Professional Documents
Culture Documents
Lumumba Incumaa v. Bryan Stirling, 4th Cir. (2015)
Lumumba Incumaa v. Bryan Stirling, 4th Cir. (2015)
No. 14-6411
Appeal from the United States District Court for the District of
South Carolina, at Beaufort.
David C. Norton, District Judge.
(9:12-cv-03493-DCN)
Argued:
Decided:
July 1, 2015
July 7, 2015
Following his
He
Religious
Use
and
Institutionalized
Persons
Act
it
interests
proves
by
the
that
least
the
restriction
restrictive
furthers
means.
In
compelling
this
regard,
the
Department
confinement.
On
the
will
release
second
ground,
him
from
Appellant
solitary
claims
that
district
summary judgment.
court
granted
Appellees
motion
for
of
process
summary
judgment
claim.
confinement,
we
as
it
Appellants
hold,
relates
20-year
amounts
to
to
Appellants
period
atypical
and
of
due
solitary
significant
Furthermore,
there
Departments
is
triable
dispute
as
to
whether
the
process for determining which inmates are fit for release from
security detention meets the minimum requirements of procedural
due process.
I.
A.
The Five Percenters and Appellants Violent History
The NOGE is an offshoot of the Nation of Islam and
other religious groups in the Islamic sphere that preach[] a
message
of
black
empowerment.
J.A.
91,
92. 2
The
Five
the
Percenters.
Five
religious group.
Appellant
maintains
the
NOGE
is
Percenters
have
See
id.
at
gang.
131
Of
note,
(stating,
on
at
the
times,
cover
the
of
Five
The
Five
Percenter
were hospitalized.
1995,
Appellee
designated
the
Five
Percenters
as
Security
the
Departments
Special
Investigations
Unit
126.
If
membership,
Committee
the
(ICC)
Validated-GP,
population,
placement
the
or
in
investigators
Departments
either
which
security
him
him
the
Institutional
recommends
allows
designates
validate
to
as
detention.
STG
Classification
labeling
reside
inmates
the
in
Validated-SD,
According
inmate
as
the
general
which
entails
to
Department
ineffective-assistance-of-counsel
n.1 (4th Cir. 2007).
5
grounds.
507
F.3d
281,
283
then
determines
where
to
place
to
the
Special
the
inmate
and
what
Unit
(SMU)
or
the
more
in
violent
infractions.
behavior
or
have
committed
serious
rules
J.A. 137.
assigned
[d]etention
to
[s]ecurity
[d]isciplinary
[d]etention
inmates
charged
are
designated
with . . . assault
on
without
as
staff
Level
serving
II,
member
and
and/or
inmate
are
automatically . . . assigned
to
Level
I. 6
Id.
as
to
a
his
Five
role
in
Id. at 149.
the
Percenter,
1995
riot,
designated
Appellant
was
Validated-SD,
and
the
group.
During
the
decades
Appellant
has
spent
in
2.
Conditions in SMU versus General Population
Appellant
claims
the
SMU
is
substantially
denied
education
opportunities; and
and
more
vocational
mental
mental
J.A. 23-24.
3.
Review of SMU Detention
Department regulations require the ICC to review each
SMU inmates candidacy for release every 30 days.
According to
Pearson, there are three bases on which the ICC may recommend
reclassification
and
release
from
the
SMU:
(1)
the
inmate
and
J.A. 127.
determines
whether
to
affiliation.
reject
an
inmates
the
inmates
attempt
to
to
renounce
his
regard
to
reclassifications
based
on
behavior
inmates
Pursuant
to
period,
the
Level
as
it
Department
ICC
is
deems
appropriate.
regulations,
required
to
after
each
deliver
Id.
at
30-day
notice
138.
review
of
its
However,
for
its
decision
to
maintain
an
inmate
at
the
same
Appellant,
and
these
notices
span
nine
months
10
--
Each
J.A. 95-103.
letter
The
justification
ICCs
Department
required
records
Memoranda.
for
this
30-day
Id.
labeled
at
recommendation:
reviews
Form
138.
are
18-68,
The
STG-SD.
also
also
record
Id.
documented
known
on
Staff
the
Staff
contains
as
64
entries
in
the
record.
