Petition for Writ of Certiorari — Mickle v. Moore
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OFFICE OF ThE CL
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1998
ALEXANDER MICKLE, et al.,
Petitioners,
MICHAEL MOORE, et al.,
Respondents.
“IN RE: LONG TERM ADMINISTRATIVE SEGREGATION
OF INMATES DESIGNATED AS FIVE PERCENTERS”
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
Robert E. Toone (Counsel of Record) Gregory S. Forman
Katharine A. Huffman 171 Church Street
Stephen B. Bright Suite 160
Southern Center for Human Rights Charleston, SC 29401
83 Poplar Street, N.W. (803) 720-3749
Atlanta, GA 30303-2122
(404) 688-1202
QUESTIONS PRESENTED FOR REVIEW
1. Does placing prisoners in restrictive segregation on the
sole basis of their religious beliefs and their refusal to renounce
those beliefs violate the First Amendment?
2. Does the “command of judicial deference” in Turner v.
Safley, 482 U.S. 78 (1987), eliminate for prisoners the procedural
protections of Federal Rule of Civil Procedure 56, namely the rule
that courts should accept as true the evidence of the nonmoving
party and draw all justifiable inferences in its favor?
PARTIES TO THE PROCEEDING
Petitioners
Alexander Mickle, Donnathian Grant, Ameed Stevenson,
Shaleek Azeem, Antonio Roach, Fountain Wise Allah, Von
Huggins, James Hughes, Lord Musa God Allah, Equality King
Supreme Allah, Wayne Hemingway, Kironda Haynes, James
Zimmerman, Prince Hughes, Milton Dozier, Gregory Moment,
Clarence Carter, Raheem Malik Shabazz, Tejie White, Grover
Lumpkin, Booker Williams, Wayne Samuels, Charvell Douglas,
Kuinta Parker, Elijah Smith, Quinta Parker, Tony Addison,
Maurice Jacques, Leroy Smalls, Edward Washington, Larry Nel-
son, Derrick Dunbar, Ralph Davis, Brittie Cooke, Leroy Brice,
Jermaine Dillard, Lord Shameal Allah, James Harrington, Tyrone
Mitchell, Albert Jones, David Cross, Maurice Edwards, and John
Frazier.
Respondents
Michael Moore, former Commissioner: William Catoe,
former Deputy Director for Operations and current Commissioner:
and Kenneth D. McKellar, Director of Security, South Carolina
Department of Corrections, in their official and individual capaci-
ties.
il
TABLE (. . ONTENTS
QUESTIONS PRESENTED FOR REVIEW........__..
PARTIES TO THE PROCEEDING ..................
TABLE OF CONTENTS ..........................
I. | THIS COURT SHOULD GRANT CERTIORARI
TO DECIDE WHETHER PLACING PRISONERS
IN RESTRICTIVE SEGREGATION ON THE
SOLE BASIS OF THEIR RELIGIOUS BELIEFS
AND THEIR REFUSAL TO RENOUNCE THOSE
BELIEFS VIOLATES THE FIRST AMENDMENT
A. The proper standard of review for prison
policies that classify prisoners based on
their religious identity is a matter of conflict
among this Court and the circuit courts
ill
ee
B. The Fourth Circuit’s application of Turner
v. Safley conflicts with that of other circuit
Il. THIS COURT SHOULD GRANT CERTIORARI
TO ADDRESS WHETHER THE COURT BELOW
ERRED IN HOLDING THAT THE “COMMAND
OF JUDICIAL DEFERENCE” IN TURNER v.
SAFLEY, 482 U.S. 78 (1987), ELIMINATES FOR
PRISONERS THE PROCEDURAL PROTECTIONS
OF FEDERAL RULE OF CIVIL PROCEDURE 56,
NAMELY THE RULE THAT COURTS SHOULD
ACCEPT AS TRUE THE EVIDENCE OF THE
NONMOVING PARTY AND DRAW ALL
JUSTIFIABLE INFERENCES IN ITS FAVOR ... 19
PES bo ¥ hashes cect oessueeeeeu ol 26
APPENDIX
In Re: Long Term Administrative Segregation
of Inmates Designated as Five Percenters, 174 F.3d
464 (4th Cir. 1999) .....................-.. A-1
Denial of Petition for Rehearing (4th Cir. May 19,
ed EEL EL EE PETE Tete Teer eer, aa A-15
Mickle v. Moore, Civil Action No. 96-5555-2-23A]
(D.S.C. Dec. 3, 1997) (unpublished decision) ..... A-17
iV
TABLE OF AUTHORITIES
CASES
Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998) ..... 18
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ... 20
Allen v. Coughlin, 64 F.3d 77 (2d Cir. 1995) ........ 16, 21
Anderson v. Creighton, 483 U.S. 635 (1987) ........ 25
Anderson v. Liberty Lobby, Inc., 477 U.S. 242
RESET ee ser ah Sara ek er 20
Benjamin v. Coughlin, 905 F.2d 571 (2d Cir.), cert.
denied, 498 U.S. 951 (1990)............... 18
Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986) ..... 12-13
Cantwell v. Connecticut, 310 U.S. 296 (1940) ....... 9
Chicago v. Morales, ~U.S._, 1999 WL 373152
oe fe bi SEE Eee e eee 18
Church of Lukumi Babalu Aye, Inc. v. City Of
Hialeah, 508 U.S. 520 (1993)............. 9,12, 15
City of Boerne v. Flores, 521 U.S. 507 1 ae 12
Cooper v. Pate, 378 U.S. 546 (1964) .............. 10, 19
a ae.
Cooper v. Pate, 324 F.2d 165 (7th Cir. ee 10
Cooper v. Pate, 382 F.2d 518 (7th Cir. a 1]
Crawford-El v. Britton, 523 U.S. 574, 118S. Ct.
RED 66 eds decdecdce oe clean. 2!
Cruz v. Beto, 405 U.S. 319 (1972)................ 1]
Eastman Kodak Co. v. Image Technical Servs., Inc.,
504 U.S. 451 (1992) ..................... 20
Employment Division v. Smith, 494 U.S. 872 (1990) .. 9,12
Farmer v. Brennan, 511 U.S. 825(1994) ........... 24
Fowler v. Rhode Island, 345 U.S. 67 | aS ae 9
Freeman v. Arpaio, 125 F.3d 732 (9th Cir. 1997)..... 21
Heller v. Doe, 509 U.S. 312 (1993) ............... 22
Hines v. South Carolina Dept of Corrections, 148
F.3d 353 (4th Cir. 1998).................. 22
Hudson v. McMillian, 503 U.S. 1 (1992) ........... 24
Hunafa v. Murphy, 907 F.2d 46 (7th Cir. 1990) ...... 21,24
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. See 16
Jones v. North Carolina Prisoners Labor Union, 433 _
Dg, ee ene 20, 24
vi
Knecht v. Collins, 903 F. Supp. 1193 (S.D. Ohio
SS 22
Larson v. Valente, 456 U.S. 228 a 9
In Re: Long Term Administrative Segregation of
Inmates Designated as Five Percenters, 174
F.3d 464 (4th Cir. 1999).................. |
Masson v. New Yorker Magazine, Inc., 501 U.S. 496
oo 20
McDaniel v. Paty, 435 U.S. 618 (1978) ....... ee )
Mickle v. Moore, Civil Action No. 96-5555-2-23A]
(D.S.C. Dec. 3, 1997)... ........cccc cess, |
Monmouth County Correctional Inst. Inmates v.
Lanzaro, 834 F.2d 326 (3d Cir. 1987), cert.
denied, 486 U.S. 1006 (1988).............. 16
Niemotko v. Maryland, 340 U.S. 268 (1951) ........ )
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)... 11-12,
22, 24
to
Patrick v. LeFevre, 745 F.2d 153 (2nd Cir. 1984).....
Procunier v. Martinez, 416 U.S. 396 (1974)......... 15
Salaam v. Lockhart 1, 856 F.2d 1120 (8th Cir. 1988) .. 23
Vii
ee ee
Sk hm tert an tie
_ EE
Salaam v. Lockhart II, 905 F.2d 1168 (8th Cir. 1990),
cert. denied, 498 U.S. 1026 | eres 24
Shimer v. Washington, 100 F.3d 506 (7th Cir. 1996) .. 21
Thornburgh v. Abbott, 490 U.S. 40] Sven c esse. 15, 22
Turner v. Safley, 482 U.S. 78 (1987) .............. passim
United States v. Ballard, 322 U.S. 78 SUOUE cxedusns 19
Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990) ..... 23
Whitney v. Brown, 882 F.2d 1068 (6th Cir. 1989) .... 13, 16
Wolff v. McDonnell, 418 U.S. | 25
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const., Amend] .......................... passim
U.S. Const., Amend XIV....................... l
aa. Re nS ee ele
PPO Ee ONE ssc neckskesi ethene 6
WO OB. § URED ono cc ccccvcesccnvecucece,. 6
Vili
RULES
nN
Federal Rule of Civil Procedure 42................
Federal Rule of Civil Procedure 56............... i, 20-22
1X
Shea.
RO AA Rae tA A
OPINION LOW
The opinion of the court of appeals, In Re: Long Term
Administrative Segregation of Inmates Designated as Five
Percenters, No. 98-7337 (App. at A-1), is reported at 174 F.3d 464
(4th Cir. 1999). Rehearing was denied on May 19, 1999. App. at
A-15. The opinion of the district court, Mickle v. Moore, Civil
Action No. 96-5555-2-23AJ (D.S.C. Dec. 3, 1997) (App. at A-17),
was not published.
JURISDICTION
The court of appeals entered its judgment on April 21,
1999. A timely petition for rehearing was denied on May 19, 1999.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the First Amendment to the United
States Constitution, which in pertinent part prohibits laws “respect-
ing an establishment of religion, or prohibiting the free exercise
thereof”; and the Fourteenth Amendment, which in pertinent part
provides that-no state shall “deprive any person of life, liberty or
property, without due process of law.”
STATEMENT OF THE CASE
Petitioners are inmates in the custody of the South Carolina
Department of Corrections (“SCDC”) who have been indefinitely
placed in segregation solely because they are members of the Five
Percent Nation of Gods and Earths (also referred to as “Five
Percenters”). The Five Percent Nation was founded in the 1960's
1
by Clarence 13X, a former member of the Nation of Islam. Con-
cerned with the spiritual well-being of young people in society,
Clarence 13X focused on reaching those who had been overlooked
by the older Muslims. The Five Percent Nation is separate from the
Nation of Islam but emphasizes related texts, including the Holy
Qur'an. Individual members study spiritual lessons, pray, fast, and
participate in group worship. '
The courts below have assumed, for purposes of summary
judgment, that the Five Percent Nation of Gods and Earths is a
religious group entitled to protection under the Free Exercise
Clause of the First Amendment. (App. at A-7, A-20-21). Petition-
ers presented evidence below, including an expert affidavit and
excerpts from religious texts, showing that the Five Percent Nation
is in fact a religion, not a gang or other kind of criminal organiza-
tion. It is undisputed that numerous members of the Five Percent
Nation in the SCDC have never threatened prison security in any
way. Prior to the implementation of the SCDC’s policy. these in-
mates had excellent institutional records and low security levels.
While the Five Percent Nation is predominantly African American.
its lessons make clear that anyone, including whites, can become a
member. Several of the inmates whom the SCDC has designated as
Five Percenters have been white.
In June 1995 the SCDC designated the Five Percent Nation
as a “security threat group.” The SCDC initially segregated ap-
proximately 300 inmates whom it suspected were members of the
Five Percent Nation, including many inmates with excellent institu-
tional records, low security levels, and no involvement in any
|. For a description of the origins and spiritual beliefs of the Five
Percent Nation, see Patrick v. LeFevre, 745 F.2d 153, 155-56 (2nd Cir.
1984).
——— EEO
prison misconduct. Segregation requires that inmates remain in
their cells 23 hours per day. Inmates in segregation are excluded
from prison school and work programs and lose good-time credit as
a result. While in segregation petitioners have suffered from emo-
tional distress, severe depression requiring medication, and physi-
cal pain and suffering. SCDC policy recognizes that conditions in
its segregation units may lead to “acute anxiety or other mental
health problems” over time.
The SCDC considers inmates for release from segregation
only if they renounce their affiliation with the Five Percent Nation.
According to the SCDC's Security Threat Group Procedures, “[t]he
inmate must demonstrate their [sic] renunciation of affiliation with
the STG and document their renunciation on a Security Threat
Group Renunciation Form,” after which the Institutional Security
Threat Group Committee interviews the inmate to determine whet-
her release is appropriate based on his renunciation. Many inmates
have refused to renounce their religious beliefs and have remained
in segregation since this policy went into effect over four years ago.
Any group may be designated a “security threat” if it con-
sists of three or more inmates, a common name, and has members
who have committed unlawful acts relating to safety or security.
Although this definition includes nearly every racial, ethnic, or
religious group in the SCDC, the record in this case shows that the
Five Percent Nation is the on/y group it has designated as a security
threat.
The SCDC has maintained that its categorical segregation
and renunciation policy is justified because some individuals it
designated as Five Percenters were involved in institutional distur-
bances. Petitioners have disputed the accuracy of methods used by
the SCDC to identify prisoners as Five Percenters.’? Further, in the
June 16, 1995 memorandum implementing its policy, the SCDC
interpreted a particular religious lesson as support for its conclusion
that the Five Percent Nation promotes violence: “The second les-
son implies that the Five Percenters need to kill four ‘DEVILS.’
‘DEVIL’ in the Five Percenter terminology is the white man or any
other person not belonging to the Five Percenter Nation.” As peti-
tioners showed below, however, members of the Five Percent
Nation are not called upon to murder white people, but instead
believe that they must purify themselves by figuratively killing the
four “devils” of “lust, pride, longing for luxury and . . . bondage to
logic.” There is no evidence of any Five Percenter killing any
white person in South Carolina. The particular religious text ana-
lyzed by the SCDC actually comes from a lesson of the Nation of
2. For example, in the SCDC’s report on a January 1995 incident at
Lieber Correctional Institution, the investigator identifies the participat-
ing inmates as “admitted Five Percenters (Muslims who follow the
teachings of Louis Farakon [sic]}).” This identification is incorrect:
Minister Louis Farrakahn leads the Nation of Islam, not the Five
Percenters. The SCDC also cites the January 1995 incident at Allendale
Correctional Institution as grounds for its designation, but none of the
five inmates involved are listed in either the SCDC’s April 1995 or
March 1997 lists of Five Percenter inmates. The SCDC cites the April
1995 riot at Broad River Correctional Institution, but again none of the
inmates involved were designated as Five Percenters when the SCDC
implemented its segregation policy two months later. In fact, there is
only one, oblique reference to the Five Percent Nation in the SCDC’s
thirteen-page criminal investigative report about this riot. Moreover, the
rioting inmates’ expressed reasons for their conduct (the Director's
removal of inmates’ parole, personal clothes and religious haircuts) bear
no relation to Five Percenter beliefs generally as they do not require
religious haircuts or other grooming techniques. -
4
ee
Islam, which the SCDC recognizes as a valid religion, not a security
threat group.
