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            Title Fraise v. Terhun

 

            Date 2002

            By Alito

            Subject Misc

                

 Contents

 

 

Page 1

72 of 238 DOCUMENTS

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)

No. 00-5062

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

283 F.3d 506; 2002 U.S. App. LEXIS 4257

March 12, 2001, Argued

March 13, 2002, Filed

PRIOR   HISTORY:             **1        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.

DISPOSITION: Affirmed.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiffs,  prisoners,  ap- pealed from an order of the United States District Court for the District of New Jersey granting summary judg- ment  to  defendants,  prison  officials,  on  42  U.S.C.S.  §

1983  claims  alleging  violations  of  the  prisoners'  rights under the Free Exercise Clause of U.S. Const. amend. I, and the Equal Protection and Due Process Clauses.

OVERVIEW: The prisoners filed suit under § 1983 chal- lenging the constitutionality as applied to them of a New Jersey prison policy that allowed correctional officials to designate  "security  threat  groups"  (STGs)  and  transfer core members of these groups to a special unit. The dis- trict court granted the prison officials' motion for summary judgment and the prisoners appealed. The court of appeals affirmed the district court's judgment upon finding that the plaintiffs were not subjected to confinement that exceeded the sentences imposed upon them or that otherwise vio- lated  the  Constitution,  and  therefore  no  liberty  interest created  by  the  Due  Process  Clause  was  impinged.  The appellate court added that the state had adequate grounds for concluding that the STG for which the plaintiff were members,  the  "Five  Percent  Nation"  presented  a  threat to prison order and security. Finally the appellate court concluded that in view of greater propensity for violence demonstrated  by  members  of  the  Five  Percent  Nation, the group's designation as an STG did not violate equal

protection.

OUTCOME: The district court's order was affirmed.

LexisNexis(R) Headnotes

Criminal                Law         &             Procedure              >              Postconviction

Proceedings > Imprisonment & Prisoner Rights

HN1   The  standard  set  out  by  the  Supreme  Court  in Turner v. Safley for assessing prison regulations that re- strict  inmates'  constitutional  rights  states  that  a  regula- tion  passes  muster  if  it  is  reasonably  related  to  legiti- mate penological interests. As such,  courts must 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 accom- modate the prisoner's rights at de minimis cost to valid penological interests.

Criminal                Law         &             Procedure              >              Postconviction

Proceedings > Imprisonment & Prisoner Rights

HN2  There is nothing in the Constitution which requires prison officials to treat all inmate groups alike where dif- ferentiation is necessary to avoid an imminent threat of institutional disruption or violence.

Criminal                Law         &             Procedure              >              Postconviction

Proceedings > Imprisonment & Prisoner Rights

HN3  Prison regulations that curtail an inmate's constitu- tional rights need only be reasonably related to legitimate penological objectives.

Criminal                Law         &             Procedure              >              Postconviction

Proceedings > Imprisonment & Prisoner Rights

283 F.3d 506, *; 2002 U.S. App. LEXIS 4257, **1

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HN4   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.

Criminal                Law         &             Procedure              >              Postconviction

Proceedings > Imprisonment & Prisoner Rights

HN5   Protected  liberty  interests  generally  arise  either from the Due Process Clause or from state-created statu- tory entitlement. As 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 vi- olative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison au- thorities to judicial oversight. 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 con- finement ordinarily contemplated by a prison sentence. Criminal              Law         &             Procedure              >              Postconviction Proceedings > Imprisonment & Prisoner Rights

HN6  A prisoner's state created liberty interests are gen- erally 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 inci- dents of prison life. In ascertaining whether something is an "atypical and significant" hardship, courts must con- sider what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law. Consequently, the focus of this inquiry should not be on the language of a particular reg- ulation, but rather on the nature of the deprivation. Criminal              Law         &             Procedure              >              Postconviction Proceedings > Imprisonment & Prisoner Rights

HN7  Under New Jersey law, an inmate who is identified as a core "security threat group" member receives notice and a hearing at which the inmate may be heard. The in- mate may appeal an adverse decision to the administrator of the prison and may obtain judicial review in state court. These procedures satisfy due process.

COUNSEL:   GREGORY   B.   PASQUALE   argued , Drinker  Biddle  &  Shanley,   LLP,  Florham  Park,   NJ, Counsel for Appellants.

