Incumaa v. Byars

Filing 48

ORDER granting 25 Motion for Summary Judgment; adopting Report and Recommendations re 37 Report and Recommendation. Signed by Honorable David C Norton on 3/11/2014.(cahe, ) (Main Document 48 replaced on 3/11/2014) (jbry, ). Modified on 3/11/2014 to replace with corrected document per chambers (jbry, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
LUMUMBA K. INCUMAA, #155651
also known as THEODORE
HARRISON, JR.
Plaintiff,
vs.
BRYAN P. STIRLING,
Acting Director of the South Carolina
Department of Corrections,1
Defendant.

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No. 9:12-cv-3493-DCN

ORDER

This matter is before the court on Magistrate Judge Bristow Marchant’s Report
and Recommendation (“R&R”) that this court grant defendant Bryan Stirling’s motion
for summary judgment. Plaintiff Lumumba Incumaa (“Incumaa”) filed written
objections to the R&R. For the reasons set forth below, the court adopts the R&R and
grants summary judgment in favor of defendant.
I. BACKGROUND
Incumaa is an inmate within the South Carolina Department of Corrections
(“SCDC”) who is currently incarcerated at the Lieber Correctional Institute. He is a
member of the Nation of Gods and Earths, a group commonly referred to as the Five
Percenters. Pl.’s Br. in Supp. of Compl. 1. While Incumaa asserts that the Nation of
Gods and Earths is a religion, Id., SCDC considers the Five Percenters a gang that
promotes a racist ideology. Def.’s Mot. for Summ. J. 8.

1

Bryan P. Stirling became the Acting Director of the South Carolina Department
of Corrections on October 1, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Bryan P. Stirling should be substituted for the Honorable William R. Byars,
Jr. as the defendant in this lawsuit.
1

In 1995, following three violent incidents involving Five Percenters, SCDC
promulgated a policy designating the Five Percenters a security threat group (“STG”). In
re Long Term Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d
464, 465 (4th Cir. 1999). In the most serious of these incidents,
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.
Id. In an affidavit, Elbert Pearson, an investigator with the SCDC Special Investigations
Unit (“SIU”), asserts that since 1995, Five Percenters have been involved in acts of
violence and other disruptive conduct within SCDC, including “assaultive behavior
against staff, threats to inflict harm on staff, possession of weapons, and inciting or
creating a disturbance.” Pearson 2d Aff. ¶ 2. Pearson includes a chart showing that then
number of incidents involving Five Percenters appears to be trending downward and
opines that the decline is a result of the STG policy. Id. ¶ 3.
According to Pearson, STGs are groups that have been designated by the SCDC
director to be a threat to the security of correctional institutions within the SCDC system.
Pearson Aff. ¶ 2. Once an individual has been deemed a suspected member of an STG,
the SIU rigorously investigates the individual to see if he can be validated as an STG
member. Id. ¶ 9. In order to be validated, the individual must exhibit at least two
validating factors, and the investigator, the investigator’s supervisor, and the SIU branch
chief must all sign off on the validation of the individual. Id. ¶ 10. Once an individual
has been validated as an STG member, that individual will receive one of two

2

classifications: Validated-GP (general population) or Validated-SD (security detention).
Id. ¶ 11. A validated STG member who has not committed or been implicated in any
disciplinary infractions or STG activities is typically, although not always, classified
Validated-GP and allowed to remain in the general population. Id. ¶ 12. On the other
hand, an STG member who has committed disciplinary infractions or participated in STG
activities is typically classified Validated-SD and would be placed in a special
management unit (“SMU”). Id. ¶ 13.
Once a validated STG member has been classified as Validated-SD, the individual
remains in the SMU until the individual is released following a review of his
classification status, the individual renounces his affiliation as an STG member, or the
group to which the individual belongs is removed from the STG list by the SCDC
director. Id. ¶ 14. In order to renounce one’s membership in an STG, a renunciation
committee is formed to evaluate the individual’s sincerity and the warden and SIU must
sign off on the committee’s recommendation in order for the individual to be released.
Id. ¶¶ 15-18.
Because the Five Percenters have been designated as an STG, the group’s
literature, writings, and other information have been declared contraband within SCDC.
Id. ¶ 23. While a validated Five Percenter remains in the general population, he is not
allowed to possess any written literature or materials of the group, engage in STG
activities, or attempt to recruit other members to the group. Id. ¶ 25. However, for STG
members confined in the SMU, there is a process by which STG materials can be
returned to those inmates. Id. ¶ 26-20.

