at *8 (W.D. Va. Sept. 1,

2006), aff’d, 235 F. App’x 60 (4th Cir. 2007), nor to the NGE

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texts, which were not subject to a blanket ban, are substantial

burdens.     Failing to accommodate fasting on holy days, however,

is a substantial burden.             Lovelace, 472 F.3d at 187.

     The district court did not apply strict scrutiny to the

policy for NGE fasts, and the record does not sufficiently show

that the policy satisfies strict scrutiny.                      We therefore vacate

the district court’s grant of summary judgment on the fasting

claim and remand it for consideration under the strict scrutiny

standard.

     Next,    we       turn   to   Miles’     Eighth    Amendment      claim.        While

prisoners have the right to nutritionally adequate food under

the Eighth Amendment, they must prove deliberate indifference,

meaning     that       a    prison    official        must   have      known    of    and

disregarded       an       objectively       serious    condition.          Farmer     v.

Brennan,    511     U.S.      825,    832,    837    (1994).        Miles   failed     to

establish deliberate indifference.

     Miles also sued under the Equal Protection Clause of the

Fourteenth Amendment, which requires a plaintiff to make a prima

facie showing that the state treated him differently than it

treated     similarly         situated      prisoners    and    that     such   unequal

treatment         resulted           from         intentional       or      purposeful

discrimination.            See Veney v. Wyche, 293 F.3d 726, 730-31 (4th

Cir. 2002).        We conclude that Miles failed to make the required



                                              5
showing because the record shows that other religious groups

were not similarly situated to NGE, which has ties to a gang.

       Because     the     officials     did     not    violate    Miles’    Eighth     or

Fourteenth Amendment rights, we conclude that they are entitled

to     qualified       immunity     on     those       claims.       See     Harlow     v.

Fitzgerald,       457    U.S.     800,     818    (1982)    (providing       government

officials qualified immunity from civil damages if plaintiff has

failed to establish violation of constitutional right).

       Finally, Miles contests the district court’s denial of his

motion    for     appointment       of     counsel.        We     conclude    that    the

district court did not abuse its discretion when it denied that

motion because no exceptional circumstances existed to warrant

appointment of counsel.             Whisenant v. Yuam, 739 F.2d 160, 163

(4th     Cir.     1984),       abrogated    in     part    on     other     grounds    by

Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296,

300 n.2 (1989).

       In sum, we affirm the district court’s ruling under RLUIPA

on Miles’ claims for a vegan diet and access to NGE texts;

vacate the        ruling    under   RLUIPA       for    Miles’    fasting    claim    and

remand    for     further      proceedings;      affirm     the    ruling    on    Miles’

Eighth and Fourteenth Amendment claims; and affirm the district

court’s denial of Miles’ motion for appointment of counsel.                            We

also deny Miles’ pending motion for appointment of counsel.                            We

dispense        with    oral     argument      because     the     facts     and     legal

                                             6
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




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