JOHN J. FARMER, JR., Attorney General of New Jersey, PATRICK   DeALMEIDA,   Deputy   Attorney   General, JEFFREY  K.  GLADDEN   argued ,  Deputy  Attorney General, Trenton, NJ, Counsel for Appellees.

JUDGES: Before:  ALITO, RENDELL, Circuit Judges, and SCHWARZER, District Court Judge. n1 RENDELL,

Circuit Judge, dissenting.

n1 The Honorable William W Schwarzer, United States District Court for the Northern District Court of California, sitting by designation.

OPINIONBY: ALITO

OPINION:

*509   OPINION OF THE COURT ALITO, Circuit Judge:

Jael Fraise, Alexander Kettles, and John Harris filed actions under 42 U.S.C. § 1983 challenging the consti- tutionality  as  applied  to  them  of  a  New  Jersey  prison policy that allows correctional officials to designate "se- curity  threat  groups"  ("STGs)  and  transfer  core  mem- bers of these groups to a special unit. Once in this unit, core members must participate in a behavior modifica- tion **2   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 defen- dants, 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 de- signed to isolate and rehabilitate gang members. Under this policy, prison officials can designate STGs and trans- fer 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 **3   group of inmates, designated by the Commissioner, who may gather together reg- ularly  and  informally,  possessing  common characteristics,   interests  and  goals  which serve to distinguish the group or group mem- bers from other inmate groups or other in-

283 F.3d 506, *509; 2002 U.S. App. LEXIS 4257, **3

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mates and which, as a discrete entity, poses a threat to the safety of staff, other inmates, the  community,  and/or  damages  to,  or  de- struction of property, and/or interrupting the safe, secure and orderly operation of the cor- rectional 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 mem- bers;  (4)  actual  or  planned  acts  of  violence  reasonably attributable to the group;  (5) other illegal or prohibited acts reasonably attributable **4    to the group;  (6) the

"demographics 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   *510   prohibiting inmates from engaging in activities related to the group. Under prison regulations, it is a serious infraction for an inmate to "participate 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 de- termining whether a particular inmate should be classified as an STG member. These include:  (1) an inmate's ac- knowledgment  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) correspon- dence from other inmates or outside contacts;  (7) STG photographs; and (8) any other factors that suggest that the inmate is involved **5    in STG activities n2 or is an STG member. See App. 129. Any inmate who satis- fies two of these criteria may be designated as an STG member.

n2  The  Policy  Statement  defines  "Security

Threat Group Activities" as:

activities   or   actions   of   an   inmate which  relate  either  directly  or  indi- rectly  to  goals  of  a  Security  Threat

Group.  These  activities  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 cloth- ing  articles;  Observation  by  staff  of known  Security  Threat  Group  hand- signs  and/or  signals;  Participation  in Security Threat Group related assaults, disturbances, meetings, gatherings, in- cidents and events; Sending or receiv- ing Security Threat Group related cor- respondence;  Recruiting  of  other  in- mates to join a Security Threat Group.

App. at 126.

An inmate may be identified as a "core" member of an STG if one or more of the following **6   conditions is satisfied:

1.   The   inmate   has   a   Department   of Corrections  documented status as a recog- nized 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 involve- ment 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 de- struction 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. n3

Id. at 130.

n3  The  term  "asterisk  offense"  designates  a

283 F.3d 506, *510; 2002 U.S. App. LEXIS 4257, **6

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**7

grade of inmate infraction. It is defined as "a pro- hibited 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.

The Ten Percent are described as follows **9   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

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,   *511   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 pre- viously 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 max- imum  custody  until  the  inmate  successfully  completes a three-phase behavior modification and education pro- gram. App. 135. This program "is designed to give the

**8    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 inter- active 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 "Supreme Mathematics," which breaks down the pop- ulation 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." n4

spook  and  cannot  be  seen  by  the  physical eye,  otherwise known as the blood suckers of the poor.

App. 361.

n4  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.

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 **10   of Gods and Earths." See App. 458. A declaration of a member explains:

. . . The Nation of Gods and Earths em- phasizes 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   *512  men,   is   commensurate   with   that   of   the Supreme being.