3

According to Pearson, Incumaa, then known as Theodore Harrison, was one of
the Five Percenters implicated in the Broad River riot. Pearson Aff. ¶ 21. Incumaa has
been in administrative segregation since early 1996, or about 18 years. Id. Incumaa was
originally housed in the maximum security unit but is currently in the SMU. Pl.’s
Objections 10. According to SCDC Branch Chief of Records Management Michael J.
Stobbe, Incumaa has had his custody status reviewed by the Classification Committee
Review Board every thirty days. Stobbe Aff. ¶ 3. However, Incumaa claims to have
never been before the Classification Committee Review Board and that he simply
receives a form, SCDC Form 19-30, in the mail each month. Pl.’s Objections 12.
Incumaa filed the present action on December 12, 2012 pursuant to 42 U.S.C.
§1983, claiming that SCDC is substantially burdening the exercise of his religious rights
in violation the Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”) and that he has not been afforded adequate due process in violation of the
Fourteenth Amendment. On May 20, 2013, Incumaa filed a brief in support of his
complaint accompanied by several exhibits. On July 16, 2013, defendant filed a motion
for summary judgment. The magistrate judge issued an R&R on September 24, 2013.
Incumaa filed objections to the R&R on October 2, 2013. On January 28, 2014, this
court requested additional briefing from defendant regarding whether the government had
acknowledged and given consideration to less restrictive means. Defendant submitted a
supplemental brief and additional affidavit on February 27, 2014 and Incumaa responded
on March 10, 2014. The matter is now ripe for the court’s review.

4

II. STANDARD OF REVIEW
A.

Objections to R&R

This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In absence of a
timely filed objection to a magistrate judge’s R&R, this court need not conduct a de novo
review, but instead must “only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s
note). The recommendation of the magistrate judge carries no presumptive weight, and
the responsibility to make a final determination rests with this court. Mathews v. Weber,
423 U.S. 261, 270-71 (1976). This court may accept, reject, or modify the report of the
magistrate judge, in whole or in part, or may recommit the matter to him with instructions
for further consideration. 28 U.S.C. § 636(b)(1).
B.

Pro Se Plaintiffs

Plaintiff is proceeding pro se in this case. Federal district courts are charged with
liberally construing complaints filed by pro se litigants to allow the development of a
potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se
complaints are therefore held to a less stringent standard than those drafted by attorneys.
Id. Liberal construction, however, does not mean that the court can ignore a clear failure
in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep’t of
Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

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C.

Summary Judgment

Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will
not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary
judgment stage, the court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in his favor. Id. at 255.
III. DISCUSSION
Incumaa objects to the R&R on four grounds: (1) the magistrate judge erred in
failing to discuss the RLUIPA claim under the compelling interest/least restrictive means
analysis; (2) the magistrate judge erred in applying case law decided under rational basis
scrutiny to the RLUIPA claim; (3) the magistrate judge erred in finding that the
government had met its burden of showing that SCDC’s policy was the least restrictive
means of serving its compelling interest; and (4) the magistrate judge erred by analyzing
the due process claim under the Eighth Amendment’s deliberate indifference standard
instead of the Fourteenth Amendment’s procedural due process standard.
The court will consider these objections in turn.
A.

RLUIPA Claim

Incumaa objects to the magistrate judge’s analysis of his RLUIPA claim on three
grounds, all of which are related.

6

RLUIPA provides that
No government shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution . . . even if the burden
results from a rule of general applicability, unless the government
demonstrates that imposition of the burden on that person–
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a). RLUIPA demands “a ‘more searching standard’ of review of
free exercise burdens than the standard used in parallel constitutional claims: strict
scrutiny instead of reasonableness.” Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006)
(citation omitted). However, the Supreme Court has not read RLUIPA to “elevate
accommodation of religious observances over an institution’s need to maintain order and
safety.” Cutter v. Wilkinson, 544 U.S. 709, 722 (2005). The court assumes for the
purposes of summary judgment that the Five Percenters are a religion, thus avoiding the
“‘difficult and delicate task’ of examining the nature and sincerity” of Incumaa’s beliefs.
Five Percenters, 174 F.3d at 469 (quoting Thomas v. Review Bd., 450 U.S. 707, 714
(1981)).
1.

