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South Carolina MSU Publication Ban Challenge is Moot

The Fourth Circuit Court of Appeals has dismissed a South Carolina prisoner’s challenge to a prison publication ban, concluding that the action was moot because the ban no longer applied to him.
In 1995, South Carolina Department of Corrections (SCDC) prisoner Lumumba Kenyatta Incumaa participated in a riot, took several prison employees hostage and assaulted them. As a result, Incumaa was confined in the Maximum Security Unit (MSU). An MSU prisoner “is greatly restrained in activity as compared to his general population counterparts.... MSU inmates may not participate in prison employment, education or other organized activity; are confined to their cells twenty-three hours a day during the week and twenty-four hours a day on the weekend; and are severely limited in the amount and kind of personal property that they may keep in their cells.”
On January 1, 2002, while Incumaa was still in the MSU, SCDC adopted a policy prohibiting MSU prisoners from receiving books, magazines and other publications by mail. The ban did not apply to publications subscribed to before assignment to the MSU, but once those subscriptions expired MSU prisoners could not renew them.
On August 29, 2003, Incumaa challenged the MSU publication ban in federal court, alleging that it violated his First Amendment right to receive information and ideas. He sought only declaratory and injunctive relief. The district court granted SCDC’s motion for summary judgment, upholding the ban.
Incumaa appealed and filed his opening brief on June 15, 2005. Subsequently, on August 2, 2005, prison officials released Incumaa from MSU and moved to dismiss the appeal as moot. On February 15, 2006, however, SCDC withdrew its mootness motion because it intended to transfer Incumaa to the Special Management Unit (SMU) – a unit “designed for prisoners who are in need of greater monitoring and supervision than those in the general population but who do not warrant placement in the MSU.” Prison officials also amended the publication ban policy to impose similar restrictions on SMU prisoners. Incumaa was then transferred to the SMU.
Despite withdrawing their mootness motion, the defendants argued in their brief that the case was moot. The Fourth Circuit agreed, finding that any opinion it “offered in this case about the MSU publications ban’s constitutionality would be advisory in the truest sense.” The appellate court acknowledged that Incumaa remained subject to the similar SMU ban but found that he had challenged only the MSU ban, and “the MSU and SMU policies are not one in the same.”
Finding that “it is clear that if Incumaa is ever returned to the MSU, it will be of his own doing, and not because SCDC believes that the specter of litigation has passed,” the Court of Appeals explained that “courts are not comprised of philosopher-kings or legislative aides, and the Constitution forbids us from pontificating about abstractions in the law or merely giving advice about the potential legal deficiencies of the law or policy when no ongoing controversy exists with respect to that law or policy.” See: Incumaa v. Ozmint, 507 F.3d 281 (4th Cir. 2007), cert. denied.

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Related legal case

Incumaa v. Ozmint