UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LUMUMBA KENYATTA INCUMAA, a/k/a Theodore Harrison, Plaintiff-Appellant, v. JONATHAN E. OZMINT, Director, SCDC, Defendant-Appellee.
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) Argued: September 25, 2007 Decided: October 29, 2007 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.
COUNSEL ARGUED: Robert Alexander Schwartz, ARNOLD & PORTER, L.L.P., Washington, D.C., for Appellant. Andrew Frederick Lindemann, DAVIDSON, MORRISON & LINDEMANN, P.A., Columbia,
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S.C., for Appellee. ON BRIEF: Justin S. Antonipillai, C. Ezekiel Ross, ARNOLD & PORTER, L.L.P., Washington, D.C., for Appellant.
OPINION 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 "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. I. A. 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
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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
A Richland County, South Carolina grand jury subsequently indicted Incumaa on three counts of hostage-taking and two counts of assault and battery with intent to kill in relation to his involvement in the prison riot. Incumaa pleaded guilty to the charges, and the state court sentenced him to concurrent 20-year terms on each of the assault-and-battery counts and 20-year terms for each of the hostage-taking counts, consecutive to the life sentence being served and to each other. A post-conviction relief ("PCR") court vacated Incumaa's riot-related convictions and remanded for a new trial. The PCR court concluded that Incumaa would have gone to trial had it not been for his counsel's ineffective assistance in incorrectly representing to him that he would not lose his eligibility for parole as a result of the guilty pleas. Although his riot-related convictions were vacated, Incumaa nevertheless concedes his involvement in the prison riot.
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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 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. B. 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.
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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 paperback 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 ban as an as-applied challenge. On March 25, 2004, the SCDC filed a motion for summary judgment. Based on its agreement with a magistrate judge's conclusion that "[i]t is not a violation of [Incumaa's] constitutional rights to not be allowed to subscribe to and receive any magazine or periodical he desires," (J.A. at 213),2 the district court granted summary judgment to the SCDC on October 24, 2004.3 Incumaa timely appealed, and on April 15, 2005, we appointed counsel to handle his appeal. Incumaa filed his opening appellate brief on June 15, 2005. Shortly thereafter, Kirkland prison officials released Incumaa from the MSU, and on August 2, 2005, the SCDC moved this Court to suspend the
Citations to "(J.A. at ___.)" refer to the contents of the Joint Appendix filed by the parties in this appeal. 3 The magistrate judge's recommendation references a case in which we previously upheld Policy OP-22.11's publications ban against a First Amendment challenge, albeit in an unpublished opinion. See Corey v. Reich, et al., 103 F. App'x 753 (4th Cir. 2004) (unpublished), cert. denied, 544 U.S. 924 (2005). Pursuant to D.S.C.R. 73.02(B)(2)(d), the clerk of the district court refers to a magistrate judge "[a]ll pretrial proceedings in prisoner petitions for relief under 42 U.S.C. § 1983." Id.
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briefing order and dismiss this case as moot. Incumaa opposed the motion. On February 15, 2006, the SCDC withdrew its motion to dismiss the case as moot. The SCDC informed this Court that Incumaa was likely to be transferred to the SMU and that the SCDC had amended Policy OP-22.12, the SCDC policy setting forth the policies and procedures for the SMU, to include similar restrictions on the receipt by mail of books, publications, and magazines as are contained in MSU Policy OP-22.11. Shortly thereafter, the SCDC transferred Incumaa to the SMU. Around that time, the U.S. Supreme Court granted certiorari in Beard v. Banks, 126 S. Ct. 2572 (2006), a case in which a Pennsylvania inmate, on behalf of himself and similarly situated inmates, brought a First Amendment challenge to a Pennsylvania Department of Corrections policy restricting access to newspapers, magazines, and photographs by inmates placed in the most restrictive level of the Commonwealth's long-term segregation unit. On February 15, 2006, in the same filing in which it withdrew its motion to dismiss, the SCDC moved to stay briefing in the appeal to await the decision in Banks. Over Incumaa's opposition, we granted the SCDC's motion to stay on March 2, 2006. The Supreme Court decided Banks on June 28, 2006, upholding the Pennsylvania policy restricting inmate access to written materials in the Commonwealth's long-term segregation unit. On November 20, 2006, we lifted the stay in this case and ordered Incumaa to submit a new opening brief. According to the parties' representations at oral argument, Incumaa has not returned to the MSU since his release in June 2005 and, instead, remains housed in the SMU. II. Although the SCDC previously withdrew its motion to dismiss this case as moot, it now argues that the case is indeed moot and that we are without jurisdiction to consider the merits of Incumaa's challenge to Policy OP-22.11's publications ban. In the SCDC's view, no "live" Art