Long Term Admin v. Moore

Before WILKINSON, Chief Judge, KING, Circuit Judge,

and LEE, United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge King and Judge Lee joined.

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COUNSEL

ARGUED: Robert Earl Toone, Jr., SOUTHERN CENTER FOR

HUMAN RIGHTS, Atlanta, Georgia, for Appellants. Andrew Freder-

2

ick Lindemann, DAVIDSON, MORRISON & LINDEMANN, P.A.,

Columbia, South Carolina, for Appellees. ON BRIEF: Katharine A.

Huffman, SOUTHERN CENTER FOR HUMAN RIGHTS, Atlanta,

Georgia; Gregory S. Forman, Charleston, South Carolina; C. Andre

Brumme, III, ACLU OF SOUTH CAROLINA, Columbia, South Car-

olina, for Appellants. David L. Morrison, DAVIDSON, MORRISON

& LINDEMANN, P.A., Columbia, South Carolina; David C. Ecks-

trom, NEXSEN, PRUET, JACOBS & POLLARD, L.L.P., Columbia,

South Carolina; Vinton D. Lide, LIDE, MONTGOMERY & POTTS,

P.C., Columbia, South Carolina, for Appellees.

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OPINION

WILKINSON, Chief Judge:

After a series of violent prison incidents involving members of the

Five Percent Nation of Islam (the Five Percenters), the South Carolina

Department of Corrections (SCDC) classified the Five Percenters as

a Security Threat Group (STG). Acting under its Security Threat

Group policy, the SCDC then transferred all Five Percenters to

administrative segregation or to maximum custody confinement. A

number of those inmates filed suit, raising challenges to this policy

under the Free Exercise Clause, the Equal Protection Clause, and the

Eighth Amendment of the Constitution. The district court granted

summary judgment to the defendant officials of the SCDC, and the

inmates appeal. Because the designation of the Five Percenters as an

STG was a rational response to a threat to prison safety -- a concern

peculiarly within the province of penal authorities-- we affirm the

judgment of the district court.

I.

This case concerns the long-term segregation under the SCDC's

Security Threat Group policy of inmates affiliated with the Five Per-

centers, a group which appellants describe as a religious sect and

which appellees claim is a violent gang. In fact, it was the history of

violence involving Five Percenters that led to the group's classifica-

tion as a security threat. In early 1995 three such incidents occurred

in SCDC facilities. That January a group of Five Percenters assaulted

three other inmates at Lieber Correctional Institution, requiring the

intervention of corrections personnel. In a second incident that same

month, a group of Five Percenters attacked three correctional officers

at the Allendale Correctional Institution, beating those officers with

their own batons and assaulting them with their own pepper spray. As

a result, each of the victims was hospitalized. The incident report for

the Allendale attack reported that "these five inmates acted as a

group," that they "felt as if they were acting in a manner acceptable

to the[ir] religious beliefs," and that they "spoke of more violence to

come."

The third, most serious incident occurred in April 1995, when 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.

The SCDC's problems with the Five Percenters were neither new

nor unique. In 1992 an inmate in the Central Correctional Institution

reported being stabbed and beaten by a group of Five Percenters. Fur-

thermore, according to the unit manager of the Lee Correctional Insti-

tution, a group of Five Percenters had been active in that facility as

early as 1993, stealing from and preying on weaker inmates and on

one occasion attempting to start a riot. In addition, SCDC Director

Michael Moore learned that the Five Percenters had been active in

prison systems in New Jersey, New York, North Carolina, and Vir-

ginia.

