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Incumaa v. Stirling

United States Court of Appeals, Fourth Circuit

July 1, 2015

LUMUMBA K. INCUMAA, a/k/a Theodore Harrison, Jr., Plaintiff - Appellant,
BRYAN P. STIRLING, Acting Director of the South Carolina Department of Corrections, Defendant - Appellee

Argued March 24, 2015

Page 518

Appeal from the United States District Court for the District of South Carolina, at Beaufort. (9:12-cv-03493-DCN). David C. Norton, District Judge.


Emily K. Merki, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant.

Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellee.


Steven H. Goldblatt, Center Director, Ruthanne M. Deutsch, Supervising Attorney, Lola A. Kingo, Supervising Attorney, Ryan H. Sellinger, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant.

Before MOTZ, KEENAN, and THACKER, Circuit Judges. Judge Thacker wrote the opinion, in which Judge Motz and Judge Keenan joined.


Page 519

THACKER, Circuit Judge

Lumumba Kenyatta Incumaa (" Appellant" ) is a member of the Nation of Gods and Earths (" NOGE" ), a group whose adherents are also known as " Five Percenters." In 1988, Appellant began serving a sentence of life imprisonment without the possibility of parole in a prison operated by the South Carolina Department of Corrections (the " Department" or " Appellee" ).[1] Following his participation in a 1995 prison riot with other Five Percenters, he was placed in solitary confinement security detention. He has remained in solitary confinement for 20 years, despite not having committed a single disciplinary infraction during that time.

With this suit, Appellant challenges his confinement on two grounds. Appellant's first cause of action arises under the Religious Land Use and Institutionalized Persons Act (" RLUIPA" ), 42 U.S.C. § 2000cc-1, which prohibits a state from imposing a substantial burden on an inmate's religious exercise unless it proves that the restriction furthers compelling interests by the least restrictive means. In this regard, Appellant argues that Department policy required him to renounce his affiliation with the NOGE, which he alleges is a religion, before the Department will release him from solitary confinement. On

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the second ground, Appellant claims that Appellee violated his right to procedural due process.

The district court granted Appellee's motion for summary judgment. We affirm the portion of the district court order discarding Appellant's RLUIPA claim, which, we agree, was not sufficient to go before a jury. However, we reverse the grant of summary judgment as it relates to Appellant's due process claim. Appellant's 20-year period of solitary confinement, we hold, amounts to atypical and significant hardship in relation to the general population and implicates a liberty interest in avoiding security detention. Furthermore, there is a triable dispute as to whether the Department's process for determining which inmates are fit for release from security detention meets the minimum requirements of procedural due process.



The Five Percenters and Appellant's Violent History

The NOGE is an " offshoot" of the Nation of Islam and other religious groups " in the Islamic sphere" that " preach[] a message of black empowerment." J.A. 91, 92.[2] The Five Percenters also have a history of violence in South Carolina prisons.[3] As a result, the parties maintain differing views of the Five Percenters. Appellant maintains the NOGE is a religious group. Although Appellee does not contest Appellant's claim that the NOGE meets the legal definition of a religion, the Department's regulations treat the Five Percenters like a violent gang. Of note, at times, the Five Percenters have themselves denied that their organization is a religion. See id. at 131 (stating, on the cover of " The Five Percenter" newsletter, " WE ARE NOT A RELIGION" (emphasis in original)).

In April 1995, a group of Five Percenters -- including Appellant -- organized a prison riot. The assailants took three Department employees hostage and held them for 11 hours during an intense standoff with police.[4] Four law enforcement officers were hospitalized. Following this violent uprising, on June 16, 1995, Appellee designated the Five Percenters as a Security Threat Group (" STG" ).[5]


Prison Regulation of STGs and their Members


Assignment of STG Members to Special Management Unit

When the Department's Special Investigations Unit suspects that an inmate is a

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member of an STG, the unit conducts a " rigorous investigation" to confirm the inmate's association. J.A. 126. If the investigators validate the inmate's STG membership, the Department's Institutional Classification Committee (" ICC" ) either recommends labeling the inmate as Validated-GP, which allows him to reside in the general population, or designates him as Validated-SD, which entails placement in security detention. According to Department Investigator Elbert Pearson,

If an individual has been validated as an STG member, but has not committed or been implicated in any disciplinary infractions or STG activities, that individual would typically, although not always, receive a classification of Validated-GP . . . .
If an individual has been validated as an STG member, and has committed disciplinary infractions . . . that individual would typically receive a classification of Validated-SD . . . .

Id. at 126-27. Security detention, in contrast to disciplinary detention, is not a punishment for disciplinary infractions but is used to protect inmates and staff and to maintain prison order.

If the ICC classifies an STG inmate as Validated-SD, it then determines where to place the inmate and what restrictions to impose upon him. The Department maintains two security detention units. A Validated-SD inmate can be assigned either to the Special Management Unit (" SMU" ) or the more restrictive Maximum Security Unit, which houses inmates who have engaged in violent behavior or have committed serious rules infractions. The ICC also determines the inmate's " behavior level," which dictates the inmate's restrictions and privileges while in his respective unit. J.A. 137. " Inmates who have been assigned to [s]ecurity [d]etention without serving [d]isciplinary [d]etention" are designated as Level II, and " inmates charged with . . . assault on a staff member and/or inmate" are " automatically . . . assigned to Level I." [6] Id. Level I inmates are held in the " strictest degree of custody and control" available in their unit. Id. at 149.

Due to his role in the 1995 riot, Appellant was validated as a Five Percenter, designated Validated-SD, and placed in the Maximum Security Unit. His assignment to security detention was not a punishment for participating in the riot but was generally intended " to maintain and control the inmate and to provide safety and security for the staff and other inmates." J.A. 284. Appellant was transferred to the SMU in 2005, and he has remained in the SMU as a Level II inmate since that time. He is currently one of only two Five Percenters housed in the SMU -- other validated Five Percenters are permitted to reside in the general population and openly maintain their affiliation with the group. During the decades Appellant has spent in security detention, he has not committed a single disciplinary infraction.


Conditions in SMU versus General Population

Appellant claims the SMU is substantially more restrictive than the general population. The Department does not contradict this account. As an SMU inmate, Appellant is

* confined to his cell " 24 hours a day on non-recreation and non-shower days" ;

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* permitted to leave his cell for recreation only one hour approximately ten times per month;
* allowed only a ten-minute shower three times per week;
* " stripped [sic] searched, made to lift and shake his genitalia, made to bend over, spread his buttocks in the direction of the officer so that he may look at [Appellant's] anus, then made to squat and cough, and afterwards hand cuffed behind his back every time he leaves the cell, even to the shower where he is locked in a single occupancy shower stall" ;
* served smaller portions of food than inmates in the general population receive;
* required to eat all meals in his cell;
* limited to property that can fit into a box that is 15 by 12 by 10 inches;
* " denied all canteen privileges" ;
* denied " education and vocational opportunities" ; and
* " denied the opportunity to receive mental health treatment for his diagnosed mental health condition."

J.A. 23-24.


Review of SMU Detention

Department regulations require the ICC to review each SMU inmate's candidacy for release every 30 days. According Pearson, there are three bases on which the ICC may recommend reclassification and release from the SMU: (1) the inmate renounces affiliation with the STG; [7] (2) improvement in behavior ...

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