All
but
In total, there
one
of
them
is
Id. at 156-58.
to
Department
regulations,
the
ICCs
review
the
ICCs
decision
regarding
confinement
unless
the
J.A. 137,
139.
Appellant
filed
grievance
on
April
21,
2009,
J.A. 12.
In the
12
the
STG
policy
so
that
classifications
and
periodic
classification.
requests
could
evaluations
Id.
not
Id.
by
are
made
on
an
[ICC]
of
[his]
STG
accommodated
because
[t]he
issue
are
made
at
the
institutional
level.
Id.
at
13.
Appellant
Id. at 14.
C.
Procedural History
On
December
12,
2012,
Appellant
filed
pro
se
13
constituted
religion
Appellants
confinement
--
and
imposed
apparently
a
determined
substantial
burden
that
on
his
interests
and
therefore
did
not
violate
RLUIPA.
atypical
establishing
security
and
a
substantial
due
process
detention.
Id.
hardship
right
at
*10.
to
--
review
prerequisite
for
Appellant
release
filed
to
from
timely
appeal.
Appellant argues that a reasonable juror may find that
Department policy places a substantial burden on his exercise of
religion
because
it
conditions
release
from
the
SMU
on
14
II.
We
review
the
judgment de novo. . . .
district
courts
grant
of
summary
if
factfinder
the
could
proffered
only
evidence
find
for
is
the
such
government
that
rational
and
it
is
15
42 U.S.C. 2000cc-1(a). 11
By enacting RLUIPA, Congress afforded prisoners freeexercise rights similar to those enjoyed by the free population.
See Cutter v. Wilkinson, 544 U.S. 709, 715-17 (2005).
prescribes
exercise
shifting
claims.
The
burden
of
inmate
proof
bears
for
the
inmate
initial
RLUIPA
religious
burden
to
hand,
and
abandoning
one
187
(4th
Cir.
2006)
of
the
precepts
regulation
places
the
(alterations
person
her
original)
of
between
(quoting
In other words,
rock
and
hard
place.
11
16
and
the
prison
limit[ed]
t[ook]
away
Id. at 200.
governmental
If the inmate
We held that
burden
following
privileges.
because
the
it
forced
edicts
of
his
the
inmate
religion
to
choose
and
losing
In Holt v.
beard
(2015).
choice
as
dictated
by
his
religion.
135
S.
Ct.
853,
862
punishment
and
violating
Appellant
argues
that
the
his
beliefs
Id.
Department
policy
17
on the other.
we
assume
religious
without
group
deciding
entitled
that
to
the
Five
protection.
Percenters
This
are
argument
fails
See
J.A.
127.
Moreover,
Appellant
himself
Department
officials
permit
Appellant
to
possess
NOGE
materials while in the SMU but ban these items in the general
population.
Appellant
notes
that
he
has
not
committed
any
entry
mentioned
in
the
that
affiliation.
Staff
Memoranda
Appellant
refused
where
to
an
SMU
staff
renounce
his
member
NOGE
12
18
Although
administrative
segregation
may
not
be
other
affiliation
than
for
Appellants
continuing
to
refusal
view
to
renounce
Appellant
as
his
NOGE
threat
to
477 n.9 (1983); see also Cutter, 544 U.S. at 717 (noting that
Congress
anticipated . . . that
courts
would
apply
[RLUIPA]
renunciation
of
his
faith
is
prerequisite
to
determine
whether
Appellant
had
19
protectable
First,
liberty
whether
the
Department
failed
to
afford
Appellant
minimally
See id. at
prevail
on
Therefore,
either
we
of
reverse
these
the
sub-issues
district
as
courts
matter
order
of
of
law.
summary
[l]awful
rights,
withdrawal
a
disappear.
or
prisoners
incarceration
limitation
right
to
of
brings
many
liberty
about
the
privileges
and
does
not
entirely
174
F.3d
464,
468
(4th
Cir.
