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Administrative Law Court
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SC Administrative Law Court Decisions

Lumumba Incumaa, #155651 vs. SCDOC

South Carolina Department of Corrections

Lumumba Incumaa, #155651

South Carolina Department of Corrections





This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Lumumba Incumaa, an inmate incarcerated with the Department of Corrections ("Department") since 1988. On February 25, 2000, the mail room of Kirkland Correctional Facility ("Facility") received a package containing two books that was addressed to Inmate Incumaa. The books, entitled From Atom to Cosmos and Commentaries on Living ("Quest Books"), were returned to the Theosophical Quest Book Institute of the Theosophical Society in America after the Facility's mail room supervisor examined them and determined that the Quest Books were not religious in nature and thus were unauthorized. On February 28, 2000, Inmate Incumaa filed a grievance. He received a Final Decision from the Department on June 6, 2000, and filed this appeal with the Division on June 15, 2000.


Inmate Incumaa is a member of The Five Percenters of the Nation of Islam ("Five Percenters"), a group that claims an affiliation or association with the Nation of Islam, a recognized religious group. The Five Percenters claim that they are also a religious group. Regardless of their self-characterization, however, the Department has identified the Five Percenters as a Security Threat Group ("STG") based on evidence that the Five Percenters have been involved in several serious prison disturbances at Department facilities. In addition, the Federal Bureau of Prisons and the state of New Jersey have designated the Five Percenters as an STG. Based on that security classification, the Department has placed all known Five Percenters, including Inmate Incumaa, in segregated custody.

In 1996, a number of Department inmates identified as Five Percenters filed suit against the Department, alleging that, in part, the Department banned all Five Percenter literature in violation of their First Amendment rights. As a result, the United States District Court for the District of South Carolina granted the Five Percenter's Motion for a Preliminary Injunction. Thereafter, on August 21, 1998, the Department entered into a Consent Order with the Five Percenter plaintiffs whereby the Department agreed to permit Five Percenter inmates in segregated confinement to possess Five Percenter literature that has been censored by the Department to remove passages that may encourage violence or that would be so inflammatory as to pose a security threat. The Consent Order's requirement that the Department censor Five Percenter literature, rather than ban the literature entirely, differs somewhat from the Department's policy regarding incoming correspondence and publications.

The Department's inmates are permitted to receive single volumes of publications sent directly from a publisher or distributor. However, the mailroom staff at each facility is charged with the responsibility of scanning each publication received and withholding that publication if the staff believes it contains one or more of the following:

(1) procedures for the construction or use of weapons, ammunition, bombs, or incendiary devices;

(2) maps, methods of escape from correctional facilities, or blueprints, drawings, or similar descriptions of the Department's institutions;

(3) procedures for the brewing of alcoholic beverages or the manufacture of drugs;

(4) information relating to Security Threat Group activity or use of codes and/or symbols associated with Security Threat Groups;

(5) materials that advocate racial, religious, or national hatred in such a way that leads to the risk of physical violence or group disruption;

(6) encouragement or instruction in the commission of criminal activity; and/or

(7) sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity.

Department Procedure PS-10.08(4)(b)(1).

Once the mailroom staff withholds a publication, it must so notify the intended recipient and forward the publication to the Correspondence Review Committee ("CRC"), which has forty-five days to review the publication. PS-10.08(4)(b)(2)-(4). The CRC must then notify the inmate if it determines that the publication should be rejected. PS-10.08(4)(b)(6). Should the CRC reject the publication, the inmate has fifteen days to appeal the CRC's decision through the inmate grievance system. Id. According to the policy, CRC will not attempt to remove or censor the objectionable material from a publication. Id.

In this case, Inmate Incumaa ordered two books from the Quest catalog while confined in the maximum security unit of the Facility. Upon receiving the Quest books in the mailroom, the mailroom supervisor examined the Quest books and determined that they were non-religious in nature and that Inmate Incumaa was not authorized to have them. Inmate Incumaa filed a grievance after he was informed that the books were being returned. The Department's final decision, rendered on May 22, 2000, informed Inmate Incumaa that his grievance was denied because "the Mailroom Supervisor determined that the mail returned was not authorized; nor religious in nature." The Department's decision also stated, "By the consent order dated August 21, 1998, you may keep the 5% material in your possession at that time. However, you will not be allowed to receive additional materials via the mail." This appeal followed.


The Division's jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al- Shabazz, the Supreme Court created a new avenue by which inmates could seek review of final decisions of the Department of Corrections in "non-collateral" matters, i.e., matters in which an inmate does not challenge the validity of a conviction or sentence, by appealing those decisions to the Division and ultimately to the circuit court pursuant to the Administrative Procedures Act. 338 S.C. at 373, 376, 527 S.E.2d at 752, 754. In its appellate capacity, the Division is primarily concerned with ensuring that the appellants receive all procedural process they are due.

In this case, the Department acknowledges that it failed to follow the requisite procedures when it returned the Quest books. As such, the Department has proposed that it reacquire the Quest books on behalf of Inmate Incumaa so that it may comply with the Consent Order and its own procedures. In his Reply brief, Inmate Incumaa indicated that he would accept the Department's proposal of settlement. I find that the settlement proposed by the Department and agreed to by Inmate Incumaa is an appropriate resolution to this matter.


Accordingly, IT IS THEREFORE ORDERED that the appeal of Inmate Incumaa be dismissed;

IT IS FURTHER ORDERED that the Department reacquire the Quest books on behalf of Inmate Incumaa;

IT IS FURTHER ORDERED that, with respect to the Quest books, the Department follow Procedure PS-10.08 as well as comply with the Consent Order dated August 21, 1998. Compliance with the Consent Order requires that the Department censor, rather than reject, either or both of the Quest books if they contain passages that may encourage violence or that would be so inflammatory as to pose a security threat. If the Department fails to provide Inmate Incumaa with appropriately censored Quest books within 90 days of this Order, Inmate Incumaa may refile his appeal.




Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

September 26, 2000

Columbia, South Carolina

Brown Bldg.






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