Mark Lane v. Josias Salazar ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK ALAN LANE, Nos. 17-35868
Petitioner-Appellant, 17-35869
17-35870
v.
D.C. Nos.
JOSIAS SALAZAR, 3:12-cv-02360-MC
Respondent-Appellee. 3:13-cv-00005-MC
3:13-cv-00100-MC
OPINION
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted November 6, 2018
Portland, Oregon
Filed December 20, 2018
Before: Ferdinand F. Fernandez and Sandra S. Ikuta,
Circuit Judges, and William K. Sessions III,*
District Judge.
Opinion by Judge Sessions
*
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
2 LANE V. SALAZAR
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s denials of three
28 U.S.C. § 2241 habeas corpus petitions arising from
proceedings in which Mark Alan Lane, who was accused by
the Bureau of Prisons of sending threatening letters from
prison, was disciplined under BOP Prohibited Acts Code 203,
which prohibits inmates from “[t]hreatening another with
bodily harm or any other offense.”
Lane contended that Code 203, construed to apply to non-
true threats, is unlawfully broad and vague. The panel held
that the Code 203’s prohibition on threats of bodily harm
addresses legitimate penological concerns in a manner that is
sufficiently narrow to satisfy constitutional concerns. The
panel also held that the BOP’s actions were supported by
sufficient evidence.
COUNSEL
Elizabeth Gillingham Daily (argued), Assistant Federal
Public Defender; Stephen R. Sady, Chief Deputy Federal
Public Defender; Office of the Federal Public Defender,
Portland, Oregon; for Petitioner-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LANE V. SALAZAR 3
Natalie K. Wight (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Respondent-Appellee.
OPINION
SESSIONS, District Judge:
In this consolidated appeal, Mark Alan Lane contests the
denials of his three habeas corpus petitions filed under
28 U.S.C. § 2241. Lane was accused by the Bureau of
Prisons (“BOP”) of sending threatening letters from prison,
and was disciplined under BOP Prohibited Acts Code 203.
Code 203 prohibits inmates from “[t]hreatening another with
bodily harm or any other offense.” 28 C.F.R. § 541.3, Table
1. Lane contends that Code 203, construed to apply to non-
true threats, is unlawfully broad and vague. He also argues
that the evidence against him was insufficient. We disagree.
The BOP’s prohibition on threats of bodily harm addresses
legitimate penological concerns in a manner that is
sufficiently narrow to satisfy constitutional concerns. We
also find that the evidence against Lane was sufficient. We
therefore affirm.
I.
On February 27, 2002, Lane was sentenced to 360 months
in prison after convictions for drug and money laundering
offenses. In 2008, Lane notified the BOP that he believed his
underlying criminal sentence was illegal, arguing that the
quantity of drugs involved in his offense was erroneously
listed as 500 kilograms rather than 500 grams. He pursued
4 LANE V. SALAZAR
his argument through the BOP’s Administrative Remedy
Program, eventually appealing to the BOP Central Office. As
part of his appeal, he included a handwritten letter stating, “I
don’t Think My judgement and Commitment was ‘verified.’
I’m going to bet my life. Are you willing to Bet a Guards
Life?” The letter then repeated, “Bet a Guard’s Life? I don’t
like it when people play Games with My life!”
As a result of this letter, Lane received an incident report
for violating Code 203. On December 23, 2008, a Discipline
Hearing Officer (DHO) held a hearing at which Lane was the
only witness to testify. Lane denied the BOP’s allegations,
stating: “I was trying to let them know I was serious about
what I was doing. I wasn’t threatening anyone.” The DHO
nonetheless found that Lane had violated Code 203 and
sanctioned him with a loss of 27 days of good time credit, 30
days in disciplinary segregation, and six months without
phone privileges.
In 2009, Lane was again sanctioned for violating Code
203. The punishment was based upon statements made in
two outgoing letters. The first, addressed to an individual
named Brian Dempsey, stated: “I give Bureau of Prisons staff
a chance to follow orders from the Civil Rights Division. I
don’t want to, I may be forced to take a life! . . . . Pray for
me, that the last thing I want to do is cause the next person
harm!” The second letter, sent to the United States District
Court in Evansville, Indiana, stated in part: “When the deal
goes done! I want to make sure they come for you and
[Assistant United States Attorney] Mr. Brad Blackington
(Criminal charges).” In a postscript, Lane wrote: “That steel
does damage to the human body! I personal know!! I had to
put some work in at Greenville. The fucker bled like a stuck
LANE V. SALAZAR 5
hog!! The guard asked that I just walk away and leave it
alone.”