. . . We teach man to stop looking for a mystical God to come and solve our prob- lems 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

283 F.3d 506, *512; 2002 U.S. App. LEXIS 4257, **10

Page 5

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 them- selves from attacks by Five Percenters. The Five Percent

**11   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 pro- mote or advocate violence, but evidence links the group with numerous incidents of prison violence. Indeed, ac- cording 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 **12    1993, more than 30 inmates at Northern State Prison participated in a group demonstra- tion in the gymnasium during afternoon recess. See id. A subsequent investigation revealed that the group was plan- ning 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 unau- thorized  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  correc- tional facility who were affiliated with the Five Percent Nation or rival Hispanic gangs were involved in three sep- arate incidents. See id. In February 1997, a Five Percenter at Riverfront State Prison attacked and seriously **13  injured  a  correctional  officer.  See  id.  at  343.  The  offi-

cer  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 infor- mation   *513   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  in- mates,  including  plaintiffs  Alexander  Kettles  and  John Harris,  were identified **14    as core members of the Five Percent Nation and transferred to the STGMU. See Appellants' Br. at 9. Kettles acknowledges being a mem- ber 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 "gains personal and spiritual fulfillment by examin- ing and studying all religions, including The Five Percent Nation." Id. He believes that studying other religions en- ables 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 as- sociation  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 **15   Fraise filed separate law- suits  against  Department  of  Corrections  officials  under

42  U.S.C.  §  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

283 F.3d 506, *513; 2002 U.S. App. LEXIS 4257, **15

Page 6

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 re- solve  this  issue  but  rather  assumed  for  the  sake  of  ar- gument that the Five Percent Nation is a "religion." The Court  then  applied   HN1   the  standard  set  out  by  the Supreme Court in Turner v. Safley, 482 U.S. 78, 96 L. Ed.

2d 64, 107 S. Ct. 2254 (1987), for assessing prison reg- ulations that restrict inmates' constitutional rights. Under Turner, a regulation passes muster if it is reasonably re- lated to legitimate penological interests. See 482 U.S. at

89. Turner instructs courts to weigh four factors when ap- plying **16   this standard: first, whether the regulation bears a "valid,  rational connection" to a legitimate and neutral governmental objective; second, whether prison- ers 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   *514   peno- logical interests." 482 U.S. 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 recog- nized this as a valid penological concern that is unrelated to the suppression of expression and is consequently neu- tral 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 se- curity," 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 **17   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 "there 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, 96 L. Ed. 2d 282,

107 S. Ct. 2400 (1987)). The Court noted that the STG Policy does not impose a total ban on association and ex- pression 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 accom- modating the asserted constitutional right would have on other  inmates,  guards,  and  the  allocation  of  prison  re- sources generally -- the District Court believed that "ac- commodating **18    plaintiffs' desire to associate and engage in STG activities . . . undoubtedly would adversely impact the inmate population and prison staff at all cor- rectional 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 al- ternatives  that  would  fully  accommodate  the  prisoner's rights at de minimis cost to valid penological interests. The Court opined that "requiring an accommodation, like mandating  further  STG  activity  on  the  part  of  inmates prior to classification, or further demonstration of a par- ticular 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   **19    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 treat- ment.  The  Court  noted  that  " HN2   there  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 vi- olence." Dist. Ct.   *515   Op. at 24-25 (quoting Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 136, 53

L. Ed. 2d 629, 97 S. Ct. 2532 (1977)). Finally, the District Court rejected the plaintiffs' argument that the Department of Corrections violated due process by failing to give ad- equate 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.

II

We  first  address  the  plaintiffs'  claim  that  the  STG Policy violates **20   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. n5

283 F.3d 506, *515; 2002 U.S. App. LEXIS 4257, **20

Page 7

n5 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, incarcer- ation 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, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974)(re- strictions on the contents of incoming and outgoing prisoner mail); Pell v. Procunier, 417 U.S. 817, 41

L. Ed. 2d 495, 94 S. Ct. 2800 (1974)(restrictions on face-to--face media interviews with individual in- mates); Jones v. North Carolina Prisoners' Union, Inc., 433 U.S. 119, 53 L. Ed. 2d 629, 97 S. Ct. 2532

(1977)(regulations  prohibiting  meetings,  solicita- tions, and bulk mailings related to prison union); Bell  v.  Wolfish,  441  U.S.  520,  60  L.  Ed.  2d  447,

99 S. Ct. 1861 (1979)(restrictions on inmates' re- ceipt of hardcover books not mailed directly from publishers,  book  clubs,  or  book  stores);  Block  v. Rutherford, 468 U.S. 576, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984)(ban on contact visits). The same is  true  of  Turner  itself,  which  concerned  restric- tions  on  the  right  of  inmates  to  correspond  with other  prisoners  and  to  marry,  as  well  as  O'Lone v.  Shabazz,  supra,  482  U.S.  342,  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, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993); Employment Div. Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct.

