Incumaa v. Stirling et al

Filing 59

ORDER denying 52 Motion for Preliminary Injunction. Signed by Honorable David C Norton on June 4, 2021.(cdan, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
LUMUMBA KENYATTA INCUMAA,
a/k/a THEODORE HARRISON, JR.,

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Plaintiff,
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vs.
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BRYAN P. STIRLING, SANDARA
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BARRETT, and BARTON VINCENT,
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Defendants.
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No. 9:17-cv-1608-DCN-BM
ORDER

This matter comes before the court on plaintiff Lumumba Kenyatta Incumaa’s
(“Incumaa”) motion for a preliminary injunction and temporary restraining order, ECF
No. 52. For the reasons set forth below, the court denies the motion.
I. BACKGROUND
Incumaa, an inmate with the South Carolina Department of Corrections
(“SCDC”), is a devout adherent of the Nation of Gods and Earths (“NGE”), also referred
to as the Five Percent Nation. NGE “originated within the nation of Islam [ ] and
ultimately became a distinct tradition” in the 1930s. Coward v. Robinson, 276 F. Supp.
3d 544, 551 (E.D. Va. 2017).1 While imprisoned in an SCDC facility, Incumaa submitted
a request for recognition and accommodation of his faith, which the SCDC denied.
Incumaa filed this action pro se seeking vindication of his First Amendment rights
pursuant to 42 U.S.C. § 1983 as well as rights guaranteed to him under the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq.

For an instructive discussion of NGE’s history, central tenets, and traditions, see
Coward, 276 F. Supp. 3d at 551–555.
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ECF No. 1, Compl. Specifically, Incumaa asserts that defendants are depriving him of
constitutionally and statutorily guaranteed rights by refusing to recognize NGE as a
religion and failing to accommodate Incumaa in the exercise of his faith in various ways,
including, inter alia, by refusing to permit NGE services, prohibiting Incumaa from
purchasing and wearing certain religious headwear, failing to accommodate a diet that
incorporates the restrictions of his faith, and disapproving Incumaa’s subscription to the
“Five Percenters” newspaper. Incumaa’s complaint seeks monetary and injunctive relief.
Defendants Bryan Stirling (“Stirling”), Sandara Barrett, and Barton Vincent (collectively,
“defendants”) are employees of the SCDC.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Civ. Rule 73.02(B)(2), the court
assigned this matter to Magistrate Judge Bristow Marchant. On March 23, 2018,
defendants filed a motion for summary judgment, ECF No. 29, and on August 23, 2018,
Magistrate Judge Marchant issued a report and recommendation (“R&R”),
recommending that the court grant summary judgment in favor of defendants in part,
ECF No. 39. The court adopted the R&R on March 19, 2019, granting summary
judgment with respect to Incumaa’s request for monetary damages and his claims relating
to his receipt of the Five Percenters newspaper, his wearing of religious headgear, his
right to dietary options that comply with his faith’s restrictions, and his right to receive
services from NGE volunteers. ECF No. 46. The court denied summary judgment with
respect to Incumaa’s claim that Stirling’s refusal to recognize NGE as a religion violates
his rights under the First Amendment and RLUIPA. Id. On August 6, 2020, Incumaa
filed a motion for a preliminary injunction and temporary restraining order with respect
to that claim, arguing that he is entitled to immediate injunctive relief in the form of an

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order directing Stirling to recognize NGE as a religion. ECF No. 52. On August 20,
2020, Stirling responded to the motion, ECF No. 53, and on September 3, 2020, Incumaa
replied, ECF No. 54. On April 15, 2021, an attorney seasoned and skilled in civil rights
litigation entered an appearance on Incumaa’s behalf. ECF No. 58. Nevertheless,
because Incumaa litigated this motion in substantial part without the benefit of counsel,
the court construes it as a pro se motion. This motion is ripe for the court’s review.
II. STANDARD
“The purpose of a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be held.” United States v. South
Carolina, 840 F. Supp. 2d 898, 914 (D.S.C. 2011) (quoting Univ. of Tex. v. Camenisch,
451 U.S. 390, 395 (1981)). “A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of the equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). As the Supreme Court has noted, a preliminary injunction is “an extraordinary
remedy that may only be awarded upon a clear showing that the plaintiff is entitled to
such relief.” Id. at 22.
Federal district courts are charged with liberally construing petitions 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 petitions are therefore held to a less stringent
standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978). Liberal construction, however, does not mean that a court may ignore a clear