At a June 10, 2009 hearing, Lane again asserted that he
did not intend the letters to be threatening. The DHO
considered the first letter a threat of bodily harm, as Lane had
threatened to take a life. The second letter’s identification of
AUSA Blackington was viewed in conjunction with the
reference to Lane having stabbed someone while in prison.
The BOP again sanctioned Lane under Code 203.
In 2010, Lane addressed a letter to the Senate Judiciary
Committee and then-Representative Mike Pence. The letter
sought to expose what Lane characterized as criminal conduct
by the government, and repeated the claim that his conviction
was erroneous. At the end of the letter, Lane wrote: “I want
to expose this criminal matter! The BUREAU OF PRISONS
may not take action. I may be forced to protect myself and
take a life. . . . I will never let the FEDERAL
GOVERNMENT violate my rights, and not take action.”
Lane was cited for violating Code 203, and a DHO held
a hearing. Lane asserted in a written statement that he
intended the language in question as self-defense and not a
threat of bodily harm. The DHO found this assertion not
credible given that Lane stated he would “take a life,” and
imposed punishment that included lost good conduct time,
disciplinary segregation, and other sanctions.
After exhausting his administrative remedies with respect
to each of the three disciplinary proceedings, Lane filed pro
se habeas corpus petitions pursuant to 28 U.S.C. § 2241 in the
United States District Court for the District of Oregon. The
6 LANE V. SALAZAR
district court denied the petitions, finding that “some
evidence” supported the BOP’s decisions.
On appeal, a panel of this Court found that it could not
determine whether the evidence against Lane was sufficient
without first determining how to define a “threat” for
purposes of Code 203. Lane v. Feather, 610 F. App’x 628,
629 (9th Cir. 2015). Examining the plain language of Code
203, the panel found that the term “should be interpreted to
prohibit all threatening statements, whether they amount to
true threats or not.” Id. The panel next found that its
interpretation necessarily implicated Lane’s First Amendment
rights, meaning that Code 203 could only be valid if it
satisfied the test set forth in Procunier v. Martinez, 416 U.S.
396, 413 (1974), overruled on other grounds by Thornburgh
v. Abbott, 490 U.S. 401 (1989). Briefly stated, Procunier
requires that where a regulation restricts prisoners from
exercising their First Amendment right to send outgoing mail
to non-prisoners, that regulation must (1) “further an
important or substantial governmental interest unrelated to
the suppression of expression” and (2) “be no greater than is
necessary” to protect that interest. 416 U.S. at 413. The
panel remanded the three cases to the district court for
supplementation of the factual record with regard to those
two points. Feather, 610 F. App’x at 629.
On remand, the government submitted an affidavit from
a DHO asserting that Code 203 advances prison security,
protects the public from harassing or intimidating
communications, and promotes prisoner rehabilitation. The
district court held that Code 203 satisfies the Procunier test
and denied Lane’s § 2241 petitions.
LANE V. SALAZAR 7
II.
The district court’s denial of Lane’s petitions is reviewed
de novo. McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir.
2003). Purely legal questions, such as whether Code 203
violates the First Amendment under Procunier, are also
reviewed de novo. Royse v. Superior Court of State of Wash.,
779 F.2d 573, 575 (9th Cir. 1986).
A.
Lane first argues that Code 203 does not satisfy
Procunier’s two-part test. Procunier struck down California
regulations allowing censorship of letters that “unduly
complain,” “magnify grievances,” or “expres[s] inflammatory
political, racial, religious or other views or beliefs” in
correspondence between inmates and non-inmates. 416 U.S.
at 399; see also id. at 415. As noted, the Supreme Court first
held that interference with outgoing prisoner mail is only
justified if the regulation furthers “an important or substantial
governmental interest unrelated to the suppression of
expression.” Id. at 413. The Court further held that “the
limitation of First Amendment freedoms must be no greater
than is necessary or essential to the protection of the
particular governmental interest involved.” Id.With respect to the first requirement, the Supreme Court
identified three relevant governmental interests: “the
preservation of internal order and discipline, the maintenance
of institutional security against escape or unauthorized entry,
and the rehabilitation of the prisoners.” Id. at 412 (footnote
omitted). “Prison officials may not censor inmate
correspondence simply to eliminate unflattering or
unwelcome opinions or factually inaccurate statements.
