Opposition Brief — Mickle v. Moore

(803) 806-8222

Suprema Sauxt, U.S.

FIBED

fy | AUG 18 1999

Po Of EM BLERK

No. 99-131

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

ALEXANDER MICKLE, et al.

Petitioners,

v.

MICHAEL MOORE, et al.,

Respondents. _

"IN RE: LONG TERM ADMINISTRATIVE SEGREGATION

OF INMATES DESIGNATED AS FIVE PERCENTERS"

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

David L. Morrison - Counsel of Record Vinton D. Lide

Andrew F. Lindemann LIDE, MONTGOMERY & POTTS

DAVIDSON, MORRISON & LINDEMANN, P.A. 1812 Lincoln Street, Suite 100

1712 St. Julian Place, First Floor Post Office Box 11886

Post Office Box 8568 Columbia, South Carolina 29211

Columbia, South Carolina 29202 (803) 779-3500

ATTORNEYS FOR RESPONDENTS

(additional counsel of record)

David C. Eckstrom

NEXSEN, PRUET, JACOBS & POLLARD

1441 Main Street, Suite 1500

Post Office Drawer 2426

Columbia, South Carolina 29202

(803) 771-8900

ATTORNEYS FOR RESPONDENTS

. TABLE OF CONTENTS

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Reasons for Denying The Petition ..................:.cccsceseeseeseesseeeeees 6

I. The Fourth Circuit Court of Appeals was

correct to apply the standard of review

established in Turner v. Safley, 482 U.S. 78

(1987), and O'Lone v. Estate of Shabazz,

482 U.S. 342 (1987), in reviewing the

constitutionality of the decision to reclassify

Five Percenters to a higher custody level. ..... 6

II. The Fourth Circuit Court of Appeals did

not create a "prisoner exception" to

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TABLE OF AUTHORITIES

Cas

Church of Lukumi Babalu Aye, Inc. v. City of

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Cooper v. Pate, 378 U.S. 546 (1964). ........ccceccesseeeeees

Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967). ............

Jones v. North Carolina Prisoners' Labor Union,

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O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). ....

Thomas v. Arn, 474 U.S. 140 (1985). .....cececeeeceeeeeees

Turner v. Safley, 482 U.S. 78 (1987. ....cccccccesesseeeeees

Wright v. Collins, 766 F.3d 841(4th Cir. 1985). ........

Rules

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S MENT OF THE CASE

A-mroximately forty nine inmates confined in the South

Carolina wepartment of Corrections (SCDC) filed individual

lawsuits challenging their confinement in administrative

segregation or "M" Custody on account of their membership in a

group known as the Five Percenters. The Petitioners contend that

their confinement is in contravention of the Free Exercise Clause

of the First Amendment.'

The Five Percenters are an organization who have been

identified by the Federal Bureau of Prisons as a "criminal group"

that "operates behind a facade of cultural and religious rhetoric.”

Inmates belonging to the Five Percenters have been present within

SCDC since at least 1992. Within SCDC, the Five Percenters

have been a very assertive group of inmates who try to undermine

prison authority and try to establish control over other inmates.

The Petitioners also raised Eighth Amendment and

Fourteenth Amendment claims which were dismissed by the

district court. The Fourth Circuit Court of Appeals affirmed that

ruling. Those claims have not been raised in the Petitioners’

Petition for Writ of Certiorari.

They are rebellious and resistant to authority, and they

aggressively recruit new members.

On or about June 16, 1995, Michael Moore, then the

Director of the South Carolina Department of Corrections,

designated the Five Percenters a Security Threat Group (STG).

His decision was based on their history of violence within SCDC

and other prison systems around the country. There were a

number of documented prison disturbances and other violent acts

perpetrated by Five Percenters within SCDC.

The Security Threat Group policy for SCDC sets out a

procedure for "validating" or confirming an individual inmate as a

member of a STG, which includes giving the inmate a hearing.

Any inmate validated as a member of a STG is transferred to

administrative segregation, pending reclassification into a

heightened custody level in accordance with procedures outlined

in SCDC Policy 1200.5. Confinement in the heightened custody

level allows prison officials to maintain closer supervision of those

inmates and reduces the inmates’ opportunity to organize and

conduct criminal activity. Prison security has improved since the

Five Percenters have been designated a Security Threat Group and

those inmates reclassified to a higher custody level.

