                                 UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                 No. 08-7681


RASHID QAWI AL-AMIN,

                   Plaintiff - Appellant,

             v.

LINDA SHEAR, in her individual and official capacities;
RUFUS FLEMING, in his individual and official capacities; G.
P. WILLIAMS, in his individual and official capacities; D.
M. FERGUSON, in his/her individual and official capacities;
S. J. ADVENT, in his individual and official capacities;
CHARLIE DAVIS, in his individual and official capacities; M.
L. POPE, in his individual and official capacities; CLYDE
ALDERMAN, in his individual and official capacities; C.
BAYLOR, in his individual and official capacities; BLAINE
BROCK, Food Service Manager,

                   Defendants – Appellees,

             and

GENE JOHNSON, in his official capacity; NATHANIEL FARROW,
Food Service Staff,

                   Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:04-cv-00346-RAJ-FBS)


Submitted:    March 6, 2009                     Decided:   April 10, 2009


Before NIEMEYER and       MICHAEL,    Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Rashid Qawi Al-Amin, Appellant Pro Se. Mark R. Davis, Assistant
Attorney General, Richmond, Virginia; Paul Graham Beers, GLENN,
FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia; Peter M.
Coppinger, Gregory D. Cote, MCCARTER & ENGLISH, LLP, Boston,
Massachusetts, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Rashid Q. Al-Amin, a Virginia prisoner, appeals from

the    district     court’s       orders         granting       summary       judgment       to

Defendants in Al-Amin’s suit under 42 U.S.C. § 1983 (2000) and

the    Religious     Land      Use     and       Institutionalized            Persons     Act

(“RLUIPA”).       For the reasons that follow, we affirm in part and

vacate and remand in part.



                                             I.

             Al-Amin’s      first      claim       is    that    Defendants          violated

RLUIPA by requiring him to use both his committed name and his

legal name to access his inmate account.                        Al-Amin alleged that

he    legally   changed     his      name    from       Tracy   Jones     in   1991.         He

asserted that he is a practicing Muslim who sincerely believes

the name “Jones” is offensive to his religious beliefs.                                      In

addressing      Al-Amin’s      claim,        the        district      court     relied       on

Thacker v. Dixon, 953 F.2d 639 (4th Cir. 1992), an unpublished

case decided prior to the enactment of RLUIPA.                         However, Thacker

does not apply the appropriate RLUIPA test.

             RLUIPA prohibits prisons from imposing a substantial

burden on an inmate’s religious exercise unless prison officials

can   demonstrate    that      the    burden       (1)     is   in    furtherance       of   a

compelling      governmental          interest          and     (2)     is     the      least

restrictive     means     of    furthering          that      interest.         42    U.S.C.

                                             3
§ 2000cc-1(a)(1)-(2) (2000).             The plaintiff bears the initial

burden of showing (1) that he seeks to engage in an exercise of

religion    and     (2)   that    the   challenged     practice       substantially

burdens that exercise.            42 U.S.C. § 2000cc-2(b) (2000).                Once

the plaintiff establishes a prima facie case, the defendants

bear the burden of persuasion on whether their practice is the

least restrictive means of furthering a compelling governmental

interest.     Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006).

“Religious exercise” includes an exercise of religion, whether

or   not   compelled      by,    or   central   to,   a   system      of    religious

belief.      42   U.S.C.    § 2000cc-5(7)(A)      (2000).         A    “substantial

burden” on the free exercise of religion is one that forces

adherents of a religion to modify behavior, to violate beliefs,

or   to    choose    between      forfeiting    governmental          benefits    and

abandoning a religious precept.           Lovelace, 472 F.3d at 187.

            Thus,    the   district     court’s   conclusion,         via   Thacker,

that Al-Amin had alternative ways to practice his religion and

that the prison would be burdened if it had to change its filing

system does not address the applicable RLUIPA test.                           Al-Amin

alleged that his given name is religiously offensive to him and

that the prison’s requirement that he use his given name forced

him to either violate his beliefs or forego accessing his prison

account.     Thus, we conclude that he has presented a prima facie

case that the prison violated RLUIPA.                 The district court made

                                          4
no findings as to the sincerity of Al-Amin’s beliefs or whether

the regulation was the least restrictive method of furthering a

compelling government policy.               Because the district court did

not apply the correct legal standard, we vacate the district

court’s    order   and    remand      for     further     proceedings       for   the

district court to apply the RLUIPA test.



                                       II.

           The     district       court       dismissed      Al-Amin’s        claims

regarding Ramadan of 2001 as barred by the two-year statute of

limitations applicable to § 1983 suits in Virginia. 1                       However,

Al-Amin’s complaints regarding Ramadan in 2001 were also brought

under RLUIPA.

           RLUIPA does not contain its own statute of limitations

period.    However, for civil actions “arising under an Act of

Congress   enacted     after    [December      1,    1990],”      the   appropriate

limitations   period     is    four   years.        28   U.S.C.    § 1658    (2006);

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004)

(holding that four year statute of limitations applies if the

plaintiff’s claim against the defendant was made possible by a

post-1990 enactment).         RLUIPA was enacted in September 2000; it


     1
       Al-Amin’s complaint was signed in May 2004 and filed in
June 2004.



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created a new right of action which Al-Amin seeks to invoke in

this complaint.        Thus, the proper limitations period is four

years,    and   the   district    court       improperly   dismissed   Al-Amin’s

RLUIPA claims regarding Ramadan of 2001.               Accordingly, we vacate

the dismissal of this claim and remand for consideration of the

merits of the cause of action.



                                     III.

