ORDERS:
ORDER OF DISMISSAL WITHOUT PREJUDICE
I. STATEMENT OF THE CASE
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.
II. BACKGROUND
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.
III. ANALYSIS
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.
IV. ORDER
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.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 26, 2000
Columbia, South Carolina |