On June 16, 1995, SCDC Director of Security Kenneth McKellar

sent Moore a memorandum referring generally to the Five Percenters'

history of violence and describing specifically the Broad River hos-

tage taking. In addition, the memorandum informed Moore that both

the New Jersey Department of Corrections and the Federal Bureau of

Prisons had classified the Five Percenters as a threat group. McKellar

attached to this memo a New Jersey intelligence report describing the

Five Percenters as "a group of individuals who espouse violence as

a means to an end." A federal intelligence summary, also obtained by

the SCDC, called the Five Percenters a "radical Islamic sect/criminal

group" that "is often boldly racist in its views, prolific in its criminal

activities, and operates behind a facade of cultural and religious rheto-

ric." Based on this information and the SCDC's own experience,

McKellar recommended and Moore approved the designation of the

Five Percenters as an STG in South Carolina.

The SCDC's Security Threat Group policy defines an STG as

any formal or informal organization, association, or group of three (3) or more inmates that have a common name, and whose members or associates engage or have engaged in two (2) or more activities that include planning, organizing, threatening, financing, soliciting or committing unlawful acts or acts of misconduct classified as serious threats or potential threats to the safety and security of the public, the Department, employees, visitors and/or other inmates.

SCDC Policy No. OP-21.01. 1 The SCDC Director may designate a group as an STG after consideration of, among other things, the group's history of unlawful activity in the SCDC or other prison sys- tem, its history of unlawful activity in the community, its organiza- tional structure, and its propensity for violence. SCDC Procedure No. OP-21.01(OP). This designation permits penal institutions to remove all inmates affiliated with the STG from the general prison popula- tion, to reclassify them to a higher custody level, and hence to increase the restrictiveness of their confinement.

Classification of an individual as an STG member requires

approval up the prison's chain of command, including the approval

of the prison warden and the SCDC Deputy Director of Operations.

An inmate who is classified as an STG member is notified of that fact

and given an opportunity to respond. An inmate may be released from

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1 Citations to the STG Policy and Procedure are to the versions of those

instruments, dated May 15, 1996, that were presented to the district court

and to this court. There has been no suggestion that these documents are

not representative of the STG policy and procedure in effect in June

STG status only if the Director removes the STG designation from his

group, if the SCDC finds that it has misidentified the inmate, or if the

inmate renounces his affiliation with the group.

SCDC institutions proceeded to identify individual Five Percenters

and to adjust their security classifications. Those inmates -- number-

ing approximately three hundred at the outset and approximately

sixty-four as of March 1997 -- were confined in administrative segre-

gation and in maximum custody, both of which require full-time in-

cell confinement except when the inmates shower or take recreation.

In the summer of 1995 a number of those inmates filed suits in the

United States District Court for the District of South Carolina. After

their cases were consolidated, the appellants filed an amended com-

plaint asserting claims under the Constitution and 42 U.S.C. § 1983.

Specifically, the inmates alleged that the designation of the Five Per-

centers as an STG violated the Free Exercise Clause of the First

Amendment and the Equal Protection Clause of the Fourteenth

Amendment. They also claimed that their indefinite high-security

confinement violated the Eighth Amendment. 2 Their complaint

named Moore, McKellar, and William Catoe, Deputy Director for

Operations of the SCDC, in their personal and official capacities, and

requested injunctive relief and damages.

The Five Percenters moved for a preliminary injunction and the

defendants moved for summary judgment. The district court granted

the defendants' motion with regard to the free exercise, equal protec-

tion, and Eighth Amendment claims. The Five Percenters appeal. 3

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2 Appellants raised three other claims that are not at issue in this appeal.

The first, a challenge to a ban on the possession of Five Percenter litera-

ture, was settled by the parties after the district court enjoined the restric-

tion. The second, based on the Religious Freedom Restoration Act of

1993, 42 U.S.C. § 2000bb et seq., was withdrawn in light of the Supreme

Court's intervening decision in City of Boerne v. Flores, 117 S. Ct. 2157

(1997). The third, based on the Due Process Clause, has been abandoned.

3 The Five Percenters also appeal the district court's refusal to certify

a class action in this case. The court reasoned that the joinder of all par-

ties would not be impracticable, Fed. R. Civ. P. 23(a)(1), and chose

instead to consolidate all Five Percenter cases pursuant to Rule 42(a). We

do not think the district court abused its discretion in declining to certify

a class. See Lowery v. Circuit City Stores, Inc. , 158 F.3d 742, 757 (4th

Cir. 1998).