The SCDC has also justified its policy by citing unsubstan-
tiated reports from other prison systems. However, to the extent
these reports suggest that the Five Percent Nation is a gang, not a
religion, they directly contradict the testimony of a key SCDC offi-
cial in this case.’
Petitioners do not minimize the seriousness of misconduct
in South Carolina prisons. The inmates involved were properly
subject to institutional and criminal sanctions for their violent and
unjustified behavior. However, none of the SCDC’s incident re-
ports support the conclusion that members of the Five Percent Na-
tion in the SCDC are involved in any system-wide conspiracy, or
that their beliefs inherently give rise to legitimate security concerns.
Instead, these reports describe isolated instances of misconduct that
_ 3. A one-page “intelligence summary” from the Federal Bureau of
Prisons (BOP) -- which itself does not segregate Five Percenter inmates -
- stated that the Five Percent Nation has a “[wJell organized criminal
structure” that “operates behind a facade of cultural and religious rheto-
ric.” By contrast, SCDC Security Threat Group Coordinator Robert
Walker testified that he believed that Five Percenters in the SCDC do not
have a hierarchy -- even though “most traditional prison gangs” do. The
BOP report stated that the Five Percent Nation is “very heavily into drug
trade,” whereas Walker knew of no Five Percenter involvement in illegal
drug dealing or literature advocating drug dealing. The BOP report
stated that the “main operating areas” of the Five Percenters “are concen-
trated in Monmouth and Ocean counties, New Jersey,” but did not
mention South Carolina at all. While Walker did not know of any gang
that does not punish members who try to leave without approval, he was
unaware of any such retaliation practices among Five Percenters in the
SCDC.
could have been committed by any random group of inmates, re-
gardless of their religious affiliation. When the SCDC placed the
approximately 300 inmates believed to be Five Percenters in admin-
istrative segregation in April 1995, only five of those individuals
had been identified in the reports that the SCDC has used to justify
its designation of the Five Percent Nation as a Security Threat
Group.
Beginning in July 1995, approximately forty-nine inmates
filed individual pro se civil rights actions challenging the SCDC’s
treatment of inmates designated as Five Percenters. On October 25,
1996, the district court ordered the various cases consolidated pur-
suant to Fed. R. Civ. P. 42(a), under the caption “In Re: Long Term
Administrative Segregation of Inmates Designated As Five
Percenters.” Petitioners filed an Amended Complaint on December
31, 1996. The district court had jurisdiction under 28 U.S.C. §§
1331 and 1343(a)(3).
On June 4, 1997, the SCDC filed a motion for summary
judgment. Petitioners responded with a memorandum of law; a list
of the disputed facts in the case; an expert declaration describing
the history and beliefs of the Five Percent Nation; declarations
describing petitioners’ religious beliefs, their excellent prison re-
cords. and conditions in segregated custody; religious texts of the
Five Percent Nation: excerpts from the deposition of the Security
Threat Group Coordinator for the SCDC; and other relevant institu-
tional records.
On December 3, 1997, the District Court awarded the
SCDC summary judgment on petitioners’ First Amendment chal-
lenge to their indefinite placement in isolated custody. It recog-
nized petitioners’ argument that only a few members of the Five
Percent Nation have any record of involvement in incidents of
lA Ela
violence in SCDC facilities,‘ but held that the “operative inquiry”
under Turner v. Safley, 482 U.S. 78 (1987), was “more than a mat-
ter of mere percentages,” but whether SCDC Officials, “given the
full body of information regarding the Five Percenters that was
available to them, could rationally conclude that segregating the
entire group would advance the legitimate interests of institutional
security.” App. at A-22-23. The court recognized a factual dispute
regarding whether the Five Percenters had a “philosophy of racial
hostility,” but concluded that this question was incidental to the
question “whether accommodation of Plaintiffs’ asserted rights
would impact the smooth administration of the prison.” Id. at A-25.
The court did not find any “ready alternatives” to the SCDC’s seg-
regation policy, although it did not specifically discuss the possibil-
ity of making individualized determinations of dangerousness unre-
lated to the petitioners’ religious beliefs. Id. at A-26.
Petitioners appealed the district court's summary judgment
order. On April 21, 1999, the Fourth Circuit affirmed. It Stated that
“restrictions that would clearly violate the Constitution outside the
prison setting may be rationally based within that setting.” App. at
A-7n.4. Based on three incidents that occurred in early 1995, the
court of appeals stated that it was “rational” for the SCDC to desig-
nate all members of the Five Percent Nation as security threats. Id.
at A-9. Petitioners could still exercise their religion: “Even in
high-security confinement the Five Percenters remain free to pray,
4. The court noted that of the sixty-four inmates currently confined in
high-security segregated custody at that time, the SCDC had documented
the involvement of eleven in prison disturbances. App. at A-22 n.1.
Eighteen inmates believed to be Five Percenters were involved in the five
incidents that took place between August 1992 and April 1995, prior to
the SCDC’s placement of 300 suspected Five Percenters in segregation.
Id.
fast, and study religious materials.” Id. To require that inmates be
classified on the basis of their predicted dangerousness, not their
religious identity, would deprive SCDC officials “of the all-impor-
tant option of prevention.” Id. at A-10. The court refused to credit
petitioners’ evidence regarding their rejection of racism and vio-
lence and their limited involvement in the incidents cited by the
SCDC because “to draw these inferences in the inmates’ favor
would turn Jurner’s command of judicial deference on its head.”
Id. As for the SCDC’s requirement that inmates renounce their
religious beliefs and affiliation, the court concluded that “it is up to
the SCDC to determine when an inmate is safe to return to the gen-
eral population.” Id. at A-11.
Petitioners’ request for en banc rehearing was denied on
May 19, 1999. App. at A-16.
REASONS FOR GRANTING THE WRIT
I. THIS COURT SHOULD GRANT CERTIORARI
TO DECIDE WHETHER PLACING PRISONERS
IN RESTRICTIVE SEGREGATION ON THE
SOLE BASIS OF THEIR RELIGIOUS BELIEFS
AND THEIR REFUSAL TO RENOUNCE THOSE
BELIEFS VIOLATES THE FIRST AMENDMENT.
A. The proper standard of review for prison
policies that classify prisoners based on
their religious identity is a matter of conflict
among this Court and the circuit courts.
Certiorari should be granted because the Fourth Circuit's
decision affirming summary judgment for the SCDC conflicts with
the First Amendment jurisprudence of this Court and other circuit
courts. Unlike virtually all other policies affecting prisoners’ First
8
SO SS eee
Amendment rights, the SCDC’s designation of the Five Percenters
as an “security threat group” is not a facially neutral policy which
incidentally i impinges upon religious freedom. Instead, it is an
explicit policy which uses religious belief as a generic proxy for
potential danger. Policies which explicitly target religion have
repeatedly been held to violate the “foremost” objective of the Free
Exercise Clause: to protect “the right to believe and profess what-
ever religious doctrine one desires.” Employment Division v.
Smith, 494 U.S. 872, 877 (1990). A “law targeting religious be-
liefs as such is never permissible.” Church of Lukumi Babalu Aye,
Inc. v. City Of Hialeah, 508 U.S. 520, 533 (1993) (emphasis added)
(citation omitted). See also Cantwell v. onnecticut, 310 U.S. 296,
303-04 (1940) (describing concept of “freedom to believe” as “‘ab-
solute” under Free Exercise Clause). The “principle that govern-
ment may not enact laws that suppress religious belief or practice is
so well understood that few violations are recorded in our opin-
ions.” Church of Lukumi, 508 U.S. at 523. See Larson v. Valente,
456 U.S. 228 (1982) (holding that statute treating some religious
denominations more favorably than others violated Establishment
Clause); McDaniel v. Paty, 435 U.S. 618 (1978) (striking down
Tennessee statute that disqualified ministers or priests from holding
certain public offices); Fowler v. Rhode Island, 345 U.S. 67 (1953)
(holding that municipal ordinance was applied unconstitutionally
when interpreted to prohibit preaching in public park by Jehovah's
Witness but to permit preaching by Catholics and Protestants):
Niemotko v. Maryland, 340 U.S. 268 (1951) (vacating disorderly
conduct convictions for two Jehovah's Witnesses who held meeting
in public park where other religious organizations had previously
been allowed to meet).
In its opinion, the Fourth Circuit refused to apply these
First Amendment cases, stating that “restrictions that would clearly
violate the Constitution outside the prison context” may survive
review within that setting. App. at A-7n.4. The decision not to
9
apply strict scrutiny to a policy which explicitly targets a religion
inside the prison context ignores this Court's decision in Cooper v.
Pate. 378 U.S. 546 (1964) -- a case with facts strikingly similar to
this one. The plaintiff Thomas Cooper was a “Black Muslim”
prisoner in Illinois: ie., a member of the Nation of Islam. Cooper
claimed that Illinois prison officials placed him in segregation be-
cause of his religious beliefs and refused to allow him a copy of the
Qur'an. The district court dismissed his complaint, and the Seventh
Circuit affirmed, taking judicial notice of “certain social studies
which show that the Black Muslim Movement, despite its pretext of
a religious facade, is an organization that, outside of prison walls,
has for its object the overthrow of the white race, and inside prison
walls, has an impressive history of inciting riots and violence.”
Cooper v. Pate, 324 F.2d 165, 166 (7th Cir. 1963). The Seventh
Circuit also referred to reports of violence at other prisons in the
country, and remarked that “it is apparent that the Muslim beliefs in
black supremacy and their reluctance to yield to any authority exer-
cised by ‘some one (who) does not believe in (their) God,” present a
Serious threat to the maintenance of order in a crowded prison envi-
ronment.” Id. at 167 (citation omitted).
This Court unanimously reversed, stating that it violates the
First Amendment for prison officials to discriminate against an
inmate “solely because of his religious beliefs.” Cooper, 378 U.S.
at 546. On remand, after observing that Black Muslims, including
Cooper, had been involved in “violent occurrences,” the Seventh
Circuit stated:
The problem should not be minimized.
Defendants, however, have not tried the course of
permitting worship services for this group under
regulation. Such course is apparently followed at
some institutions. Although Cooper and other Eli-
jah Muhammad Muslims at Stateville have been
10
serious disciplinary problems, there are other pris-
oners of their faith who have not been.
The district court found that there are /ess
drastic and less sweeping means of achieving nec-
essary control of such group services than calegor-
ically banning them. In part that is a finding of
fact, and in part a recognition that discrimination in
treatment of adherents of different Jaiths could be
Justified, if at all, only by the clearest and most pal-
pable proof that the discriminatory practice is a
necessity. Proof which would be more than ade-
quate support for administrative decision in most
fields does not necessarily suffice when we are
dealing with the constitutional guaranty of freedom
of religion. ...
ee
Cooper v. Pate, 382 F.2d 518, 521 (7th Cir. 1967) (emphasis
added). As for Cooper's confinement in the prison's segregation
unit, the court found that this treatment was “for normal disciplin-
ary reasons and not because of any religious beliefs he may hold.”
Id- at 523. Only because “Cooper’s detention in Segregation is not
on account of his religion,” the Seventh Circuit concluded, his
constitutional rights were not violated. Id. at 524. See also Cruz v.
Beto, 405 U.S. 319 (1972) (reversing dismissal of complaint alleg-
ing that Buddhist prisoners, unlike Protestant, Jewish, and Roman
: Catholic prisoners, were denied right to hold religious services).
Instead of following this Court’s ruling in Cooper, the
Fourth Circuit applied the test established in Turner v. Safley, 482
: U.S. 78 (1987), and O’Lone v. Estate of Shabazz, 482 U.S. 342
(1987). However, this case does not involve a neutral policy that
incidentally “impinges on” religious freedom, see O’Lone, 482 U.S.
at 349, but instead a policy that directly punishes the exercise of
11
ea ra re
particular religious beliefs and requires that those beliefs be re-
nounced in order for the punishment to cease. See Church of
Lukumi, 508 U.S. at 546 (applying “most rigorous of scrutiny” to
“law burdening religious practice that is not neutral or not of gen-
eral application”); Employment Division v. Smith, 494 U.S. at 877-
78 (same). Although the standard of review for a facially non-neu-
tral policy is disputed as between this Court and the Fourth Circuit,
existing case law may not resolve this question, because until this
Court invalidated the Religious Freedom Restoration Act, see City
of Boerne v. Flores, 521 U.S. 507 (1997), courts generally applied
the heightened standard of that Act in all prisoner religious freedom
cases. Nevertheless. the logic of this Court’s two-tiered First
Amendment analysis is as compelling in the prison context as it is
outside. Non-neutral regulation of religious belief is intolerable
under any circumstance.
* B. The Fourth Circuit’s application of Turner v.
Safley conflicts with that of other circuit courts.
Even if Turner governs all prisoner religious freedom
cases. the Fourth Circuit's application of this test directly conflicts
with that of other circuits. Courts in other circuits have refused to
allow prison officials to prohibit all religious exercise altogether.
In Caldwell v. Miller. 790 F.2d 589 (7th Cir. 1986), an inmate chal-
lenged a ban on group religious activities as part of a lockdown at a
penitentiary. In support of his motion for summary judgment, the
warden submitted an affidavit reciting the events that precipitated
the lockdown a few years earlier and noting that a task force con-
vened to review the operation of the penitentiary recommended
several changes to secure “a safer environment for both the inmate
population and staff.” Id. at 597. The Seventh Circuit reversed the
grant of summary judgment to the warden, concluding that it was
unable to determine, based on the record, whether the continuing
12
ban on group religious activities at the prison was reasonably
adapted to achieving an important correctional goal:
The interest in preserving order and authority in a
prison is self-evident, and internal security is “cen-
tral to all other correctional goals.” Nonetheless, in
the absence of evidentiary support, [the warden’s]
assertion that a total ban on all group religious ser-
vices is and was reasonably necessitated by secu-
rity considerations is conclusory, and hence, an
insufficient basis for summary judgment.