1595 (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.

§ 2000cc-1, which may address some of the con- cerns expressed by the dissent, and we therefore do not discuss that statute.

**21

In Turner,  the Supreme Court began by noting that

"prison  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 administra- tion 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 sig- nificant deference to judgments made by prison officials in establishing, interpreting, and applying prison regula- tions. See 482 U.S. at 84-85. Accordingly, the Court held,

HN3  prison regulations that curtail an inmate's constitu- tional 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   *516    (3d Cir. 1988). As noted, under the Turner framework, four factors must be **22    considered in assessing the rea- sonableness of such regulations. 482 U.S. 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 sugges- tion 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 **23   has been "no show- ing . . . 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 legiti- mate objective of maintaining prison order and security. We disagree.

As discussed above, the Holvey Report recounts nu- merous  instances  of  actual  or  planned  violence  involv- ing Five Percenters in New Jersey correctional facilities

283 F.3d 506, *516; 2002 U.S. App. LEXIS 4257, **23

Page 8

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:

"Courts   are   ill   equipped   to   deal   with the   **24                 increasingly   urgent   prob- lems of prison administration and reform.'"

Martinez v. Procunier,  416 U.S. 396,  405,

40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974). As the Martinez Court acknowledged, "the prob- lems of prisons in America are complex and intractable. . . . 416 U.S. at 404-405. Running a  prison  is  an  inordinately  difficult  under- taking that requires expertise, planning, and the  commitment  of  resources,  all  of  which are peculiarly within the province of the leg- islative  and  executive  branches  of  govern- ment. Prison administration is, moreover, a task that has been committed to the respon- sibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is in- volved, federal courts have, as we indicated in Martinez, additional reason to accord def- erence to the appropriate prison authorities. See 416 U.S. 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 man- ner dictated by Turner, we are   *517   satisfied that the defendants had adequate grounds for concluding **25  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 intelli- gence 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 oper- ates 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  Lord  Natural  Self-Allah  v. Annucci,  1999  U.S.  Dist.  LEXIS  7171,  No.  97-CV--

607(H),  1999  WL  299310,  at  *9  (W.D.N.Y.  Mar.  25,

1999)(referring to the "substantial history of violence as- sociated with Five Percenter activities" and finding that the Department of Corrections "reasonably concluded that Five Percenters represent a STG within **26   the New York  prison system"). That court wrote:

The Five Percenters act as an organized group within the prison system to receive new mem- bers, intimidate members of rival groups, and participate in criminal activity, including ex- tortion,  robbery,  assaults and drug traffick- ing. Seemingly innocuous literature is used to send messages in code form. Five Percenter literature also assists in keeping the gang or- ganized, 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 U.S. Dist. LEXIS

14340, 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.,  326 N.J. Super. 543,  742

A.2d 162, 165 (N.J. Super. Ct. App. Div. 1999); Buford v. Goord, 258 A.D.2d 761, 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 **27   and outside of the facility"). We agree with these courts and therefore hold that there is a rational connection between New Jersey's STG regu- lations and the legitimate and neutral objective of main- taining order and security within the prison system. n6

n6 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 open- ing 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, "ev- ery 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

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Page 9

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 manage- ment in the inmate population.").

**28

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   *518  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 re- port because Holvey's "credentials consist largely of on- the-job  training."  Dissent  at  32.  The  dissent  character- izes 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 sin- gle FPN member." Id. What the dissent seems to demand is either (a) proof that the tenets of the Five Percent Nation require **29   members to engage in violence n7 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. n8 Demanding proof of this stature before correctional officials can act to prevent gang violence is fundamen- tally inconsistent with Turner and would in all likelihood be paralyzing.

n7  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").

n8 See Dissent at 32-33.

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 ex- ercising the circumscribed right. See Turner, 482 U.S. at

90; DeHart,  227 F.3d at 51. When assessing the avail- ability of alternatives, the right in question **30   must be viewed "sensibly and expansively." DeHart, 227 F.3d at 53 (quoting Thornburgh v. Abbott, 490 U.S. 401, 417,

104 L. Ed. 2d 459, 109 S. Ct. 1874 (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." 227 F.3d 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 obvi- ously 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  submit- ted  the  declaration  of  G.  Kalim,  a  member   **31    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 exam- ined Mr. Kalim's declaration to determine the degree to which the challenged STG Policy restricts the plaintiffs' religious practices.