Application of Strict Scrutiny

Incumaa’s first objection to the R&R is that the magistrate judge failed to discuss
RLUIPA claim under strict scrutiny’s compelling interest/least restrictive means analysis.
Pl.’s Objections 1.
A review of the R&R reveals that the magistrate judge analyzed Incumaa’s claim
under RLUIPA’s compelling interest standard. The magistrate judge first determined that
there was a genuine issue of fact as to whether defendant’s policies placed a substantial
burden on Incumaa’s exercise of his religious beliefs. R&R 21. Next, the magistrate
7

judge determined that the policies at issue furthered a compelling interest. R&R 22-23.
Finally, the magistrate judge determined that the policies at issue were the least restrictive
means of furthering that compelling interest. R&R 23-24.
Because the magistrate judge applied RLUIPA’s strict scrutiny standard to his
claim, Incumaa’s first objection fails.
2.

Application of Case Law Decided Before RLUIPA

Incumaa next objects to the magistrate judge’s application of a Fourth Circuit case
decided under a rational basis standard. Pl.’s Objections 3.
In 1999, the Fourth Circuit held that SCDC’s decision to designate the Five
Percenters as an STG did not violate the Free Exercise Clause of the First Amendment.
Five Percenters, 174 F.3d at 469. Because the case predated RLUIPA, the court applied
rational basis scrutiny to SCDC’s policy as directed by the Supreme Court in Turner v.
Safley, 482 U.S. 78 (1987) (holding that a prison regulation that impinges on inmates’
constitutional rights is “valid if it is reasonably related to legitimate penological
interests”). In determining whether SCDC had a legitimate interest in the STG policy,
the Fourth Circuit noted that the purpose of the policy was to “promote the secure, safe,
and orderly operations of all SCDC institutions, . . . to facilitate the early detection of
[STG] activities and members and to ensure, to the extent possible, efficient intervention
into possible volatile situations.” Five Percenters, 174 F.3d at 469 (internal quotation
marks and citation omitted). The court concluded that “[t]hese are not simply legitimate
penological interests – they are compelling.” Id. (emphasis added).
Incumaa argues that in Five Percenters, the court held SCDC’s policy compelling
under the “rationally related/legitimate interest test,” not under the “compelling

8

interest/least restrictive means analysis of RLUIPA.” Pl.’s Objections 4. His argument
confuses the two standards. There is no compelling interest standard under rational basis
scrutiny. The Fourth Circuit was explicitly indicating that the purposes behind the STG
policy were so important that they were not only legitimate under rational basis scrutiny,
but that they would also survive strict scrutiny as compelling interests. Although the
RLUIPA may have technically abrogated Five Percenters, because the Fourth Circuit
discussed the case under a compelling interest standard, it remains extremely persuasive
authority that this court will not disregard. The state’s interest in promoting the secure,
safe, and orderly operation of SCDC institutions, facilitating the early detection of STG
activities, and ensuring efficient intervention into possible volatile situations is just as
compelling today as it was in 1999, when Five Percenters was decided.2
Because the magistrate judge did not err in applying the compelling interest
analysis of Five Percenters to the present case, Incumaa’s second objection fails.
3.

Least Restrictive Means

Incumaa’s third objection is that the magistrate judge erred in finding that the
government had met its burden of showing that SCDC’s policy was the least restrictive
means of serving its compelling interest. Pl.’s Objections 5.
Once the government establishes that a policy is in furtherance of a compelling
governmental interest, it must establish that the policy is the least restrictive means of
furthering that compelling interest. See 42 U.S.C. § 2000cc-1(a)(2). While RLUIPA