Id. at 599 (citations omitted). See also Whitney v. Brown, 882 F.2d
1068, 1078 (6th Cir. 1989) (holding that prison policy eliminating
Jewish inmates’ travel to weekly Sabbath services and annual Pass-
over seders was exaggerated response to security objectives).
There is no precedent in any other court that supports the Fourth
Circuit's summary finding that prison officials may suppress a
religious group altogether, based only on the contested assertion of
prison authorities that such segregation advances security interests.
The touchstone of the Turner test is neutrality. Courts must
“inquire whether prison regulations restricting inmates’ First
Amendment rights operated in a neutral fashion, without regard to
the content of the expression.” Turner, 482 U.S. at 90. The
SCDC’s policy is not neutral. The SCDC implemented its policy
on the basis of a demonstrably false interpretation of a religious
text -- construing a lesson to mean that Five Percenters must kill
“the white man,” rather than eliminate negative character traits such
as lust and pride -- which, it argued, showed that Five Percenter
beliefs themselves constitute a threat to prison security. The SCDC
continues to segregate all adherents of this religion, regardless of
each person’s institutional record or predicted dangerousness. It
conditions release from segregation on the inmate renouncing his
13
religious beliefs and affiliation. The SCDC has never explained
how renunciation promotes the goal of prison security.°
The Fourth Circuit rejected petitioners’ claim of non-neu-
trality (App. at A-10-11) by stating that a challenged policy must
merely be related to an ostensibly neutral government objective, not
that the policy must itself be neutral with respect to the content of
particular religious belief. The court concluded that “the STG
policy is not aimed at anyone’s freedom of expression.” App. at A-
11. This conclusion, however, misunderstands this Court’s holding
in Turner which requires that a challenged policy not only be sup-
ported by an ostensibly neutral purpose, but also be neutral in oper-
ation. Separating the SCDC’s security threat group policy from the
explicitly religious classification it allows creates a false distinction
between policy and practice, a distinction Turner manifestly rejects.
In addition to requiring that policies be neutral in both
purpose and operation, this Court has also repeatedly scrutinized
prison officials’ offered justifications to ensure that their responses
are not “exaggerated.” Turner, 482 U.S. at 98. This Court has not
5. Nothing less than a full renunciation of religious identify will
suffice, merely renouncing violence or other kinds of misconduct is
insufficient. While the Fourth Circuit acknowledged that “prison offi-
cials should not be in the practice of .. . proscribing . . . anyone's private
religious beliefs,” it concluded that the SCDC’s renunciation requirement
“does not suddenly render the policy irrational.” App. at A-11. The
SCDC can constitutionally “hinge” the determination of whether an
inmate could return to generai population “on the renunciation of affilia-
tion with a violent -- albeit assertedly religious -- group.” Id. This
analysis ignores not only petitioners’ evidence that the Five Percent
Nation ts not an inherently “violent” group, but also the undisputed
evidence that most adherents subjected to the SCDC’'s policy have had no
involvement in violence or other prison misconduct whatsoever.
14
allowed officials’ asserted connections between means and ends to
escape review altogether. In Turner itself the prison officials as-
serted the neutral objective of rehabilitation in support of a regula-
tion prohibiting inmates from marrying. Nevertheless, this Court
found that this objective was “suspect” and “lopsided” in that there
was evidence of “excessive paternalism” and greater official scru-
tiny of marriages of female inmates. Id. at 98-99. Similarly, in
Procunier v. Martinez, 416 U.S. 396 (1974), the Court struck down
regulations that provided for censorship of letters expressing “‘in-
flammatory political, racial, religious or other views or beliefs.” As
the Court later observed in Thornburgh v. Abbott, 490 U.S. 401
(1989) -- the case relied upon by the Fourth Circuit below -- despite
the prison officials’ asserted security interest, these regulations
were “decidedly not ‘neutral’ in the relevant sense” because they
invited suppression of expression and the exercise of officials’
“personal prejudices and opinions.” Id. at 416 n.14. See also
Church of Lukumi, 508 U.S. at 534-35 (stating that Free Exercise
Clause “forbids subtle departures from neutrality” and “covert
suppression of particular religious beliefs,” and finding that chal-
lenged law was not neutral because its drafters were concerned
about only one religious group, the Santeria, and because law “in its
real operation” targeted Santeria sacrifices).° Pe
6. Petitioners have not challenged the SCDC’s security threat group
policy in itself, but only its application against their religion. The policy
allows for any group to be designated a “security threat” if it consists of
three or more inmates, a common name, and members who have commit-
ted unlawful acts relating to safety or security. Almost any racial, ethnic,
or religious group would fall under this description -- African Americans.
Southern Baptists, Sunni Muslims, etc. -- as all these groups include
some members who have committed qualifying “unlawful” acts. By the
reasoning of the Fourth Circuit, the SCDC could lock down all Catholic
prisoners and require them to renounce their faith, so long as it justified
(continued...)
15
With regard to the second Tumer factor, the Fourth Circuit
concluded that “other avenues remain available” for the Five
Percenters to exercise their religion. App. at A-9 (citing Turner.
482 U.S. at 90). “Even in high-security confinement the Five
Percenters remain free to pray, fast, and study religious materials.”
Id.’ This “freedom,” however, hardly justifies the persecution that
places adherents in lockdown 23 hours per day in the first place.
Moreover, the only way for petitioners to escape indefinite
segregation is to renounce their religious beliefs altogether. It is
precisely such a Hobson's choice between religious freedom and
severely restrictive conditions of confinement that the second factor
in Turner aims to guard against.* The Fourth Circuit’s constricted
6. (...continued)
its policy as an attempt to promote prison security.
7. In fact, when the SCDC implemented its policy in 1995, it
prohibited inmates from possessing any literature relating to the beliefs of
the Five Percent Nation of Gods and Earths. Petitioners have access to
such literature now in segregation only as a result of the preliminary
injunction entered by the District Court (App. at A-35-39) and a subse-
quent Consent Order making that injunction permanent.
8. Cf, Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995) (holding that
record did not establish as matter of law that proposed alternative means
of exercising right were adequate); Whitney v. Brown, 882 F.2d 1068,
1077 (6th Cir. 1989) (holding that prohibition on movement to attend
Sabbath services left Jewish prisoners with “nothing,” in violation of
second Tumer factor); Monmouth County Correctional Inst. Inmates v
Lanzaro, 834 F.2d 326, 338 (3d Cir. 1987) (finding that no adequate
alternatives existed with respect to prison’s restrictions on non-therapeu-
tic abortions), cert. denied, 486 U.S. 1006 (1988). See also Jolly v.
Coughlin, 76 F.3d 468, 481 (2d Cir. 1996) (Here, the defendants placed
the plaintiff in the position of choosing to follow his religious beliefs or
(continued...)
16
notion of what “alternative means of exercising the right” satisfy
[urner raises serious questions that deserve review by this Court.
As for the third and fourth Turner factors, the Fourth Cir-
cuit ignored substantial issues of material fact as to whether the
SCDC can carry out its asserted security objective in a manner that
accommodates petitioners’ Free Exercise rights. Petitioners have
argued that the SCDC should determine their security level on the
basis of “objective, behavior-oriented factors,” Just as it does with
all other inmates. These determinations need not focus solely on an
inmate’s past conduct; they may consider a wide range of factors,
including the behavior of others with whom that inmate associates.
The Fourth Circuit concluded that individual assessments of dan-
gerousness “would simply reimpose the regime that existed before
the STG classification” (App. at A-10), but the evidence below
shows that certain incidents cited by the SCDC in support of its
policy could have been averted or minimized had the prison offi-
cials acted on clear warning signs of future misconduct.’ Petition-
ers do not contest “the all-important option of prevention.” App. at
A-10. What the SCDC cannot do is condemn all members of the
8. (...continued)
to improve his conditions of confinement; that choice is not meaningful,
much less constitutional.”’).
9. For instance, while they were inmates at Lee Correctional Institu-
tion, SCDC officials recognized inmates Willie Gary and Sheldon Craw-
ford -- not petitioners in this case -- as “troublemakers” and received
information that “they were going to seize a female hostage.” Certainly
the SCDC could have segregated these inmates on the basis of such
information, which is unrelated to (and indeed inconsistent with) any
beliefs or practices of sincere Five Percenters. Instead, the SCDC
transferred these inmates to Broad River Correctional Institution. where
they subsequently participated in the hostage-taking riot of April 1995.
17
Five Percenter religion merely by citing the misdeeds of individual
members, alleged or real.' Of the hundreds of inmates affected by
the SCDC’s policy, many -- including petitioners Alexander
Mickle, Shaleek Azeem, Walker Jenkins, and Ameed Stevenson --
previously had excellent institutional records and low security
levels. Their beliefs are the only reason for their placement in
Segregation.
The Fourth Circuit's extreme deference to SCDC officials,
coupled with its unwillingness to credit evidence in petitioners’
favor, see Section II, infra, resulted in a ruling that is unusually
hostile to the exercise of religious beliefs. While petitioners’ reli-
gion is by no means mainstream, it is particularly important for this
Court to protect its exercise:
The Fathers of the Constitution were not unaware
of the varied and extreme views of religious sects,
of the violence of disagreement among them, and
of the lack of any one religious creed on which all
men would agree. They fashioned a charter of gov-
ernment which envisaged the widest possible toler-
ation of conflicting views. Man's relation to his
10. Cf Abu-Jamal v. Price, 154 F.3d 128, 135 (3d Cir. 1998) (hold-
ing that ready alternatives to prison agency's application of rule against
inmates carrying on business or profession to inmate's writing existed
where agency “could simply apply its rule in a content neutral fashion’),
Benjamin v. Coughlin, 905 F.2d 571 (2d Cir.) (finding reasonable alter-
native to cutting hair of Rastafarian inmates that met prison's purported
security interests), cert. denied, 498 U.S. 951 (1990). See also Chicago
v. Morales, U.S.___, No. 97-1121, 1999 WL 373152, at *6 (June
10, 1999) (holding as unconstitutionally vague ordinance prohibiting not
only intimidating gang conduct, but also “a significant amount of addi-
tional activity”).
18
God was made no concern of the state. He was
granted the right to worship as he pleased and to
answer to no man for the verity of his religious
views.
United States v. Ballard, 322 U.S. 78, 87 (1944). The Fourth Cir-
cuit’s decision conflicts with this Court’s First Amendment juris-
prudence generally, its decision in Cooper v. Pate specifically, and
numerous decisions of other circuit courts defining the scope of
prisoners’ religious freedom. This Court’s review is greatly
needed.
II. THIS COURT SHOULD GRANT CERTIORARI
TO ADDRESS WHETHER THE COURT BELOW
ERRED IN HOLDING THAT THE “COMMAND
OF JUDICIAL DEFERENCE?” IN TURNER v.
SAFLEY, 482 U.S. 78 (1987), ELIMINATES FOR
PRISONERS THE PROCEDURAL PROTECTIONS
OF FEDERAL RULE OF CIVIL PROCEDURE 56,
NAMELY THE RULE THAT COURTS SHOULD
ACCEPT AS TRUE THE EVIDENCE OF THE
NONMOVING PARTY AND DRAW ALL
JUSTIFIABLE INFERENCES IN ITS FAVOR.
In affirming summary judgment for the SCDC, the Fourth
Circuit refused to accept the evidence of petitioners, the nonmoving
party, as true. It expressly ruled that this Court’s decision in Turner
v. Safley, 482 U.S. 78 (1987), prevented it from drawing inferences
in prisoners’ favor:
[T]he inmates protest that they are not a racist
group and that they do not promote violence. They
dispute some incidents reported by the SCDC, con-
19
tend that others involve only a few inmates, and
suggest that these were isolated cases. But to draw
these inferences in the inmates’ favor would turn
Turner's command of judicial deference on its
head. The question is not whether Moore's conclu-
sion was indisputably correct, but whether his con-
clusion was rational and therefore entitled to defer-
ence. See Jones, 433 U.S. at 127-28....
App. at A-10. The court of appeals completely disregarded the
expert and other evidence presented by petitioners showing that the
Five Percent Nation is not racist, is not inherently violent, and in no
Way promotes or fosters gang activity or other unlawful conduct. It
ignored SCDC official testimony showing that Five Percenters lack
the essential attributes of prison gangs. including a hierarchy. initia-
tion and retaliation practices, and involvement in drug dealing. It
ignored the fact that Alexander Mickle and other petitioners had
exemplary prison records and low security levels prior to being
locked down for their religion in April 1995. The Fourth Circuit's
application of Turner and the rules on summary judgment conflicts
with the decisions of this Court and other circuit courts.
It is axiomatic that in deciding or reviewing a motion for
summary judgment. courts must accept as true the evidence of the
nonmoving party and draw all justifiable inferences in its favor.
See, ¢.g.. Eastman Kodak Co. v. Image Technical Servs., Inc., 504
U.S. 451, 456 (1992): Masson v. New Yorker Magazine, Inc.. 50!
U.S. 496, 520 (1991). Anderson v. Liberty Lobby, Inc., 477 U.S.
242. 255 (1986): Adickes v. S.H. Kress & Co,. 398 U.S. 144, 157-
59 (1970). Courts must deny summary judgment when a genuine
issue of material fact remains to be tried. or where the moving party
is not entitled to a judgment as a matter of law.
20
There is no prisoner exception to Federal Rule of Civil
Procedure 56. Even when applying the “reasonableness” standard
of Turner v. Safley, courts must construe evidence and draw infer-
ences favorably to the nonmoving party. The Fourth Circuit's
statement that “7urner’s command of judicial deference” prohibits
the drawing of inferences in petitioners’ favor is completely
unsupported by prior precedent and creates a conflict with the deci-
sions of this Court and other circuit courts."
Just last year, this Court rejected the D.C. Circuit's attempt
to impose, absent an amendment to the applicable federal rules, a
“clear and convincing burden of proof” for certain prisoner claims
in summary judgment proceedings. This change, the Court found.