*519    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

"to 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 enlight- enment and conduct as ends in themselves. According to Mr. Kalim, the Five Percent Nation "teaches man to stop looking for a mystical God" and "emphasizes the **32  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 bet- ter  themselves  in  the  community"  and  that  the  group's

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Page 10

"principal purpose is to teach our young self worth, re- sponsibility, and self love." Id. The group appears to be- lieve 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 mem- bers,  namely,  the  ability  to  "study  the  lessons."  App.

459. As noted,  the Policy prohibits inmates from "par- ticipating 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  pro- hibited.  Mr.  Kalim's  declaration   **33    states  that  the group's "teachings include texts such as the Bible and  the Koran." n9 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 par- tially restricted.

n9 As the plaintiffs put it in their brief, members of the group "study the writings from the various recognized religions." Appellants' Br. at 14.

The STG Policy appears to leave ample room for all of the remaining activities mentioned in Mr. Kalim's dec- laration.  Certainly  nothing  in  the  STG  Policy  restricts Five Percent Nation members from discussing or seek- ing 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 **34  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   *520    the Policy requires core members as- signed to the STGMU to renounce "affiliation" with their STG as a condition of returning to the general inmate pop- ulation. 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 **35   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 member- ship 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 practic- ing 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. " HN4  When accommodation of an asserted right will have a significant 'ripple effect' on fellow in- mates  or  on  prison  staff,  courts  should  be  particularly deferential to the informed discretion of corrections of- ficials."  Turner,  482  U.S.  at  90.  The  record,  as  noted, contains evidence that Five Percenters pose **36   a se- curity 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  oth- ers. Because increased freedom for the Five Percenters would come "only at the cost of significantly less liberty and safety for every- one 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 deferen- tial 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-

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Page 11

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 peno- logical interests." Turner, 482 U.S. at 91.

In  this  case,  the   **37    District  Court  considered alternatives to the New Jersey system, such as toughen- ing  the  showing  needed  for  STG  designation,  but  con- cluded that these would expose "the general inmate pop- ulation 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 be- lief system," i.e., the Five Percent Nation, as an STG but instead should have designated only "specific hierarchical

*521   '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 peno- logical  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 **38   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 fac- tors  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 plaintiffs would have on other  inmates,  guards,  and  the  allocation  of  prison  re- sources generally, and the availability of alternative reg- ulatory approaches that would "fully accommodate  the prisoner's rights at de minimis cost to valid penological interests." The remaining factor --  the availability of al- ternative 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 plain- tiffs' 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 **39   that the defendants violated their equal protection rights by

treating them less favorably than members of other reli- gious 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  char- acteristics  of  an  STG,  such  as  a  common  history  and purpose,  an  organizational  structure,  recognized  lead- ers, customary salutations, and a considerable size. They also note that Holvey admitted during his deposition that some Sunni Muslims had shown "a propensity for vio- lence . . . on occasion" and that some illegal or prohib- ited acts "could be associated with Sunni Muslims." See Appellants' Br. at 35-36. They also rely on Holvey's state- ment 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 **40    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 de- position, 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   *522   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 fail- ing to provide any notice of the new regulations until the day of the plaintiffs' transfer to the STGMU. The **41  plaintiffs contend that this deprived them of any oppor- tunity 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 lib- erty interest when they were transferred to the STGMU.

283 F.3d 506, *522; 2002 U.S. App. LEXIS 4257, **41

Page 12

" HN5  Protected liberty . . . interests generally arise ei- ther 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 "as 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 vi- olative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison au- thorities to judicial oversight." Asquith, 186 F.3d at 410

(quoting Hewitt v. Helms, 459 U.S. 460, 468, 74 L. Ed. 2d

675, 103 S. Ct. 864 (1983)). **42   Here, the plaintiffs were not subjected to confinement that exceeded the sen- tences 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 non- punitive 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, 132 L. Ed. 2d 418,

115 S. Ct. 2293 (1995), the Supreme Court set out the standard for determining whether a prisoner has been de- prived  of  a  state-created  liberty  interest.   HN6   These interests are "generally limited to freedom from restraint which, while not exceeding the sentence in such an un- expected manner as to give rise to protection by the Due Process  Clause  of  its  own  force,  .  .  .  nonetheless  im- poses 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; **43   Asquith, 186 F.3d at  412.  In  ascertaining  whether  something  is  an  "atyp- ical  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   *523   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 **44   frivolous a claim that classifi- cation as gang member and placement in administrative segregation unit deprived inmate of a protected liberty in- terest). 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 pro- cess. See Shoats, 213 F.3d at 144-47. HN7  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 admin- istrator 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 admin- istrative 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.  213

F.3d at 146-47.

