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Shabazz v. Lokey

United States District Court, W.D. Virginia, Roanoke Division

September 30, 2017

B.J. LOKEY, et al., Defendants.


          Elizabeth K. Dillon United States District Judge

         Plaintiff Hassan Raashann Shabazz (Shabazz), who initially represented himself but was represented by counsel at trial, is an inmate at the Augusta Correctional Center (ACC), a Virginia Department of Corrections (VDOC) facility. His complaint, filed pursuant to 42 U.S.C. § 1983, alleged violations of his First and Fourteenth Amendment rights, violations of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), a state claim for detinue, and a state claim under the Virginia Tort Claims Act, following the confiscation of documents from his cell.

         Shabazz alleges that he is a member of the Nation of Islam (NOI) and that he possessed religious NOI documents because he is required to study them. The documents were confiscated from him on May 1, 2013, after VDOC staff determined that the documents were gang-related because they are affiliated with a group called the Nations of Gods and Earth (NGE), also known as the Five Percenters. VDOC has a zero-tolerance policy regarding gang-related materials. As made clear at trial, Shabazz is not challenging the zero-tolerance policy on its face or as applied to NGE Members/Five Percenters, but contends that he is not a NGE member and the confiscation violated his rights as an NOI follower.

         All but two defendants were dismissed at the summary judgment stage, and the only claims that remained to be tried were plaintiff's First Amendment (free exercise clause), RLUIPA, and detinue claims against defendants B. J. Lokey (Lokey) and L. H. Leatherwood (Leatherwood). (Mem. Op. & Order, Dkt. Nos. 28, 29.) The court also determined on summary judgment that Shabazz “cannot recover damages against Defendants under RLUIPA or in their official capacities under 42 U.S.C. § 1983.” (Mem. Op. 9 n.9.)

         During the bench trial, all parties presented evidence and argument, and the court took under advisement defendants' oral motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 52(c). Based on all the evidence presented during trial, the court issues this memorandum opinion and order, which constitutes its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).


         1. Shabazz is an inmate in the custody of VDOC. He has been in custody for approximately 17 years and is currently housed at ACC, where he was housed on May 1, 2013.

         2. As of May 1, 2013, Lokey was employed by VDOC as an Intelligence Officer at ACC.

         3. As of May 1, 2013, Leatherwood was employed by VDOC as a Gang Specialist within VDOC's Gang Management Unit.

         4. Shabazz is and has been a member of NOI since 1996. He was not in VDOC custody when he joined. In order to join NOI, he went through a process of purification, which included fasting, and had to memorize answers to questions in the Student Enrollment. A letter of sincerity to Master Fard Muhammad, NOI's founder, was also required, professing sincerity to “The Supreme Wisdom.” “The Supreme Wisdom Lessons” are gradually provided during NOI orientation under the tutelage of a person that has been rigorously trained. “The Supreme Wisdom Lessons” are not distributed to others because those who have not been trained may misconstrue them.

         5. Shabazz has a sincerely-held religious need to adhere to his personal faith of NOI. His sincerely-held religious practices include, inter alia, reading lessons daily from “The Supreme Wisdom Lessons, ” which is a central canonical source for his faith. The “Instructions Given to the Laborers, ” part of “The Supreme Wisdom Lessons, ” instructs that the student is to study and “memorize by heart all answers of said lesson number 1.” Shabazz believes that he must study “The Supreme Wisdom Lessons” to memorize all answers to the lessons as he was instructed to do, in part by the “Instructions Given to the Laborers.” Also, Shabazz uses other texts commonly known to the NOI community to help him understand “The Supreme Wisdom Lessons” and his personal faith. Shabazz's copy of “The Supreme Wisdom Lessons” and other religious documents consisted of unbound papers that were photocopied, transcribed, typed, or handwritten. He constantly revisits the lessons, as he must. This is a core requirement of NOI so that NOI members can go through the same experience Elijah Muhammad (the messenger of Allah) did when he was under the tutelage of Master Fard Muhammad (the founder and head of NOI). Upon cross-examination, Shabazz demonstrated his thorough knowledge of the lessons.