In this action, the Petitioners have challenged the action

taken by SCDC to designate these inmates a threat group and to

reclassify them to a higher custody level. The district court

granted summary judgment to the Respondents, concluding that

the reclassification of the Petitioners to a higher custody level did

not unconstitutionally impinge on their right to free exercise of

their religious beliefs. The Petitioners appealed to the Fourth

Circuit Court of Appeals, which affirmed. A subsequent petition

for rehearing en banc was denied.

REASONS FOR DENYING THE PETITION

I. The Fourth Circuit Court of Appeals was correct to

apply the standard of review established in Turner v.

Safley, 482 U.S. 78 (1987), and O'Lone v. Estate of |

Shabazz, 482 U.S. 342 (1987), in reviewing the |

constitutionality of the decision to reclassify Five

Percenters to a higher custody level.

The Petitioners contend that the Fourth Circuit erred in

applying the standard of review established in Turner v. Safley,

482 U.S. 78 (1987), and O'Lone v. Estate of Shabazz, 482 U.S.

342 (1987), in reviewing the constitutionality of the decision to

reclassify Five Percenters to a higher custody level. The 7

Petitioners maintain that the court should have applied the strict

scrutiny test set forth in Church of Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520 (1993).

The Fourth Circuit, however, was correct in applying the

Turner and O'Lone standard given the prison context. O'Lone

clearly teaches that where prison regulations are challenged, the

same standard is applicable regardless of whether the challenge is

mounted under the First Amendment or any other constitutional

provision. In the prison context, the proper standard to be applied

is as follows: "[W]hen 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).

Nonetheless, the Petitioners are procedurally barred from

even raising this issue in this Court. In the district court, the

Petitioners never argued that the Turner standard did not apply in

this case. To the contrary, in their brief in opposition to the

Respondents’ motion for summary judgment, the Petitioners

wrote: "Defendants' policy must be evaluated under the test

enunciated in Turner v. Safley ..." Likewise, the Petitioners did

not dispute or challenge the applicability of the Turner standard in

the objections filed by the Petitioners to the magistrate judge's

report and recommendation. Consequently, that issue was not

properly preserved for appeal to either the Fourth Circuit or to this

Court. Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766

F.3d 841(4th Cir. 1985).

Furthermore, the Petitioners’ reliance on this Court's

decision in Cooper v. Pate, 378 U.S. 546 (1964), is misplaced.

The Petitioners argue that the Fourth Circuit should have been

guided by Cooper rather than by Turner and O'Lone. The

Petitioners make it seem as if Cooper is directly on point.

However, in Cooper, this Court did not even address the merits of

the inmate's claim. Instead, in a one paragraph opinion, this Court

reversed the dismissal of the inmate's complaint and ruled merely

that the complaint stated a cause of action. The Cooper Court did

not reverse the prison administrators’ decision to keep the inmate

in segregation. ”

The Petitioners further take exception to the Fourth

Circuit's application of the Turner and O'Lone standard. The

Petitioners argue that the Fourth Circuit's application of the

standard conflicts with that of other circuits, but the Petitioners’

discussion of this issue does not support that contention. The

Petitioners can point to no single case which reflects that the

Fourth Circuit failed to properly apply the Turner and O'Lone

standard.

The Petitioners maintain that they were reclassified to a

higher security level because of their religious beliefs. That is not

true. The Petitioners were reclassified because of the

demonstrated propensity for violence, disruption and other anti-

? Itis noteworthy that Cooper was decided before Turner

and O'Lone. On remand in Cooper, the Seventh Circuit did not

apply the Turner and O’Lone standard, and accordingly, Cooper is

distinguishable on that additional point. See, Cooper v. Pate, 382

F.2d 518 (7th Cir. 1967).

social behavior by members of the Five Percenter group. SCDC is

not concerned with any religious beliefs; it is concerned solely

with the security of its institutions, inmates and employees.

If an inmate renounces his affiliation with a threat group,

then he may become eligible, depending on other factors, to return

to the general population. The SCDC policy does not require any

inmate to renounce ay religious beliefs. If an inmate does not

wish to renounce his affiliation with the group, that remains his

prerogative, but in the interests of security, that inmate must

remain in a higher custody level. At all times, the inmates are

entitled to maintain their religious beliefs but they are prohibited

from acting in a violent or dangerous manner.