V.   **45

For the reasons explained above, we affirm the deci- sion of the District Court.

DISSENTBY: RENDELL

DISSENT:

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. n1 We must deal with this wholesale treatment of members of a religious group in a careful manner.

n1 While providing a detailed description of the procedures provided by the STG policy, the major- ity does not reference the extensive restrictions im- posed on Appellants. According to the STG policy, restrictions on inmates in Phase 1 of the program in- clude: 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

283 F.3d 506, *523; 2002 U.S. App. LEXIS 4257, **45

Page 13

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 "there is a 'Zero Tolerance' level for Security Threat Group activity within the Department's cor- rectional facility(ies)." App. at A152. Examples of such  activities  include:   "Possession  of  Security Threat Group literature such as lessons, member- ship  lists,  and  artwork;   Possession  of  Security Threat Group paraphernalia such as beads, artwork, medallions, and clothing articles; . . . Participation in Security Threat Group related . . . meetings, gath- erings, . . . and events . . . ." App. at A152.

**46

Appellants urge us to address the following question: When the prison adopts a policy and then targets mem- bers 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   *524  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? n2

n2 One could quibble with whether the restric- tions are on all members,  because the close cus- tody only applies to those determined to be "core 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 fash- ion 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, 1999

U.S. Dist. LEXIS 7171, 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.").

**47

Two key facts are present here that, I submit, warrant that we proceed with extra caution. First, the policy is be-

ing 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  rehabilita- tion 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)

**48   (citing Turner v. Safley, 482 U.S. 78, 89-90, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). We went on to explain:

"This standard is similar to rational-basis review, under which a statutory classification can be declared unconsti- tutional only where the relationship of the classification to its asserted goal is 'so attenuated as to render the dis- tinction 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 regula- tion targets a specific religious group -- where it does not merely burden the exercise of religion, but, rather, effec- tively singles out members of a certain religious group for different treatment and denial of free exercise rights? n3 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.

n3 In order to be released from the STGMU, in- mates must sign a "Letter of Intention" expressing their intention "to renounce formally and in spirit affiliation with all Security Threat Groups." App. at A443.

**49

This unique aspect of this case has not been fully ex- plored 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

283 F.3d 506, *524; 2002 U.S. App. LEXIS 4257, **49

Page 14

a ban on certain conduct or specific activity   *525   that happens to have an impact on one's religious beliefs or exercise? Laws targeting religious beliefs are clearly sus- pect; n4 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,  96  L.  Ed.  2d  282,  107  S.  Ct.  2400

(1987).

n4  See  Church  of  Lukumi  Babalu  Aye  Inc.  v. Hialeah, 508 U.S. 520, 533, 124 L. Ed. 2d 472, 113

S. Ct. 2217 (1993) (" A  law targeting religious be- liefs as such is never permissible . . . ."); McDaniel v. Paty,  435 U.S. 618,  626,  55 L. Ed. 2d 593,  98

S.  Ct.  1322  (1978)  ("The  Free  Exercise  Clause categorically  prohibits  government  from  regulat- ing, prohibiting, or rewarding religious beliefs as such.");  Torcaso  v.  Watkins,  367  U.S.  488,  495,

6 L. Ed. 2d 982,  81 S. Ct. 1680 (1961) ("We re- peat and again reaffirm that neither a State nor the Federal  Government  can  constitutionally  force  a person 'to  profess a  belief or disbelief  in  any re- ligion.'");  Cantwell v. Connecticut, 310 U.S. 296,

304, 84 L. Ed. 1213, 60 S. Ct. 900 (1940) ("In ev- ery case the power to regulate must be so exercised as  not,  in  attaining  a  permissible  end,  unduly  to infringe the protected freedom.").