6

II.

We first address the Five Percenters' claim under the Free Exercise

Clause of the First Amendment. Although the parties vigorously dis-

pute whether the Five Percenters even constitute a religious group, the

district court did not attempt to resolve this question. Rather, the court

assumed -- as do we -- that the Five Percenters are a religious group

entitled to First Amendment protection. We thus avoid the "difficult

and delicate task" of examining the nature and sincerity of the

inmates' professed beliefs. Thomas v. Review Bd. , 450 U.S. 707, 714

(1981); see Patrick v. LeFevre, 745 F.2d 153 (2d Cir. 1984).

Our review of the challenged SCDC action is nevertheless highly

deferential. Even assuming that analogous action outside the prison

context would violate the Constitution, "when a prison regulation

impinges on inmates' constitutional rights, the regulation is valid if

it is reasonably related to legitimate penological interests." Turner v.

Safley, 482 U.S. 78, 89 (1987); accord O'Lone v. Estate of Shabazz,

482 U.S. 342, 349 (1987); Hines v. South Carolina Dep't of

Corrections, 148 F.3d 353, 358 (4th Cir. 1998). 4 This standard

reflects a basic reality of conviction and confinement: Although pris-

oners are not completely without the Constitution's protection,

"[l]awful incarceration brings about the necessary withdrawal or limi-

tation of many privileges and rights, a retraction justified by the con-

siderations underlying our penal system." O'Lone, 482 U.S. at 348

(internal quotation marks omitted). For that reason,"once the Depart-

ment demonstrates that it is pursuing a legitimate governmental

objective, and demonstrates some minimally rational relationship

between that objective and the means chosen to achieve that objec-

tive, we must approve of those means." Hines , 148 F.3d at 358.

The rationale for judicial deference is greatest when the mainte-

nance of prison order is at stake. By using the language of rational

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4 Although the parties debate the import of Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), we think it

contrary to the teachings of Turner to transpose the doctrine of non-

prison cases into the prison context. Indeed, restrictions that would

clearly violate the Constitution outside the prison setting may be ratio-

nally based within that setting.

basis scrutiny, the Supreme Court chose the most deferential possible

standard of review for cases presenting such issues of prison adminis-

tration. The Supreme Court also explicitly rejected heightened judi-

cial scrutiny of prison security policies. Rigorous scrutiny, the Court

noted, is simply "not appropriate for consideration of regulations that

are centrally concerned with the maintenance of order and security

within prisons." Thornburgh v. Abbott, 490 U.S. 401, 409-10 (1989).

"Subjecting the day-to-day judgments of prison officials to an inflexi-

ble strict scrutiny analysis would seriously hamper their ability to

anticipate security problems and to adopt innovative solutions to the

intractable problems of prison administration." Turner, 482 U.S. at

89. In the difficult and dangerous business of running a prison, front-

line officials are best positioned to foresee threats to order and to

fashion responses to those threats. Hence, the "evaluation of penologi-

cal objectives is committed to the considered judgment of prison

administrators, `who are actually charged with and trained in the run-

ning of the particular institution under examination.'" O'Lone, 482

U.S. at 349 (quoting Bell v. Wolfish, 441 U.S. 520, 562 (1979)). When

a state correctional institution is involved, the deference of a federal

court is even more appropriate. Turner, 482 U.S. at 85. Prison offi-

cials "should be accorded wide-ranging deference in the adoption and

execution of policies and practices that in their judgment are needed

to preserve internal order and discipline and to maintain institutional

security." Bell, 441 U.S. at 547.