2

Incumaa argues that because the number of incidents involving Five Percenters
has decreased since Five Percenters was decided, there is a question of whether a
compelling interest still exists today. Pl.’s Objections 4. That decrease, however, does
not change SCDC’s interest in safe, secure institutions. If anything, it is relevant to
whether the STG policy is the least restrictive means of achieving that interest.
9

adopts a strict scrutiny standard, Lovelace, 472 F.3d at 198 n.8, it was not intended to
“elevate accommodation of religious observances over an institution’s need to maintain
order and safety.” Cutter, 544 U.S. at 722; Lovelace, 472 F.3d at 190. The Supreme
Court has noted that its “decisions indicate that an accommodation must be measured so
that it does not override other significant interests” and thereby run afoul of the
Establishment Clause. Cutter, 544 U.S. at 722. Therefore, in analyzing whether a
particular regulation is the least restrictive means of furthering the government's
compelling security interest, the reviewing court must avoid “substituting its judgment in
place of the experience and expertise of prison officials.” Hoevenaar v. Lazaroff, 422
F.3d 366, 370 (6th Cir. 2006) (“In conducting an analysis of whether the regulation in
issue was the least restrictive means of furthering the government’s compelling security
interest, the district court did just what the Supreme Court and Congress have warned
against: substituting its judgment in place of the experience and expertise of prison
officials.”).
The Fourth Circuit requires that the “government, consistent with the RLUIPA
statutory scheme, acknowledge and give some consideration to less restrictive
alternatives.” Couch v. Jabe, 679 F.3d 197, 203 (4th Cir. 2012); see also Smith v.
Ozmint, 578 F.3d 246 (4th Cir. 2009) (vacating grant of summary judgment in favor of
prison officials because the affidavit they relied on was insufficient to show that the
policy at issue was the least restrictive means of furthering the identified compelling
interest); Washington v. Klem, 497 F.3d 272, 284 (3rd Cir. 2007) (“[T]he phrase ‘least
restrictive means’ is, by definition, a relative term. It necessarily implies a comparison
with other means.”). Once the government provides an explanation for the least

10

restrictive means prong, courts will defer to the wisdom and judgment of prison officials
on matters of security. Couch, 679 F.3d at 204; see Lovelace, 472 F.3d at 190 (holding
that once the government provides an explanation for a policy’s restrictions, the court
will afford such explanation “due deference”).
In a supplemental affidavit provided at the court’s request, SCDC’s Deputy
Director of Operations Robert E. Ward laid out two less restrictive alternatives that the
department has considered. The first would be to remove the Five Percenters from the
list of STGs. Wade asserts that “[t]here have continued to be assaults, disturbances, and
other criminal activities committed by Five Percenters since [they were designated a
STG], and . . . there has been no valid basis for removing the Five Percenters from the list
of designated STGs.” Wade Aff. ¶ 5. Wade goes on to opine that although the number
of assaults committed by Five Percenters has declined since 2003, “the potential or even
likelihood of assaultive behaviors by Five Percenters remains a reality and an issue that
must be addressed by security operations.” Id. ¶ 6. If Five Percenters currently in
security detention were released into the general prison population, Ward believes that
“the number of serious disciplinaries including assaults, riots, and similar behaviors
would dramatically increase.” Id.
A second less restrictive alternative that the government has considered,
according to Ward, is placing Five Percenters in a “close custody unit.” Wade Aff. ¶ 8.
While acknowledging that using a close custody unit to house Five Percenters rather than
security detention cells “may provide the same level of safety and security to other
inmates,” Ward opined that “it would create numerous other issues and concerns.” Id.
Specifically, it would allow “gangs to be identified,” “create the risk of targeting,” and

11

“increase the likelihood of inter-gang violence,” as well as “allow gang members easier
access to one another and allow more opportunity for communication and planning.” Id.
Ward notes that “most importantly, the use of a close custody unit would create a
heightened level of danger for the correctional officers and other staff who would work in
that unit.” Id. Based on these considerations, SCDC rejected such an approach as
“unworkable and dangerous.” Id.
In addition to the less restrictive alternatives that SCDC has considered, Ward
notes that SCDC has made changes to the STG policy and classification process since it
was instituted. According to Ward,
[i]nitially, after the Five Percenters were designated as an STG, validated
members were all re-classified to Security Detention, regardless of their
individual circumstances and disciplinary history. Since that time, SCDC
developed two separate classifications, Validated-STG-GP and ValidatedSTG-SD, which taken into account the inmates’ individual circumstances
and are assessed on an individual basis. Therefore, an inmate who is
validated as a member of an STG who has not committed serious
disciplinary infractions may be classified as Validated-STG-GP and is
allowed to remain in the general population.
Ward Aff. ¶ 9. SCDC has actually implemented procedures to make the application of
the STG policy less restrictive, particularly for those inmates whose prior conduct and
individual circumstances did not necessarily warrant security detention.3
SCDC has not just considered less restrictive means – it has actually implemented
a less restrictive alternative to their original policy. The court therefore gives SCDC its