**50

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  legiti- mate 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 govern- ment interest is not as great. n5 I suggest that a closer fit might be required when the inmate's interest --  his reli- gious beliefs -- is so significant and the restrictions are so great.

n5  In  Abbott,  the  Supreme  Court  noted  that where "the nature of the asserted governmental in- terest is such as to require a lesser degree of case- by-case discretion,  a closer fit between the regu- lation and the purpose it serves may safely be re- quired." Thornburgh v. Abbott, 490 U.S. 401, 411-

12,  104  L.  Ed.  2d  459,  109  S.  Ct.  1874  (1989)

(discussing and overruling Procunier v. Martinez,

416  U.S.  396,  40  L.  Ed.  2d  224,  94  S.  Ct.  1800

(1974)). The Supreme Court explained that the re- jection 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." 490 U.S. 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 cor- respondence from nonprisoners.  490 U.S. at 413-

14.

**51

In Waterman v. Farmer,  183 F.3d 208,  213 (3d Cir.

1999),  we  found  a  rational  relationship  where  the  au- thorities denied prisoners the right to read pornographic materials. Testimony was presented by two different psy- chologists 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 ex- hibited "repetitive and compulsive" behavior. The prison authorities also referred the court to a considerable body of research supporting this view. We upheld the regula- tion 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, 332 U.S. App. D.C. 191, 156 F.3d 192,

199 (D.C. Cir. 1998)).

However, this reasoning does not apply here. There, we approved of a ban on certain literature based on spe- cific objective criteria demonstrably consistent with legit- imate penological objectives;   **52    here, we   *526  are faced with a round-up of all members of a purport- edly violent religion so that they can be subjected to re- ligious "detox" in the name of security. I submit that if prison authorities are to be permitted to target and catego- rize a certain religion so as to severely circumscribe First Amendment rights, based solely on membership in the re- ligion, 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 attri- bution of certain characteristics to a group and, therefore, members of that group, resulting in denial of rights and different, disadvantaged treatment.

283 F.3d 506, *526; 2002 U.S. App. LEXIS 4257, **52

Page 15

Further,  it  would  be  one  thing  if  the  prisons  were only "profiling" security threat groups that are clearly vi- olent "gangs;" but, here, the District Court assumed that the Five Percent Nation was a religion. n6 The evidence before the District Court was woefully lacking that mem- bership **53    in the Five Percent Nation carried with it  a  set  of  beliefs  that  each  member  acts  upon  to  pro- mote violence and disorder. n7 The 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, n8 and  his  report  includes  no  proof  of  what,  I  suggest,  is required --  namely,  that  membership  equates  to  an  ac- tive commitment   *527   to violence. Instead, the report is anecdotal,  recounting,  as the Appellees even note in their brief, "twelve violent or threateningly violent inci- dents 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 be- liefs.  n9  Mr.  Holvey  cites  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 pur- ported to be linked to FPN members actually casts doubt

**54    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.

n6 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 con- sidered a religion, and therefore accorded the pro- tections 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).

n7 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) ("Prison authorities have no legitimate penological interest

in excluding religious books from the prison library merely because they contain racist views. Courts have repeatedly held that prisons may not ban all re- ligious literature that reflects racism."); Stefanow v. McFadden, 103 F.3d 1466, 1472-73 (9th Cir. 1996)

(applying Turner and observing that "merely 'advo- cating racial purity' is insufficient to justify confis- cating" religious material, and upholding the con- fiscation 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 mate- rials 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 reg- ulation banning all racist periodicals in prison be- cause 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").

**55

n8  Holvey  has  eighteen  years  of  experience in  corrections  employment,  including  service  as a  corrections  officer.  Appellees  note  that  he  be- longs to several national or regional law enforce- ment  or  intelligence  organizations,  including  the National Major Gang Task Force, and that he has assisted  several  states  and  organizations,  includ- ing 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.

n9   The   majority   characterizes   the   Holvey Report as reporting a "string of incidents" and as citing "numerous instances of actual or planned vi- olence involving Five Percenters in New Jersey cor- rectional facilities between August 1990 and July

1997."  Maj.  at  15.  In  reality,  a  careful  scrutiny of  the  report  and  corresponding  attachments  re- veals very little evidence of planned or actual vi- olence  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 in- volve the New Jersey correctional facilities, App. at A402-03, 404-11, and two more relate to New

283 F.3d 506, *527; 2002 U.S. App. LEXIS 4257, **55

Page 16

Jersey youth facilities -- one involving a gathering of approximately 50 FPN and NETA members, and the other consisting of a fight including some be- lieved to be FPN members. App. at SA41-46. Of the remaining seven incidents there were two gath- erings, 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 ac- tivity  atypical  of  aggressive  behavior  one  would anticipate in a prison setting. The incidents cited in the report do not demonstrate the FPN's violent ten- dencies 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.