“lacks any common law pedigree and alters the cause of action
itself in a way that undermines the very purpose of § 1983 -- to
provide a remedy for the violation of federal rights.” Crawford-E|
vy. Britton, 523 U.S.574, _, 118 S. Ct. 1584. 1595 (1998). The
Fourth Circuit's modification of Rule 56 and established summary
judgment procedure raises the very same concerns.
Il. See, e.g.. Freeman v. Arpaio, 125 F.3d 732, 736-37 (9th Cir
1997) (reversing summary judgment for prison officials regarding alleged
denial of Muslim inmates’ access to Jumah services, notwithstanding
Officials’ disputed assertion that services were canceled due to absence of
hired Imam); Shimer v. Washington, 100 F.3d 506, 510 (7th Cir. 1996)
(finding fact issues as to reasonableness of prohibition on correctional
employees from writing to parole board on behalf of inmates); Allen v,
Coughlin, 64 F.3d 77, 80-81 (2d Cir. 1995) (reversing summary judgment
where fact issues existed as to constitutionality of prison prohibition
against receiving newspaper clippings by mail); Hunafa v. Murphy, 907
F.2d 46, 47 (7th Cir. 1990) (finding fact issues as to danger posed by
distribution of pork-free diets to Muslim inmates in disciplinary segrega-
tion).
21
The Fourth Circuit's baseless modification of the rules on
summary judgment was compounded by its exceedingly deferential
application of the test set forth in Turner and O’Lone. Throughout
its decision, it framed its inquiry in terms of mere “rationality.”
See. e.g.. App. at A-3 (describing designation of Five Percenters as
security threat group as “a rational response’), A-7 (requiring only
“minimally rational” relationship between challenged policy and
governmental objective) (quoting Hines v. South Carolina Dep't of
Corrections, 148 F.3d 353, 358 (4th Cir. 1998)). The court stated
that by incorporating “the language of rational basis scrutiny,” the
Turner Court “chose the most deferential possible standard of re-
view for cases presenting such issues of prison administration.”
App. at A-7-8.
Indeed, few prison policies would fail a standard of “mini-
mal rationality.” See Heller v. Doe, 509 U.S. 312, 319-21 (1993)
(stating that rational basis scrutiny does not require evidentiary
showing by government, gives “strong presumption of validity” to
challenged classification, and allows for “imperfect fit between
means and ends’). The touchstone of the Turner test, however, is
not rationality, but reasonableness: a policy that impinges on in-
mates’ constitutional rights is valid only if “it is reasonably related
to legitimate penological interests.” Turner, 482 U.S. at 89. This
distinction is critical. The Turner “reasonableness standard,” this
Court has cautioned, is “not toothless.” Thornburgh v. Abbort, 490
U.S. 401, 414 (1989). In Turner itself the Court struck down a
regulation prohibiting inmates from marrying as “an exaggerated
response” to security concerns. 482 U.S. at 98-99. The deference
that Turner accords to prison officials does not relieve courts of
their duty to ensure that those officials do not disregard constitu-
tional mandates. “This is especially true in the First Amendment
area. where prison officials may attempt to ‘eliminate unflattering
or unwelcome opinions [and] apply their own personal prejudices
and opinions.”” Knecht v. Collins, 903 F. Supp. 1193, 1200 (S.D.
22
Ohio 1995) (citation omitted); see also Walker v. Sumner, 917 F.2d
382, 385 (9th Cir. 1990) (“[D]eference does not mean abdication.”).
Turner requires a “mutual accommodation between institutional
needs and objectives and the provisions of the Constitution that are
of general application.” Salaam v. Lockhart |, 856 F.2d 1120, 1122
(8th Cir. 1988) (citation omitted).
In effect, the Fourth Circuit's change to summary judgment
rules and emphasis on “minimal rationality” convert Turner into a
subjective inquiry. The court suggested as much by determining
not whether the SCDC’s decision to implement its Five Percenter
policy was actually “correct,” but only whether it was “rational and
therefore entitled to deference.” The district court made this sub-
jective reformulation of Turner more explicit by, for instance, stat-
ing that the operative inquiry under its first prong was “whether
Defendants, given the full body of information regarding the Five
Percenters that was available to them, could rationally conclude
that segregating the entire group would advance the legitimate
interests of institutional security.” App. at A-23 (emphasis
added).'?
Turner, however, sets forth an objective, not subjective,
test. It differs in this respect from the standards this Court has
established in the context of general challenges to prison conditions
12. See also App. at A-25 (stating that with regard to third Turner
prong, SCDC officials possessed “competent information” about certain
inmates’ involvement in violent incidents and “racially-biased philoso-
phies,” from which they “reasonably concluded” that segregation of all
Five Percenters would improve prison security; they “intended” this
segregation to alleviate their perceived security risk); id, at A-26 (looking
to “the information on which Defendants based their actions” with regard
to fourth Turner prong). The district court never evaluated the SCDC
policy objectively, under all the facts in this case.
23
(where courts must determine whether officials are “deliberately
indifferent,” see Farmer v. Brennan, 511 U.S. 825, 834 (1994)), or
official brutality (where courts must determine whether officials
acted “maliciously and sadistically,” see Hudson v. McMillian. 503
U.S. 1, 5-6 (1992)). Under Turner, the inquiry is not whether
SCDC officials acted “rationally” in 1995 based on the incomplete
and inaccurate information immediately before them, but whether
there is a “valid, rational connection” in fact between their policy
and their purported governmental objective. 482 U.S. at 89. Courts
are obligated to make “an independent review of the evidence.”
Salaam v. Lockhart IJ, 905 F.2d 1168, 1171 (8th Cir. 1990), cert.
denied, 498 U.S. 1026 (1991). See, e.g., Turner, 482 U.S. at 98-99
(making independent evaluation of logical connection between
restrictions on marriage and prison officials’ asserted governmental
objectives and concluding that officials acted “on the basis of
excessive paternalism”), Hunafa v. Murphy, 907 F.2d at 48
(rejecting reading of O'Lone that requires “only a determination
that a rational basis for the regulation can be conjectured,” as
opposed to determination after evidentiary hearing of “proper
balance” between prisoner's religious freedom and needs of penal
system).
13 The case that the Fourth Circus cites, Jones v. North Carolina
Prisoners’ Labor Union, 433 U.S. 119 (1977), does not contradict this
point’ There this Court indicated that the informed beliefs of prison
officials should be deferred to absent “a showing that these beliefs were
unreasonable.” Jd. at 127-28. Jones, however, presumes that inmates
may make such a showing in opposition, not that courts must invariabiy
rule in officials’ favor once they articulate a “rational” basis for a chal-
lenged policy. Both Tumer and O'Lone were post-trial appeals, and this
Court's analyses drew heavily from the factual evidence developed at
trial. See O’Lone, 482 U.S. at 350-53; Tumer, 482 U.S. at 91-93, 97-99
24
The need for an objective evaluation of the evidence,
treated fairly under the rules for summary judgment, is especially
important with respect to petitioners’ claims for prospective relief.
The SCDC’s policy continues to this day: inmates like Alexander
Mickle, who have no history of institutional misconduct or
involvement in any criminal conspiracy, remain locked down 23
hours per day in segregation indefinitely. It is one thing for SCDC
officials to escape damages liability on the ground that they had
incomplete or inaccurate information when they implemented their
policy in 1995. See, e.g.. Anderson v. Creighton, 483 U.S. 635,
640 (1987) (recognizing qualified immunity where “contours” of
legal right are not “sufficiently clear” to make unlawfulness of
official’s conduct “apparent”). It is far different to foreclose an
injunctive remedy for an ongoing government policy not because it
is “correct,” but because it was “rationally” implemented four years
ago.
The exceedingly deferential analysis below does exactly
what this Court warned courts not to do: it immunizes prison
officials from constitutional commands and renders Turner
toothless. Unless this Court accepts review of this case, the
decision of the Fourth Circuit will draw back the “iron curtain . . .
between the Constitution and the prisons of this country,” Wolff v,
McDonnell, 418 U.S. 539, 555-56 (1974), leaving even the most
egregious violations of prisoners’ religious freedom shielded from
court review.
25
CONCLUSION
For the foregoing reasons, petitioners urge this Court to
grant their petition for certiorari.
Respectfully submitted,
(ret...
Robert E. Toone (Counsel of Record)
Katharine A. Huffman
Stephen B. Bright
Southern Center for Human Rights
83 Poplar Street, N.W.
Atlanta, GA 30303-2122
(404) 688-1202
Gregory S. Forman
171 Church Street
Suite 160
Charleston, SC 29401
(803) 720-3749
Attorney's for Petitioners
DATED: July ___, 1999
26
A-| to A-14
A-15 to A-16
A-17 to A-40
APPENDIX
In Re: Long Term Administrative
Segregation of Inmates Designated as Five
Percenters, 174 F.3d 464 (4th Cir. 1999)
Denial of Petition for Rehearing (4th Cir.
May 19, 1999)
Mickle v. Moore, Civil Action No. 96-
5555-2-23AJ (D.S.C. Dec. 3, 1997)
(unpublished decision)
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
—
In Re: Lonc Term ADMINISTRATIVE
SEGREGATION OF INMATES DESIGNATED
As Five Percenters.
ALEXANDER MICKLE, DONNATHIAN
Grant, AMEED STEVENSON, SHALEEK
Azeem, ANTONIO Roacu, FOUNTAIN
Wise AtLan, Von Hucains, James
Hucues, Lorp Musa Gop ALLAH,
Eguatity Kinc Supreme ALLAH,
Wayne Hemincway, KiIRONDA
Haynes, James ZIMMERMAN, PRINCE
HuGues, Mitton Dozier, Grecory
Moment, Crarence Carter, RAHEEM
MA.ik SHasazz, Tesie WHITE, No. 98-7337
Grover Lumpkin, Booker WILLIAMS,
Wayne SAMueLs, CHARVELL
Douctas, Evuan Smitn, Quinta
PARKER, TONY ADDISON, MAURICE
Jacques, Leroy Smatis, Epwarp
WASHINGTON, Larry NELSON,
Derrick Dunsar, RAcpx Davis,
Brittic Cooke, Leroy Brice.
Jermaine Dittarp, Lorp SHAMEAL
ALLAH, James HARRINGTON, TYRONE
Mitcuett, Apert Jones, Davin
Cross, Maurice Epwarps. Joun
FRAZIER,
Plaintiffs-Appellants,
Vv.
2 In Re: LonG TERM ADMINISTRATIVE SEGREGATION
Micnatt Moort, Commissioner;
Wittiam Catoe, Deputy Director for
Operations, South Carolina
Department of Corrections; KENNETH
D. McKe.var, Director of Security,
South Carolina Department of
Corrections in their official and ;
individual capacities,
Defendants-Appellees,
and
SCDC,
Defendant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CA-96-5555-2-23AJ)
Argued: March 2, 1999
Decided: April 21, 1999
Before WILKINSON, Chief Judge, KING, Circuit Judge,
and LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge King and Judge Lee joined.
COUNSEL
ARGUED: Robert Earl Toone, Jr.. SOUTHERN CENTER FOR
HUMAN RIGHTS, Atlanta, Georgia, for Appellants. Andrew Freder-
A-2
In Re: Lonc Term ADMINISTRATIVE SEGREGATION 3
ick Lindemann, DAVIDSON, MORRISON & LINDEMANN, P.A..
Columbia, South Carolina, for Appellees. ON BRIEF: Katharine A.
Brumme, III], ACLU OF SOUTH CAROLINA, Columbia, South Car-
Olina, for Appellants. David L. Morrison, DAVIDSON, MORRISON
& LINDEMANN, P.A.. Columbia, South Carolina; David C. Ecks-
trom, NEXSEN, PRUET, JACOBS & POLLARD, L.L.P., Columbia,
South Carolina; Vinton D. Lide. LIDE, MONTGOMERY & POTTS,
P.C., Columbia, South Carolina, for Appellees.
OPINION
WILKINSON, Chief Judge:
After a series of violent prison incidents involving members of the
Five Percent Nation of Islam (the Five Percenters), the South Carolina
Department of Corrections (SCDC) classified the Five Percenters as
a Security Threat Group (STG). Acting under its Security Threat
Group policy, the SCDC then transferred all Five Percenters to
administrative segregation or to maximum custody confinement. A
number of those inmates filed suit, raising challenges to this policy
under the Free Exercise Clause, the Equal Protection Clause, and the
Eighth Amendment of the Constitution. The district court granted
Summary judgment to the defendant officials of the SCDC, and the
inmates appeal. Because the designation of the Five Percenters as an
STG was a rational response to a threat to prison safety — a concern
peculiarly within the province of penal authorities — we affirm the
judgment of the district court.
I.
This case concerns the long-term segregation under the SCDC’s
Security Threat Group policy of inmates affiliated with the Five Per-
centers, a group which appellants describe as a religious sect and
which appellees claim is a violent gang. In fact, it was the history of
violence involving Five Percenters that led to the group's classifica-
tion as a security threat. In early 1995 three such incidents occurred
A-3
4 In Re: Lonc TERM ADMINISTRATIVE SEGREGATION
in SCDC facilities. That January a group of Five Percenters assaulted
three other inmates at Lieber Correctional Institution, requiring the
intervention of corrections personne]. In a second incident that same
month, a group of Five Percenters attacked three correctional officers
at the Allendale Correctional Institution, beating those officers with
their own batons and assaulting them with their own pepper spray. As
a result, each of the victims was hospitalized. The incident report for
the Allendale attack reported that “these five inmates acted as a
group,” that they “felt as if they were acting in a manner acceptable
to the[ir] religious beliefs," and that they “spoke of more violence to
come."
The third, most serious incident occurred in April 1995, when six
Five Percenters and one other inmate staged a not in the Broad River
Correctional Institution. Wielding knives, softball bats, and a variety
of improvised weapons, the inmates attacked and severely injured
several correctional officers in the prison cafeteria and yard. The
inmates then seized one officer and two food service employees as
hostages, leading to an eleven-hour standoff with law enforcement
personnel. Four officers were hospitalized as a result of these events.
The SCDC’s problems with the Five Percenters were neither new
nor unique. In 1992 an inmate in the Central Correctional Institution
reported being stabbed and beaten by a group of Five Percenters. Fur-
thermore, according to the unit manager of the Lee Correctional Insti-
tution, a group of Five Percenters had been active in that facility as
early as 1993, stealing from and preying on weaker inmates and on
one occasion attempting to start a not. In addition, SCDC Director
Michael Moore learned that the Five Percenters had been active in
prison systems in New Jersey, New York, North Carolina, and Vir-
ginia.
