Fraise v. Barbo

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit

3-15-2002

Fraise v. Barbo
Precedential or Non-Precedential:

Docket 0-5062

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PRECEDENTIAL

Filed March 13, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-5062

JAEL FRAISE,

Appellant

v.

JACK TERHUNE, Commissioner

(D.C. No. 98-cv-01917)

ALEXANDER KETTLES,

Appellant

v.

JAMES BARBO; HOWARD BEYER

(D.C. No. 98-cv-01918)

JOHN HARRIS,

Appellant

v.

JAMES BARBO; HOWARD BEYER

(D.C. No. 98-cv-02427)
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(Dist. Court Nos. 98-cv-01917/01918/02427)
District Court Judge: Katherine Hayden

Argued: March 12, 2001

Before: ALITO, RENDELL, Circuit Judges, and
SCHWARZER, District Court Judge1

(Opinion Filed: March 13, 2002)

GREGORY B. PASQUALE [argued]
Drinker Biddle & Shanley, LLP
500 Campus Drive
Florham Park, NJ 07932-1047

Counsel for Appellants

JOHN J. FARMER, JR.
Attorney General of New Jersey
PATRICK DeALMEIDA
Deputy Attorney General
JEFFREY K. GLADDEN [argued]
Deputy Attorney General
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Jael Fraise, Alexander Kettles, and John Harris filed
actions under 42 U.S.C. S 1983 challenging the
constitutionality as applied to them of a New Jersey prison
_________________________________________________________________

1. The Honorable William W Schwarzer, United States District Court for
the Northern District Court of California, sitting by designation.

2
policy that allows correctional officials to designate
"security threat groups" ("STGs) and transfer core members
of these groups to a special unit. Once in this unit, core
members must participate in a behavior modification
program before returning to the general prison population.
The plaintiffs asserted that these regulations violate
numerous constitutional provisions, including the Free
Exercise Clause of the First Amendment and the Equal
Protection and Due Process Clauses. The District Court
granted summary judgment in favor of the defendants, who
are New Jersey prison officials. We affirm.

I.

A.

Faced with increasing gang violence in correctional
facilities throughout the state, the New Jersey Department
of Corrections promulgated a policy in 1998 that was
designed to isolate and rehabilitate gang members. Under
this policy, prison officials can designate STGs and transfer
the "core" members of these groups to the"Security Threat
Group Management Unit" ("STGMU"). The goal of this policy
is to "limit Security Threat Group activities and, in doing
so, minimize the occurrence of assaults on staff and
inmates." App. 125.

The specifics of this policy were outlined in a Department
of Corrections document entitled "Policy Statement for the
Management of Security Threat Group Members" ("STG
Policy"). See App. at 125-52. Related regulations were also
issued.

The STG Policy defines an STG as:

A group of inmates, designated by the Commissioner,
who may gather together regularly and informally,
possessing common characteristics, interests and goals
which serve to distinguish the group or group members
from other inmate groups or other inmates and which,
as a discrete entity, poses a threat to the safety of staff,
other inmates, the community, and/or damages to, or
destruction of property, and/or interrupting the safe,

3
 secure and orderly operation of the correctional
facility(ies).

App. 126. STGs are officially designated by the
Commissioner based on recommendations from the
Intelligence Section of the Central Office Internal Affairs
Unit ("Intelligence Section") of the Department of
Corrections. See id. at 128.

The STG Policy lists several factors that the Intelligence
Section takes into account in considering whether a group
should be designated as an STG. See id. These include the
following characteristics of the group: (1) its history and
purpose; (2) its organizational structure; (3) the propensity
for violence of the group and its members; (4) actual or
planned acts of violence reasonably attributable to the
group; (5) other illegal or prohibited acts reasonably
attributable to the group; (6) the "[d]emographics of the
group," including its size, location, and pattern of
expansion or decline; and (7) the degree of threat that the
group poses. See App. 128. Designation of a group as an
STG has the effect of prohibiting inmates from engaging in
activities related to the group. Under prison regulations, it
is a serious infraction for an inmate to "participat[e] in an
activity related to a security threat group," N.J.A.C. 10A:4-
4.1(.010), or to "possess[ ] or exhibit[ ] anything related to a
security threat group." N.J.A.C. 10A:4-4.1(.011). It is also a
serious infraction for an inmate to attempt to do either of
the above. See N.J.A.C. 10A:4-4.1(.803).

The STG Policy lists criteria to be considered in
determining whether a particular inmate should be
classified as an STG member. These include: (1) an
inmate's acknowledgment of membership; (2) the presence
of an STG tattoo; (3) the possession of STG paraphernalia;
(4) information from an outside agency; (5) information
from an Internal Affairs report or investigation; (6)
correspondence from other inmates or outside contacts; (7)
STG photographs; and (8) any other factors that suggest
that the inmate is involved in STG activities2 or is an STG
_________________________________________________________________

2. The Policy Statement defines "Security Threat Group Activities" as:

activities or actions of an inmate which relate either directly or
indirectly to goals of a Security Threat Group. These activities

4
member. See App. 129. Any inmate who satisfies two of
these criteria may be designated as an STG member.

An inmate may be identified as a "core" member of an
STG if one or more of the following conditions is satisfied:

1. The inmate has a [Department of Corrections]
documented status as a recognized Security Threat
Group leader;

2. The inmate has taken a [Department of
Corrections] documented part/role in an activity,
behavior or involvement in an event/incident
associated with a Security Threat Group;

3. The inmate's [Department of Corrections]
documented activities, behavior or involvement in an
event/incident whether associated with a Security
Threat Group or not, poses a threat to the safety of
staff, other inmates, or the community; cause damages
to, or destruction of property; cause the interruption of
the safe, secure and orderly operation of the
correctional facilities;

4. The inmate has been identified as a Security Threat
Group Member and has been found guilty of a
prohibited act which is an asterisk offence [sic] in
accordance with N.J.A.C. 10A:4 "Inmate Disciple"
whether or not this offense was related to a Security
Threat Group's activities or not.3
_________________________________________________________________

include but are not limited to; Possession of Security Threat Group
literature such as lessons, membership lists, manuals and artwork;
Possession of Security Threat Group paraphernalia such as, beads,
artwork, medallions and clothing articles; Observation by staff of
known Security Threat Group hand-signs and/or signals;
Participation in Security Threat Group related assaults,
disturbances, meetings, gatherings, incidents and events; Sending
or receiving Security Threat Group related correspondence;
Recruiting of other inmates to join a Security Threat Group.

App. at 126.

3. The term "asterisk offense" designates a grade of inmate infraction. It
is defined as "a prohibited act preceded by a number and an asterisk
that is considered the most serious and results in the most severe
sanction(s)." N.J.A.C. 10A:1-2.2.

5
Id. at 130.

If an inmate is identified as a core member, the inmate is
transferred to the STGMU and placed in "Pre-Hearing
Security Threat Group Management Unit" status. App. 131.
At this point, the inmate is provided with written notice
that he or she is being considered for placement in the
STGMU and is given at least 48 hours' notice of the hearing
before the STGMU Hearing Committee. Id. At the hearing,
the inmate may appear in person or may present his or her
case through a representative or through written
submissions. Id. at 132. The STGMU Hearing Committee
may validate the assignment of the inmate to the STGMU if
the evidence supports a finding that the inmate is an STG
member, has taken an active role in STG activities, and
satisfies one of the four previously mentioned conditions.
Id. at 133. If the STGMU Hearing Committee assigns the
inmate to the STGMU, the inmate may appeal to the
administrator of the prison. Id. The administrator's decision
may then be challenged in state court.

An inmate assigned to the STGMU remains in maximum
custody until the inmate successfully completes a three-
phase behavior modification and education program. App.
135. This program "is designed to give the inmate the
insight and tools necessary to interact appropriately,
without the perceived need of membership in a Security
Threat Group." Id. The inmate is taught anger
management, conflict resolution, and social interactive
skills that feature alternatives to violence. Id . The
Committee monitors the inmate's progress and determines
whether the inmate should advance to the next phase and
eventually return to the general prison population. Id. In
order to complete the program and return to the general
prison population, an inmate must sign a form renouncing
affiliation with all STGs. See App. at 248, 302-04, 443.

B.

The Five Percent Nation originated in New York City in
the 1960s after its leader, Clarence Smith (also known as
Clarence 13X and Father Allah), broke away from the
Nation of Islam. The group's name derives from its belief in

6
"Supreme Mathematics," which breaks down the population
of the world into three groups: the Ten Percent, the Eighty-
Five Percent, and the Five Percent.

The Ten Percent are those who have subjugated most of
the world. They include white people and others who
propagate the myth of a nonexistent "mystery God."4 The
Ten Percent are described as follows in a Five Percent
Nation text:

[The 10% are] the rich, slave makers of the poor. Who
teach[ ] the poor lies to believe that the Almighty true
and living God is a spook and cannot be seen by the
physical eye, otherwise known as the blood suckers of
the poor.

