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Jael Fraise v. Jack Terhune, Commissioner

Date: March 13, 2002
Location: Court of Appeals, Third Circuit



JACK TERHUNE, Commissioner
(D.C. No. 98-cv-01917)



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



(D.C. No. 98-cv-02427)

(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)


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 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.



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, 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 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. 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.


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 "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.

. . . 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 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 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.


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 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 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.


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.

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 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.


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 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 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 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.

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 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.


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 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:4-4.1(.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 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.


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


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.


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 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).


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, 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.


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 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 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.


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