Versatile v. Johnson
| Decision Date | 26 October 2011 |
| Docket Number | Civil Action No. 3:09CV120 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | LORD VERSATILE, Petitioner, v. GENE JOHNSON, et al., Respondents. |
(Adopting Report and Recommendation)
This is an action for injunctive relief arising under the Religious Land Use and Institutionalized Persons Act (RLUIPA). It is presently before the Court on the Report & Recommendation (R&R) of the Magistrate Judge and Plaintiff's objections thereto. For the reasons that follow, this Court will adopt the R&R. Accordingly, Plaintiff's action will be dismissed with prejudice.
Plaintiff Lord Versatile ("Versatile") is a Virginia inmate proceeding pro se and in forma pauperis.1 In his Complaint, he alleges that Defendants Gene Johnson, John Jabe,Benjamin A. Wright, W.D. Jennings, Loretta Kelly, and A. David Robinson,2 in their capacities as employees of the Virginia Department of Corrections ("VDOC"), unlawfully impeded an exercise of Versatile's religion, the Nation of Gods and Earths ("NGE"), by banning NGE texts and periodicals, and by violating VDOC regulations governing the processing of requests for religious recognition. Defendants contend that Versatile's beliefs are not religious in nature, and that denying Versatile access to the contested materials is the least restrictive means of furthering their compelling interest in institutional safety. Defendants also claim that Versatile's request for religious recognition was properly processed in accordance with VDOC policies.
The Honorable M. Hannah Lauck, United States Magistrate Judge, held an evidentiary hearing and issued an R&R proposing the following findings:
I. Factual and Procedural History
(See Dec. 31, 2009 Mem. Op. 1, Jan. 21, 2010 Mem. Order.) Versatile sought damages and injunctive relief.
In Claim One ("the Blanket Ban Claim"), Versatile alleges that, as a member of NGE, he is required to study the following documents: the 120 Degrees, the Supreme Mathematics, the Supreme Alphabet, NGE monthly national statements, and NGE's national newspaper, The Five Percenter. However, since 1996, VDOC has classified NGE as a Security Threat Group or gang rather than a religion. Beginning in August 2006, after conducting a review of each issue when it entered the VDOC system, VDOC disapproved every issue of The Five Percenter. VDOC also prohibits possession of the other works that members of NGE must study in the exercise of their beliefs.
Versatile contends that possession of NGE materials constitutes a protected exercise of religion, and that the content of the materials does not pose a serious enough threat to justify Defendants' so-called "blanket ban." Defendants, on the other hand, contend that NGE is not a "religion" for purposes of RLUIPA. Second, Defendants argue that they have not implemented a "blanket ban," but rather a narrowly tailored review process consistent with RLUIPA that targets only material harmful to institutional security.
Claim Two ("the Routing Slip Claim") arises from Versatile's submission in December 2007 of a request that VDOC recognize NGE as a religion. Defendant Kelly, the warden at Sussex I where Versatile was incarcerated, did not forward the request on to the Faith Review Committee, which would be the appropriate committee to consider such a request. In response to Versatile's subsequent grievance, Defendant Kelly explained that the committee had, just months earlier, rejected an application for NGE recognition from an inmate at Southampton Correctional Center. Defendant Kelly's decision was affirmed at the highest levels, and Versatile's grievance was deemed unfounded.
Versatile alleges that Defendant Kelly violated VDOC regulations and burdened the exercise of his religious beliefs without justification by failingto attach a routing slip to his request for religious recognition and to forward his completed request to the FRC. Defendants dispute whether Kelly violated VDOC regulations and argue that her failure to act did not result in any harm.