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failure in the pleading to allege facts that set forth a cognizable claim. See Weller v.
Dep’t of Soc. Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).
III. DISCUSSION
In his motion, Incumaa asks the court for an order “directing [] Stirling to
recognize [NGE] as a religion,” and “requiring [] Stirling to accommodate the practice of
[Incumaa’s] religion [] within the SCDC general population.” ECF No. 52-2 at 8.
Naturally, Stirling opposes the injunction, arguing that Incumaa “has failed to make a
sufficient showing that he is entitled to such relief and because countervailing
considerations weigh in favor of denial.” ECF No. 53 at 3. Before determining whether
Incumaa has met his burden to demonstrate that injunctive relief is warranted, the court
must determine the nature of that burden.
The Fourth Circuit recognizes two categories of preliminary injunctions.
“Prohibitory preliminary injunctions aim to maintain the status quo and prevent
irreparable harm while a lawsuit remains pending.” Pashby v. Delia, 709 F.3d 307, 319
(4th Cir. 2013). “Mandatory preliminary injunctions,” on the other hand, “do not
preserve the status quo” and instead compel action that would disturb it. Wetzel v.
Edwards, 635 F.2d 283, 286 (4th Cir. 1980). The Fourth Circuit defines the status quo as
the “last uncontested status between the parties which preceded the controversy.”
Pashby, 709 F.3d at 320 (quoting Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 378
(4th Cir. 2012)). Incumaa’s proposed injunction clearly requests mandatory relief. The
SCDC has long categorized NGE as a “Security Threat Group” (“STG”) and has never
recognized NGE as a religion nor accommodated its worship. ECF No. 29-2, Long Aff.
This lawsuit, which Incumaa filed in 2017, seeks to compel SCDC to recognize NGE as a

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legitimate religion and accommodate inmates that practice it. Putting the merits of
Incumaa’s challenge aside for the moment, it is clear that his motion seeks to disturb the
status quo, not preserve it, meaning that the proposed preliminary injunction is
mandatory.
Mandatory preliminary injunctions “should be granted only in those
circumstances when the exigencies of the situation demand such relief,” Wetzel, 635 F.2d
at 286, that is, where court intervention is “necessary both to protect against irreparable
harm in a deteriorating circumstance created by the defendant and to preserve the court’s
ability to enter ultimate relief on the merits of the same kind,” In re Microsoft Corp.
Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003).2 At bottom, “[m]andatory preliminary
injunctive relief in any circumstance is disfavored[ ] and warranted only in the most
extraordinary circumstances.” Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir. 1994).
Where a plaintiff seeks injunctive relief that would disturb the status quo of a state-run
prison, principles of federalism present an additional obstacle. See id. at 268 (“[A]bsent
the most extraordinary circumstances, federal courts are not to immerse themselves in the
management of state prisons or substitute their judgment for that of the trained
penological authorities charged with the administration of such facilities.”). That
obstacle is particularly difficult to overcome when the injunctive relief sought is
mandatory. Id. at 269–70 (“[S]weeping intervention in the management of state prisons
is rarely appropriate when exercising the equitable powers of the federal courts. This is