On June 16, 1995, SCDC Director of Security Kenneth McKellar
sent Moore a memorandum referring generally to the Five Percenters’
history of violence and describing specifically the Broad River hos-
tage taking. In addition, the memorandum informed Moore that both
the New Jersey Department of Corrections and the Federal Bureau of
Prisons had classified the Five Percenters as a threat group. McKellar
attached to this memo a New Jersey intelligence report describing the
Five Percenters as “a group of individuals who espouse violence as
A-4
eee
IN Re: Lonc Term ADMINISTRATIVE SEGREGATION 5
@ means to an end.” A federal intelligence summary, also obtained by
the SCDC, called the Five Percenters a “radical Islamic sect/criminal
group” that "is often boldly racist in its views, prolific in its criminal
activities, and operates behind a facade of cultural and religious rheto-
ric." Based on this information and the SCDC’s own experience,
McKellar recommended and Moore approved the designation of the
Five Percenters as an STG in South Carolina.
The SCDC's Security Threat Group policy defines an STG as
any formal or informal organization, association, or group of
three (3) or more inmates that have a common name, and
whose members or associates engage or have engaged in
two (2) or more activities that include planning, organizing,
threatening, financing, soliciting or committing unlawful
acts or acts of misconduct classified as serious threats or
potential threats to the safety and security of the public, the
Department, employees, visitors and/or other inmates.
SCDC Policy No. OP-21.01.' The SCDC Director may designate a
group as an STG after consideration of. among other things, the
group's history of unlawful activity in the SCDC or other prison sys-
tem, its history of unlawful activity in the community, its organiza-
tional structure, and its Propensity for violence. SCDC Procedure No.
OP-21.01(OP). This designation permits penal institutions to remove
all inmates affiliated with the STG from the general prison popula-
tion, io reclassify them to a higher custody level, and hence to
increase the restrictiveness of their confinement.
Classification of an individual as an STG member requires
approval up the prison’s chain of command, including the approval
of the prison warden and the SCDC Deputy Director of Operations.
An inmate who is classified as an STG member is notified of that fact
and given an opportunity to respond. An inmate may be released from
‘Citations to the STG Policy and Procedure arc to the versions of those
instruments, dated May 15, 1996, that were presented to the district court
and to this court. There has been no Suggestion that these documents are
not representative of the STG policy and Procedure in effect in June
1995.
A-5
6 IN Re: Lonc TERM ADMINISTRATIVE SEGREGATION
STG status only if the Director removes the STG designation from his
group, if the SCDC finds that it has misidentified the inmate, or if the
inmate renounces his affiliation with the group.
SCDC institutions proceeded to identify #adividual Five Percenters
and to adjust their security classifications. Those inmates — number-
ing approximately three hundred at the outset and approximately
sixty-four as of March 1997 — were confined in administrative segre-
gation and in maximum custody, both of which require full-time in-
cell confinement except when the inmates shower or take recreation.
In the summer of 1995 a number of those inmates filed suits in the
United States District Court for the District of South Carolina. After
their cases were consolidated, the appellants filed an amended com-
plaint asserting claims under the Constitution and 42 U.S.C. § 1983.
Specifically, the inmates alleged that the designation of the Five Per-
centers as an STG violated the Free Exercise Clause of the First
Amendment and the Equal Protection Clause of the Fourteenth
Amendment. They also claimed that their indefinite high-security
confinement violated the Eighth Amendment.’ Their complaint
named Moore, McKellar, and William Catoe, Deputy Director for
Operations of the SCDC, in their personal and official capacities, and
requested injunctive relief and damages.
The Five Percenters moved for a preliminary injunction and the
defendants moved for summary judgment. The district court granted
the defendants’ motion with regard to the free exercise, equal protec-
tion, and Eighth Amendment claims. The Five Percenters appeal.’
?Appellants raised three other claims that are not at issuc in this appeal.
The first, a challenge to a ban on the possession of Five Percenter litcra-
ture, was settled by the parties after the district court enjoined the restric-
tion. The second, based on the Religious Freedom Restoration Act of
1993, 42 U.S.C. § 2000bb et seg., was withdrawn in light of the Supreme
Court's intervening decision in City of Boerne v. Flores, 117 S.Ct. 2157
(1997). The third, based on the Due Process Clause, has been abandoncd.
*The Five Percenters also appeal the district court's refusal to certify
a class action in this case. The court reasoned that the joinder of all par-
ties would not be impracticable, Fed. R. Civ. P. 23(a)(1), and chose
instead to consolidate all Five Percenter cases pursuant to Rule 42(a). We
do not think the district court abused its discretion in declining to certify
a class. See Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 757 (4th
Cir. 1998).
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IN Re: Lonc TERM ADMINISTRATIVE SEGREGATION 7
II.
We first address the Five Percenters’ claim under the Free Exercise
Clause of the First Amendment. Although the parties vigorously dis-
pute whether the Five Percenters even constitute a religious group, the
district court did not attempt to resolve this question. Rather, the court
assumed — as do we — that the Five Percenters are a religious group
entitled to First Amendment protection. We thus avoid the "difficult
and delicate task" of examining the nature and sincerity of the
inmates’ professed beliefs. Thomas v. Review Bd.. 450 U.S. 707, 714
(1981); see Patrick v. LeFevre, 745 F.2d 153 (2d Cir. 1984).
Our review of the challenged SCDC action is nevertheless highly
deferential. Even assuming that analogous action outside the prison
context would violate the Constitution, “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if
it is reasonably related to legitimate penological interests." Turner v.
Safley, 482 U.S. 78, 89 (1987): accord O'Lone v. Estate of Shabazz,
482 U.S. 342, 349 (1987); Hines v. South Carolina Dep't of
Corrections, 148 F.3d 353, 358 (4th Cir. 1998). This standard
reflects a basic reality of conviction and confinement: Although pris-
oners are not completely without the Constitution's protection,
"[{lJawful incarceration brings about the necessary withdrawal or limi-
tation of many privileges and rights, a retraction justified by the con-
siderations underlying our penal system.” O'Lone, 482 US. at 348
(internal quotation marks omitted). For that reason, “once the Depart-
ment demonstrates that it is pursuing a legitimate governmental
objective, and demonstrates some minimally rational relationship
between that objective and the means chosen to achieve that objec-
live, we must approve of those means.” Hines, 148 F.3d at 358.
The rationale for judicial deference is greatest when the mainte-
nance of prison order is at stake. By using the language of rational
“Although the partics debate the import of Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). we think it
contrary to the teachings of Turner to transpose the doctrine of non-
Prison cases into the prison context. Indeed, restrictions that would
clearly violate the Constitution outside the prison setting may be ratio-
nally based within that setting.
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Pe) IN Re: Lonc TERM ADMINISTRATIVE SEGREGATION
basis scrutiny, the Supreme Court chose the most deferential possible
standard of review for cases presenting such issues of prison adminis-
tration. The Supreme Court also explicitly rejected heightened judi-
cial scrutiny of prison security policies. Rigorous scrutiny, the Court
noted, is simply “not appropriate for consideration of regulations that
are centrally concerned with the maintenance of order and security
within prisons." Thornburgh v. Abbott, 490 U.S. 401, 409-10 (1989).
"Subjecting the day-to-day judgments of prison officials to an inflexi-
ble strict scrutiny analysis would seriously hamper their ability to
anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration.” Turner, 482 U.S. at
89. In the difficult and dangerous business of running a prison, front-
line officials are best positioned to foresee threats to order and to
fashion responses to those threats. Hence, the “evaluation of penologi-
cal objectives is committed to the considered judgment of prison
administrators, ‘who are actually charged with and trained in the run-
ning of the particular institution under examination.’" O'Lone, 482
U.S. at 349 (quoting Bell v. Wolfish, 441 U.S. 520, 562 (1979)). When
a state correctional institution is involved, the deference of a federal
court is even more appropriate. Turner, 482 U.S. at 85. Prison offi-
cials “should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain institutional
security.” Bell, 441 U.S. at 547.
The SCDC’s Security Threat Group policy has exactly that objec-
tive. According to the SCDC, the purpose of the STG policy is “to
promote the secure, safe, and orderly operations of all SCDC institu-
tions, . . . to facilitate the early detection of [STG] activities and mem-
bers and to ensure, to the extent possible, efficient intervention into
possible volatile situations." SCDC Policy No. OP-21.01. These are
not simply legitimate penological interests — they are compelling.
Hines, 148 F.3d at 358.
The Five Percenters do not — and cannot — claim that the STG
policy itself is not rationally related to the furtherance of the legiti-
mate end of prison security. The STG policy requires the assessment,
monitoring, identification, and evaluation of all groups “whose mem-
bers or associates engage or have engaged in . . . planning, organiz-
ing, threatening, financing, soliciting or committing unlawful acts or
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IN Re: Lonc Term ADMINISTRATIVE SEGREGATION 4
acts of misconduct.” SCDC Policy No. OP-21.01. And once a group
has been designated as an STG, its members are identified, reclassi-
fied, and separated from the general prison population. By removing
those inmates who systematically engage in violence and other
unlawful acts from the general population and by increasing the
security of their confinement, the STG policy targets a core threat to
the safety of both prison inmates and officials. The nexus between
this policy and the maintenance of prison safety is self-evident.
The Five Percenters do, however, challenge the application of the
STG policy to their own group. Under Turner v. Safley, several fac-
tors “are relevant to, and serve to channel" our consideration of the
rationality of the SCDC’s actions. Thornburgh, 490 U.S. at 414. First,
like the STG policy itself, the designation of the Five Percenters as
a Security Threat Group is rationally related to the legitimate objec-
tive of penal security. There is ample evidence in the record support-
ing the reasonableness of Moore's conclusion that the Five Percenters
as a group posed a threat to prison safety. Five Percenters had been
involved in three serious acts of violence in the SCDC system in the
first four months of 1995. One of those incidents involved an assault
on fellow inmates, while the other two resulted in the hospitalization
of prison correctional officers. Additionally, Moore presented evi-
dence that the New Jersey Department of Corrections and the Federal
Bureau of Prisons had identified the Five Percenters as a racist, vio-
lent group presenting an organized threat to prison security. In light
of the information that Moore had before him, the decision to desig-
nate the Five Percenters as an STG was eminently rational.
Second, “other avenues remain available" for the Five Percenters
to exercise their religious practices in administrative segregation and
in maximum custody. Turner, 482 U.S. at 90 (internal quotation
marks omitted). Even in high-security confinement the Five Per-
centers remain free to pray, fast, and study religious materials.
Although the inmates are unable to participate in group meetings,
they are not "deprived of all means of expression.” O'Lone, 482 U.S.
at 352 (internal quotation marks omitted).
Third, the accommodation of the Five Percenters’ asserted nights
would come at too high a cost. See Turner, 482 U.S. at 90. Prison
administration often involves tough tradeoffs. In the closed environ-
A-9
10 Ix Re: Lonc TERM ADMINISTRATIVE SEGREGATION
ment of a prison, greater liberties for some may mean increased dan-
ger and intimidation for others. Because increased freedom for the
Five Percenters would come "only at the cost of significantly less lib-
erty and safety for everyone else, guards and other prisoners alike,”
we are particularly reluctant to interfere with the judgment of the
SCDC in this case. /d. at 92-93.
Finally, there are no ready alternatives to the SCDC’s course of
action. See id. at 90-91. The Five Percenters urge that the SCDC
should only segregate an inmate after making an individual assess-
ment of that inmate’s dangerousness. But this would simply reimpose
the regime that existed before the STG classification — a regime that
Moore concluded posed an unacceptable danger to corrections offi-
cers and to other inmates. When confronted with a threat to order,
"[rlesponsible prison officials must be permitted to take reasonable
steps to forestall such a threat, and they must be permitted to act
before the time when they can compile a dossier on the eve of a not.”
Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 132-
33 (1977); accord United States v. Stotts, 925 F.2d 83, 87 (4th Cir.
1991). Allowing prison officials to act only after a demonstration of
individual dangerousness would deprive them of the all-important
option of prevention. The threat of violence here was a group threat,
and prison administrators were entitled to address it in those terms.
The Five Percenters offer three arguments why the SCDC’s actions
were unreasonable. Initially, the inmates protest that they are not a
racist group and that they do not promote violence. They dispute
some incidents reported by the SCDC, contend that others involved
only a few inmates, and suggest that these were isolated cases. But
to draw these inferences in the inmates’ favor would tum 7urner's
command of judicial deference on its head. The question is not
whether Moore's conclusion was indisputably correct, but whether his
conclusion was rational and therefore entitled to deference. See Jones,
433 U.S. at 127-28. Confronted with multiple reports of an identifi-
able group whose members not only threatened but had actually com-
mitted serious, violent acts in the SCDC system and elsewhere,
Moore's decision to designate the Five Percenters as an STG was
manifestly a rational action.
Next, the Five Percenters contend that the application of the STG
policy to their group is irrational because it is not “content neutral,”
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IN Re: LonG Term ApMINISTRATIVE SEGREGATION 11
inasmuch as it operates against the inmates on the basis of their group
affiliation. But Turner's only requirement of neutrality is that the
interest being furthered be "unrelated to the suppression of expres-
sion." Thornburgh, 490 U.S. at 415 (internal quotation marks omit-
ted). Here, the STG policy is not aimed at anyone's freedom of
expression. Rather, it rationally furthers the neutral policy of protect-
ing prison security and order. It therefore does not violate the Consti-
tution.
The Five Percenters finally question the SCDC’s policy of releas-
ing from administrative segregation those prisoners who renounce
their affiliation with the group. But since the SCDC may classify
inmates on the basis of their affiliation with the Five Percenters,
declassifying those inmates who renounce that affiliation does not
suddenly render the policy irrational. We do not think prison officials
should be in the practice of prescribing — or proscribing — anyone's
private religious beliefs. That is not their province. But it is up to the
SCDC to determine when an inmate is safe to return to the general
population. If the SCDC wishes to hinge that determination on the
renunciation of affiliation with a violent — albeit assertedly religious
— group, it may do so.
Although the Five Percenters would have us second-guess the
SCDC in this most critical area of prison security, the Constitution
does not mandate such intrusion. Because the SCDC’s decision to
designate the Five Percenters as an STG is rationally related to the
legitimate end of prison safety and security, it does not offend the
Free Exercise Clause.
III.