App. 361.

The Eighty-Five Percent are those who are subjugated
and deceived. They "worship what they know not, .. . are
easily led in the wrong direction but [are] hard to lead in
the right direction." App. 361.

Finally, the Five Percent are African Americans who have
achieved self-knowledge. App. 361. They "know the black
man's true nature and that God is within man himself."
Appellants' Br. at 14. Male members of the group are
referred to as "Gods," female members are called "Earths,"
and the group often refers to itself as "The Nation of Gods
and Earths." See App. 458. A declaration of a member
explains:

. . . The Nation of Gods and Earths emphasizes the
individual, human freedom and choice.

. . . Our teachings include texts such as the Bible,
the Koran, "The 120 Degrees," "Supreme Mathematics,"
and "Supreme Alphabet".

. . . The Nation of Gods and Earths teaches that. . .
our status, as black men, is commensurate with that
of the Supreme being.
_________________________________________________________________

4. As stated in one of the group's "lessons": "There is no mystery God.
The SON OF MAN has searched for that mystery God for trillions of
years and was unable to find this so-called mystery God." App. 360.

7
 . . . We teach man to stop looking for a mystical God
to come and solve our problems but to take
responsibility to solve our own problems ourselves.

. . . We teach that worship of Allah is tantamount to
worship of oneself and that everyone has "God" within
him.

App. 458-59.

Despite the mysterious murder of Clarence 13X in June
of 1969, the Five Percent Nation flourished in certain prison
systems. According to a report prepared by Roland Holvey
of the New Jersey Department of Corrections Internal
Affairs Office ("the Holvey Report"), the Five Percent Nation
became such a strong presence in New York prisons that
Hispanic inmates were prompted to form their own gang,
known as the Latin Kings, to protect themselves from
attacks by Five Percenters. The Five Percent Nation became
active in New Jersey prisons in the early 1980s and has
since become the largest group in the state's prison system.
In addition to New York and New Jersey, the group is also
known to exist in Connecticut, Delaware, Georgia,
Maryland, Massachusetts, North Carolina, Pennsylvania,
South Carolina, Virginia, and the District of Columbia.

The Five Percent Nation claims that it does not promote
or advocate violence, but evidence links the group with
numerous incidents of prison violence. Indeed, according to
the Holvey report, many in the law enforcement community
consider the Five Percent Nation to be "one of the greatest
threats to the social fabric" of the prisons. See App. 336. In
support of this conclusion, the Holvey report cites a string
of incidents that occurred in New Jersey prisons between
August 1990 and July 1997. See App. at 341-43. In August
1990, a Five Percenter was a member of a small group of
inmates who repeatedly stabbed a prison officer and
severely beat other officers. See App. at 341. In May 1993,
an investigation revealed that a Five Percenter sent an
anonymous letter threatening the lives of prison staff at
East Jersey State Prison. See id. In December 1993, more
than 30 inmates at Northern State Prison participated in a
group demonstration in the gymnasium during afternoon
recess. See id. A subsequent investigation revealed that the

8
group was planning to assault prison staff because prison
officials refused to recognize the Five Percent Nation as a
religion. See id. Information was also received that the Five
Percenters were planning to "take a cop" in the afternoon.
See Sealed Appendix at 24. In March 1995, two Five
Percenters in the Southern State Correctional Facility were
involved in an altercation inside a housing unit. See id. at
342. In May 1996, approximately 50 to 60 inmates
belonging to the Five Percent Nation or a rival gang
conducted an unauthorized meeting during evening
recreation. See id. In August 1996, a melee broke out
between Five Percenters and another group in a state
prison. See id. Between 25 and 30 inmates were involved in
fights. See id. On a day in November 1996, 24 inmates in
a youth correctional facility who were affiliated with the
Five Percent Nation or rival Hispanic gangs were involved in
three separate incidents. See id. In February 1997, a Five
Percenter at Riverfront State Prison attacked and seriously
injured a correctional officer. See id. at 343. The officer
suffered a punctured lung after being stabbed with a
homemade knife. See id. After the attack, four other Five
Percenters barricaded themselves in the gymnasium, set
fires, and damaged prison property. See id. Also in
February 1997, a member of the Five Percent Nation was
involved in a fight with another inmate. See id. In March
1997, officers at Riverfront State Prison received
information that Five Percenters had contracted with
members of another gang to assault prison staff members.
See id. In July 1997, Five Percenters at Middlesex County
Jail participated in a hunger strike. See id. Officers were
required to use smoke and concussion grenades to enter
two barricaded housing units. See id.

Based largely on the recommendations of Investigator
Holvey and others in the Intelligence Section, the
Commissioner designated the Five Percent Nation as an
STG. The Commissioner also designated two Hispanic
gangs, the Latin Kings and the NETAs, and two white
gangs, the Prison Bikers Brotherhood and the Aryan
Brothers. App. 280. On March 4, 1998, several inmates,
including plaintiffs Alexander Kettles and John Harris, were
identified as core members of the Five Percent Nation and
transferred to the STGMU. See Appellants' Br. at 9. Kettles

9
acknowledges being a member of the Five Percent Nation,
see App. at 36 (Kettles's Affidavit), while Harris denies
membership. See App. 61 (Harris's Affidavit). Harris claims
to be a Rastafarian who "gain[s] personal and spiritual
fulfillment by examining and studying all religions,
including The Five Percent Nation." Id. He believes that
studying other religions enables him to "better understand
and accept others['] points of view." Id. He asserts that he
was falsely identified as a Five Percenter simply because he
received a letter from a friend who was a member and
because some of his Rastafarian literature contained a Five
Percent Nation symbol. He refused to sign a statement
disavowing association with STGs because he believes that
signing would amount to an admission that he belongs to
the Five Percent Nation. See id. at 62. The third plaintiff,
Jael Fraise, admits membership in the Five Percent Nation.
See Appellants' Brief at 9. He was validated as a core
member and transferred to the STGMU based on his
possession of Five Percenter material. See id.

Kettles, Harris, and Fraise filed separate lawsuits against
Department of Corrections officials under 42 U.S.C.S 1983,
asserting that their treatment under the STG Policy violated
their constitutional rights. They sought injunctive and
declaratory relief and damages.

C.

In an unpublished opinion, the District Court granted the
defendants' motion for summary judgment. The Court first
addressed the plaintiffs' claims that the enforcement of the
STG Policy had violated their rights under the Free Exercise
Clause. Although the defendants contended that the Five
Percent Nation is not a "religion" within the meaning of the
First Amendment, the Court did not resolve this issue but
rather assumed for the sake of argument that the Five
Percent Nation is a "religion." The Court then applied the
standard set out by the Supreme Court in Turner v. Safley,
482 U.S. 78 (1987), for assessing prison regulations that
restrict inmates' constitutional rights. Under Turner, a
regulation passes muster if it is reasonably related to
legitimate penological interests. See 482 U.S. at 89. Turner
instructs courts to weigh four factors when applying this

10
standard: first, whether the regulation bears a"valid,
rational connection" to a legitimate and neutral
governmental objective; second, whether prisoners have
alternative ways of exercising the circumscribed right;
third, whether accommodating the right would have a
deleterious impact on other inmates, guards, and the
allocation of prison resources generally; and fourth,
whether alternatives exist that "fully accommodate[ ] the
prisoner's rights at de minimis cost to valid penological
interests." Id. at 91.

With respect to the first factor, the District Court noted
that the designation of the Five Percent Nation as an STG
was based on concern about security. The Court recognized
this as a valid penological concern that is unrelated to the
suppression of expression and is consequently neutral for
purposes of the Turner analysis. See Dist. Ct. Op. at 14; see
also id. After finding "ample evidence that the Five Percent
Nation as a group poses a threat to prison security," the
Court concluded that the decision to designate the Five
Percent Nation as an STG was rationally related to this
legitimate and neutral government objective. Id. at 14-15.
The Court also held that the STG Policy's restrictions on
the activities of STG members were all rationally related to
the goal of prison safety and security. See id. at 15-19. The
Court thus concluded that the first Turner factor weighed in
favor of the STG Policy.

In analyzing the second factor -- the availability of
alternative ways of exercising the circumscribed right -- the
District Court stated that "[t]here must simply be some
form of expression available to the inmates . . . and here
that requirement is met." Dist. Ct. Op. at 20 (citing O'Lone
v. Estate of Shabazz, 482 U.S. 342, 352 (1987)). The Court
noted that the STG Policy does not impose a total ban on
association and expression by STG members and that such
inmates continue to have opportunities to participate in
religious programs, to fast and pray, to possess certain
religious items, and to express their political, social, and
cultural views in other ways. See id. at 21.

