                              UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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