The reclassification of threat group members is not an

exaggerated response, as the Petitioners contend. There are no

easy alternatives available. As the Fourth Circuit aptly

recognized, SCDC is not required to put these inmates back in the

general population until an additional act of violence occurs. The

First Amendment does not prevent prison administrators from

being proactive rather than reactive. Importantly, the

reclassification of the Five Percenters was not a response to an

isolated incident. The record of violence from 1992 forward by

Five Percenters constitutes compelling evidence to support the

SCDC Director's decision to implement this policy.

Il. The Fourth Circuit Court of Appeals did not create a

“prisoner exception" to Rule 56, FRCP.

The Petitioners erroneously contend that the Fourth Circuit

has created a "prisoner exception” to Rule 56, FRCP. That was

obviously not the intent nor the ultimate result of the Fourth Circuit's

decision in this case.

Instead, the Fourth Circuit correctly explained that this

Court has adopted a deferential standard of review for cases

involving issues of prison administration. In Turner v. Safley, 482

U.S. 78 (1987), this Court held as follows:

[W]hen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests. In our view, such a standard is

necessary if "prison administrators . . ., and not

the courts, [are] to make the difficult judgments

concerning institutional operations." Subjecting

the day-to-day judgments of prison officials to an

inflexible strict scrutiny analysis would seriously

hamper their ability to anticipate security

problems and to adopt innovative solutions to the

intractable problems of prison administration.

The rule would also distort the decisionmaking

process, for every administrative judgment would

be subject to the possibility that some court

somewhere would conclude that it had a less

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restrictive way of solving the problem at hand.

Courts inevitably would become the primary

arbiters of what constitutes the best solution to

every administrative problem, thereby

"unnecessarily perpetuat[ing] the involvement of

the federal courts in affairs of prison

administration.”

482 U.S. at 89. (Citations omitted). See also, Jones v. North

Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977).

In applying that deferential standard, the Fourth Circuit

explained that judgments, opinions and even the understanding of

a course of events that underlie a prison administrator's decision

are always subject to attack or at Icast second-guessing. However,

it is precisely that second-guessing in which the federal courts

refuse to engage. Turner and other decisions clearly urge the

lower courts to refrain from such conduct.

Consequently, the "command of judicial deference" does

not mandate a "prisoner exception" to Rule 56, FRCP, as the

Petitioners suggest. Instead, the deferential standard of review

mandates that certain factual matters that may be in dispute are

simply not material issues of dispute. It is not that the Fourth

Circuit refused to draw certain inferences in the Petitioners’ favor.

Instead, under the Turner and O'Lone standard, the inferences that

the Petitioners sought to draw are simply not material to the proper

application of the standard.

In sum, the Fourth Circuit correctly applied the Turner

and O’Lone standard in this case. The court appropriately

followed the holding in O’Lone, supra, where this Court writes:

We take this opportunity to reaffirm our refusal,

even where claims are made under the First

Amendment, to "substitute our judgment on ...

difficult and sensitive matters of institutional

administration" for the determinations of those

charged with the formidable task of running a

prison.

O'Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987). (Citation

omitted). There is simply no issue raised in the Petitioner's

Petition for Writ of Certiorari that warrants or even merits review

by this Court.

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CONCLUSION

Based on the foregoing discussion and analysis, the

Respondents respectfully request that this Court deny the Petitioners’

Petition for Writ of Certiorari.

Respectfully submitted,

DAVIDSON, MORRISON &

LINDEMANN, P.A.

py: Lda 2. Plorso~ (wn)

DAVID L. MORRISON

ANDREW F. LINDEMANN

1712 St. Julian Place

Post Office Box 8568

Columbia, South Carolina 29202

(803) 806-8222

Vinton D. Lide

LIDE, MONTGOMERY & POTTS, P.C.

1812 Lincoln Street, Suite 100

Post Office Box 11886

Columbia, South Carolina 2921 1

(803) 779-3500

David C. Eckstrom

NEXSEN, PRUET, JACOBS & =

POLLARD

1441 Main Street, Suite 1500

Post Office Drawer 2426

Columbia, South Carolina 29202

(803) 771-8900

ATTORNEYS FOR RESPONDENTS

Columbia, South Carolina

August 17, 1999

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