1999).
[F]ederal
atypical
and
significant
hardship
on
the
inmate
in
515 U.S.
and
our
precedent
do[]
20
not
hold
that
harsh
or
atypical
basis
prison
of
liberty
protection.
2015).
conditions
in
and
interest
of
themselves
giving
rise
provide
to
Due
the
Process
state
mandating
policies
periodic
omitted).
or
regulations
review).
Id.
(e.g.,
(internal
regulation
quotation
marks
every
30
days,
we
have
no
trouble
concluding
that
Appellant has met the first prong of his burden under Sandin and
its progeny.
confinement
conditions
are
atypical
and
1997); accord Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.
2003) (There is no single standard for determining whether a
prison hardship is atypical and significant, and the condition
or combination of conditions or factors . . . requires case by
21
case,
fact
by
fact
consideration.
(alteration
at
253-54.
baseline
is:
First,
what
we
determine
constitutes
original)
In Prieto, we recognized
in
the
what
ordinary
the
normative
incidents
of
expect
to
experience
differ
significantly. . . .
For
for
that
prisoner.).
Then,
with
the
baseline
See
id. at 254 (holding that Prietos death row confinement did not
impose
atypical
and
significant
hardship
in
relation
to
the
comparison
--
the
baseline
22
for
atypicality
may
shift
Prieto,
we
the
conclude
that
general
population
is
the
baseline
for
were
administratively
segregated
in
solitary
The
prison
life.
Beverati,
120
F.3d
at
503.
Because
experienced
by
inmates
in
the
general
population,
we
13
Id.
23
But
in
Prieto,
we
held
that
using
the
general
There,
the
confinement.
undeniably
severe
conditions
of
death
row
Prieto
liberty
mandate[d]
interest.
that
We
all
reversed.
persons
Because
convicted
of
Virginia
capital
law
crimes
interest
avoiding
confinement
to
death
row.
See
conditions
dictated
by
prisoners
conviction
Prieto,
24
484); accord Rezaq v. Nalley, 677 F.3d 1001, 1013 (10th Cir.
2012)
(The
ordinary
incidents
of
prison
life
will
differ
marks
omitted)).
Although
the
nature
of
a[n
the
confinement
conditions
to
be
imposed
on
life
(internal
for
by
definition,
such
offenders.
quotation
confinement
marks
conditions
the
ordinary
Prieto,
omitted).
must
fall
(quoting
Sandin,
515
population
inmates
conditions
that
experience.
could
expect
U.S.
at
inmates
in
death
row
the
at
254
inmates
expected
Likewise,
expectations
the
F.3d
of
485).
confinement
780
within
incidents
general
radiate
general
from
population
the
normally
experience
and
what
Prieto
can
expect
to
the
general
prison
population
is
not
the
cases
where
the
inmate
asserting
liberty
interest
was
25
our precedent.
liberty
interest
protecting
against
30-day
assignment
to
in
original)
(internal
quotation
marks
omitted));
Prieto, 780 F.3d at 254 (Prieto, like any other inmate, can
only be deprived of that to which he is entitled. (emphasis in
original)); Beverati, 120 F.3d at 501, 503; Gaston v. Taylor,
946
F.2d
340,
343
(4th.
1991)
([P]unishment
or
confinement
it
is
uncontroverted
that
Appellant
was
14
26
b.
Atypical and Significant Hardship
Having
identified
the
general
population
as
the
atypicality
i.
To
atypical
and
understand
which
significant
in
confinement
comparison
conditions
to
the
are
general
regulations
specified
that
although
inmates
on
seven
inmates were.
days
per
week,
just
as
the
general
population
27
regulations
not
were
being
enforced
and
that,
in
fact,
the
See
assertions
but
indicate[d]
that
id.
noted,
the
at
504.