Turning to the third factor -- the impact that
accommodating the asserted constitutional right would
have on other inmates, guards, and the allocation of prison

11
resources generally -- the District Court believed that
"[a]ccomodating plaintiffs' desire to associate and engage in
STG activities . . . undoubtedly would adversely impact the
inmate population and prison staff at all correctional
facilities by exposing them to a greater risk of assault and
disturbance." Id. at 22. The Court thus held that the STG
Policy satisfied Turner's third factor.

Finally, the District Court held that the Policy was also
supported by the fourth factor -- the absence of
alternatives that would fully accommodate the prisoner's
rights at de minimis cost to valid penological interests. The
Court opined that "[r]equiring an accommodation, like
mandating further STG activity on the part of inmates prior
to classification, or further demonstration of [a particular
inmate's] dangerousness before placement at the STGMU,
[would] expose[ ] the general inmate population and the
correctional facility staff to an increased risk of violence."
Dist Ct. Op. at 23. The Court did not feel that an
individualized determination of the threat presented by
each inmate identified as an STG member was a viable
alternative because, among other things, it would place an
undue burden on prison staff. See id. at 24. Accordingly,
the Court held that all four of Turner's prongs weighed in
favor of the STG Policy, that the Policy was reasonably
related to legitimate penological interests, and that it did
not violate the plaintiffs' free exercise rights.

The District Court also rejected the plaintiffs' claim that
the defendants had violated their equal protection rights by
singling out their religion for unfavorable treatment. The
Court noted that "[t]here is nothing in the Constitution
which requires prison officials to treat all inmate groups
alike where differentiation is necessary to avoid an
imminent threat of institutional disruption or violence."
Dist. Ct. Op. at 24-25 (quoting Jones v. North Carolina
Prisoners' Union, 433 U.S. 119, 136 (1977)). Finally, the
District Court rejected the plaintiffs' argument that the
Department of Corrections violated due process by failing to
give adequate notice before promulgating and acting
pursuant to the STG Policy. The Court held that the
plaintiffs had not shown that placement in the STGMU
deprived them of a protected liberty interest. The plaintiffs
then took this appeal.

12
II

We first address the plaintiffs' claim that the STG Policy
violates their First Amendment right to the free exercise of
their religion. All parties urge us to resolve this issue by
applying the standards set out in Turner, and we take that
approach.5

In Turner, the Supreme Court began by noting that
"[p]rison walls do not form a barrier separating prison
inmates from the protections of the Constitution." 482 U.S.
at 84. The Court recognized, however, that inmates'
constitutional rights must in some respects be limited in
_________________________________________________________________

5. It is not clear that Turner factors should be considered before
determining whether a contested prison regulation would violate the
constitutional right that the inmate invokes if the regulation were
applied to persons not in prison. After all, incarceration almost always
results in a narrowing, not a broadening, of constitutional protections.

Turner discussed five prior Supreme Court cases involving inmate
constitutional claims, and in all of those cases the challenged prison
regulation would have been plainly unconstitutional outside the prison
context. See Procunier v. Martinez, 416 U.S. 396 (1974)(restrictions on
the contents of incoming and outgoing prisoner mail); Pell v. Procunier,
417 U.S. 817 (1974)(restrictions on face-to-face media interviews with
individual inmates); Jones v. North Carolina Prisoners' Union, Inc., 433
U.S. 119 (1977)(regulations prohibiting meetings, solicitations, and bulk
mailings related to prison union); Bell v. Wolfish, 441 U.S. 520
(1979)(restrictions on inmates' receipt of hardcover books not mailed
directly from publishers, book clubs, or book stores); Block v.
Rutherford,
468 U.S. 576 (1984)(ban on contact visits). The same is true of Turner
itself, which concerned restrictions on the right of inmates to correspond
with other prisoners and to marry, as well as O'Lone v. Shabazz, supra,
which involved restrictions on attendance at religious services.

The defendants have not argued, however, that we should first
determine whether the regulations at issue here would violate the Free
Exercise Clause if applied outside the prison context. See Church of
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993);
Employment Div. Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872
(1990). We therefore do not reach this issue.

We also note that the plaintiffs have not raised any argument under
the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. S 2000cc-1, which may address some of the concerns expressed
by the dissent, and we therefore do not discuss that statute.

13
order to accommodate the demands of prison
administration and to serve valid penological objectives. See
id. The Court also emphasized that the judiciary is "ill
equipped to deal with the increasingly urgent problems of
prison administration and reform" and should therefore
give significant deference to judgments made by prison
officials in establishing, interpreting, and applying prison
regulations. See id. at 84-85. Accordingly, the Court held,
prison regulations that curtail an inmate's constitutional
rights need only be reasonably related to legitimate
penological objectives. See Turner, 482 U.S. at 89. See also,
e.g., Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999);
Abu-Jamal v. Price, 154 F.3d 128, 132 (3d Cir. 1998);
Cooper v. Tard, 855 F.2d 125, 128 (3d Cir. 1988). As noted,
under the Turner framework, four factors must be
considered in assessing the reasonableness of such
regulations. Id. at 90-91. We will discuss each of these
factors separately.

A.

We agree with the District Court that the STG Policy is
supported by Turner's first prong. A prison regulation fails
this prong if it "promotes an interest that is illegitimate or
not neutral, or . . . bears no `valid, rational connection' to
the asserted interest." Waterman, 183 F.3d at 214 (quoting
Turner, 482 U.S. at 89-90). Here, contrary to the suggestion
of the dissent that the New Jersey scheme "targets
members of one religion," Dissent at 27, the STG Policy is
entirely neutral and does not in any way take religion into
account. It is also beyond dispute that New Jersey has a
legitimate penological interest in maintaining order and
security within the prison system. See O'Lone , 482 U.S. at
350-51; Turner, 482 U.S. at 91-92. Recognizing this, the
plaintiffs challenge the STG Policy by arguing that the
Holvey Report does not provide a sufficient basis for
concluding that prison violence can be attributed to the
Five Percent Nation. See Appellants' Br. at 21-22. The
plaintiffs maintain that there has been "no showing . . .
that a greater proportion of Five Percenters are more violent
than a group of Christians, Muslims, Jews or atheists" and
that the Holvey Report found only that some Five

14
Percenters are violent. Id. at 24. Contending that the
decision to classify the Five Percenters as an STG was
based on a report full of "unfounded speculations," the
plaintiffs argue that the STG Policy and the restrictions
imposed on them are not rationally related to the legitimate
objective of maintaining prison order and security. We
disagree.

As discussed above, the Holvey Report recounts
numerous instances of actual or planned violence involving
Five Percenters in New Jersey correctional facilities from
August 1990 through July 1997. See App. 341-43.
Although the plaintiffs and the dissent contend that these
incidents are insufficient to justify STG treatment, Turner
instructs judges to exercise great caution before second-
guessing the expert judgment of correctional officials on a
question of this nature. See Turner, 482 U.S. at 84-85;
DeHart v. Horn, 227 F.3d 47, 52 (3d Cir. 2000). The Turner
Court wrote:

"[C]ourts are ill equipped to deal with the increasingly
urgent problems of prison administration and reform.' "
[Martinez v. Procunier, 416 U.S. 396, 405 (1974).] As
the Martinez Court acknowledged, "the problems of
prisons in America are complex and intractable. . . .
Id., at 404-405. Running a prison is an inordinately
difficult undertaking that requires expertise, planning,
and the commitment of resources, all of which are
peculiarly within the province of the legislative and
executive branches of government. Prison
administration is, moreover, a task that has been
committed to the responsibility of those branches, and
separation of powers concerns counsel a policy of
judicial restraint. Where a state penal system is
involved, federal courts have, as we indicated in
Martinez, additional reason to accord deference to the
appropriate prison authorities. See id., at 405.

To these observations, we would add that a measure of
deference is especially appropriate when a regulation
implicates prison security.

Viewing the summary judgment record in the manner
dictated by Turner, we are satisfied that the defendants had

15
adequate grounds for concluding that inmates belonging to
the Five Percent Nation present a serious security threat.

We note that other courts have reached the same
conclusion. The Fourth Circuit has observed, the Five
Percent Nation has a "history of violence" in the South
Carolina prison system. See In re Long Term Admin.
Segregation of Inmates Designated as Five Percenters , 174
F.3d 464, 466-69 (4th Cir. 1999) (hereinafter " Five
Percenters")(describing violent incidents involving members
of the group and referring to a federal intelligence summary
that called the Five Percenters a "radical Islamic
sect/criminal group" that "is often boldly racist in its views,
prolific in its criminal activities, and operates behind a
facade of cultural and religious rhetoric"). The United
States District Court for the Western District of New York
reached a similar conclusion concerning the New York
system. See Self-Allah v. Annucci, No. 97-CV-607(H), 1999
WL 299310, at *9 (W.D.N.Y. Mar. 25, 1999)(referring to the
"substantial history of violence associated with Five
Percenter activities" and finding that the Department of
Corrections "reasonably concluded that Five Percenters
represent a STG within the [New York] prison system").
That court wrote:

[T]he Five Percenters act as an organized group within
the prison system to receive new members, intimidate
members of rival groups, and participate in criminal
activity, including extortion, robbery, assaults and
drug trafficking. Seemingly innocuous literature is
used to send messages in code form. Five Percenter
literature also assists in keeping the gang organized, in
allowing members of the group to be identified, and in
legitimizing the group and its violent activities.