The Five Percenters further claim that the application of the STG
policy to their group violates the Equal Protection Clause. But they
offer no evidence that similarly situated groups of inmates — reli-
gious or otherwise — have been treated differently under the STG
policy, much less that the SCDC has acted with a discriminatory
purpose.* "There is nothing in the Constitution which requires prison
“We therefore need not proceed to the succeeding question of whether
the inmates’ differential treatment, had it occurred, would have been
A-11l
}2 In Re: LoNG TERM ADMINISTRATIVE SEGREGATION
officials to treat all inmate groups alike where differentiation is neces-
sary to avoid an imminent threat of institutional disruption or vio-
lence.” Jones, 443 U.S. at 136. The inmates have simply failed to
show that the SCDC violated their equal protection rights.
IV.
The Five Percenters finally contend that their long-term segregated
confinement violates the Eighth Amendment. The inmates complain
that they are confined to their cells for twenty-three hours per day
without radio or television, that they receive only five hours of exer-
cise per week, and that they may not participate in prison work,
school, or study programs. These conditions are indeed restrictive, but
the restrictive nature of high-security incarceration does not alone
constitute cruel and unusual punishment. Sweet v. South Carolina
Dep't of Corrections, 529 F.2d 854, 857 n.1 (4th Cir. 1975) (en banc).
To make out a violation of the Eighth Amendment, the inmates “must
show both (1) a serious deprivation of a basic human need; and (2)
deliberate indifference to prison conditions on the part of prison offi-
cials." Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (inter-
nal quotation marks omitted). This inquiry has objective and
subjective prongs; the Five Percenters’ claim founders on both of
them. 7
First, the Five Percenters have not shown that the conditions in
administrative segregation or maximum custody work a serious depri-
vation of a basic human need. See Rhodes v. Chapman, 452 U.S. 337,
347 (1981). The inmates do not contend that the SCDC has failed or
will fail to provide them with "adequate food, clothing, shelter, and
medical care" or to protect them from harm. Farmer v. Brennan, 511
U.S. 825, 832 (1994). And the isolation inherent in administrative
segregation or maximum custody is not itself constitutionally objec-
rational under Turner. See Benjamin v. Coughlin, 905 F.2d 571, 575 (2d
Cir. 1990); see also Salaam v. Collins, 830 F. Supp. 853, 859 (D. Md.
1993) ("Unless . . . plaintiffs can show that the challenged regulation
impinges on a constitutional nght — which in an equal protection sctting
requires a showing of discriminatory intent — the Turner/O'Lone |stan-
dard} is not properly invoked."), aff'd sub nom. Calhoun-El v. Robinson,
70 F.3d 1261 (4th Cir. 1995) (table).
A-12
IN Re: LonG TERM ADMINISTRATIVE SEGREGATION 13
tionable. Indeed, this court has noted that "isolation from companion-
ship, restriction on intellectual stimulation[,) and prolonged inactivity,
inescapable accompaniments of segregated confinement, will not ren-
der [that] confinement unconstitutional absent other illegitimate
deprivations.” Sweet, 529 F.2d at 861 (internal quotation marks omit-
ted).
Moreover, the indefinite duration of the inmates’ segregation does
not render it unconstitutional. Appellants complain that they have
already been confined in administrative segregation or maximum cus-
tody for over three years, and that they do not expect to be released
in the foreseeable future. The duration of confinement in some of
these cases has been long, but length of time is “simply one consider-
ation among many” in the Eighth Amendment inquiry. Hutto v.
Finney, 437 U.S. 678, 687 (1978); see Sweet, 529 F.2d at 861-62.
Although the Five Percenters claim that their segregation has caused
them to become depressed, the only evidence submitted on this point
were the affidavits of a few inmates asserting that the overall condi-
tions of their confinement have placed them under “great stress” and
caused them "great emotional and physical suffering.” Depression and
anxiety are unfortunate concomitants of incarceration; they do not,
however, typically constitute the "extreme deprivations . . . required
to make out a conditions-of-confinement claim." Hudson v.
McMillian, 503 U.S. 1, 8-9 (1992). A depressed mental state, without
more, does not rise to the level of the "serious or significant physical
Or emotional injury” that must be shown to withstand summary judg-
ment on an Eighth Amendment charge. Strickler, 989 F.2d at 1381;
see Lopez v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990).
Second, the SCDC has not been deliberately indifferent to the
inmates’ needs. See Wilson v. Seiter, 501 U.S. 294, 303 (1991);
Shakka v. Smith, 71 F.3d 162, 166-67 (4th Cir. 1995). In fact, the
Opposite appears to be true. The SCDC’s procedures for administra-
live segregation provide for periodic visits by medical personnel and
for the referral of inmates displaying mental health problems for treat-
ment. SCDC Procedure No. 1500.13. The Five Percenters do not
allege that these procedures have not been followed — indeed, two
inmates attest that they are receiving medication for their conditions,
and another states that he has refused such attention. See Taylor v.
Freeman, 34 F.3d 266, 271-72 (4th Cir. 1994) (finding remedial mea-
A-13
14 IN Re: Lonc TERM ADMINISTRATIVE SEGREGATION
sures probative of a lack of official indifference). Since the Five Per-
centers have failed to “come forward with evidence from which it can
be inferred that the defendant-officials were . . . knowingly and unrea-
sonably disregarding an objectively intolerable risk of harm,” Farmer,
511 U.S. at 845-46, summary judgment on this claim was likewise
proper on the basis of the defendants’ state of mind.
wi
In sum, we hold that the long-term segregation of the Five Per-
centers is rationally based, and therefore that it does not violate the
Free Exercise Clause. We further hold that the SCDC has not violated
the Equal Protection Clause or the Eighth Amendment.® We therefore
affirm the judgment of the district court.
AFFIRMED
*Since we hold that there has been no constitutional violation, there is
no need to address the qualified immunity of the individual defendants.
‘A-14
PR Lee kk Se
ee le ae he eee
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
May 19, 1999
No. 98-7337
CA-96-5555-2-23AJ
In Re: LONG TERM ADMINISTRATIVE SEGREGATION OF INMATES
DESIGNATED AS FIVE PERCENTERS
ALEXANDER MICKLE, DONNATHIAN GRANT, AMEED STEVENSON,
SHALEEK AZEEM, ANTONIO ROACH, FOUNTAIN WISE ALLAH, VON
HUGGINS, JAMES HUGHES, LORD MUSA GOD ALLAH, EQUALITY
KING SUPREME ALLAH, WAYNE HEMINGWAY, KIRONDA HAYNES,
JAMES ZIMMERMAN, PRINCE HUGHES, MILTON DOZIER, GREGORY
MOMENT, CLARENCE CARTER, RAHEEM MALIK SHABAZZ. TEJIE
WHITE, GROVER LUMPKIN, BOOKER WILLIAMS, WAYNE SAMUELS.
CHARVELL DOUGLAS, QUINTA PARKER, ELIJAH SMITH. VON
HUGGINS, QUINTA PARKER, TONY ADDISON, MAURICE JACQUES.
LEROY SMALLS, EDWARD WASHINGTON, LARRY NELSON.
DERRICK DUNBAR, RALPH DAVIS, BRITTIE COOKE, LEROY BRICE.
JERMAINE DILLARD, LORD SHAMEAL ALLAH, JAMES HARRINGTON.
TYRONE MITCHELL, ALBERT JONES, DAVID CROSS, MAURICE
EDWARDS, JOHN FRAZIER,
Plaintiffs - Appellants
MICHAEL MOORE, Commissioner; WILLIAM CATOE, Deputy
Director for Operations, South Carolina Department of
A-15
Corrections; KENNETH D. MCKELLAR, Director of Security, South
Carolina Department of Corrections in their official and individual
capacities
Defendants -- Appellees
and
SCDC
Defendant
On Petition for Rehearing and Rehearing En Banc
The appellant's petition for rehearing and rehearing en
banc was submitted to this Court. As no member of the Court or
the panel requested a poll on the petition for rehearing en banc,
and
As the panel considered the petition for rehearing and is of
the opinion that it should be denied,
IT IS ORDERED that the petition for rehearing and
rehearing en banc is denied.
For the Court,
/s/ Patricia S. Connor
CLERK
A-16
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ALEXANDER MICKLE, FILED
et al. Dec. 3, 1997
Plaintiff,
v. C.A. No. 2:96-5555-23AJ
MICHAEL MOORE,
Director of the South
Carolina Department of
Corrections, et al., ORDER
Defendants.
This matter is before the court upon the magistrate judge's
recommendation that the defendants’ motion for summary judg-
ment be granted in part and denied in part. The record contains
two reports and recommendations of the United States Magistrate
made in accordance with 28 U.S.C. § 636 (b)(1)(B). The first
report and recommendation, filed on July 1, 1997, pertains to
Plaintiffs' Motion for a Preliminary Injunction. The second report
and recommendation, filed on July 23, 1997, pertains to Defen-
dants' Motion for Summary Judgment.
I. TIME FOR FILING OBJECTIONS
A party may object, in writing, to a magistrate's report
within ten days after being served with a copy of that report. 28
A-17
U.S.C. § 636 (b)(1). Three days are added to the ten-day period if
the recommendation is mailed rather than personally served.
Plaintiffs filed timely objections to the first report and recommen-
dation on July 9, 1997. Plaintiffs filed timely objections to the
second report and recommendation on August 5, 1997. Defen-
dants filed timely objections to the second report and recommen-
dation on August 11, 1997.
: VIEW 7 S
This court must conduct a de novo review of any portion
of a magistrate's report to which a specific objection is registered
and may accept, reject, or modify, in whole or in part, the recom-
mendation contained in that report. 28 U.S.C. § 636 (b)(1).
Plaintiffs have filed objections to the magistrate's recom-
mendation that their Motion for a Preliminary Injunction should be
denied. The magistrate based his recommendation on the fact that
Plaintiffs’ motion was based on the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. § 2000bb et seg., which has been ruled
unconstitutiona! by the United States Supreme Court. It appears
that, prior to the magistrate's issuance of his report and recommen-
dation, Plaintiffs filed an amended brief which included an argu-
ment that Defendants’ actions violated the First Amendment, as
well as a RFRA argument. However, in recommending that
Plaintiffs’ request for a preliminary injunction be denied, the
magistrate considered only Plaintiffs’ RFRA argument, and not the
First Amendment argument contained in their amended brief.
Plaintiffs have also filed objections to the magistrate's
recommendation that Defendants’ Motion for Summary Judgment
should be granted with respect to Plaintiffs’ claims that the higher
security classification and segregated custody imposed on the Five
A-18
ates es, =
Percenters group violates the First Amendment, the Equal Protec-
tion Clause of the Fourteenth Amendment, and the Eighth Amend-
ment. Plaintiffs also object to the magistrate's recommendation
that Defendants should be entitled to qualified immunity from
money damages on all of their claims. Defendants have filed
objections to the magistrate's recommendation that their Motion
for Summary Judgment should be denied as to Plaintiffs’ claim
that Defendants are violating the First Amendment by banning
Five Percenters literature entirely from all South Carolina Depart-
ment of Corrections (SCDC) facilities.
For organizational purposes, this Court will consider
Defendants’ Motion for Summary Judgment first, and then will
proceed to consider Plaintiffs' Motion for a Preliminary Injunc-
tion.
Il. DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
A review of the objections and the record indicates that
the magistrate's report and recommendation accurately describes
the facts of this case and the applicable law. Accordingly, this
Court adopts and incorporates the magistrate's report and recom-
mendation into this Order.
A. Summary Judgment Standard
To grant a motion for summary judgment, this court must
find that “there is no genuine issue as to any material fact.” Fed.
R. Civ. P. 56(c). The judge is not to weigh the evidence, but
rather to determine if there is a genuine issue for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If no material
factual disputes remain, then summary judgment should be granted
A-19
against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on
which the party bears the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317 (1986). All evidence should be viewed in
the light most favorable to the non-moving party. Perini Corp. v.
Perini Constr., Inc., 915 F.2d 121, 123-124 (4th Cir. 1990).
“(Where the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, disposition by summary
judgment is appropriate.” Teamsters Join ncil No. 83 v.
Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991). “[T]he plain
language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party
will bear the burden of proof at trail.” Celotex, 477 U.S. at 322.
The “obligation of the nonmoving party is ‘particularly strong
~ when the nonmoving party bears the burden of proof.’” Hughes v.
Bedsole, 48 F.3d 1376, 1381 (4th Cir. 1995) (quoting Pachaly v.
City of Lynchburg, 897 F.2d 723, 725 (4th Cir. 1990), cert. de-
nied. 116 S. Ct. 190 (1995)). Summary judgment is not “a
disfavored procedural shortcut,” but an important mechanism for
weeding out “claims and defenses (that] have no factual bases.”
Celotex. 477 U.S. at 327.
B. Discussion
As an initial matter, it should be noted that the magistrate
did not decide the question of whether the Five Percenters consti-
tute a “religion” as a matter of law. The magistrate merely as-
sumed, for the purposes of this motion, that the Five Percenters are
a religion, noting that the question of whether a set of beliefs
constitutes a religion is ill-suited for resolution on summary judg-
ment. Magistrate's Report and Recommendation, pp. 8-9. In
A-20
analyzing the parties’ objections to the magistrate's Report and
Recommendation, this Court will follow his assumption that the
Five Percenters are a religion. It is worth noting that the only
federal Circuit court to consider this issue reversed and remanded a
district court determination that the Five Percenters are not a
religion, although it did not affirmatively hold that they are a
religion. Patrick v. Lefevre, 745 F.2d 153 (2nd Cir. 1984).
(1) Plaintiffs' Objections to the Magistrate's Report and Rec-
ommendation
Plaintiffs assert that Defendants overreacted to the actions
of a few "bad apples" within the Five Percenters group when they
classified the Five Percenters as a security threat group and placed
them in isolated-high-security custody. Plaintiffs further assert
that Defendants’ actions violate their rights protected under the
First Amendment, Eighth Amendment, and Equal Protection
Clause of the Fourteenth Amendment.
(a) First Amendment
As the magistrate noted in his recommendation, Plaintiffs’
First Amendment claims are evaluated under the test established
by the Supreme Court in Turner vy. Safley, 482 U.S. 78 (1987).