This standard applies with equal force to Incumaa’s proposed temporary
restraining order. U.S. Dep’t of Lab. v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1
(4th Cir. 2006) (“A preliminary injunction . . . is distinguished from a TRO . . . only by
its duration.”).
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true where conditions at the prison have been adjudged unconstitutional following trial on
the merits. It is especially true where mandatory injunctive relief is sought and only
preliminary findings as to the plaintiffs’ likelihood of success on the merits have been
made.”).
Given Incumaa’s considerable burden, the court has little difficulty concluding
that mandatory injunctive relief is not warranted here. The proposed mandatory
injunction seeks to change SCDC official policy that has been in place for years. As
such, there is no “deteriorating circumstance created by the defendant,” and court
intervention is not required “to preserve the court’s ability to enter ultimate relief on the
merits.” In re Microsoft, 333 F.3d at 526. Moreover, the sought injunction would
impose a federally compelled change upon state prison administrators. Such an action is
rarely appropriate generally and almost never appropriate prior to the court’s adjudication
of the challenged practice as unconstitutional. Clearly, here, the court has not resolved
Incumaa’s claim on its merits. And further, as the R&R discussed in detail, the
constitutionality of the challenged SCDC practice implicates significant disputes of
material fact. See ECF No. 39 at 20–21, 31–32. As such, the law requires that the court
resolve those disputes before granting mandatory injunctive relief. Taylor, 34 F.3d at 270
(“[S]weeping intervention in the management of state prisons is rarely appropriate[, ]
especially [ ] where mandatory injunctive relief is sought and only preliminary findings
as to the plaintiffs’ likelihood of success on the merits have been made.”). Finally, as a
practical matter, the Prison Litigation Reform Act significantly limits the preliminary
injunctive relief available to a plaintiff who challenges conditions of confinement. Even

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if an injunction issued, its effect would expire after 90 days. 18 U.S.C. § 3626(a)(2). As
such, the court must deny Incumaa’s request for preliminary injunctive relief.
The court acknowledges that Incumaa’s claim is not without merit. As Incumaa
notes, the Eastern District of Virginia recently granted an inmate relief in a similar
lawsuit, finding that the Virginia Department of Corrections (“VDOC”) violated the
inmate’s rights under the First Amendment and RLUIPA in refusing to recognize NGE as
a religion. Coward, 276 F. Supp. 3d at 575 (“For the reasons stated above, the Court
finds that the VDOC has violated plaintiff’s rights under RLUIPA and the First
Amendment by designating the NGE an STG, thereby enforcing a zero tolerance policy
that prohibits plaintiff from possessing his sacred texts and associating with other NGE
adherents, and refusing to recognize the NGE as a religion.”). As such, the court ordered
VDOC to remove NGE’s designation as an STG and recognize it as an accommodable
religion. Id. To be sure, the Eastern District of Virginia’s holding in Coward gives
credence to the merits of Incumaa’s claim. But Coward offers Incumaa little support in
terms of justifying the requested injunctive relief here. The district court in Coward
granted the plaintiff prospective, permanent injunctive relief after overseeing years of
discovery, resolving several motions for summary judgment, holding a bench trial, and
making several dozen findings of fact. Id. at 550–564. In other words, injunctive relief
was warranted there only after full resolution of the plaintiff’s claims on their merits.
Incumaa here, conversely, requests preliminary injunctive relief prior to merits resolution
of his claim. The law is clear that, “absent the most extraordinary circumstances,” the
court may not grant preliminary injunctive relief that would effect a change to state

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prison management. Taylor, 34 F.3d at 268. The circumstances here are not so
exceedingly extraordinary.
Incumaa may very well be entitled to the relief he seeks, but he is not entitled to it
here and now, prior to the court’s resolution of his claim on the merits. Until that time,
the court is without grounds to issue mandatory injunctive relief that would alter the
status quo in state prison. See Torres v. Davis, 2019 WL 1332378, at *5 (W.D.N.C. Mar.
25, 2019) (denying preliminary mandatory injunctive relief that would compel prison
officials to act); Plummer v. Riley, 2013 WL 4459839, at *4 (D.S.C. Aug. 16, 2013)
(same); Collins v. Padula, 2013 WL 4436468, at *3 (D.S.C. Aug. 15, 2013) (same);
Green v. Byars, 2012 WL 3069327, at *3 (D.S.C. June 22, 2012) (same). The court
therefore denies Incumaa’s motion.
IV. CONCLUSION
For the foregoing reasons the court DENIES the motion.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 4, 2021
Charleston, South Carolina

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