Id. Several other courts -- including a state court in New
Jersey -- have also referred to the close connection between
the Five Percent Nation and violence or gang-related
activity. See Allah v. Beyer, 1994 WL 549614, at *3 (D.N.J.
Mar. 29, 1994); Box v. Petsock, 697 F. Supp. 821, 831
(M.D. Pa. 1987); Allah v. Department of Corr. , 742 A.2d 162,
165 (N.J. Super. Ct. App. Div. 1999); Buford v. Goord, 686
N.Y.S.2d 121, 122 (N.Y. App. Div. 1999) (referring to the
Five Percent Nation as "an unauthorized organization that

16
engages in gang-related activity both inside and outside of
the facility"). We agree with these courts and therefore hold
that there is a rational connection between New Jersey's
STG regulations and the legitimate and neutral objective of
maintaining order and security within the prison system.6

The dissent disagrees with our evaluation of the first
Turner factor primarily because the dissent is unwilling to
accord any significant deference to the judgment of the
responsible New Jersey officials that the Five Percent
Nation presents a security threat within the state's
correctional system. The dissent disparages the Holvey
report because Holvey's "credentials consist largely of on-
the-job training." Dissent at 32. The dissent characterizes
the incidents of actual or planned violence recounted in the
report as merely "anecdotal" evidence and then diminishes
the significance of particular incidents on a variety of
grounds. Dissent at 32-33 n.9. For example, the dissent
describes as merely a "gathering" an incident in which
members of the Five Percent Nation congregated in a gym
to protest their treatment by the authorities, and
correctional officials received information that the Five
Percenters were planning to "take a cop." Id. Incidents in
which Five Percenters attacked and seriously wounded
correctional staff are dismissed as simply "involving a single
FPN member." Id. What the dissent seems to demand is
_________________________________________________________________

6. In fact, there is evidence in the record that the STG policy has been
effective in reducing violence in prisons. As Investigator Holvey
testified
during his deposition: "I can also say that since the opening of the
Security Threat Group Management Unit on March 4th of 1998, there
have been no serious incidents, gang-related incidents, within the whole
Department of Corrections. There's no question that it's a direct result
of
the initiative of the Security Threat Group Management Unit." App. at
259. According to Holvey, prior to the STG Policy,"[e]very day there
would be some kind of gang-related incidents related to one of these five
gangs [that had been designated as Security Threat Groups]." Id. Howard
Beyer, the Assistant Commissioner of the New Jersey Department of
Corrections, also submitted an affidavit indicating that the program has
been successful. See App. at 84 ("The use of close custody units has
proven successful in the maintenance of discipline, security, safety, and
an orderly operation of correctional facilities in the New Jersey
Department of Corrections and will continue to assist the administrators
and management in the inmate population.").

17
either (a) proof that the tenets of the Five Percent Nation
require members to engage in violence7 or (b) hard
statistical proof that members of the Five Percent Nation
commit proportionally more acts of violence in New Jersey
prisons than do members of other religions.8 Demanding
proof of this stature before correctional officials can act to
prevent gang violence is fundamentally inconsistent with
Turner and would in all likelihood be paralyzing.

B.

1. We now consider the District Court's analysis of the
second Turner factor. As noted, this factor requires a court
to assess whether inmates retain alternative means of
exercising the circumscribed right. See Turner , 482 U.S. at
90; DeHart, 227 F.3d at 51. When assessing the availability
of alternatives, the right in question must be viewed
"sensibly and expansively." DeHart, 227 F.3d at 53 (quoting
Thornburgh v. Abbott, 490 U.S. 401, 417 (1989)). Therefore,
in a free exercise case, we must consider whether the
inmate has "alternative means of practicing his or her
religion generally, not whether [the] inmate has alternative
means of engaging in [any] particular practice." Id. at 55.
We will first discuss the restrictions that the New Jersey
Policy imposed on the plaintiffs simply because they were
designated as members of the Five Percent Nation; we will
then consider the additional restriction imposed as a result
of their validation as core members.

2. Ordinary members. In applying the second Turner
factor in a free exercise case, we must of course focus on
the beliefs of the inmate asserting the claim. It is obviously
impossible to determine whether a regulation leaves an
inmate with alternative ways of practicing the inmate's
religion without identifying the religion's practices. The
plaintiffs bore the burden of producing evidence of their
beliefs and practices. In order to do this, they submitted
_________________________________________________________________

7. See Dissent at 31 (demanding proof that "membership in the Five
Percent Nation carried with it a set of beliefs that each member acts
upon to promote violence and disorder" or proof that "membership
equates to an active commitment to violence").

8. See Dissent at 32-33.

18
the declaration of G. Kalim, a member of the Five Percent
Nation and the editor of a newspaper called The Five
Percenter. See App. 457-60. Mr. Kalim's declaration
explains the basic beliefs and practices of the Five Percent
Nation, and we have therefore closely examined Mr. Kalim's
declaration to determine the degree to which the challenged
STG Policy restricts the plaintiffs' religious practices.

Mr. Kalim's declaration describes the Five Percent Nation
(or The Nation of Gods and Earths, as he calls it) as a
loosely structured group -- in his words, "a group of people
who share a common way of life." App. 459. His declaration
does not state that members of the group are required,
expected, or counseled to participate in or attend any rites
or gatherings or to perform any acts of religious
observance. Indeed, his declaration states that"[t]o become
a member . . . , all one need do is study the lessons and
aspire to live a righteous life." Id. at 459. His declaration
makes it clear that the group rejects belief in the
transcendent and instead focuses on human enlightenment
and conduct as ends in themselves. According to Mr.
Kalim, the Five Percent Nation "teach[es] man to stop
looking for a mystical God" and "emphasizes the individual,
human freedom and choice." Id. at 458. He states that the
group teaches people to attain "knowledge and
enlightenment," to have "respect for society," and to eschew
violence and disavow "white hatred." Id . He adds that the
group attempts "to train young individuals to better
themselves in the community" and that the group's
"principal purpose is to teach our young self worth,
responsibility, and self love." Id. The group appears to
believe that these goals can be achieved by understanding
the group's view of world history, see id., but it seems clear
that an understanding of this is viewed as a means to
enlightenment and right behavior, not an end.

Based on Mr. Kalim's declaration, it appears that one
central practice of the Five Percent Nation is restricted by
the STG Policy provisions applicable to ordinary members,
namely, the ability to "study the lessons." App. 459. As
noted, the Policy prohibits inmates from "participating in
any activity(ies) related to a security threat group" or
possessing the group's literature. See N.J.A.C. 10A:4-

19
4.1(.010), (.011). However, even the study of the Five
Percent Nation's teachings is not completely prohibited. Mr.
Kalim's declaration states that the group's "teachings
include texts such as the Bible [and] the Koran."9 App. 458.
While the STG Policy forbids possession of distinctively Five
Percent Nation literature, it is undisputed that the Policy
allows inmates to possess, study, and discuss the Bible and
the Koran. Accordingly, study of the Five Percent Nation's
teachings is only partially restricted.

The STG Policy appears to leave ample room for all of the
remaining activities mentioned in Mr. Kalim's declaration.
Certainly nothing in the STG Policy restricts Five Percent
Nation members from discussing or seeking to achieve self-
knowledge, self-respect, responsible conduct, or righteous
living. To be sure, the STG Policy restricts the ability of Five
Percenters to achieve these things by following what the
group may regard as the best avenue, i.e., by studying and
discussing doctrines and materials distinctive to the Five
Percent Nation. But alternative avenues clearly remain
open.

In sum, our examination of the second Turner factor in
relation to the plaintiffs' explanation of their beliefs leads us
to the conclusion that, while the New Jersey STG policy
undoubtedly imposes restrictions on the ability of rank-
and-file Five Percenters to engage in activities related to the
group, the Policy does not foreclose all alternative avenues
of practice.