See also O'Lone v. Estate of Shabazz, 482 U.S. 342 ( 1987) (hold-
ing that the Turner test applies to claims that prison regulations
violate First Amendment right to free exercise of religion). The
Turner Court held that “when a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reason-
ably related to legitimate penological interests.” Id. at 89. It then
articulated four factors relevant to assessing the reasonableness of
prison regulations:
A-21
(1) Whether there is a “valid, rational connection” be-
tween the regulation and the government interest put
forward to justify it;
(2) Whether alternative means of exercising the rights in
question remain open to the inmates,
(3) The impact that accommodation of the asserted rights
will have on prison guards, other inmates, and the alloca-
tion of prison resources;
(4) Whether there is an absence of “ready alternative”
available to prison officials by which they may accom-
plish the goals of the regulation at issue.
Id. at 89-90.
With regard to the first factor, Defendants assert that the
history within SCDC facilities, as well as other prison systems
nationwide, demonstrates that the Five Percenters, as a group,
constitute a threat to institutional security and safety. The magis-
trate concluded that the “undisputed evidence” in the record
supports Defendants’ assertion. Plaintiffs, on the other hand,
contend that the evidence in the record is far from undisputed, and
that it shows that only a small percentage of Five Percenters have
any record of involvement in incidents of violence in SCDC
facilities.’ The operative inquiry under the first prong of Turner.
‘ The exact numbers and percentages of Five Percenters that
have been involved in prison disturbances is unclear from the record. By
Plaintiffs’ own computations, however, it appears that at least eighteen
Five Percenters were involved in at least five separate incidents of prison
violence in SCDC facilities between August of 1992 and April of 1995.
A-22
however, is more than a matter of mere percentages -- the issue is
whether Defendants, given the full body of information regarding
the Five Percenters that was available to them, could rationally
conclude that segregating the entire group would advance the
legitimate interests of institutional security. In addition to contain-
ing evidence of Five Percenter involvement in several prison
disturbances at SCDC facilities, the record also demonstrates that
Defendants possessed information to the effect that at least one
other state (New Jersey) and the United States Bureau of Prisons
have designated the Five Percenters as a security threat group. See
Defendants’ Exhibits 9 and 10. Given this information, the magis-
trate did not err when he concluded that placing the Five
Percenters in a higher security category is rationally and reason-
ably related to the legitimate penological interest of promoting
safety and security in SCDC facilities.
The second Turner factor asks whether alternative means
of exercising their rights remain open to Plaintiffs. In this case, it
appears from the record that confinement of F ive Percenters to
heightened-security segregated custody eliminates their ability to
gather and to meet in "cyphers" or "universal parliaments," which
are dictated by their beliefs. However, the record reflects that the
decision to place Plaintiffs in isolated custody was largely based
on the rationale that, as described above, further violence could be
averted by separating the Five Percenters from the prison popula-
tion and preventing them from gathering in groups. Therefore,
Plaintiffs’ computations also demonstrate that, of the 64 inmates stil
confined in heightened-security segregated custody as Five Percenters, at
least eleven (or 17.2%) are documented by Defendants as having been
involved in prison disturbances. See Plaintiffs’ Brief in Opposition to
Defendants’ Motion for Summary Judgment, pp. 22-23.
A-23
allowing Plaintiffs out of isolated custody to gather for "cyphers"
and “universal parliaments" would risk re-creating the security
and safety threats that such custody was meant to avoid in the first
place. Thus, there is no alternative to this restriction on Plaintiffs’
religious practices.
It should be noted that this restriction does not totally
prevent Plaintiffs from practicing their religion. Indeed, the
magistrate correctly noted that numerous other means of practicing ©
their religion are available to Plaintiffs. They may pray, meditate,
fast, follow dietary restrictions, and study the Qu’ran, the Bible,
and literary materials of the Nation of Islam.’ It is apparent from
the record that, while the restrictions will hinder Plaintiffs’ abili-
ties to practice their religion somewhat, it will not foreclose all, or
even most, of Plaintiffs’ religious practices.
The third Turner factor concerns the impact that accom-
modating Plaintiffs' asserted rights would have on prison staff,
resources, and other inmates. Plaintiffs assert that those Five
Percenters who have been confined in segregated custody solely
because of their affiliation with the Five Percenters group should
be released into the general population, and that such a measure
would have only minimal impact on the rest of the prison. The
magistrate, however. noted that a court should be reluctant to
“ Under the measures imposed by Defendants, Plaintiffs are
prohibited from possessing certain pieces of Five Percenters literature.
However, the magistrate concluded that the literature ban is too
restrictive and that Plaintiffs may be allowed access to properly censored
Five Percenters literature. As discussed in greater detail infra, this Court
finds the magistrate's conclusion with respect to the literature ban to be
correct -- therefore, the lifting of the absolute ban on Five Percenters
literature provides Plaintiffs with yet another means of practicing their
religion.
A-24
second-guess the judgment of prison officials on such a matter.
Furthermore, the magistrate stated that, when prison officials have
identified members of a group that subscribes to a philosophy of
racial hostility, they should not be required to wait for those
inmates to act on that philosophy before taking steps to separate
them from the rest of the prison population. Plaintiffs object to
this conclusion on the grounds that the record fails to establish the
requisite racial animus of the Five Percenters, and that the SCDC
and sevéral federal courts have recognized that certain other
groups with racially-biased beliefs constitute bona fide “reli-
gions.” Thus, they appear to argue that, whatever racism is inher-
ent in the Five Percenters' beliefs, it does not justify placing all
Five Percenters in segregated custody.
In truth, the existence (or non-existence) of a racial ele-
ment within Plaintiff's belief system is incidental to the analysis
required by the third Turner factor. That factor simply asks
whether accommodation of Plaintiffs’ asserted rights would impact
the smooth administration of the prison. In this case, as described
above, Defendants possessed competent information displaying a
pattern of involvement by Five Percenters in several violent inci-
dents in SCDC facilities, as well as indicating that the group
adhered to certain racially-biased philosophies. From that infor-
mation, they reasonably concluded that prison security would be
improved by segregating the Five Percenters from the rest of the
prison population. Accommodating Plaintiffs’ asserted rights
(which would entail releasing many or all of the Five Percenters
back into the general population) would, again, run the risk of
creating the very security risk which Defendants intended to
alleviate -- thus, it can hardly be said that the impact on prison
administration would be “minimal.” “When accommodation of an
asserted right would have a significant ‘ripple effect’ on fellow
inmates or on prison staff, courts should be particularly deferential
A-25
to the informed discretion of corrections officials." Turner, 482
U.S. at 90. Thus, the magistrate did not err in concluding that the
third Turner factor weighs in Defendants’ favor.
The fourth and final Turner factor requires determining
whether there are any “ready alternatives” to Defendants’ actions.
The existence of obvious, easy alternatives to the restrictions
imposed by Defendants (specifically, the placement of the Five
Percenters in high-security isolated custody) is evidence that such
restrictions are not reasonable. Jd. at 90. However, given the
close relationship between the third and fourth factors, the magis-
trate correctly noted that prison officials deserve deference with
regard to this issue as well. Id.; O'Lone, 482 U.S. at 349-350, 353.
In this case, the "alternative" for which Plaintiffs argue would
require releasing the Five Percenters back into the prison popula-
tion and monitoring them, and presumably waiting until one or
more of them become involved in a violent incident before placing
them in segregated custody. The magistrate concluded that, given
the information on which Defendants based their actions and the
strong policy of deference to prison officials as articulated by the
Supreme Court, it would be improper for a court to tell Defendants
that they must wait for further incidents of violence to act. Based
on the above review, this Court finds no error with that conclu-
sion.
(b) Equal Protection Clause
Plaintiffs argue, as above, that their placement in segre-
gated custody is an exaggerated response to the actions of a few
“bad apples” within their group. They further argue that such a
response amounts to unconstitutional discrimination, because
Defendants have never placed all members of any other religious
group in segregated custody because of the acts of a few “bad
A-26
apples.”
Plaintiffs are correct in asserting that prisoners do not
forfeit their rights to be free from unconstitutional discrimination
on the basis of religion. However, courts have recognized that
practical concerns of prison administration may weigh on the
degree to which a particular religion must be accommodated. For
example, while Plaintiffs cite the case of Al-Alamin v. Gramley,
926 F.2d 680 (7th Cir. 1991), for the proposition that all inmates
must receive “qualitatively comparable” treatment, the same case
acknowledges that “security constraints may require that the needs
of inmates adhering to one faith be accommodated differently
from those adhering to another." Id. at 686.
While the Fourth Circuit has not conclusively spoken on
the issue, the Supreme Court has indicated that the determination
of whether Plaintiffs’ Equal Protection rights have been violated
should follow the same four-factor Turner analysis described
above. In Washington v. Harper, 494 U.S. 210 (1990), the Su-
preme Court noted that the Turner standard applies “when the
constitutional right claimed to have been infringed is fundamental,
and the State under other circumstances would have been required
to satisfy a more rigorous standard of review." Id, at 223 (holding
that lower court erred in not applying Turner "reasonableness"
standard to prisoner's claim of due process violations). Moreover,
several other circuits, as well as several district courts within this
circuit, have determined that the Turner "reasonableness" standard
governs prisoners’ equal protection claims. See, e.g. Allen v.
Cuomo, 100 F.3d 253, 261 (2nd Cir. 1996); Jenkins v. Angelone,
948 F. Supp. 543, 549 (E.D. Va. 1996); Shaheed v. Winston, 885
F. Supp. 861, 868-869 (E.D. Va. 1995): Salaam v. llins, 830 F.
Supp. 853, 855-859 (D. Md. 1993), aff'd, 70 F.3d 126] (4th Cir.
1995). Therefore, there can be no violation of the Equal Protec-
A-27
tion Clause if Defendants’ actions were “reasonably related to a
legitimate penological interest.” As described in the above sec-
tion. the magistrate did not err in concluding that Defendants’
placement of Plaintiffs in segregated custody was reasonably
related to the legitimate concern of institutional security. Just as
that conclusion precluded Plaintiffs’ claims of First Amendment
violations, it also precludes Plaintiffs’ claims under the Equal
Protection Clause.
(c) Eighth Amendment
The magistrate correctly noted that, in the Fourth Circuit,
a prisoner seeking to assert a claim under the Eighth Amendment
must make a prima facie showing of (1) a serious deprivation of a
basic human need, and (2) deliberate indifference to prison condi-
tions on the part of prison officials. Strickler v. Waters, 989 F.2d
1375, 1379 (4th Cir. 1993). He went on to conclude that Plaintiffs
had not presented sufficient evidence of a “serious deprivation” or
of “deliberate indifference” by prison officials to support their
claim
In objecting to the magistrate's conclusion, Plaintiffs
assert that the “harsh and restrictive" conditions of confinement in
segregated custody, as well as the duration of their confinement,
violate the Eighth Amendment. Plaintiffs cite Hutto v. Finney,
437 U.S. 678 (1978). for the proposition that the duration of one's
confinement is a relevant factor in determining whether the con-
finement constitutes cruel and unusual punishment. However,
while the duration of one's confinement may be relevant to the
issue of whether the punishment violates the Eighth Amendment.
it is not controlling. Ross v. Reed, 719 F.2d 689, 697 (4th Cir.
1983), Sweet v. South Carolina Dep’t of Corrections, 529 F.2d
854, 861 (4th Cir. 1975). Moreover, the mere existence of harshly
A-28
restrictive conditions of confinement does not, by itself, constitute
an Eighth Amendment violation -- as described above, the prisoner
must also produce evidence of a serious “medical and emotional
deterioration attributable to the challenged condition.” Lopez v.
Robinson, 914 F.2d 486, 490 (4th Cir. 1990). Lopez also cites
Turner and O'Lone for the proposition that courts should exercise
restraint before concluding that prison officials’ conduct consti-
tutes deliberate indifference.
In this case, the magistrate correctly noted that only five of
the approximately 50 plaintiffs claim to have suffered adverse
emotional or psychological effects associated with segregated
custody. Plaintiffs, however, cannot point to any evidence that
those who required medical treatment did not receive it, nor is
there any other evidence that Plaintiffs have been subjected to
living conditions that are otherwise substandard, much less uncon-
stitutional. As noted above, long-term isolated custody does not,
in and of itself, present a constitutional violation, even if it entails
very restrictive conditions which cause some degree of psycholog-
ical stress. While prolonged isolation and restricted activity can
be threats to a person's psychological and emotional health,
“Eighth Amendment standards are offended by prolonged and
indefinite confinement only when basic nutrition, sanitation, and
health standards are ignored or when the segregated confinement
bears no reasonable relation to the purpose for which a prisoner is
committed” Bukhari vy. Hutto, 487 F. Supp. 1162, 1170 (E.D. Va.
1980) (citing Hutto v. Finney and Sweet). In this case, since there
is no evidence that Plaintiffs suffered a deprivation of “basic
human needs” or that prison officials have been “deliberately
indifferent” to their well-being, the magistrate was correct in
concluding that Defendants are entitled to summary judgment on
Plaintiffs’ Eighth Amendment claim.
A-29
(d) Qualified Immunity
The magistrate concluded that Defendants are entitled to
qualified immunity from money damages based on the rationale
that a reasonable prison official could have determined that the
Five Percenters were nothing more than a prison gang, and not a
true religion. Thus, the magistrate reasoned, it follows that a
reasonable prison official could determine that imposing restric-
tions on inmates based on their status as members of the Five
Percenters group would not violate any of the inmates’ clearly
established constitutional rights. See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (Officials are shielded from liability for
damages unless their conduct violates “clearly established consti-
tutional or statutory rights of which a reasonable person would
have known.”): Rowland vy. Perry, 41 F.3d 167, 172-173 (4th Cir.
1994) (Determining “reasonableness” for qualified immunity
purposes requires examining the objective facts as perceived by
the public official at the time of the challenged action).
As in their summary judgment brief, Plaintiffs continue to
argue that no reasonable public official could conclude that the
Five Percenters are not a religion. However, Plaintiffs can point to
no case which has held that the Five Percenters are a religion -- the
best that they can do Is cite several cases recognizing that the
Nation of Islam (to which the Five Percenters bear certain similari-
ties) 1S a recognized religion. The record indicates that, at the time
that Defendants decided to place the Five Percenters in segregate.:
custody, they possessed information regarding involvement of the
Five Percenters in several disturbances at SCDC facilities, classifi-
cation of the Five Percenters as a threat group in at least two other
prison systems, and the opinion of the Muslim Chaplain for the
SCDC that the Five Percenters were a gang that attempted to align
themselves with Muslim teachings to create the appearance of a
A-30
legitimate religion. See Defendants’ Exhibit 7. Given this informa-
tion, it is clear that a reasonable prison official could conclude that
the Five Percenters are a gang, and that restrictive measures of the
types imposed by Defendants would directly improve prison
security and safety. Accordingly, the magistrate correctly con-
cluded that Defendants are entitled to qualified immunity from
money damages.