[t]he
We
credited
applicable
conditions
in
the
inmates
prison
regulations
administrative
segregation
Id. at 503.
exposure
interest.
to
them
for
six
months
implicated
liberty
Id. at 504.
Eight years after Beverati, the Supreme Court further
illuminated
the
atypicality
standard
in
Wilkinson.
The
on
posed.
the
prisons
evaluation
of
the
security
risk
they
at 224.
The Court emphasized three factors in its analysis:
(1) the magnitude of confinement restrictions; (2) whether the
administrative segregation is for an indefinite period; and (3)
whether
assignment
to
administrative
28
segregation
had
any
As for the
with
life
extreme
[was]
isolation;
controlled
and
every
aspect
monitored;
of
inmates
an
were
all
human
contact;
and
exercise
Id. 214.
was
permitted
only
interest
magnified.
in
receiving
meaningful
procedural
review
assignment
eligible
was
inmate
to
for
Supermax
parole
disqualifie[d]
consideration.
an
Id.
And
otherwise
The
Court
not
be
sufficient
to
create
liberty
interest,
taken
the
Id.
Wilkinson
comparison
of
Court
the
did
not
conditions
engage
that
in
inmates
29
would
give
baseline.
rise
to
liberty
interest
under
any
plausible
Id. at 223.
ii.
In the case at hand, the district court held Appellant
had
no
liberty
interest,
reasoning
that
[m]ost
of
the
ha[d]
not
alleged
living
Incumaa v. Stirling,
reasoned:
Even
though
Beverati
predates
Wilkinson, at the very least it suggests
that the bar for proving an atypical and
significant hardship is quite high in the
Fourth Circuit.
Additionally, even since
Wilkinson the Fourth Circuit has cited
Beverati
in
rejecting
the
notion
that
inmates enjoy a protected liberty interest
in avoiding confinement in administrative
segregation, United States v. Daniels, 222
F. Appx 341, 342 n.* (4th Cir. 2007)
(unpublished) (per curiam) (Extended stays
on administrative segregation . . . do not
ordinarily implicate a protected liberty
interest. (citing Beverati, 120 F.3d at
502)), and courts in this district have
relied on Beverati in procedural due process
cases involving administrative segregation.
30
into
2014
WL
his
own
958679,
hands
at
to
*10.
significant
This,
the
degree.
court
stated,
fronts.
The district court misapplied Beverati and Wilkinson.
Beverati does not signal that the bar for proving an atypical
and significant hardship is quite high in the Fourth Circuit.
Incumaa, 2014 WL 958679 at *9 n.4.
neither
higher
nor
Rather, Beverati
Beverati
inmates
evidence
showed
lower
simply
failed
that
than
that
highlights
to
meet
of
failure
their
administrative
the
Supreme
of
burden
Court.
proof.
The
because
the
segregation
was
not
31
interest
confinement
was
in
also
avoiding
the
erroneous.
onerous
conditions
Appellant
offered
of
his
evidence
Appellant
conditions
were
severe.
describing
the
severely
demonstrated
He
that
provided
restrictive
and
his
confinement
uncontested
socially
evidence
isolating
environment of the SMU in contrast to the general population -the near-daily cavity and strip searches; the confinement to a
small cell for all sleeping and waking hours, aside from ten
hours of activity outside the cell per month; the inability to
socialize with other inmates; and the denial of educational,
vocational, and therapy programs.
In
many
respects,
the
circumstances
of
Appellants
32
his cell.
in
its
duration
and
indefiniteness.
See
stays
on
implicate
administrative
a
protected
segregation . . . do
liberty
interest.
not
United
States v. Daniels, 222 F. Appx 341, 342 n.* (4th Cir. 2007).
But Daniels has no precedential weight, and it did not consider
an
exceptional
20-year
stint
confinement, as we do here. 15
in
highly
restrictive
solitary
Appellant
could
secure
release
15
by
renouncing
his
As we explained above,
33
renunciation
does
not
guarantee
release
to
the
general
population.