8 LANE V. SALAZAR
Rather, they must show that a regulation authorizing mail
censorship furthers one or more of the substantial
governmental interests of security, order, and rehabilitation.”
Id. at 413
The second part of the test requires that the limitation be
“no greater than is necessary” to protect such interests. Id.The Supreme Court has made clear, however, that Procunier
should not be read “as subjecting the decisions of prison
officials to a strict ‘least restrictive means’ test.” Abbott, 490
U.S. at 411. Instead, Procunier “require[s] no more than that
a challenged regulation be ‘generally necessary’ to a
legitimate governmental interest,” and that the regulation
provide “a close fit between the challenged regulation and the
interest it purported to serve.” Id.Here, the district court concluded that Code 203 enhances
security and order within the prison. Lane’s disciplinary
history offers clear examples of how those legitimate
governmental interests come into play. In at least three of the
letters at issue, Lane threatened to kill someone. In one such
letter he specifically threatened to kill a prison guard. As
explained in one of Lane’s disciplinary reports,
[t]he action/behavior on the part of any inmate
to make any sort of threat towards any person
poses a serious threat to the health, safety and
welfare of not only the person involved, but
that of all other inmates and staff. . . . The
behavior displayed by this violation of
discipline could have lead [sic] to a more
serious incident.
LANE V. SALAZAR 9
Courts are encouraged to defer to corrections officials on
such judgments. See Overton v. Bazzetta, 539 U.S. 126, 132
(2003) (noting that courts owe “substantial deference to the
professional judgment of prison administrators”); Hall v.
Curran, 818 F.2d 1040, 1043 (2d Cir. 1987) (“The
maintenance of safety and discipline in our penal institutions
is best secured through the kind of professional
administrative expertise that can be forged only in the
crucible of day-to-day experience.”).
Prohibiting threats of bodily harm also serves the
legitimate governmental interest of rehabilitation. In
Procunier, where the letters at issue consisted of complaints
and grievances, the Supreme Court found that prison officials
had failed to “specify what contribution the suppression of
complaints ma[de] to the rehabilitation of [prison inmates].”
416 U.S. at 416. In this case, the communications are far
more serious in nature. Namely, they speak of lethal
violence. As explained in the DHO’s affidavit, part of the
rehabilitation process is to help inmates transform their anger
into nonviolent communication. By imposing reasonable
sanctions as a consequence of violent speech, prison officials
are furthering that effort at redirection and rehabilitation.
With respect to the second prong of the Procunier test,
the government has shown that Code 203 is “generally
necessary” to curb threats in outgoing mail, and that the
regulation constitutes a “close fit” with its legitimate
governmental interests. Abbott, 490 U.S. at 411. After
Procunier, inmate complaints and other expressions of
dissatisfaction are clearly protected from punishment.
Threats of bodily harm, as noted above, constitute
communications of a very different, more troubling nature.
10 LANE V. SALAZAR
As relevant to this appeal, Code 203 prohibits only those
latter communications.
Lane argues that Code 203, as construed by the BOP, is
overly broad because it encompasses conduct that does not
implicate any legitimate penological concerns. As examples,
he submits that the regulation could result in punishment for
jokes, statements of predicted self-defense, or statements that
the recipient unreasonably views as a threat. Lane further
warns that prison inmates often suffer from mental illness or
learning disabilities, and should not be punished for their
unique styles of communication. These arguments are
without merit. Lane himself is a strong example of how
threatening language can be discerned and treated. In his
letters, Lane posed the possibility of killing someone,
including a prison guard. He cannot now seriously assert that
those statements were either jokes or products of poor
communication skills. As to unreasonable responses to
prisoner communications, there is no indication that the BOP
has sanctioned any such conduct. Instead, the BOP
reasonably considered Lane’s writings, identified legitimate
penological concerns, and issued appropriate punishment.
Lane further argues that only true threats are punishable,
while rhetoric and hyperbole are not. A panel of this court
previously concluded that a threat under Code 203 includes
non-true threats, and we are bound by the law of the case.
See Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir.