The SCDC's Security Threat Group policy has exactly that objec-

tive. According to the SCDC, the purpose of the STG policy is "to

promote the secure, safe, and orderly operations of all SCDC institu-

tions, . . . to facilitate the early detection of[STG] activities and mem-

bers and to ensure, to the extent possible, efficient intervention into

possible volatile situations." SCDC Policy No. OP-21.01. These are

not simply legitimate penological interests -- they are compelling.

Hines, 148 F.3d at 358.

The Five Percenters do not -- and cannot -- claim that the STG

policy itself is not rationally related to the furtherance of the legiti-

mate end of prison security. The STG policy requires the assessment,

monitoring, identification, and evaluation of all groups "whose mem-

bers or associates engage or have engaged in . . . planning, organiz-

ing, threatening, financing, soliciting or committing unlawful acts or

acts of misconduct." SCDC Policy No. OP-21.01. And once a group

has been designated as an STG, its members are identified, reclassi-

fied, and separated from the general prison population. By removing

those inmates who systematically engage in violence and other

unlawful acts from the general population and by increasing the

security of their confinement, the STG policy targets a core threat to

the safety of both prison inmates and officials. The nexus between

this policy and the maintenance of prison safety is self-evident.

The Five Percenters do, however, challenge the application of the

STG policy to their own group. Under Turner v. Safley, several fac-

tors "are relevant to, and serve to channel" our consideration of the

rationality of the SCDC's actions. Thornburgh , 490 U.S. at 414. First,

like the STG policy itself, the designation of the Five Percenters as

a Security Threat Group is rationally related to the legitimate objec-

tive of penal security. There is ample evidence in the record support-

ing the reasonableness of Moore's conclusion that the Five Percenters

as a group posed a threat to prison safety. Five Percenters had been

involved in three serious acts of violence in the SCDC system in the

first four months of 1995. One of those incidents involved an assault

on fellow inmates, while the other two resulted in the hospitalization

of prison correctional officers. Additionally, Moore presented evi-

dence that the New Jersey Department of Corrections and the Federal

Bureau of Prisons had identified the Five Percenters as a racist, vio-

lent group presenting an organized threat to prison security. In light

of the information that Moore had before him, the decision to desig-

nate the Five Percenters as an STG was eminently rational.

Second, "other avenues remain available" for the Five Percenters

to exercise their religious practices in administrative segregation and

in maximum custody. Turner, 482 U.S. at 90 (internal quotation

marks omitted). Even in high-security confinement the Five Per-

centers remain free to pray, fast, and study religious materials.

Although the inmates are unable to participate in group meetings,

they are not "deprived of all means of expression." O'Lone, 482 U.S.

at 352 (internal quotation marks omitted).

Third, the accommodation of the Five Percenters' asserted rights

would come at too high a cost. See Turner, 482 U.S. at 90. Prison

administration often involves tough tradeoffs. In the closed environ-

ment of a prison, greater liberties for some may mean increased dan-

ger and intimidation for others. Because increased freedom for the

Five Percenters would come "only at the cost of significantly less lib-

erty and safety for everyone else, guards and other prisoners alike,"

we are particularly reluctant to interfere with the judgment of the

SCDC in this case. Id. at 92-93.

Finally, there are no ready alternatives to the SCDC's course of

action. See id. at 90-91. The Five Percenters urge that the SCDC

should only segregate an inmate after making an individual assess-

ment of that inmate's dangerousness. But this would simply reimpose

the regime that existed before the STG classification -- a regime that

Moore concluded posed an unacceptable danger to corrections offi-

cers and to other inmates. When confronted with a threat to order,

"[r]esponsible prison officials must be permitted to take reasonable

steps to forestall such a threat, and they must be permitted to act

before the time when they can compile a dossier on the eve of a riot."

Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 132-

33 (1977); accord United States v. Stotts, 925 F.2d 83, 87 (4th Cir.

1991). Allowing prison officials to act only after a demonstration of

individual dangerousness would deprive them of the all-important

option of prevention. The threat of violence here was a group threat,

and prison administrators were entitled to address it in those terms.