**56

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." n10 App. Br. at 22. Rather, the District Court and the ma- jority 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.

n10 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.

**57

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. n11   *528    In the most persuasive and well-reasoned opinion  cited,  Self-Allah  v.  Annucci,  1999  U.S.  Dist. LEXIS 7171, 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  in- junction 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 between Five Percenter literature and prison gang activities.

1999 U.S. Dist. LEXIS 7171 . The majority is mis- guided  to  suggest  that  this  supports  their  conclusion

**58  "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  al- legedly posed by the circulation of the group's literature.

n11 See Allah v. Beyer, 1994 U.S. Dist. LEXIS

14340,  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.,  43

Conn.  App.  176,  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., 326 N.J. Super. 543, 742

A.2d 162, 165 (N.J. Super. Ct. App. Div. 1999) ("We accept the argument of the DOC that it neither 'tar- geted' a religion nor classified religious beliefs as a security threat group,  but merely designated an association of inmates based on its history of vio- lence as a security threat group."); Buford v. Goord,

258 A.D.2d 761, 686 N.Y.S.2d 121, 122 (N.Y. App. Div. 1999) (upholding a ban on FPN literature).

**59

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,

283 F.3d 506, *528; 2002 U.S. App. LEXIS 4257, **59

Page 17

174 F.3d 464 (4th Cir. 1999) hereinafter Five Percenters , the Court of Appeals for the Fourth Circuit noted its ju- risprudence as requiring "some minimally rational rela- tionship," 174 F.3d 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.   174  F.3d  at  469  (citing Turner, 482 U.S. at 85, and Bell v. Wolfish, 441 U.S. 520,

547, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)). The court noted "ample evidence in the records" supporting the rea- sonableness 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 their religious beliefs,' and that they 'spoke of more violence to come.'" 174 F.3d at 466. The prisoners **60   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 de- cision as "manifestly a rational action." 174 F.3d 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,   *529

SCDC Director's decision to designate the Five Percenters as an STG was manifestly a rational action.

174  F.3d  at  470  (citation  omitted).  It  explained:

"Allowing prison officials to act only after a demonstra- tion of individual dangerousness would deprive them of the all-important option of prevention. The threat of vio- lence here was a group threat, and prison administrators were entitled to address it in those terms." 174 F.3d at

466.

While I think the test of "minimally" rational relation- ship has not been employed by our court and chips away at Turner, I cannot argue with **61   the result reached in that case. n12 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 implica- tions 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.

n12  In  Shaw  v.  Murphy,  Justice  Thomas  re- ferred 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.

If the inquiry does not satisfy the first prong of Turner, which  we  have  explained  received  the   **62    greatest weight, the prison's action must fail. See Shaw v. Murphy,

532 U.S. 223, 121 S. Ct. 1475, 1479, 149 L. Ed. 2d 420

(2001) ("If the connection between the regulation and the asserted goal is 'arbitrary or irrational,' then the regula- tion  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  disagree- ment  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 him to practice it. This is much different than the facts be- fore 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 **63   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 ab- sence 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.

283 F.3d 506, *529; 2002 U.S. App. LEXIS 4257, **63

Page 18

2000)  (en  banc)  (quoting  Bell  v.  Wolfish,   *530    441

U.S. 520, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)). Furthermore, "'Inmates clearly retain protections afforded by the First Amendment, . . . including its directive that no law shall prohibit **64   the free exercise of religion." Id. (quoting O'Lone v. Shabazz, 482 U.S. 342, 348, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (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,'" 227 F.3d at 51 (quoting Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct.

2800 (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, 149 L. Ed. 2d 420, 121 S. Ct.

1475 (2001).

We  have,  at  times,  overreacted  in  response  to  per- ceived characteristics of groups thought to be dangerous to our security or way of life and condemned individu- als based on group membership. See, e.g., Garner v. Bd. of Pub. Works, 341 U.S. 716, 95 L. Ed. 1317, 71 S. Ct.

909 (1951) (upholding requirement that all city employ- ees must disclose **65   membership to the Communist party and swear an oath of loyalty); Korematsu v. United States, 323 U.S. 214, 89 L. Ed. 194, 65 S. Ct. 193 (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 whole- sale 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 prison- ers, 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  treat- ment of such group members in wholesale fashion, even though  it  deprives  them  of  their  constitutional   **66  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. n13

n13 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 regard- ing Appellants' due process claim, as I agree with that provided by the majority.

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