In August 2009, the parties filed cross-motions for summary judgment. By Memorandum Opinion and Order dated December 31, 2009, the Court denied Versatile's motion for summary judgment in its entirety. The Court denied in part Defendants' motion for summary judgment. As to Claim One, the Court found that Defendants had failed to demonstrate the absence of any genuine issue of material fact as to whether NGE is a religion for purposes of RLUIPA and, by simply citing to security concerns, failed to adequately demonstrate they had chosen the least restrictive means to further a compelling interest. As to Claim Two, the Court denied summary judgment in favor of Defendants because of their failure to address the factual basis of the claim. The Court, however, granted in part Defendants' motion for summary judgment with respect to Versatile's claims for monetary damages and dismissed Versatile's request for monetary damages against Defendants. The Court then referred this matter to the undersigned Magistrate Judge for such further proceedings as necessary.
On February 4, 2010, the Court, noting the need to develop a record beyond the submissions before it, ordered an evidentiary hearing. On May 27, June 1, and June 2, 2010, the Court held an evidentiary hearing to resolve the parties' claims and defenses. The parties have submitted revised proposed findings of facts and conclusions of law. (Docket Nos. 95, 98.) Based on the testimony heard and exhibits submitted at the evidentiary hearing, the Court makes the following findings of fact and conclusions of law.4
The Court now resolves the remaining evidentiary issues that arose during the evidentiary hearing itself or via post-hearing briefing.
During the evidentiary hearing, Defendants offered Defendants' Exhibit 22, consisting of three enclosures relating to security classifications within VDOC, for in camera review and admission into evidence. (Tr. 7:1-5, 233:11-234:4.) The Court reserved ruling on the admissibility of Defendants' Exhibit 22. (Tr. 234:1-4.) Approximately a month and a half after the evidentiary hearing, Defendants submitted under seal two supplemental affidavits from VDOC officials to authenticate and supplement Defendants' Exhibit 22. (Defs.' Resp. to Court Order 1.) (Docket No. 96.) Versatile objects to the admission of these supplemental affidavits, contending that they are untimely and constitute inadmissible hearsay. (Pl.'s Objection to Supp'l Affs. of Gene Johnson & Gary Clore 3.) (Docket No. 100.) The Court finds that these supplemental affidavits constitute hearsay under Federal Rule of Evidence 802 and that no exception to the hearsay rule applies to allow their admission. Therefore, the Court excludes the supplemental affidavits as inadmissible hearsay. Defendants' Exhibit 22 has not been properly authenticated in the absence of these supplemental affidavits, and thus, the Court excludes Defendants' Exhibit 22.
Versatile has also raised numerous objections within his revised proposed findings of facts and conclusions of law. (Pl.'s Resp. to Mem. Order of June 10, 2010, at 41-44.) (Docket No. 98.) Three of these objections are general in nature, untimely, and lack specificity. For example, Versatile objects to all leading questions and subsequent answers, all hearsay statements made by Michael Duke, a witness called by VDOC, and to all mischaracterizations of NGE by Defendants. (Pl.'s Resp. to Mem. Order of June 10, 2010, at 41, 44.) A ruling on evidence should be made "at the time the evidence is offered." DiPaola v. Riddle, 581 F.2d 1111, 1113 (4th Cir. 1978). Failure to make a timely and specific objection serves as a waiver to complain against the admission of evidence. United States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983); Fed. R. Evid. 103(a)(1) (). The Court overrules these objections due to the untimeliness and the lack of specificity.
Versatile also objects to specific testimony from VDOC Official Gary Clore,5 and to five of Defendants' exhibits even though these exhibits have already been admitted into evidence. (Pl.'s Resp. to Mem. Order of June 10, 2010, at 42-44.) As to Clore's testimony and the majority of the contested exhibits, Versatile attempts to re-raise objections that the Court has alreadyoverruled.6 Other exhibits were admitted without any objection from Versatile, and Versatile now attempts to raise objections to their admission. The Court overrules these objections to the extent Versatile merely re-raises objections the Court has already considered. To the extent Versatile raises new objections, the Court overrules them as untimely and waived. See Parodi, 703 F.2d at 783; DiPaola, 581 F.2d at 1113 ().
RLUIPA provides considerably more protection for an inmate's religious exercise than does the Free Exercise Clause of the Constitution of the United States.7 See Lovelace v. Lee, All F.3d 174, 186 (4th Cir. 2006)...
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