3. Core members. Application of the second Turner
factor to "core" members presents an additional difficulty
because the Policy requires core members assigned to the
STGMU to renounce "affiliation" with their STG as a
condition of returning to the general inmate population. See
App. at 248, 302-04, 443. If the STG Policy demanded that
core members of the Five Percent Nation renounce the
beliefs of the group, we could not say that the second
Turner factor is satisfied. We do not, however, interpret the
STG Policy as demanding a renunciation of beliefs. (The
Policy does not, for example, require a core member to deny
_________________________________________________________________

9. As the plaintiffs put it in their brief, members of the group "study
the
writings from the various recognized religions." Appellants' Br. at 14.

20
the truth of the "Supreme Mathematics.") What it requires
instead is a promise not to associate with certain other
prisoners while in prison.

The form that a core member must sign requires the core
member to renounce "affiliation with all Security Threat
Groups," App. 443, and a security threat group is defined
by the Policy as "[a] group of inmates . . . who may gather
together regularly and informally . . . ." Id . at 126. Thus,
what is required is a renunciation of affiliation with a
particular group of inmates (those who belong to an STG),
not a renunciation of beliefs. In simpler terms, the Policy
requires the end of any form of gang membership or
participation. In view of this interpretation of the STG
Policy, we conclude that even core members of the Five
Percent Nation retain alternative avenues of practicing their
religion, namely, those previously discussed in connection
with ordinary members.

C.

We agree with the District Court's analysis of Turner's
third prong. "When accommodation of an asserted right will
have a significant `ripple effect' on fellow inmates or on
prison staff, courts should be particularly deferential to the
informed discretion of corrections officials." Turner, 482
U.S. at 90. The record, as noted, contains evidence that
Five Percenters pose a security threat to prison officials and
other inmates. Dist. Ct. Op. at 22. As the Fourth Circuit
has stated:

Prison administration often involves tough tradeoffs. In
the closed environment of a prison, greater liberties for
some may mean increased danger and intimidation for
others. Because increased freedom for the Five
Percenters would come "only at the cost of significantly
less liberty and safety for everyone else, guards and
other prisoners alike," we are particularly reluctant to
interfere with the judgment of the [prison officials] in
this case.

Five Percenters, 174 F.3d at 470 (quoting Turner, 482 U.S.
at 92-93). Particularly in light of the highly deferential

21
standard of review that applies here, we agree with the
Fourth Circuit and conclude that this factor is satisfied.

D.

We also agree that Turner's fourth factor weighs in favor
of the Policy. Turner does not impose a least-restrictive-
alternative test. See Waterman, 183 F.3d at 219. Rather,
our inquiry is whether there are alternatives that would
impose only "de minimis cost to valid penological interests."
Turner, 482 U.S. at 91.

In this case, the District Court considered alternatives to
the New Jersey system, such as toughening the showing
needed for STG designation, but concluded that these
would expose "the general inmate population and the
correctional facility staff to an increased risk of violence."
Dist. Ct. Op. at 23. The plaintiffs argue that the District
Court misunderstood their argument. See Appellants' Br. at
32. They contend that the Department of Corrections
should not have designated "an entire belief system," i.e.,
the Five Percent Nation, as an STG but instead should have
designated only "specific hierarchical `gangs' with members
who are Five Percenters." We disagree. We reiterate that our
inquiry is not whether the state could have adopted a less
restrictive alternative but rather whether it could have
adopted an alternative that imposed only "de minimis cost
to legitimate penological interests." Turner , 482 U.S. at 91.
As we have explained, the state had adequate grounds for
concluding that the Five Percent Nation presented a threat
to prison order and security. The alternatives to which the
plaintiffs point would have done less to mitigate this threat
and thus would have had a more than de minimis impact
on the state's legitimate penological concerns. Therefore, we
agree with the District Court that the final Turner factor
supports the Policy.

E.

We have concluded that three of the four Turner factors
weigh strongly in favor of the STG Policy. These factors are
the existence of a "valid, rational connection" to a legitimate
and neutral governmental objective, the effect that

22
accommodating the plaintffs would have on other inmates,
guards, and the allocation of prison resources generally,
and the availability of alternative regulatory approaches
that would "fully accommodate[ ] the prisoner's rights at de
minimis cost to valid penological interests." The remaining
factor -- the availability of alternative means of exercising
the circumscribed right -- presents a closer question, but
we hold that it too is met. Accordingly, we affirm the
decision of the District Court that the challenged STG
Policy does not violate the plaintiffs' free exercise rights.
Accord In re Long Term Admin. Segregation of Inmates
Designated as Five Percenters, 174 F.3d 464 (4th Cir.
1999)(upholding similar South Carolina policy).

III.

We now consider the plaintiffs' argument that the
defendants violated their equal protection rights by treating
them less favorably than members of other religious
groups. See Appellants' Br. at 40. In making this argument,
the plaintiffs point to the Sunni Muslims, and claim that
this group, although similar to the Five Percent Nation, has
been treated less harshly. According to the plaintiffs, the
Sunni Muslims have several of the characteristics of an
STG, such as a common history and purpose, an
organizational structure, recognized leaders, customary
salutations, and a considerable size. They also note that
Holvey admitted during his deposition that some Sunni
Muslims had shown "a propensity for violence . . . [o]n
occasion" and that some illegal or prohibited acts "could be
associated with Sunni Muslims." See Appellants' Br. at 35-
36. They also rely on Holvey's statement that the"big"
difference between the Sunni Muslims and the Five Percent
Nation is that the Sunnis practice a religion and the Five
Percenters do not. See id. at 37.

In DeHart, our court, sitting en banc, held that when an
inmate asserts an equal protection claim based on the
allegedly disparate treatment of different religious groups,
the governing standard is whether the disparate treatment
is " `reasonably related to legitimate penological interests.' "
227 F.3d at 61 (citation omitted). That standard is met
here. While relying on one portion of Holvey's deposition,

23
the plaintiffs do not mention another part of the deposition
in which Holvey stated that the Sunni Muslims have a
much lower propensity for violence than the Five
Percenters. See App. 214. Moreover, while Holvey cited
religion as a major difference between the two groups,
Holvey did not state that religion played any role in the
decision whether to designate either group as an STG. We
note that the STG Policy makes no reference to religion,
and we are not aware of any other evidence in the record
that suggests that religion plays any role in STG
designation decisions. In view of greater propensity for
violence demonstrated by members of the Five Percent
Nation, we hold that the group's designation as an STG
does not violate equal protection.

IV.

The plaintiffs' final argument is that the Department of
Corrections violated their due process rights by failing to
provide any notice of the new regulations until the day of
the plaintiffs' transfer to the STGMU. The plaintiffs contend
that this deprived them of any opportunity to modify their
behavior to comply with the new regulations. See Reply
Brief at 16-17. The District Court rejected this argument,
concluding that the plaintiffs were not deprived of a
protected liberty interest. See Dist. Ct. Op. at 26-28. We
agree.

To succeed on their due process claim, the plaintiffs
must first demonstrate that they were deprived of a liberty
interest when they were transferred to the STGMU.
"Protected liberty . . . interests generally arise either from
the Due Process Clause or from state-created statutory
entitlement." Shoats v. Horn, 213 F.3d 140, 143 (3d Cir.
2000); see also Asquith v. Dep't of Corrections , 186 F.3d
407, 409 (3d Cir. 1999). The Supreme Court has recognized
that "[a]s long as the conditions or degree of confinement to
which the prisoner is subjected is within the sentence
imposed upon him and is not otherwise violative of the
Constitution, the Due Process Clause does not in itself
subject an inmate's treatment by prison authorities to
judicial oversight." Asquith, 186 F.3d at 410 (quoting Hewitt
v. Helms, 459 U.S. 460, 468 (1983)). Here, the plaintiffs

24
were not subjected to confinement that exceeded the
sentences imposed upon them or that otherwise violated
the Constitution, and therefore no liberty interest created
by the Due Process Clause itself was impinged. See Hewitt,
459 U.S. at 468 ("It is plain that the transfer of an inmate
to less amenable and more restrictive quarters for
nonpunitive reasons is well within the terms of confinement
ordinarily contemplated by a prison sentence.").