3

In his objections to the R&R, Incumaa suggests that SCDC not designate the
Five Percenters an STG, but rather “only segregate its members after they have
committed violent, disruptive, and/or criminal acts within the SCDC.” Pl.’s Objections 7.
As discussed above, and recognized by the magistrate judge, the alternative proposed by
Incumaa is “exactly the process that has been applied to [him].” R&R 24.
12

due deference and finds, as the Fourth Circuit did in 1999, that “there are no ready
alternatives to the SCDC’s course of action.” Five Percenters, 174 F.3d at 470.
Because the STG policy is the least restrictive means of furthering the
government’s compelling interests, Incumaa’s third objection fails.
B.

Due Process Claim

Lastly, Incumaa objects to the magistrate judge’s treatment of his Fourteenth
Amendment claim. Pl.’s Objections 9. He argues that the magistrate judge treated his
claim as an Eighth Amendment violation instead of a procedural due process claim. Id.
While the magistrate court did discuss the Eighth Amendment at length, R&R 16-18, he
also briefly discussed Incumaa’s due process claim, R&R 18-19. However, because the
magistrate judge did not address the atypical and significant hardship standard of Sandin
v. Conner, 515 U.S. 472 (1995), this court will review Incumaa’s due process claim in
light of Sandin and is progeny.
The Fourteenth Amendment’s Due Process Clause guards against unlawful
deprivations of life, liberty, or property. U.S. Const. amend. XIV, § 1. There is a twostep process for analyzing alleged procedural due process violations. See Burnette v.
Fahey, 687 F.3d 171, 181 (4th Cir. 2012) (laying out two-step process for procedural due
process violations). The court must first consider whether, and to what extent, the inmate
has a protectable interest under the Due Process Clause. Id. If the court determines that
the inmate has asserted a protectible interest, the court must then determine whether the
government failed to afford him the minimum procedural protections required by the
Fourteenth Amendment in depriving him of this interest. Id.

13

In Sandin, the Supreme Court recognized that “States may under certain
circumstances create liberty interests which are protected by the Due Process Clause.”
515 U.S. at 483-84. However, the Supreme Court noted that “these interests will be
generally limited to freedom from restraint which, while not exceeding the sentence in
such an unexpected manner as to give rise to protection by the Due Process Clause of its
own force, nonetheless imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Id. at 484. After Sandin, “the
touchstone of the inquiry into the existence of a protected, state-created liberty interest in
avoiding restrictive conditions of confinement is not the language of regulations
regarding those conditions but the nature of those conditions themselves ‘in relation to
the ordinary incidents of prison life.’” Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005)
(quoting Sandin, 515 U.S. at 483). The Supreme Court in Wilkinson held that, in order to
measure whether an inmate’s custodial situation imposes “an atypical and significant
hardship within the correctional context,” it must be measured against a “baseline.” 545
U.S. at 223-24. While Wilkinson did not establish a particular “baseline,” the Fourth
Circuit uses the conditions “imposed on the general population” as the baseline for its
analysis. Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997). “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 case, fact by fact
consideration.” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (quotation marks
and citation omitted); see also Farmer v. Kavanagh, 494 F. Supp. 2d 345, 356 (D. Md.
2007) (noting that Wilkinson “directs lower courts to consider the totality of
circumstances in a given facility”).

