174 F.3d 464 (4th Cir. 1999), 98-7337, In re Long Term Administrative Segregration of Inmates Designated as Five Percenters

Docket Nº:98-7337.
Citation:174 F.3d 464
Party Name: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, Greg
Case Date:April 21, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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174 F.3d 464 (4th Cir. 1999)

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, Elijah

Smith, 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,

v.

Michael Moore, Commissioner; William Catoe, Deputy Director

for Operations, South Carolina Department of Corrections;

Kenneth D. McKellar, Director of Security, South Carolina

Department of Corrections in their official and individual

capacities, Defendants-Appellees,

and

SCDC, Defendant.

No. 98-7337.

United States Court of Appeals, Fourth Circuit

April 21, 1999

Argued March 2, 1999.

Page 465

ARGUED: Robert Earl Toone, Jr., Southern Center for Human Rights, Atlanta, Georgia, for Appellants. Andrew Frederick Lindemann, Davidson, Morrison & Lindemann, P.A., Columbia, South Carolina, for Appellees. ON BRIEF: Katharine A. Huffman, Southern Center for Human

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Rights, Atlanta, Georgia; Gregory S. Forman, Charleston, South Carolina; C. Andre Brumme, III, ACLU of South Carolina, Columbia, South Carolina, for Appellants. David L. Morrison, Davidson, Morrison & Lindemann, P.A., Columbia, South Carolina; David C. Eckstrom, Nexsen, Pruet, Jacobs & Pollard, L.L.P., Columbia, South Carolina; Vinton D. Lide, Lide, Montgomery & Potts, P.C., Columbia, South Carolina, for Appellees.

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.

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 Percenters, 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 classification as a security threat. In early 1995 three such incidents occurred in SCDC facilities. That January a group of Five Percenters assaulted three other inmates at Lieber Correctional Institution, requiring the intervention of corrections personnel. 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 riot 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. Furthermore, according to the unit manager of the Lee Correctional Institution, a group of Five Percenters had been active

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in that facility as early as 1993, stealing from and preying on weaker inmates and on one occasion attempting to start a riot. 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 Virginia.

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 hostage 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 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 rhetoric." 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. 1 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 system, its history of unlawful activity in the community, its organizational 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 population, to 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 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 individual Five Percenters and to adjust their security classifications. Those inmates--numbering approximately three hundred at the outset and approximately sixty-four as of March 1997--were confined in administrative segregation 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 complaint asserting claims under

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the Constitution and 42 U.S.C. § 1983. Specifically, the inmates alleged that the designation of the Five Percenters 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. 2 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 protection, and Eighth Amendment claims. The Five Percenters appeal. 3

II.

We first address the Five Percenters' claim under the Free Exercise Clause of the First Amendment. Although the parties vigorously dispute 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...

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