(2) Defendants' Objections to the Magistrate's Report
and Recommendation
Defendants object to the magistrate's recommendation that
their Motion for Summary Judgment be denied as to Plaintiff's
claim challenging the SCDC’s prohibition on inmate possession of
Five Percenter literature. In formulating his recommendation, the
magistrate correctly noted that this issue is controlled by the four-
part lurner “reasonableness” test described in the previous sec-
tion. As described above, the Supreme Court has applied the
Tumer test in cases involving prison regulations that implicate the
First Amendment right to free exercise of religion. O'Lone vy.
Estate of Shabazz, 482 U.S. 342 (1987). It has also been applied
in cases involving regulations that restrict prisoners' access to
reading materials. Thornburgh vy. Abbott. 490 U.S. 401 (1989).
The magistrate noted that, while some Five Percenter
literature may contain racist views, the defendants could point to
no pieces of literature which advocated violence or illegal acts.”
‘In the memorandum accompanying their Motion for Summary
Judgment, Defendants allude to one Five Percenter “lesson” which
advocates the killing of four “devils,” which Defendants interpret to
mean white men. Defendants, however, have presented no actual piece
of Five Percenter literature that overtly encourages the killing of whites,
A-31
The magistrate then concluded that the Five Percenters' literature
could not be banned just because it contained racist views, espe-
cially where it has not been shown to advocate violence or illegal
acts, or to be so racially inflammatory as to be reasonably likely to
cause violence. Further, the magistrate opined that a “ready alter-
native” to a total ban on the literature would be to censor any
materials that are inflammatory or promote violence, while allow-
ing Plaintiffs to have access to other Five Percenter literature.
Finally. he noted that, while concluding that the ban imposed by
Defendants may be too restrictive, his report should not be con-
strued as recormnending that the Five Percenters' literature must
be made available to inmates who are not Five Percenters and are
not parties to this action.
In objecting to the magistrate's recommendation, Defen-
dants argue that, while much of the Five Percenters’ literature may
not promote racial animosity or violence, the ban is nonetheless a
reasonable and necessary measure to prevent the growth of the
Five Percenter group. which has been deemed a security threat.
Indeed. the magistrate agreed that the characterization of the Five
Percenters as a security threat was reasonable and justifiable.
However, this does not necessarily render the magistrate's recom-
mendation incorrect.
The magistrate noted that the literature could be censored
to remove any passages promoting violence or racial hostility, and
that such a measure could provide a reasonable, “ready alterna-
tive” to an outright ban. More impertant, however, is the fact that
it would create only a minimal impact on prison guards and the
and the proper interpretation of this lesson is unclear under the current
record. Needless to say, Plaintiffs dispute Defendants’ interpretation of
this lesson.
A-32
rest of the prison population, because the literature need not be
made available to those who are not members of the Five
Percenters group and who are not parties to this action. Defen-
dants’ concern that the availability of the literature within the
general prison population might contribute to the growth of a
security threat group is not an illegitimate one. Indeed, the Su-
preme Court has recognized that sometimes, literature may create
the potential for discord by virtue of its very presence and circula-
tion within a prison population, even if it does not directly advo-
cate violence, and that prison officials should have discretion to
address such threats. Thornburgh, 490 U.S. at 412-413. In this
case, however, the magistrate’s recommendation carefully indi-
cated that Defendants would be required to make the literature
available only to those inmates who are Five Percenters and who
have been placed in isolation, and not to the general prison popu-
lation. In short, the magistrate did not conclude that prison offi-
Cials may not place any restrictions on the availability of Five
Percenters literature -- in fact, his recommendation allows for a
wide range of restrictions. The magistrate simply concluded that a
total, outright ban was too restrictive -- a conclusion with which
this Court does not find error.
Defendants also argue that the magistrate based his con-
clusion, at least in part, on legal authority that is no longer control-
ling. The magistrate cited the cases of Aikens v. Jenkins, 534 F.2d
751 (7th Cir. 1976), and Long v. Puka, 390 F.2d 816 (3rd Cir.
1968), for the proposition that prisons may not ban literature
simply because it adopts racist views. Defendants correctly note
that both of these cases, which pre-date Turner and its progeny,
apply standards that are more rigorous than Turner's “reasonable-
ness” standard. However, two circumstances support the magis-
trate’s ultimate conclusion in this case. First, although the Fourth
Circuit has not yet spoken on the issue, several other Circuits have
A-33
concluded in the years following Turner, O’Lone, and Thornburgh
that literature may not be banned in prisons solely because it
adopts racist views, so long as it does not promote or create a
reasonable likelihood of violence. See Williams v. Brimeyer, | 16
F.3d 351, 354 (8th Cir. 1997) (Acknowledging Turmer as control-
ling authority and holding that literature may not be banned solely
because it expresses racist and separatist views); Stefanow v.
McFadden, 103 F.3d 1466, 1472-1473 (9th Cir. 1996) (Racist
literature may be banned only if so inflammatory as to create
threat of violence); McCabe v. Arave, 827 F.2d 634, 637-638 (9th
Cir. 1987) (Recognizing Turner and O'Lone as controlling author-
ity and holding that literature may not be banned just because it
advocates racial purity).*
The second relevant circumstance is that the magistrate's
recommendation, taken as a whole, was not based solely on
Aikens and Long. Indeed, the vast bulk of his analysis of this
issue concerns application of the Turner test, as required by
O'Lone and Thornburgh. As such, the magistrate's recommenda-
tion cannot be said to be based on “bad law.”
* The magistrate cited McCabe as support for his
recommendation. Defendants attempt to distinguish it on grounds that it
did not deal with restrictions aimed at curbing the growth of a security
threat group, and that it was decided before Thomburgh. The latter
attempt to distinguish McCabe accomplishes nothing, because even
though McCabe preceded Thornburgh, the Ninth Circuit correctly
recognized Turner as controlling authority and applied its
“reasonableness” test, as Thornburgh would have directed. Likewise, the
former argument for distinguishing McCabe does not support
Defendants’ position. As stated supra, the magistrate clearly indicated
that the Five Percenters’ literature may be censored and need not be made
available to the general prison population, a measure which would
alleviate Defendants’ concern about the group's growth.
A-34
Lastly, Defendants argue that some of the Five Percenters’
publications contravene any conclusion that the group is an actual
religion. However, Plaintiffs’ status as a “religious” or “non-reli-
gious” group does not affect the applicable standard which gov-
erns this Court's examination of the literature ban. That standard
is established by Turner, and under Thornburgh, restrictions on
non-religious publications are to be evaluated under the Tumer test
as well. Therefore, even if the Five Percenters are not a religion,
Turner still supplies the appropriate framework for evaluating a
ban on their literature. As stated Supra, the magistrate correctly
applied the Turner test in concluding that a total, outright ban on
Five Percenters’ literature is too restrictive.
IV. PLAINTIFFS' MOTION FOR A PRELIMINARY
INJUNCTION
As stated in Section II, supra, of this Order, Plaintiffs
originally filed a motion and brief seeking a preliminary injunction
based on the Religious Freedom and Restoration Act (RFRA).
After the RFRA was struck down by the United States Supreme
Court, but before the magistrate issued his report and recommen-
dation, Plaintiffs filed an amended brief containing an argument
based on the First Amendment. Defendants filed a response in
which the addressed both Plaintiffs' RFRA and First Amendment
arguments. However, when he issued his report and recommenda-
tion, the magistrate did not address the First Amendment argument
presented by Plaintiffs in their amended brief. Plaintiffs have
objected to the magistrate's report and recommendation on the
grounds that they are entitled to a preliminary injunction under
their First Amendment argument.
Given the above resolution of Defendants' Motion for
Summary Judgment, Plaintiffs’ Motion for a Preliminary Injunc-
A-35
tion is mooted except as to Plaintiffs’ claim that the total ban on
inmate possession of Five Percenters literature violates the First
Amendment. With respect to that single claim, this Court now
considers the First Amendment argument advanced by Plaintiffs in
their amended brief and in their objections to the magistrate's
report and recommendation.
A. Standard for Granting a Preliminary Injunction
In the Fourth Circuit, four factors are relevant to determin-
ing whether a litigant is entitled to a preliminary injunction:
(1) The likelihood of irreparable harm to the plaintiff if
the injunction is denied;
(2) The likelihood of harm to the defendant if the injunc-
tion is granted:
(3) The likelihood that the plaintiff will eventually suc-
ceed on the merits; and
(4) The public interest.
Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550
F.2d 189, 192. 194-196 (4th Cir. 1977). The first two factors,
which determine the “balance of hardships,” represent the most
important determination, as they dictate how strong a likelihood of
eventual success on the merits a plaintiff must show. Hughes
Network System, Inc. v. Interdigital Communications Corp., 17
F.3d 691, 693 (4th Cir. 1994) (citing Rum Creek Coal Sales, Inc.
v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991)). If the balance of
hardships tips decidedly in the favor of the plaintiff, the injunction
will be granted if the plaintiff “has raised questions going to the
A-36
merits so serious, substantial, difficult, and doubtful, as to make
them fair ground for litigation and thus more deliberate investiga-
tion.” Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d
802, 813 (4th Cir. 1991) (citing Rum Creek, 926 F.2d at 359).
However, “as the balance tips away from the plaintiff, a stronger
Showing on the merits is required.” Id. Moreover, the Fourth
Circuit has cautioned that, before a preliminary injunction may be
granted in any case, the party seeking it must show that it will
suffer a type of harm that is irreparable. “The possibility that
adequate compensatory or other corrective relief will be available
at a later date, in the ordinary course of litigation, weighs heavily
against a claim of irreparable harm.” Hughes Network Systems,
17 F.3d at 694 (citing Sampson v. Murray, 415 U.S. 61, 90
(1974)).
B. Discussion
This Court's first task is to consider the degree to which
the balance of hardships tips, if at all, in favor of Plaintiffs. The
first step in such an analysis is to determine whether Plaintiffs
stand to suffer irreparable harm if no injunction is granted. Plain-
tiffs have produced sufficient evidence to survive a motion for
summary judgment regarding their claim that Defendants’ total
ban on Five Percenters literature violates their First Amendment
rights. The Fourth Circuit has acknowledged that “a constitutional
or federal statutory violation creates a special harm.” Rum Creek,
926 F.3d at 361. Moreover, it has also noted that a deprivation of
one's First Amendment rights, even for a short time, may consti-
tute an irreparable injury. Id. at 362 n.12 (citing Elrod v. Burns,
427 U.S. 347 (1976)). Finally, since Defendants have been
granted qualified immunity from money damages, Plaintiffs have
no means of receiving compensation for any deprivations of their
rights that may have occurred. Thus, there exists a substantial
A-37
likelihood that Plaintiffs will suffer an irreparable harm arising
from an ongoing violation of their constitutional rights if no
injunction is issued.
On the other side of the coin, the hardship to Defendants
that would result from the issuance of a preliminary injunction is
not great. As discussed in greater detail supra, Defendants would
still be able to place significant restrictions on Five Percenters
literature in SCDC facilities. Defendants would be allowed to
censor the materials to remove any passages that may encourage
violence or that would be so inflammatory as to pose a security
threat. Moreover, as described in the magistrate's report and _
recommendation regarding Defendants’ Motion for Summary
Judgment, Defendants would not be required to allow the general
prison population to have access to Five Percenters literature.
Only those inmates who are Five Percenters and who are confined
in segregated custody would be allowed access to the properly
censored literature. The administrative burdens of making such an
accommodation seem minimal, particularly when one considers
that such an accommodation would not pose any of the security
risks with which Defendants are concerned.
Given the fact that the balance of hardships appears to tip
in Plaintiffs’ favor, it is not necessary for them to show a strong
likelihood of success on the merits -- instead, they only need to
show that they have raised questions regarding the merits serious
enough to make the issue “fair ground” for litigation. Rum Creek,
926 F.2d at 359. As described supra, Plaintiffs have raised enough
factual and legal questions regarding the reasonableness of Defen-
dants’ ban on Five Percenters literature to survive a summary
judgment motion. In doing so, they have shown that the issue is at
least “fair ground” for litigation -- indeed, their argument that
Defendants’ ban is too restrictive appears persuasive. Thus, the
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third Blackwelder factor weighs in Plaintiffs’ favor as well.
The fourth and final factor concerns how the decision to
grant or deny a preliminary injunction would impact the public
interest. In this case, the interest at stake is presumably the pub-
lic’s interest in safe, efficient administration of its correctional
facilities. As described above, the interests of prison safety and
security would not be implicated by simply allowing those inmates
who are Five Percenters and who are confined in segregated
custody to have access to properly censored Five Percenters
literature. Therefore, the fourth element of the Blackwelder test
represents, at most, a neutral factor.
Taking all of the above factors into account, it appears that
Plaintiffs are entitled to a preliminary injunction requiring Defen-
dants to allow them to have access to properly censored Five
Percenters literature.
V.§ CONCLUSION
It is, therefore.
ORDERED, for the reasons articulated above, that Defen-
dants' Motion for Summary Judgment is:
(1) GRANTED as to Plaintiffs’ Eighth Amendment
claim:
(2) GRANTED as to Plaintiffs’ Equal Protection claim:
(3) GRANTED as to Plaintiffs’ claim that placement of
the Five Percenters in heightened-security segregated custody
violates their First Amendment rights;
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.(4) DENIED as to Plaintiffs’ claim that Defendants’ total
ban on inmate possession of Five Percenters literature violates
their First Amendment rights; and
(5) GRANTED as to Defendants’ claim that they are
entitled to qualified immunity.
It is further,
ORDERED, for the reasons articulated above, that Plain-
tiffs’ Motion for a Preliminary Injunction is GRANTED as to
Plaintiffs’ claim that Defendants’ ban on Five Percenters’ litera-
ture violates their First Amendment rights, and DENIED as to all
other claims.
AND IT IS SO ORDERED.
s/ Patrick Michael Duf
PATRICK MICHAEL DUFFY
UNITED STATES DISTRICT JUDGE
Charleston, South Carolina
December 2, 1997
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