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Incumaa argues that the following conditions together constitute an atypical and
significant hardship in relation to the ordinary incidents of prison life: he is allowed only
an hour per day of recreation either two or three days per week; he is allowed a tenminute shower only on Monday, Wednesday, and Friday; he is confined to a cell at all
times except the time permitted for recreation or to shower; he is strip-searched,
including a search of his genitalia and rectum, every time he leaves his cell; he is served
smaller portions of food compared to the general prison population; his legal and
personal property is limited to what can fit into a 15-inch by 12-inch by 10-inch box; he
is denied canteen privileges; he is denied the opportunity for a work assignment; he is
denied educational and vocational opportunities; and he is denied the opportunity to
receive mental health treatment. Pl.’s Br. in Supp. of Compl. 5-6. Incumaa claims that
“the most atypical and significant hardship being imposed on [him] is the length of time
he has been confined to administrative segregation.” Pl.’s Objections 11.
Although the atypical and significant hardship inquiry is “necessarily contextdependent and demands fact-by-fact consideration,” Prieto v. Clarke, 2013 WL 6019215,
at *5 (E.D. Va. Nov. 12, 2013), two cases are particularly insightful for their analysis of
when administrative segregation gives rise to a liberty interest. The first is Wilkinson v.
Austin, 545 U.S. 209 (2005). In Wilkinson, the Supreme Court held that inmates had a
liberty interest in avoiding assignment to Ohio’s supermax prison. Id. at 224. In
reaching this conclusion, the Court distinguished the supermax facilities from normal
segregation units on three grounds. First, inmates in the supermax facility were
“deprived of almost any environmental or sensory stimuli and of almost all human
contact.” Id. at 214. The facility had solid metal doors with metal strips along their sides

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and bottoms which prevented conversation or communication with other inmates. Id.
Second, they were assigned to the supermax facility for “an indefinite period of time,
limited only by [the] inmate’s sentence.” Id. at 214-15. Third, once assigned to
supermax, “[i]nmates otherwise eligible for parole [lost] their eligibility while
incarcerated” at the facility. Id. at 215. After noting other onerous conditions of
confinement, including cells that were lighted 24 hours per day and only one hour per day
of exercise, the court stated held that “[w]hile any of these conditions standing alone
might not be sufficient to create a liberty interest, taken together they impose an atypical
and significant hardship within the correctional context.” Id. at 224.
The second case that the court finds instructive is Beverati v. Smith, 120 F.3d 500
(4th Cir. 1997), which the Fourth Circuit decided before Wilkinson.4 In Beverati, the
Fourth Circuit considered whether prisoners had a liberty interest when they were
confined in administrative segregation for six months in “unbearably hot” cells that were
infested with vermin, smeared with human feces and urine, and flooded with toilet water.
120 F.3d at 504. The inmates were only allowed to leave their cells three or four times a
week, were not allowed outside recreation, were denied educational or religious services,

4

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.
Beverati, 120 F.3d at 504. 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.
App’x 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. See, e.g., Morris v.
York, No. 0:13-cv-01031, 2013 WL 2635610, *2 (D.S.C. June 12, 2013) (citing Beverati
and holding that “administrative segregation, without more, does ‘not present the type of
atypical, significant deprivation in which a State might conceivably create a liberty
interest’” (citation omitted)).
16

and were given “considerably smaller portions” of food. Id. The Court held that
“although the conditions were more burdensome than those imposed on the general
prison population, they were not so atypical that exposure to them for six months
imposed a significant hardship in relation to the ordinary incidents of prison life.” Id.
Some of the conditions in the SMU that Incumaa points to as presenting an
atypical and substantial hardship are similar to those discussed in Beverati, including
Incumaa being allowed to leave his cell only a handful of times each week, being denied
educational and vocational opportunities, and being given “considerably smaller
portions” of food. However, besides the length of his confinement to administrative
segregation, the court finds that Incumaa has not alleged living conditions nearly as bad
as those present in Beverati. In fact, conditions such as those alleged would “likely . . .
apply to most solitary confinement facilities.” Wilkinson, 545 U.S. at 224.
While recognizing that the deprivations detailed in that case exist in most solitary
confinement facilities, the Supreme Court in Wilkinson looked at the presence of two
additional factors to find “an atypical and significant hardship” on inmates such that they
had a liberty interest in avoiding it. Id. Those factors were the potentially indefinite
length of detention and the fact that placement in administrative segregation disqualified
otherwise eligible inmates for parole consideration. Id. The first of these factors,
indefinite confinement, while not completely absent in Incumaa’s case, is “substantially
ameliorated by [SCDC’s] renunciation program.” Tate v. Starks, 2013 WL 5914398, at
*4 (N.D. Miss. Nov. 4, 2013). As discussed above, SCDC has a process by which an
inmate can renounce his membership in an STG and return to the general prison
population. See Pearson Aff. ¶¶ 14-19. This renunciation procedure gives Incumaa

