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Kilgore v. King

United States District Court, D. Minnesota

August 8, 2014

Malachi Kilgore, Plaintiff,
John King and Keri Gerlicher, Defendants.

Malachi Kilgore, Pro se.

Jackson Evans, Assistant Attorney General, for Defendants.


FRANKLIN L. NOEL, Magistrate Judge.

THIS MATTER came before the undersigned United States Magistrate Judge on the parties' cross motions for summary judgment (ECF Nos. 18 and 35). The matter was referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1. For the reasons set forth below, the Court recommends that Plaintiff's motion be DENIED and Defendant's motion be GRANTED.


Plaintiff Malachi Kilgore is an inmate in the custody of the Minnesota Department of Corrections (DOC). Kilgore filed a pro se complaint on March 20, 2013, alleging violations of 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA). Compl. 6-7, ECF No. 1. In general, Kilgore argues that the DOC has improperly designated his religion, the Nation of Gods and Earths (NGE) as a Security Threat Group (STG) and that such a designation violates his right to freely exercise his religion under the First Amendment and RLUIPA. Id. Kilgore seeks compensatory and punitive monetary damages, as well as injunctive relief in the form of removing the STG designation. Id. at 7.

A. Kilgore's background.

Kilgore is currently serving a 396 month sentence for murder in the second degree and has been in DOC custody since 2002. McComb Aff., Ex. A, ECF No. 38. Thus far, Kilgore has spent the majority of his detainment at the Oak Park Heights and Stillwater Minnesota Correctional Facilities (MCF-OPH and MCF-STW, respectively). Id. Ex. C. Since June 27, 2012, Kilgore has remained incarcerated at MCF-STW. Id.

B. The Nation of Gods and Earths and the 5 percenters.

Kilgore is a practicing member of the NGE. Evans Aff., Ex. C at 6-7, ECF No. 37 (hereinafter, "Kilgore Dep.").[1] NGE was founded by an individual identified as Clarence 13X. Id. at 19-20. According to Kilgore, NGE is one of 73 sects of Islam. Id. at 21. However, NGE distinguishes itself from other sects of Islam based on how members of the NGE religion see themselves in relation to God. Id. NGE members view themselves as one with God; contrastingly, non-NGE Islamic sects perceive God as a distinct entity from themselves. n Id. NGE is a monotheistic region, viewing Allah as the supreme being. Id. at 8. NGE members believe that all individuals can potentially achieve enlightenment, but that currently only five percent of the world's population has reached an enlightened state. Id. at 9. Thus, the NGE is intertwined with a group called the 5 percenters and individuals who practice NGE sometimes refer to themselves as "5 percenters." Id. at 47 (Kilgore referring to individuals practicing NGE as 5 percenters).

NGE members have flexibility in how they choose to practice their individual spirituality, as the group does not distinguish between priests and laymen. Id. at 24-25. Three separate texts comprise the teachings of NGE: the 120 Lessons, the Supreme Alphabet and the Supreme Mathematics. Id. at 25. NGE members use the 120 Lessons as a guide to living a spiritually righteous life, studying the text as Christians study the Bible. Id. at 25-26. Members accurately study the 120 Lessons by using the Supreme Alphabet (a set of letters from A-Z) and the Supreme Mathematics (a set of numbers from 0-9) as guides. Id. at 28-29. In other words, by studying the Supreme Alphabet and Supreme Mathematics, NGE practitioners are better able to comprehend the 120 Lessons. Id.

Kilgore specifies that the practice of the NGE faith consists of five main activities: (1) studying; (2) exercising; (3) maintaining a proper diet; (4) meditating; and (5) participating in building or parliament. Id. at 32.The studying component consists of members reading, studying, and memorizing the 120 Lessons and the Supreme Alphabet and Mathematics. Id. The tenet of exercise mandates that NGE practitioners maintain good health by refraining from drugs and alcohol and participating in physical exercise. Id. at 33. In order to achieve a proper diet, NGE members restrict intake of drugs, alcohol, and "pork."[2] Id. at 35. In order to mediate, an NGE practitioner engages in activity similar to prayer where the individual looks inside themselves to better understand God. Id. at 34. Finally, "building" is comprised of discussing the Supreme Mathematics and building upon an individual's knowledge of a principle or number. Id. at 38. Building does not require a group of members, as a practitioner may build with one's self. Id. at 39. Parliaments are NGE group services during which individuals come together to build. Id. at 40. Parliament is traditionally held at 2:30 p.m. on Sundays, although in actuality it can be held any day of the week. Id. at 40-41. The practice of Parliament does not consist of standardize rituals. Id. at 43.