         6. Wali Hafil El-Shabazz, an inmate at ACC from 1994 through 1998 and again from 2014 through at least the trial date, who serves as the resident student secretary of NOI at ACC, confirmed Shabazz's understanding of the requirements of NOI and the importance of the texts. He has always had a copy of “The Supreme Wisdom Lessons” while at ACC and confirmed that Shabazz regularly attended NOI services at ACC. Shabazz's regular attendance at NOI services was also confirmed by Paul Ritter, ACC's Chaplain.

         7. Michael Muhammad Knight, Professor of Religious Studies at Kenyon College, specializes and is an expert in Islamic studies. These studies include NOI. NOI history began in 1930 when it was founded by Master Fard Muhammad. Elijah Muhammad was a student of Master Fard Muhammad and was the NOI leader for about 40 years. He wrote extensively. Following his passing, Louis Farrakhan became NOI's leader. NOI's central, foundational text is “The Supreme Wisdom Lessons” and access to it is required. Followers also refer to the Bible and the Quran. NOI followers believe that God is a man with a body and not a “mystery God” or transcendent invisible spirit.

         8. Professor Knight also testified to the founding of NGE, also known as the Five Percenters. NGE was formed in the mid-1960s in Harlem by Clarence 13X, also known as Allah. Similar to the protestant reformation when Martin Luther looked at the book of Romans and other books in the Bible and broke away from the Catholic Church, Clarence 13X reinterpreted “The Supreme Wisdom Lessons” and espoused the belief that the black man is God and that all black men are gods equally without a privileged supreme knower above them. This contrasts with NOI members who believe that black people are divine, but that there is one supreme knower, Allah, and he is Master Fard Muhammad, who had a privileged messenger who was Elijah Muhammad and is now Louis Farrakhan.

         9. VDOC recognizes NOI as a permitted religious sect within its prisons. VDOC is a department of the Commonwealth of Virginia and receives federal funding.

         10. The VDOC has recognized NGE, or Five Percenters, as a gang and security threat group for the past twenty-plus years. The VDOC recognizes NGE as a violent gang and separatist hate group in part because NGE members believe in their racial superiority and have been involved in stabbings and drug distribution within VDOC facilities. NGE is one of the top three or four gangs in VDOC with approximately 1, 500 members.

         11. NGE members are not allowed to congregate for purposes of NGE. However, an NGE member is not prohibited from being on a prison's master pass list to attend religious services. For example, NGE members are known to attend the religious services of Sunni Muslims, Buddhists, Rastafarians, and NOI Muslims. NGE members are known to take over other inmates' group meetings in order to congregate to evade the VDOC's ban on NGE gatherings. NGE inmates had overtaken NOI services at ACC as recently as 2012.

         12. The VDOC has a zero-tolerance policy toward prison gangs. While there was testimony that the zero-tolerance policy applies to everyone regardless of whether or not an inmate associates with, or is suspected to associate with, a gang, it is also the case that investigators must look to the entire collection of documents possessed by an inmate and look to the intent of the documents. If an NOI member possesses suspected gang materials, he may be interviewed. Indeed, this happened to Shabazz in 2009 when he was housed in VDOC's Haynesville Correctional Center (HCC). The institutional investigator at HCC seized Shabazz's religious documents, believing them to be NGE documents. After the investigator questioned Shabazz about the documents and Shabazz's faith, however, he returned the religious documents to Shabazz.

         13. VDOC staff believes Five Percenters use secret codes to communicate, recruit, and organize within prisons. Also, VDOC staff believes that tension and conflict would increase if NGE materials were disseminated among rival groups.

         14. Just like NOI adherents, NGE members rely on “The Supreme Wisdom Lessons” as a foundational text, but the two groups interpret “The Supreme Wisdom Lessons” and the history of their organizations differently. Both NGE and NOI deem the meaning of numbers via mathematics, known as “The Supreme Mathematics, ” central to their respective beliefs and behaviors. In contrast, “The Solar Facts” is considered primarily an NGE text. Nonetheless, the ...

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