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 Ra'Heen Shabazz, an inmate
incarcerated with the Department of Corrections ("Department") since 1990. On February 25, 2000, the mail room of Kirkland
Correctional Institution ("Facility") received a package containing three books that was addressed to Inmate Shabazz. The books,
entitled We're All Doing Time, Lineage and Other Stories, and Just Another Spiritual Book ("Kindness books"), were returned to
The Kindness Foundation, at the inmate's expense, after the Facility's mail room supervisor examined them and determined that the
Kindness books were not religious in nature and thus were unauthorized. On February 25, 2000, Inmate Shabazz filed a grievance.
He received a Final Decision from the Department on June 6, 2000, and filed this appeal with the Division on June 13, 2000.
II. BACKGROUND
Inmate Shabazz 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, 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 a 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. However, the Consent Order provided that the Department
could censor the literature to remove passages that may encourage violence or that would be so inflammatory as to pose a security
threat. These provisions of the Consent Order differ somewhat from the Department's policy regarding incoming correspondence and
publications.
The Department's policy allows inmates 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. Department Procedure PS-10.08(4)(b)(2)-(4). The CRC must then notify the inmate if it determines that the publication should be rejected. Department
Procedure 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 reject a publication rather than attempt to remove or
censor any objectionable material. Id.
In this case, Inmate Shabazz ordered three books from The Kindness Foundation while confined in the maximum security unit of the
Facility. Upon receiving the Kindness books in the mailroom, the mailroom supervisor examined the Kindness books and determined
that they were non-religious in nature and that Inmate Shabazz was not authorized to have them. Inmate Shabazz 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 Shabazz 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 [federal] 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 Kindness books. As
such, the Department has proposed that it be allowed to acquire the Kindness books on behalf of Inmate Shabazz so that it may
comply with the Consent Order and its own procedures. In his Reply brief, Inmate Shabazz indicated that he sought compliance with
the Consent Order . I find that the settlement proposed by the Department is in keeping with the requested relief of Inmate Shabazz
and therefore is an appropriate resolution to this matter.
IV. ORDER
Accordingly, IT IS THEREFORE ORDERED that the appeal of Inmate Shabazz be dismissed;
IT IS FURTHER ORDERED that the Department credit Inmate Shabazz's E.H. Cooper account in the amount of the postage
required to return the Kindness books;
IT IS FURTHER ORDERED that the Department acquire the Kindness books on behalf of Inmate Shabazz;
IT IS FURTHER ORDERED that, with respect to the Kindness books, the Department follow Procedure PS-10.08 as well as
comply with the federal Consent Order dated August 21, 1998. Compliance with the Consent Order requires that the Department
censor, rather than reject, either or both of the Kindness 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 Shabazz with appropriately censored
Kindness books within 90 days of this Order, Inmate Shabazz may notify this Court.
AND IT IS SO ORDERED.
______________________________
Marvin F. Kittrell
Chief Judge
October 26, 2000
Columbia, South Carolina |