The Five Percenters offer three arguments why the SCDC's actions

were unreasonable. Initially, the inmates protest that they are not a

racist group and that they do not promote violence. They dispute

some incidents reported by the SCDC, contend that others involved

only a few inmates, and suggest that these were isolated cases. But

to draw these inferences in the inmates' favor would turn Turner's

command of judicial deference on its head. The question is not

whether Moore's conclusion was indisputably correct, but whether his

conclusion was rational and therefore entitled to deference. See Jones,

433 U.S. at 127-28. Confronted with multiple reports of an identifi-

able group whose members not only threatened but had actually com-

mitted serious, violent acts in the SCDC system and elsewhere,

Moore's decision to designate the Five Percenters as an STG was

manifestly a rational action.

Next, the Five Percenters contend that the application of the STG

policy to their group is irrational because it is not "content neutral,"

10

inasmuch as it operates against the inmates on the basis of their group

affiliation. But Turner's only requirement of neutrality is that the

interest being furthered be "unrelated to the suppression of expres-

sion." Thornburgh, 490 U.S. at 415 (internal quotation marks omit-

ted). Here, the STG policy is not aimed at anyone's freedom of

expression. Rather, it rationally furthers the neutral policy of protect-

ing prison security and order. It therefore does not violate the Consti-

tution.

The Five Percenters finally question the SCDC's policy of releas-

ing from administrative segregation those prisoners who renounce

their affiliation with the group. But since the SCDC may classify

inmates on the basis of their affiliation with the Five Percenters,

declassifying those inmates who renounce that affiliation does not

suddenly render the policy irrational. We do not think prison officials

should be in the practice of prescribing -- or proscribing -- anyone's

private religious beliefs. That is not their province. But it is up to the

SCDC to determine when an inmate is safe to return to the general

population. If the SCDC wishes to hinge that determination on the

renunciation of affiliation with a violent -- albeit assertedly religious

-- group, it may do so.

Although the Five Percenters would have us second-guess the

SCDC in this most critical area of prison security, the Constitution

does not mandate such intrusion. Because the SCDC's decision to

designate the Five Percenters as an STG is rationally related to the

legitimate end of prison safety and security, it does not offend the

Free Exercise Clause.

III.

The Five Percenters further claim that the application of the STG

policy to their group violates the Equal Protection Clause. But they

offer no evidence that similarly situated groups of inmates -- reli-

gious or otherwise -- have been treated differently under the STG

policy, much less that the SCDC has acted with a discriminatory

purpose. 5 "There is nothing in the Constitution which requires prison

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5 We therefore need not proceed to the succeeding question of whether

the inmates' differential treatment, had it occurred, would have been

officials to treat all inmate groups alike where differentiation is neces-

sary to avoid an imminent threat of institutional disruption or vio-

lence." Jones, 443 U.S. at 136. The inmates have simply failed to

show that the SCDC violated their equal protection rights.

IV.

The Five Percenters finally contend that their long-term segregated

confinement violates the Eighth Amendment. The inmates complain

that they are confined to their cells for twenty-three hours per day

without radio or television, that they receive only five hours of exer-

cise per week, and that they may not participate in prison work,

school, or study programs. These conditions are indeed restrictive, but

the restrictive nature of high-security incarceration does not alone

constitute cruel and unusual punishment. Sweet v. South Carolina

Dep't of Corrections, 529 F.2d 854, 857 n.1 (4th Cir. 1975) (en banc).

To make out a violation of the Eighth Amendment, the inmates "must

show both (1) a serious deprivation of a basic human need; and (2)

deliberate indifference to prison conditions on the part of prison offi-

cials." Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (inter-

nal quotation marks omitted). This inquiry has objective and

subjective prongs; the Five Percenters' claim founders on both of

them.