The defendants are also unable to demonstrate that they
were deprived of a state-created liberty interest. In Sandin
v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court set
out the standard for determining whether a prisoner has
been deprived of a state-created liberty interest. These
interests are "generally limited to freedom from restraint
which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due
Process Clause of its own force, . . . nonetheless imposes
atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life." Id.; see also Shoats,
213 F.3d at 143; Asquith, 186 F.3d at 412. In ascertaining
whether something is an "atypical and significant"
hardship, we must consider "what a sentenced inmate may
reasonably expect to encounter as a result of his or her
conviction in accordance with due process of law." Asquith,
186 F.3d at 412 (quoting Griffin v. Vaughn, 112 F.3d 703,
706 & n.2 (3d Cir. 1997). Consequently, the focus of this
inquiry should not be on the language of a particular
regulation, but rather on the nature of the deprivation. See
Sandin, 515 U.S. at 481-82. Although inmates who are
transferred to the STGMU face additional restrictions, we
hold that the transfer to the STGMU does not impose an
atypical and significant hardship in relation to the ordinary
incidents of prison life. See Griffin, 112 F.3d at 706-08 (15
months in administrative segregation not atypical and
significant hardship); see also, e.g., Jones v. Baker, 155
F.3d 810, 813 (6th Cir. 1998)(confinement in administrative
segregation for two and one-half years is not "atypical and
significant" hardship); Pichardo v. Kinker , 73 F.3d 612, 613
(5th Cir. 1996)(rejecting as frivolous a claim that
classification as gang member and placement in
administrative segregation unit deprived inmate of a
protected liberty interest). Thus, the plaintiffs lack a

25
protected liberty interest and their due process claim must
fail. In addition, even if the plaintiffs had been deprived of
a protected liberty interest, the procedures used in
determining whether an inmate is a core STG member
satisfy procedural due process. See Shoats, 213 F.3d at
144-47. As noted, an inmate who is identified as a core
STG member receives notice and a hearing at which the
inmate may be heard. The inmate may appeal an adverse
decision to the administrator of the prison and may obtain
judicial review in state court. These procedures satisfy due
process. Id. As for the plaintiffs' complaint that they were
identified as core members based on conduct that occurred
before the STG Policy was promulgated, we held in Shoats
that due process is not violated by placing an inmate in
administrative custody based on past conduct that
furnishes a basis for predicting that the inmate will engage
in future acts of violence if corrective measures are not
taken. Id. at 146-47.

V.

For the reasons explained above, we affirm the decision
of the District Court.

26
RENDELL, Circuit Judge, dissenting:

I disagree with the reasoning of, and result reached by,
both the District Court and the majority. I think we are
faced here with an issue of much greater import, both
practically and analytically, than mere permissible prison
regulation. While some measure of deference is certainly to
be afforded to prison authorities, nonetheless we must
make certain that we do not convert the Turner v. Safley
test into a rubber stamp. Here, the policy at issue has been
applied so as to target a religious group for different
treatment, including a blanket denial of First Amendment
rights.1 We must deal with this wholesale treatment of
members of a religious group in a careful manner.

Appellants urge us to address the following question:
When the prison adopts a policy and then targets members
of one religion and imposes significant burdens on-- even
perhaps totally impedes -- their religious exercise, based
solely on the prisoners' religious affiliation, does not the
first prong of the Turner v. Safley test require that the
violence of the group and the members subjected to this
treatment be clearly proven in order for such group
treatment to be "reasonably related" to the legitimate goal?2
_________________________________________________________________

1. While providing a detailed description of the procedures provided by
the STG policy, the majority does not reference the extensive restrictions
imposed on Appellants. According to the STG policy, restrictions on
inmates in Phase 1 of the program include: strip-searches each time they
leave or return to their cells; a total of five hours per week out of
their
cells; a shower or shave only every third day; only a single, non-contact
visit each month; only one monitored phone call per week; prohibition on
correspondence with any other inmate, including incarcerated family
members; all meals eaten in cells; and, no access to regular prison
programs. App. at A138-42, 148. Further, the Policy instructs that
"[t]here is a `Zero Tolerance' level for Security Threat Group activity
within the Department's correctional facility(ies)." App. at A152.
Examples of such activities include: "Possession of Security Threat
Group literature such as lessons, membership lists, and artwork;
Possession of Security Threat Group paraphernalia such as beads,
artwork, medallions, and clothing articles; . . . Participation in
Security
Threat Group related . . . meetings, gatherings, . .. and events . . . ."
App. at A152.

2. One could quibble with whether the restrictions are on all members,
because the close custody only applies to those determined to be "core

27
Two key facts are present here that, I submit, warrant
that we proceed with extra caution. First, the policy is being
applied based on membership in a group, specifically, in a
religious group; the individual conduct that results in the
purported basis for the imposition of the restriction is not
violent or threatening activity, but, rather, is religious
observance essentially protected by the First Amendment.
Second, the cognitive "leap" from the fact of membership in
a religion to the validity of a concern about security is not
an automatic one, not "common sense," and we must
require a showing of the proper fit between membership in
the religious group and valid security concerns.

The confluence of these two factors should cause us to
pause and consider the appropriate test, and the applicable
evidentiary burden. We have noted that the first prong of
Turner is subject to the test of a "means-end fit," which we
have described as follows:

We may conclude that the statute bears no "valid,
rational connection" to rehabilitation if "the logical
connection between the [statute] and the asserted goal
is so remote as to render the policy arbitrary or
irrational."

Waterman v. Farmer, 183 F.3d 208, 215 (3d Cir. 1999)
(citing Turner v. Safley, 482 U.S. 78, 89-90 (1987). We went
on to explain: "This standard is similar to rational-basis
review, under which a statutory classification can be
declared unconstitutional only where the relationship of the
classification to its asserted goal is `so attenuated as to
_________________________________________________________________

members." However, given that mere possession of materials about FPN
(the sole basis for Fraise's designation) raises an individual to "core
member" status and the fact that these individuals will only be released
from close custody upon repudiation of the religion, together with the
weak case against Appellants, points to the conclusion that all FPN
believers who either read or express in any fashion the teachings of the
Five Percent Nation, are clearly at risk and subject to restrictive
custody.
Interestingly, it has been noted that Five Percenters read and learn,
rather than pray, as their religious observance, and this goes to the
essence of what is being denied here. See Self-Allah v. Annucci, No. 97-
CV-607(H), 1999 WL 299310, * 2 (W.D.N.Y. 1999) ("Five Percenters are
obligated to study and learn the lessons of the Five Percent Nation of
Islam.").

28
render the distinction arbitrary or irrational.' The
legislature's judgment therefore need not be perfect, just
rational." Id. (citations omitted).

But what about the situation where the prison regulation
targets a specific religious group -- where it does not
merely burden the exercise of religion, but, rather,
effectively singles out members of a certain religious group
for different treatment and denial of free exercise rights?3 I
suggest that in such a situation we should require an even
"closer fit" between the religious group's classification and
the state's proffered security interests.

This unique aspect of this case has not been fully
explored by the parties, but it is nonetheless troubling.
Does it make any difference that the group targeted is a
religion and that "core" membership is the determining
factor for imposition of restrictions? Is this not more
insidious than a ban on certain conduct or specific activity
that happens to have an impact on one's religious beliefs or
exercise? Laws targeting religious beliefs are clearly suspect;4
and, the right to religious freedom is not to be surrendered
at the prison door. See O'Lone v. Shabazz, 482 U.S. 342,
348 (1987).

When applying the Turner test in a case placing harsh
restrictions upon inmates with certain religious beliefs, I
proffer that we should indeed require a "tight" or "closer" fit
between the correctional system's admittedly legitimate
_________________________________________________________________

3. In order to be released from the STGMU, inmates must sign a "Letter
of Intention" expressing their intention "to renounce formally and in
spirit affiliation with all Security Threat Groups." App. at A443.

4. See Church of Lukumi Babalu Aye Inc. v. Hialeah, 508 U.S. 520, 533
(1993) ("[A] law targeting religious beliefs as such is never permissible
. . . ."); McDaniel v. Paty, 435 U.S. 618, 626 (1978) ("The Free Exercise
Clause categorically prohibits government from regulating, prohibiting,
or rewarding religious beliefs as such."); Torcaso v. Watkins, 367 U.S.
488, 495 (1961) ("We repeat and again reaffirm that neither a State nor
the Federal Government can constitutionally force a person `to profess a
belief or disbelief in any religion."); Cantwell v. Connecticut, 310 U.S.
296, 304 (1940) ("In every case the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to infringe the
protected freedom.").

29
interest and an inmate's beliefs. The Supreme Court has
not indicated that the Turner test must be a rigid one and
has in fact referenced with approval the concept that it
would be reasonable to require a closer "fit" in certain
instances, for example, where the threat to the government
interest is not as great.5 I suggest that a closer fit might be
required when the inmate's interest -- his religious beliefs
-- is so significant and the restrictions are so great.

In Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir.
1999), we found a rational relationship where the
authorities denied prisoners the right to read pornographic
materials. Testimony was presented by two different
psychologists to the effect that pornographic material would
thwart the effectiveness of the treatment being given to the
prisoners -- who were all sex offenders who had exhibited
"repetitive and compulsive" behavior. The prison authorities
also referred the court to a considerable body of research
supporting this view. We upheld the regulation and noted
that, there, we probably would not have needed the expert
opinions because " `common sense tells us that prisoners
are more likely to develop the now-missing self-control and
respect for others if prevented from poring over pictures
that are themselves degrading and disrespectful.' "
Waterman, 183 F.3d at 217 (quoting Amatel v. Reno, 156
F.3d 192, 199 (D.C. Cir. 1998)).
_________________________________________________________________

5. In Abbott, the Supreme Court noted that where "the nature of the
asserted governmental interest is such as to require a lesser degree of
case-by-case discretion, a closer fit between the regulation and the
purpose it serves may safely be required." Thornburgh v. Abbott, 490 U.S.
401, 411-12 (1989) (discussing and overruling Procunier v. Martinez, 416
U.S. 396 (1974)). The Supreme Court explained that the rejection of the
regulation in Martinez was based on the Court's "recognition that the
regulated activity centrally at issue in that case-- outgoing personal
correspondence from prisoners -- did not, by its very nature, pose a
serious threat to prison order and security." Id. at 411. The Court
clarified: "We do not believe that Martinez should, or need, be read as
subjecting the decisions of prison officials to a strict `least
restrictive
means' test." Abbott, 490 U.S. at 411. The Court overruled Martinez as
far as it suggested a legal distinction between incoming correspondence
from prisoners and incoming correspondence from nonprisoners. Id. at
413-14.

30
However, this reasoning does not apply here. There, we
approved of a ban on certain literature based on specific
objective criteria demonstrably consistent with legitimate
penological objectives; here, we are faced with a round-up
of all members of a purportedly violent religion so that they
can be subjected to religious "detox" in the name of
security. I submit that if prison authorities are to be
permitted to target and categorize a certain religion so as to
severely circumscribe First Amendment rights, based solely
on membership in the religion, we should require that the
first prong of the Turner v. Safley test be satisfied only by,
at a minimum, a close fit between the targeted religion and
problem sought to be avoided, here, to "minimize the
occurrence of assaults on staff and inmates," and
evidentiary requirements that leave no room for doubt. To
require any less is to permit -- perhaps encourage--
profiling: that is, the arbitrary attribution of certain
characteristics to a group and, therefore, members of that
group, resulting in denial of rights and different,
disadvantaged treatment.

Further, it would be one thing if the prisons were only
"profiling" security threat groups that are clearly violent
"gangs;" but, here, the District Court assumed that the Five
Percent Nation was a religion.6 The evidence before the
District Court was woefully lacking that membership in the
Five Percent Nation carried with it a set of beliefs that each
member acts upon to promote violence and disorder. 7 The
_________________________________________________________________

6. This case would present different issues had the District Court not
assumed that the Five Percent Nation was a religion. The Court would
have been required to determine whether FPN would be considered a
religion, and therefore accorded the protections provided by the Free
Exercise Clause of the First Amendment. As this issue is not before us,
and was not before the District Court, we need not decide whether the
FPN would satisfy these requirements, but only stress that non-
traditional belief systems found to be religious in nature will be
afforded
the same protections as traditional ones. See Africa v. Pennsylvania, 662
F.2d 1025, 1031-32 (3d Cir. 1981) (setting forth three indicia to be used
in determining whether a "religion" is at issue).

7. While the FPN tenets may be racial in tone, racism is not the same as
violence. See McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987)
("[P]rison authorities have no legitimate penological interest in
excluding

31
District Court relied on a report prepared by Ronald Holvey,
an eighteen-year veteran employee of the New Jersey
correctional system. His credentials consist largely of on-
the-job training,8 and his report includes no proof of what,
I suggest, is required -- namely, that membership equates
to an active commitment to violence. Instead, the report is
anecdotal, recounting, as the Appellees even note in their
brief, "twelve violent or threateningly violent incidents
involving a member or members of the Five Percent Nation"
during a seven year period. Appellees' Brief, p. 14. There is
no proof of violent gang activity involving FPN members in
New Jersey prisons, and none of the incidents links the
conduct to the members' religious beliefs.9 Mr. Holvey cites
_________________________________________________________________

religious books from the prison library merely because they contain
racist views. Courts have repeatedly held that prisons may not ban all
religious literature that reflects racism."); Stefanow v. McFadden, 103
F.3d 1466, 1472-73 (9th Cir. 1996) (applying Turner and observing that
"[m]erely `advocating racial purity' is insufficient to justify
confiscati[ng]"
religious material, and upholding the confiscation of the book
Christianities Ancient Enemy because it directly advocates violence by
issuing an explicit "call to arms for white Christians to fight back in `a
war for survival' "); Murphy v. Missouri Dep't of Corrs., 814 F.2d 1252,
1257 (8th Cir. 1987) (holding that restriction of inmate access to racist
religious materials "must be limited to those materials that advocate
violence or that are so racially inflammatory as to be reasonably likely
to
cause violence at the prison"); Aikens v. Jenkins, 534 F.2d 751, 756-57
(7th Cir. 1976) (striking down a regulation banning all racist periodicals
in prison because the regulation "is not narrow enough to reach only
that material which encourages violence, and invites prison officials to
apply their own personal prejudices and opinions as standards").

8. Holvey has eighteen years of experience in corrections employment,
including service as a corrections officer. Appellees note that he belongs
to several national or regional law enforcement or intelligence
organizations, including the National Major Gang Task Force, and that
he has assisted several states and organizations, including the Federal
Bureau of Investigation, with the process of identifying security threat
groups and members as well as training. Holvey Deposition, App. at
A249-50, 254-58.

9. The majority characterizes the Holvey Report as reporting a "string of
incidents" and as citing "numerous instances of actual or planned
violence involving Five Percenters in New Jersey correctional facilities

32
absolutely no statistics with respect to crimes by Five
Percent Nation members, as compared to crimes by other
groups. In fact, in pointing out that one in seven prison
inmates is a member of the Five Percent Nation, the paucity
of violent incidents purported to be linked to FPN members
actually casts doubt on the violent nature of the group. No
showing was made that there was a greater proportion of
violence by FPN members than by groups of other kinds,
such as Christians, Jews, or Muslims. The evidence is
probative only of the assertion that there are several
members of the FPN that have committed violent or unruly
acts.

Nowhere in their brief do Appellees counter, let alone
point to evidence that would meet, Appellants' statement
that the Five Percent Nation's "teaching does not in any
way advocate or encourage violence or disorderliness."10
_________________________________________________________________

between August 1990 and July 1997." Maj. at 15. In reality, a careful
scrutiny of the report and corresponding attachments reveals very little
evidence of planned or actual violence by FPN members, let alone by the
Five Percent Nation as a group. In his report, Holvey lists twelve
"Specific
Violent Acts/Intended Acts of Violence/Specific Illegal or Prohibited
Acts." App. at A342-43. Of this twelve, three do not even involve the New
Jersey correctional facilities, App. at A402-03, 404-11, and two more
relate to New Jersey youth facilities -- one involving a gathering of
approximately 50 FPN and NETA members, and the other consisting of
a fight including some believed to be FPN members. App. at SA41-46. Of
the remaining seven incidents there were two gatherings, App. at SA24-
29, A412, and three incidents involving a single FPN member. App. at
SA5-20, SA48-56. There was only one report of a series of altercations
allegedly involving more than one FPN member along with several Sunni
Muslims. App. at SA37-39. And one letter allegedly from an FPN member
threatening violence against prison guards. SA21. None of these
incidents reflects activity atypical of aggressive behavior one would
anticipate in a prison setting. The incidents cited in the report do not
demonstrate the FPN's violent tendencies as a group or gang in the New
Jersey prison system. The report conflates incidents from other places,
as well as violence by other inmates where a FPN member may have
been tangentially involved, with incidents involving the FPN as a group.

10. Moreover, it should be noted that Appellees in their brief really fail
to
address the underlying "disconnect" that I perceive, but urge instead
that the threat group policy is related to a legitimate goal. Appellants
concede this, but argue that the designation of the Five Percent Nation
is not so related because there is no valid connection in the New Jersey
prison system between the Five Percent Nation and security concerns.

33
App. Br. at 22. Rather, the District Court and the majority
allude to the findings of other courts to the effect that the
Five Percent Nation fosters violence. Those courts based
their rulings on evidence before them, involving the facts
presented to them. The District Court here should demand
no less, but only the Holvey report was presented and relied
upon. There is no basis for the District Court to take
judicial notice of the evidence before other courts.