Appellant was already ineligible for parole by virtue
of
his
sentence
before
he
was
transferred
to
the
SMU,
and
interest
pursuant
Wilkinson
where
inmate
was
Appellant
has
demonstrated
liberty
address
whether
the
Departments
review
of
Appellants
34
due
process
are
flexible
and
[call]
for
such
procedural
Wilkinson,
comprehensive
notice
of
the
basis
for
the
process
prisons
that
afforded
transfer
inmates
decision
and
35
two occasions.
process
at
least
once
every
year.
See
id.
at
217.
Applying the Mathews factors, the Court held that Ohios process
was sufficient to protect the inmates rights.
29.
Regarding the first factor, the Wilkinson Court noted
that
the
inmates
private
liberty
interests
must
be
36
to
the
third
factor,
concerning
the
states
encouraged
courts
to
procedures
discussed
consult
in
Hewitt
the
v.
informal,
Helms,
459
nonadversary
U.S.
460,
476
Court
held
nonadversarial
In Hewitt, the
process
may
be
37
b.
Applying
the
Mathews
factors,
we
conclude
Appellant
The
record,
viewed
in
the
light
most
favorable
to
at
225.
Prolonged
solitary
confinement
Wilkinson, 545
exacts
heavy
U.S. ___, No. 13-1428, slip op. at 3-4 (June 18, 2015) (Kennedy,
J., concurring) (noting that inmates are brought to the edge of
38
madness, perhaps to madness itself by [y]ears on end of neartotal isolation (internal quotation marks omitted)).
it
is
quite
likely
that
Appellant
is
already
Although
suffering
the
to
reverse
or
ameliorate
that
harm.
Appellants
has
individuals
Supreme
been
recognized
constitutional
Court
has
made
as
an
integral
part
freedoms . . . .).
clear
that
Appellant
is
of
the
Finally,
entitled
to
pretext
for
indefinite
confinement
of
an
inmate.
Prison
rote
placing
repetition
prisoner
confinement,
in
of
the
original
segregation
which
confinement . . . effectively
to
rendered
indefinite
marks omitted)).
39
justification
support
his
(internal
for
continued
solitary
quotation
ii.
The risk of erroneous deprivation is also exceedingly
high
in
this
Department
According
decision
case
has
to
on
for
only
at
a
three
reasons.
single-layered
Department
which
least
regulations,
inmates
are
First,
confinement
the
ICC
candidates
for
makes
the
review.
the
release.
sole
The
only
provide
recommendation.
the
J.A.
inmate
139.
with
Moreover,
in
Instead, it
copy
of
practice,
its
the
in
solitary
confinement.
Appellants
and
sometimes
The
incarceration
literally),
ICC
in
listing
has
the
in
merely
SMU
rote
Wilkerson,
The policy
the
ICC
may
single
out
Appellant
40
for
an
insufficient
reason.
classification
of
Appellant
is
wanting
for
the
Appellant
the
detention
before
respect
release.
to
right
his
the
Department
to
ICC
assigned
regulations
contest
the
makes
its
behavior
do
factual
decision
level
or
not
bases
--
his
grant
for
his
either
with
candidacy
for
226.
Appellee
nonetheless
argues
that
its
review
process
compared
to
inmates
confined
in
Ohios
Supermax
Appellees
demonstrating
the
inadequacy
of
41
the
Departments
confinement
iii.
The third Mathews factor -- state interest -- accounts
for the
Departments
need
to
maintain
order
and
security
in
well-established
right
to
receive
notice
of
the
On
conclude
that
the
the
facts
presented
record
in
this
establishes
case,
however,
we
triable
question
of
district
courts
order
of
summary
judgment
is
to
show
that
his
religious
beliefs,
rather
than
his
on
Appellant
Appellants
has
procedural
demonstrated
due
liberty
42
process
interest
claim
in
because
avoiding
We remand
43