First, the Five Percenters have not shown that the conditions in

administrative segregation or maximum custody work a serious depri-

vation of a basic human need. See Rhodes v. Chapman, 452 U.S. 337,

347 (1981). The inmates do not contend that the SCDC has failed or

will fail to provide them with "adequate food, clothing, shelter, and

medical care" or to protect them from harm. Farmer v. Brennan, 511

U.S. 825, 832 (1994). And the isolation inherent in administrative

segregation or maximum custody is not itself constitutionally objec-

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rational under Turner. See Benjamin v. Coughlin, 905 F.2d 571, 575 (2d

Cir. 1990); see also Salaam v. Collins, 830 F. Supp. 853, 859 (D. Md.

1993) ("Unless . . . plaintiffs can show that the challenged regulation

impinges on a constitutional right -- which in an equal protection setting

requires a showing of discriminatory intent -- the Turner/O'Lone [stan-

dard] is not properly invoked."), aff'd sub nom. Calhoun-El v. Robinson,

70 F.3d 1261 (4th Cir. 1995) (table).

tionable. Indeed, this court has noted that "isolation from companion-

ship, restriction on intellectual stimulation[,] and prolonged inactivity,

inescapable accompaniments of segregated confinement, will not ren-

der [that] confinement unconstitutional absent other illegitimate

deprivations." Sweet, 529 F.2d at 861 (internal quotation marks omit-

ted).

Moreover, the indefinite duration of the inmates' segregation does

not render it unconstitutional. Appellants complain that they have

already been confined in administrative segregation or maximum cus-

tody for over three years, and that they do not expect to be released

in the foreseeable future. The duration of confinement in some of

these cases has been long, but length of time is"simply one consider-

ation among many" in the Eighth Amendment inquiry. Hutto v.

Finney, 437 U.S. 678, 687 (1978); see Sweet , 529 F.2d at 861-62.

Although the Five Percenters claim that their segregation has caused

them to become depressed, the only evidence submitted on this point

were the affidavits of a few inmates asserting that the overall condi-

tions of their confinement have placed them under"great stress" and

caused them "great emotional and physical suffering." Depression and

anxiety are unfortunate concomitants of incarceration; they do not,

however, typically constitute the "extreme deprivations . . . required

to make out a conditions-of-confinement claim." Hudson v.

McMillian, 503 U.S. 1, 8-9 (1992). A depressed mental state, without

more, does not rise to the level of the "serious or significant physical

or emotional injury" that must be shown to withstand summary judg-

ment on an Eighth Amendment charge. Strickler , 989 F.2d at 1381;

see Lopez v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990).

Second, the SCDC has not been deliberately indifferent to the

inmates' needs. See Wilson v. Seiter, 501 U.S. 294, 303 (1991);

Shakka v. Smith, 71 F.3d 162, 166-67 (4th Cir. 1995). In fact, the

opposite appears to be true. The SCDC's procedures for administra-

tive segregation provide for periodic visits by medical personnel and

for the referral of inmates displaying mental health problems for treat-

ment. SCDC Procedure No. 1500.13. The Five Percenters do not

allege that these procedures have not been followed-- indeed, two

inmates attest that they are receiving medication for their conditions,

and another states that he has refused such attention. See Taylor v.

Freeman, 34 F.3d 266, 271-72 (4th Cir. 1994) (finding remedial mea-

sures probative of a lack of official indifference). Since the Five Per-

centers have failed to "come forward with evidence from which it can

be inferred that the defendant-officials were . . . knowingly and unrea-

sonably disregarding an objectively intolerable risk of harm," Farmer,

511 U.S. at 845-46, summary judgment on this claim was likewise

proper on the basis of the defendants' state of mind.

V.

In sum, we hold that the long-term segregation of the Five Per-

centers is rationally based, and therefore that it does not violate the

Free Exercise Clause. We further hold that the SCDC has not violated

the Equal Protection Clause or the Eighth Amendment. 6 We therefore

affirm the judgment of the district court.

AFFIRMED

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6 Since we hold that there has been no constitutional violation, there is

no need to address the qualified immunity of the individual defendants.