C. The DOC and Security Threat Groups.

1. STGs generally.

In general, the DOC claims that members of STGs disproportionately contribute to prison violence and participate in acts related to organized criminal activity, such as smuggling and extortion of other inmates. Rothstein Aff.¶ 4, ECF No. 39. The DOC defines an STG as a group that has at least three members nationally; this definition does not mean that there must be three or more STG members within the DOC system. Id. ¶ 7. It is the DOC's policy to label any group an STG if (1) another resource has classified a group as an STG (such as another state's department of corrections, the federal bureau of prisons, or another law enforcement agency) and (2) the DOC has identified at least one member of that STG within DOC custody. Id. ¶ 8. The DOC utilizes a set criteria in order to determine that an individual is a member of an STG, including, but not limited to, whether that inmate has STG paraphernalia, tattoos, or has self-identified as such. Id. ¶ 6. If an inmate engages in three or more of the identified criteria within a year, the DOC considers that inmate an "active" STG member. Id.

The DOC contends that early identification of STGs is a crucial component of maintaining penological security because such monitoring allows the DOC to prevent and reduce the proliferation of STGs. Id. ¶ 9. The DOC further argues that "[i]f the DOC was required to wait until a group had committed identifiable acts of violence in furtherance of the group prior to labeling that group as an STG, the safety of DOC offenders, staff and visitors would be compromised." Id. Likewise, the early labeling of an STG prevents an increase of contraband within the DOC system, which in turn assists in reducing offender violence related to STG paraphernalia. Id. ¶ 10. Minnesota Department of Corrections Division Directive 301.110 governs the DOC's use of STG designations and states that "[a]s STG activity and paraphernalia threaten the security of the facility, all such behavior and items are prohibited. Possession of any clothing or property associated with an STG, or any communication or actions related to STG affiliation, is prohibited and may result in discipline." Id., Ex. B.

2. Five percenters and NGE as STGs.

Since 1999, the DOC has labeled the group known as the five percenters as an STG. Id. ¶ 16. According to the DOC, the five percenters is a typical STG in that the organization uses signs, symbols, and paraphernalia to recruit individuals. Id. ¶ 14. Currently, the DOC identifies the five percenters as "somewhat unique in the way that they try to use the religion known as the Nations of Gods and Earths to legitimize themselves, to recruit members and to spread." Id. ¶ 15. No act of violence has occurred within the DOC that is attributed to this group. Id. ¶ 16. The DOC states that this lack of violence is the direct result of labeling the group as an STG and withholding STG contraband. Id.

D. DOC's religious practice policy.

DOC policy generally permits inmates to practice individual religious convictions in a variety of ways. ECF No. 38 ¶ 8. Specifically, inmates can engage in group religious services, keep up to five personal religious items in one's cell, order and wear religious items, receive specialized visits for religious counseling purposes, and maintain religious dietary restrictions. Id.

Each DOC facility has a Religious Resources Center (also known as the Chapel) which offers meeting space for group services. Id. ¶ 9. DOC policy mandates that in order for a religious group to receive group space time within the Religious Resources Center, the group must have at least eight inmate members. Id. ¶ 11. Furthermore, group services require supervision by an outside "religious resource volunteer." Id. ¶ 13. The DOC states that there is intense demand for space within the religious resource center, as the vast majority of MCF-STW's 1, 600 inmates hold religious beliefs. Id. ¶¶ 10, 14.

Inmates who practice religions that are not eligible for group worship in the Religious Resource Center can independently practice their religions. Id. ¶ 15. An inmate may attend a group service of another religion he most identifies with and may receive personal religious counseling visits in addition to normal visitation hours. Id. The DOC does not condone proselytizing activities as "[a]llowing offenders to proselytize would likely lead to discord and conflicts as some offenders may resent what they perceive to be as someone forcing a religion on them." Id. ¶ 16.

E. Kilgore's individual practice of NGE.

Kilgore has achieved enlightenment and refers to himself as a god. Kilgore Dep. at 8. Kilgore remains the only NGE member incarcerated at MCF-STW or within the entire DOC system. Id. at 6-7. According to Kilgore, there are eight other ...

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