Further, most of the decisions referenced by the District
Court and the majority, in addition to being non-
precedential, are either distinguishable or not relevant.11 In
the most persuasive and well-reasoned opinion cited, Self-
Allah v. Annucci, No. 97-CV-607(H), 1999 WL 299310, *2
(W.D.N.Y. 1999), the issue is quite different -- whether the
court would enjoin the prison authorities' confiscation of
the prisoners' copies of The Five Percenter. The injunction
was denied, based upon extensive testimony and evidence
presented with respect to the violent propensity of the Five
Percenters in the New York system. Many witnesses
testified (including Mr. Holvey) in favor of the relationship
between the gang violence in the system and the group. The
Court concluded:

Plaintiff has demonstrated that Five Percenterism, in
its pure, uncorrupted form, represents a system of
beliefs which, outside the prison context, does not
advocate or promote violence. However, the testimony
presented by defendants showed a clear relationship
_________________________________________________________________

11. See Allah v. Beyer, 1994 WL 549614, at *1-3 (D.N.J. Mar. 29, 1994)
(upholding the transfer of FPN member where there was specific evidence
that the inmate took a leadership role in planning a violent uprising in
the prison); Box v. Petsock, 697 F. Supp. 821, 831 (M.D. Pa. 1987)
(considering petitioner's religious affiliation in the context of an
ineffective assistance of counsel claim); Abed v. Comm'r of Corrs., 682
A.2d 558 (Conn. App. Ct. 1996) (holding that petitioner, not an FPN
member, did not have a liberty interest in good-time credit); Allah v.
Dep't of Corrs., 742 A.2d 162, 165 (N.J. Super. Ct. App. Div. 1999) ("We
accept the argument of the DOC that it neither `targeted' a religion nor
classified religious beliefs as a security threat group, but merely
designated an association of inmates based on its history of violence as
a security threat group."); Buford v. Goord , 686 N.Y.S.2d 121, 122 (N.Y.
App. Div. 1999) (upholding a ban on FPN literature).

34
 between Five Percenter literature and prison gang
activities.

Id. at *9. The majority is misguided to suggest that this
supports their conclusion "that inmates belonging to the
Five Percent Nation present a serious security threat." Maj.
at 16 (emphasis added). There is a very important
difference between a threat posed by "belonging" to a
religion and that allegedly posed by the circulation of the
group's literature.

In the only other court of appeals case involving a similar
threat group policy, In re Long Term Admin. Segregation of
Inmates Designated as Five Percenters, 174 F.3d 464 (4th
Cir. 1999) [hereinafter Five Percenters], the Court of
Appeals for the Fourth Circuit noted its jurisprudence as
requiring "some minimally rational relationship," id. at 468,
and emphasized the Supreme Court's jurisprudence calling
for deference, especially when dealing with state
correctional institutions and the preservation of order
therein. Id. at 469 (citing Turner, 482 U.S. at 85, and Bell
v. Wolfish, 441 U.S. 520, 547 (1979)). The court noted
"ample evidence in the records" supporting the
reasonableness of the conclusion that they posed a threat
to prison security, including incidents in 1992, 1993, and
three specific incidents in 1995, and referenced at least one
incident report in which it was stated that " `these five
inmates acted as a group,' that they `felt as if they were
acting in a manner acceptable to the[ir] religious beliefs,'
and that they `spoke of more violence to come.' " Id. at 466.
The prisoners in that case were not denied their religious
literature (this claim had been settled), and the court gave
great deference to the prison system's decision as
"manifestly a rational action." Id. at 470. The court went on
to explain:

The question is not whether [the South Carolina
Department of Corrections ("SCDC") director's]
conclusion was indisputably correct, but whether his
conclusion was rational and therefore entitled to
deference. Confronted with multiple reports of an
identifiable group whose members not only threatened
but had actually committed serious, violent acts in the
SCDC system and elsewhere, [SCDC Director's]

35
 decision to designate the Five Percenters as an STG
was manifestly a rational action.

Id. at 470 (citation omitted). It explained:"Allowing prison
officials to act only after a demonstration of individual
dangerousness would deprive them of the all-important
option of prevention. The threat of violence here was a
group threat, and prison administrators were entitled to
address it in those terms." Id. at 466.

While I think the test of "minimally" rational relationship
has not been employed by our court and chips away at
Turner, I cannot argue with the result reached in that case.12
The group had been identified based on clear, repeated past
group violent conduct, attributable to its set of beliefs. But
we have no such evidentiary record here. Accordingly, not
only is the purported relationship more tenuous but the
genuineness of the security threat is more remote as well.
Additionally, the restrictions there did not include denial of
literature, which is at the heart of the FPN's exercise. In the
case before us, the implications are much more far-
reaching and the evidence much less relevant and
convincing. There has been no showing of the "means-end
fit" to satisfy the wholesale denial of religious freedom and
exercise.

If the inquiry does not satisfy the first prong of Turner,
which we have explained received the greatest weight, the
prison's action must fail. See Shaw v. Murphy , 532 U.S.
223, 121 S. Ct. 1475, 1479 (2001) ("If the connection
between the regulation and the asserted goal is`arbitrary or
irrational,' then the regulation fails, irrespective of whether
the other factors tilt in its favor."). Therefore, we need not
reach the other prongs. However, I cannot help but note my
disagreement with the ease with which the majority
dispenses with the second and third prong as well. The
answer to the "alternate means" prong is really self-evident
-- the prison authorities' course of "treatment" is designed
to cause the FPN adherent to give up his faith, not permit
_________________________________________________________________

12. In Shaw v. Murphy, Justice Thomas referred to rebutting the
presumption of rationality. However, that language was dicta and I
suggest did not lower the standard of Turner , nor did it require the
burden of proof to fall on the plaintiff.

36
him to practice it. This is much different than the facts
before the Fourth Circuit in Five Percenters, where the
court found that because the prisoners could still pray, fast
and study religious materials, the "alternate means" test
was satisfied, and the proven violence satisfied the"no
ready alternatives" prong. In the course of this treatment,
the FPN member is barred from the teachings, which are at
the heart of the Five Percent Nation religious experience.
Furthermore, to be released from close custody he must
promise to never again affiliate with FPN. Thus, the desired
result of the treatment is to eradicate the belief. It is
difficult to see how, realistically, there are "alternate
means" here.

In connection with the "impact of the accommodation on
others" prong, here, the premise that potential violence
cannot be accommodated assumes the very violence that I
suggest has not been shown. I would suggest that the
absence of a showing of the violent connection as discussed
above undermines the findings of the District Court and the
majority with respect to this prong as well.

We have in this country a rich tradition of protecting
individual rights, including the rights of prisoners. We have
explained that "the Supreme Court has made clear that
`convicted prisoners do not forfeit all constitutional
protections by reason of their conviction and confinement
in prison' " DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000)
(en banc) (quoting Bell v. Wolfish, 441 U.S. 520, 545
(1979)). Furthermore, " `Inmates clearly retain protections
afforded by the First Amendment, . . . including its directive
that no law shall prohibit the free exercise of religion." Id.
(quoting O'Lone v. Shabazz, 482 U.S. 342, 348 (1987)). At
the same time, we have a fast-developing body of law to the
effect that, while inmates do not shed their constitutional
protections at the jailhouse door, nonetheless "a prison
inmate `retains [only] those rights that are not inconsistent
with his status as a prisoner or with the legitimate
penological objectives of the corrections system,' " id. at 51
(quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)), and
"the constitutional rights that prisoners possess are more
limited in scope than the constitutional rights held by
individuals in society at large." Shaw v. Murphy, 532 U.S.
223, 229 (2001).

37
We have, at times, overreacted in response to perceived
characteristics of groups thought to be dangerous to our
security or way of life and condemned individuals based on
group membership. See, e.g., Garner v. Bd. of Pub. Works,
341 U.S. 716 (1951) (upholding requirement that all city
employees must disclose membership to the Communist
party and swear an oath of loyalty); Korematsu v. United
States, 323 U.S. 214 (1944) (affirming the constitutionality
of "excluding" people of Japanese descent from the West
Coast during World War II). Only later, when we have
viewed these reactions with some perspective, have we
acknowledged that the wholesale treatment of certain
groups was not consistent with the basic tenets of our
democracy. Here, similarly, it seems as though there is a
rush to brand the Five Percent Nation as a "violent"
religious sect. But, who is next? Would it be the Sunni
Muslims, whose tenets, Appellants argue, are similar?
Would it be the Nation of Islam, viewed by some as racist?
While these may be inmates, and prisoners, they are
nonetheless people. We should therefore be concerned, and
be careful in labeling and judging them based solely on
membership in a religious group.

If membership in such groups can objectively be shown,
upon close scrutiny, to be equated to posing a real threat
of violence in the prison setting, then treatment of such
group members in wholesale fashion, even though it
deprives them of their constitutional rights, would be
consistent with legitimate penological objectives, and would
be permissible. Otherwise, such discriminatory treatment
treads impermissibly on their constitutional rights.

I would reverse the District Court's ruling and deny
defendant's motion for summary judgment for lack of a
showing that the first prong of the Turner v. Safley test has
been satisfied.13
_________________________________________________________________

13. I see no need to address Appellants' equal protection or due
process claims. I agree with the majority that we apply the same Turner
analysis to Appellants' equal protection claim that we did to their First
Amendment claims, and my concerns with the majority's Turner analysis
carries over to the equal protection analysis as well. On the other hand,
I will not provide my own reasoning regarding Appellants' due process
claim, as I agree with that provided by the majority.

38
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

39