            The district court dismissed on statute of limitations

grounds    Al-Amin’s    claim     that    prison     officials   discriminated

against Islamic materials in the chaplain’s library in violation

of the Equal Protection Clause.                Specifically, the court found

that a two-year limitations period applied 2 and that the latest

date alleged by Al-Amin regarding this claim was his assertion

that Defendants returned materials he attempted to donate and

rejected his related grievance in April 2002.

            In his informal brief, Al-Amin asserts that he alleged

an ongoing violation in his complaint and that certain of his

allegations specifically concerned actions in June 2002, within

the limitations period.          Al-Amin is correct.         In his complaint,


     2
        The parties do not dispute that Virginia’s two-year
statute of limitations applied to this equal protection claim.
See Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 735 (4th
Cir. 1991).



                                          6
Al-Amin averred that Defendant Williams “[c]onsistently denied,

and continues to deny, approval for donations of Islamic videos

and audio tapes purchased by Muslim inmates.”                   Moreover, in the

materials   submitted       in   opposition        to    Defendants’    motion    for

summary judgment, Al-Amin submitted documents showing that his

attempt to donate four videotapes was denied in June 2002 and

that his related grievance was denied in July 2002.

            Because Al-Amin specifically alleged unconstitutional

actions   within    two     years    prior    to   filing    the   complaint,     his

claim was improperly dismissed as untimely.                     While it may be

that certain aspects of the claim are barred by the statute of

limitations,     the   district      court    incorrectly      dismissed    all   of

Al-Amin’s complaints regarding the donation of Islamic materials

to the chaplain’s library.           Accordingly, we vacate the dismissal

of this claim and remand for further proceedings.



                                        IV.

            Al-Amin       asserted    that    prison      officials    refused    to

accommodate his diet requirements during Ramadan in 2002 and

2003.     Specifically, Al-Amin is a Sunni Muslim.                     As such, he

eats only Halal (or Kosher) foods.                      In addition, during the

Ramadan fast, he can only eat prior to sunrise and after sunset.

Al-Amin appears to allege that Defendants gave him two choices:

(1)     Kosher     food     (“Common         Fare”)      without      any   special

                                         7
consideration for ceremonial meals or (2) non-Kosher, ceremonial

food (“Ramadan menu”).

            The district court asserted that Al-Amin was alleging

“that he did not receive the meals he wanted, not that he failed

to receive meals that conformed to his religious beliefs.”                  The

district court concluded that Al-Amin chose the “Ramadan menu”

and, thus, could not complain that he no longer received his

Common Fare meals.

            Neither Al-Amin nor the district court is clear as to

the legal basis for his claim.               However, the district court

examined    whether   Al-Amin   showed       that   his   free   exercise   was

“substantially burdened.”           Thus, it appears that the district

court    considered   the   claim    under   RLUIPA. 3     Al-Amin   does   not

challenge the district court’s legal framework on appeal.

            Al-Amin   has    raised     shifting     allegations     regarding

these claims.     However, construing his allegations and evidence

liberally, it appears that he is claiming that prison officials

removed him from his Common Fare diet during Ramadan 2002 and

2003, without his consent.          His 2002 claims are easily dispensed




     3
       RLUIPA provides more protection to inmates’ free exercise
rights than does the First Amendment.     Lovelace, 472 F.3d at
199-200.



                                       8
with due to the form he completed asking for the Ramadan menu. 4

His 2003 claims are more complex, since there is a material

issue of fact as to whether he asked to be removed from his

Common    Fare   diet.      The   Defendants   assert   that       he   did,   but

provide no proof.        Al-Amin claims that he did not and submits

affidavits of other inmates in support.

            Assuming that Al-Amin was removed from his Common Fare

diet without consent during Ramadan 2003, the question becomes

whether    removal   from    Common   Fare     constituted     a    substantial

burden on Al-Amin’s exercise of his religion.                  Assuming that

Al-Amin’s religion requires him to eat Kosher food, the denial

of such food for a month would constitute a substantial burden.

Essentially, he would face the choice of violating a religious

tenet or going without food.          See Baranowski v. Hart, 486 F.3d

112, 125 (5th Cir.) (finding that denying Kosher food to an

observant Jew was a substantial burden), cert. denied, 128 S.

Ct. 707 (2007).      The burden would then shift to Defendants to

show that the denial of Kosher food during Ramadan 2003 was the

least restrictive means of furthering a compelling governmental

     4
       The form is certainly unclear.    Al-Amin crossed through
the sentence requesting Common Fare meals; however, his text
requested Kosher Ramadan meals.     It appears that Al-Amin was
attempting to receive some sort of special “ceremonial” meal as
opposed to the regular Common Fare meals. However, he fails to
offer any specifics or to allege how the denial of ceremonial
meals impacted the exercise of his religion.



                                       9
interest.           Since   Defendants     assert      that     Al-Amin    chose       to    be

removed from his Common Fare diet, they have not addressed this

prong.

               Accordingly,        while   we      affirm      the    district     court’s

grant of summary judgment on Al-Amin’s claims regarding Ramadan

2002,    we    conclude       that   there      is    a   material      issue     of    fact

preventing summary judgment – namely, whether Al-Amin requested

to be removed from his Common Fare diet during Ramadan 2003.                                 If

he did, the analysis ends, as the denial of Common Fare food was

his own choice.             If he did not, the district court should then

complete the RLUIPA inquiry.                 Accordingly, we vacate the grant

of summary judgment with regard to Al-Amin’s claims concerning

Ramadan 2003 and remand for further proceedings.



                                             V.

               We    affirm    the   grant    of     summary     judgment    as    to       all

other    claims       for    the   reasons    stated      by    the    district    court.

Al-Amin v. Shear, No. 2:04-cv-00346-RAJ-FBS (E.D. Va. Mar. 21 &

July 25, 2008).              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.

                                                                 AFFIRMED IN PART;
                                                      VACATED AND REMANDED IN PART


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