17

substantial influence over the length of his stay in administrative segregation, and he
could have potentially returned to the general prison population years ago had he chosen
to renounce his affiliation with the Five Percenters. Additionally, Incumaa has his
classification status reviewed every 30 days, Pearson Aff. ¶ 14; Stobee Aff. ¶ 3, whereas
the inmates in Wilkinson, following an initial 30-day review, had their confinement
reviewed just annually. 545 U.S. at 224. Therefore, Incumaa’s confinement, while
indefinite as long as he identifies as a Five Percenter, is subject to substantially more
favorable conditions than the inmates in Wilkinson.5 The second factor that the Supreme
Court found significant in Wilkinson – automatic disqualification from consideration of
parole – is absent from Incumaa’s case. There has been no evidence advanced that
placement in administrative segregation as a result of classification as a member of a
STG impacts, influences, or eliminates parole consideration for SCDC inmates.
Regardless, Incumaa’s administrative segregation could not impact his eligibility for
parole, because he is serving a life sentence for murder, Incumaa v. Ozmint, 507 F.3d

5

The court notes that several other circuits have held that confinement in
administrative segregation for a definite, limited time period short of indefinite duration
implicates a liberty interest. See, e.g., Marion v. Columbia Corr. Inst., 559 F.3d 693, 699
(7th Cir. 2009) (“[O]ther courts of appeals have held that periods of confinement that
approach or exceed one year may trigger a cognizable liberty interest without any
[specific] reference to conditions.”); Iqbal v. Hasty, 490 F.3d 143, 161 (2d Cir. 2007),
rev’d on other grounds, Ashcroft v. Iqbal, 556 U.S. 662 (2009) (explaining that a
segregated confinement of 305 days or more necessarily triggers due process protections,
and segregation lasting 101 to 305 days may trigger due process protections, depending
on the conditions of segregation); Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir.
2006) (reversing dismissal of claim involving 750 days’ segregation, stating that when a
“prisoner is subjected to a lengthy period of segregation, the duration of that confinement
may itself be atypical and significant”); Williams v. Fountain, 77 F.3d 372, 374 (11th Cir.
1996) (holding that one year of solitary confinement was sufficient to state a claim); but
see Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (holding that seven months’
segregation, alone, does not implicate a liberty interest). However, neither the Supreme
Court nor the Fourth Circuit has found a liberty interest based solely on the length of
confinement in administrative segregation.
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281, 283 (4th Cir. 2007), which he admits precludes parole. Pl.’s Decl. 7. The court also
notes that Incumaa has not alleged the extreme isolation present in Wilkinson, which the
Supreme Court also considered significant in finding a protected liberty interest.
Wilkinson, 545 U.S. at 223.
Based on the totality of the circumstances surrounding Incumaa’s confinement in
administrative segregation, the court cannot find that the conditions of his confinement
rise to the level of an atypical and substantial hardship. Most of the conditions alleged
are nothing more than “the usual aspects of a solitary confinement facility,” Menei v.
Rubenstein, 2012 WL 4845659, at *5 (S.D. W. Va. October 11, 2012), and do not reach
anything near the conditions alleged and found insufficient by the Fourth Circuit in
Beverati. Moreover, the factors that the Supreme Court relied on in Wilkinson apply
with much less force here – Incumaa has not alleged that confinement in administrative
segregation will disqualify him from parole consideration and SCDC’s renunciation
procedure puts the duration of his confinement into his own hands to a significant degree.
Because the court has determined that Incumaa does not have a protectible liberty interest
in avoiding administrative segregation, it is not necessary to determine whether the
government afforded him the minimum procedural protections required by the Fourteenth
Amendment.
Although the court does not adopt the reasoning of the R&R, it adopts the result
reached by the magistrate judge and therefore Incumaa’s fourth objection fails.

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IV. CONCLUSION
Based on the foregoing, the court ADOPTS the magistrate judge’s R&R and
GRANTS defendant’s motion for summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 11, 2014
Charleston, South Carolina

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