507 F.3d 281 (4th Cir. 2007), 04-7824, Incumaa v. Ozmint

Docket Nº:04-7824.
Citation:507 F.3d 281
Party Name:Lumumba Kenyatta INCUMAA, a/k/a Theodore Harrison, Plaintiff-Appellant, v. Jonathan E. OZMINT, Director, SCDC, Defendant-Appellee.
Case Date:October 29, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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507 F.3d 281 (4th Cir. 2007)

Lumumba Kenyatta INCUMAA, a/k/a Theodore Harrison, Plaintiff-Appellant,


Jonathan E. OZMINT, Director, SCDC, Defendant-Appellee.

No. 04-7824.

United States Court of Appeals, Fourth Circuit.

Oct. 29, 2007

Argued: Sept. 25, 2007.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Cameron McGowan Currie, District Judge. (CA-03-2776-0)

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Robert Alexander Schwartz, ARNOLD & PORTER, L.L.P., Washington, D.C., for Appellant.

Andrew Frederick Lindemann, DAVIDSON, MORRISON & LINDEMANN, P.A., Columbia, S.C., for Appellee.


Justin S. Antonipillai, C. Ezekiel Ross, ARNOLD & PORTER, L.L.P., Washington, D.C., for Appellant.

Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and T. S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Dismissed as moot by published opinion. Chief Judge Williams wrote the opinion, in which Judge Duncan and Senior Judge Ellis joined.


WILLIAMS, Chief Judge:

In 2003, Lumumba Kenyatta Incumaa, then an inmate in the South Carolina Department of Corrections ("SCDC") Maximum Security Unit ("MSU"), brought this action under 42 U.S.C.A. § 1983 (West 2003), alleging that an SCDC policy barring MSU inmates from receiving publications via the mail violated his First Amendment rights. Incumaa sought declaratory relief and an injunction against enforcement of the publications ban, but he did not pursue money damages. The district court granted summary judgment in favor of the SCDC, and Incumaa appealed.

In 2005, after Incumaa filed his appeal in this case, the SCDC released him from the MSU, and he has not been returned to its confines in over two years. Thus, the MSU publications ban no longer applies to Incumaa, and given that an inmate must

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"earn" assignment to the MSU through violent behavior or noncompliance with SCDC prison policies, there is no indication that the MSU ban will ever apply to him again, save some serious misstep on his part. Accordingly, we conclude that Incumaa no longer stands to benefit from the declaratory and injunctive relief he seeks in his complaint. We therefore dismiss the appeal as moot.



Incumaa is serving a life sentence for murder in the South Carolina prison system. In April 1995, the SCDC placed Incumaa in the MSU at Kirkland Correctional Institution ("Kirkland") after he participated in a riot at Broad River Correctional Institution during which he took several prison employees hostage and assaulted them.1

The SCDC maintains two specialized units for difficult inmates: the MSU and the Special Management Unit ("SMU"). The SCDC houses its most dangerous and recalcitrant inmates in the MSU. The SMU is designed for prisoners who are in need of greater monitoring and supervision than those in the general population but who do not warrant placement in the MSU.

No inmate is assigned to the MSU "from the street." (Appellee's Br. at 3.) Rather, placement in the MSU is based exclusively on an inmate's conduct while incarcerated. An inmate must commit some violent act, engage in some criminal behavior, or otherwise pose a risk to prison safety to "earn" assignment to the MSU. The most common reasons for assignment to the MSU are violent escape attempts, aggravated assault on staff or other inmates, murder or attempted murder, violent participation in a riot, hostage-taking, a history of violent behavior, or circumstances that pose an extraordinary threat to operation of the institution. These reasons are not exhaustive; other types of misbehavior can result in assignment to the MSU. Before admitting an inmate to the MSU, the SCDC gives the inmate a chance to respond at a formal hearing before the MSU Review Board.

The SCDC classifies each MSU inmate as a Level I, Level II, or Level III inmate. Level I inmates face the most severe restrictions; Level II inmates retain more privileges than Level I inmates; and Level III inmates enjoy the maximum privileges available in the MSU. Even at Level III status, however, an MSU inmate is greatly restrained in activity as compared to his general population counterparts, for all three levels of MSU seriously restrict an inmate's ordinary prison privileges. For instance, MSU inmates may not participate in prison employment, education, or other organized activity; are confined to their cells twenty-three hours a day during the week and twenty-four hours a day on

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the weekend; and are severely limited in the amount and kind of personal property that they may keep in their cells.

An inmate's movement within the MSU classification system is not solely dependent on the number of disciplinary infractions the inmate commits. It also depends on the inmate's conformity to the standards set out by MSU officials, his commitment to self-improvement actions, his relationships with staff, the results of daily cell inspections, and his personal grooming and appearance. The minimum term of confinement in the MSU is eighteen months, at which point the SCDC evaluates the inmate's behavior to determine whether relocation to the SMU is warranted. If an inmate believes that his release from the MSU has been wrongfully denied, he may seek review of the decision by the SCDC Director. The Director's decision is subject to immediate judicial review by an administrative law judge and then, if necessary, by the South Carolina Court of Appeals and South Carolina Supreme Court.


On January 1, 2002, the SCDC adopted Policy OP-22.11 to govern the MSU. Among many other things, Policy OP-22.11 restricts an MSU inmate from receiving magazines, books, and other publications by mail. The restriction does not apply to magazine or periodical subscriptions paid for by the inmate before assignment to the MSU; the inmate may continue to receive these materials until the expiration of the subscription(s). But once these pre-MSU subscriptions expire, they cannot be renewed, and the MSU inmate may not receive any more magazines, books, or publications - whether paid for or free - by mail.

The publications ban does not deprive MSU inmates of all reading materials. MSU prison officials make books and periodicals from the Kirkland library available to the inmates by way of a book cart. Policy OP-22.11 provides that a Level I inmate may possess one paper-back book or periodical at a time and may advance to possession of as many as three paperback books or periodicals at a time at Level III. In addition to these materials, an inmate may always possess the primary source book for his religion (Bible, Qur'an, etc.).

On August 29, 2003, Incumaa, then a nearly eight-year resident of the MSU and a Level III inmate, brought the present § 1983 action in the District of South Carolina alleging that Policy OP-22.11's publications ban violated his First Amendment right to receive information and ideas. Incumaa sought declaratory relief and an injunction against enforcement of the ban, but he did not seek any money damages. Incumaa styled his challenge to the MSU publications...

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