2002). Moreover, whether the threats are true cannot be a
litmus test for punishment, as prison officials should not be
placed in the position of determining the credibility of what
could reasonably be viewed as a threat. Indeed, Procunier
warned that prison administrators must not “be required to
show with certainty that adverse consequences would flow
LANE V. SALAZAR 11
from the failure to censor a particular letter. Some latitude in
anticipating the probable consequences of allowing certain
speech in a prison environment is essential to the proper
discharge of an administrator’s duty.” 416 U.S. at 414.
Finally, even if a threat is not intended to be acted upon,
threats of bodily harm contribute to an atmosphere of hostility
and disrespect. While curbing threats such as those penned
by Lane might limit an inmate’s expressive outlets, threats of
bodily harm run counter to penological purposes and are
legitimately curtailed. When read reasonably in light of the
prison setting, Code 203 satisfies the two-prong test set forth
in Procunier.
B.
Lane next contends that because the BOP and this court
have construed Code 203 as including non-true threats, the
BOP has effectively promulgated a new substantive rule that
must follow the Administrative Procedures Act’s (“APA’s”)
requirement for notice and comment. The APA places
procedural requirements on an agency when it seeks to issue
a rule. Those requirements do not apply to “interpretative
rules, general statements of policy, or rules of agency
organization, procedure, or practice.” 5 U.S.C.
§ 553(b)(3)(A). An interpretive rule “clarif[ies] or explain[s]
existing law or regulations so as to advise the public of the
agency’s construction of the rules it administers.” Gunderson
v. Hood, 268 F.3d 1149, 1154 (9th Cir. 2001). “If a rule is
inconsistent with or amends an existing legislative rule, then
it cannot be interpretive.” Id. (footnote omitted); see also
Mora-Meraz v. Thomas, 601 F.3d 933, 939–40 (9th Cir.
2010).
12 LANE V. SALAZAR
In this case, correctional officials within the BOP
interpreted a threat as something beyond a true threat.
Assuming for the sake of argument that the BOP’s
interpretation constituted a change in course, its interpretation
did not create a new substantive rule. See Perez v. Mortg.
Bankers Ass’n, 135 S. Ct. 1199, 1207–08 (2015) (noting that
an agency can interpret a regulation without effectively
amending the underlying source of law); see also White v.
Shalala, 7 F.3d 296, 304 (2d Cir. 1993) (“If the rule is an
interpretation of a statute rather than an extra-statutory
imposition of rights, duties or obligations, it remains
interpretive even if the rule embodies the Secretary’s changed
interpretation of the statute.”); Metro. Sch. Dist. v. Davila,
969 F.2d 485 (7th Cir. 1992) (“[A]n agency’s change in its
reading of a statute does not necessarily make the rule
announcing the change [substantive].”). Indeed, the BOP
merely interpreted Code 203 to cover threats that, as perhaps
in this case, may not have been intended as true threats but
were nonetheless threatening and unacceptable in a prison
setting. That interpretation did not create “new law, rights, or
obligations,” L.A. Closeout, Inc. v. Dep’t of Homeland Sec.,
513 F.3d 940, 942 (9th Cir. 2008) (holding that internal
memorandum providing an agency’s construction of a
regulation in a particular factual circumstance does not
require notice and comment), and was not required to go
through the notice and comment procedures set forth in the
APA.
C.
Lane further argues that by including non-true threats, the
BOP has rendered Code 203 void for vagueness. “A statute
is void for vagueness when it does not sufficiently identify
the conduct that is prohibited.” United States v. Makowski,
LANE V. SALAZAR 13
120 F.3d 1078, 1080–81 (9th Cir. 1997) (quoting United
States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir. 1995)).
Courts have reasoned that vague statutes and regulations
should be held void because: (1) individuals should not be
punished for behavior they could not have known was illegal;
(2) vague laws allow arbitrary and discriminatory
enforcement; and (3) vague laws may have a chilling effect
on free speech. Grayned v. City of Rockford, 408 U.S. 104,
108–09 (1972); see also United States v. Mincoff, 574 F.3d
1186, 1201 (9th Cir. 2009) (a statute is impermissibly vague
if it “‘fails to provide a reasonable opportunity to know what
conduct is prohibited, or is so indefinite as to allow arbitrary
and discriminatory enforcement’”); Foti v. City of Menlo
Park, 146 F.3d 629, 638 (9th Cir. 1998). The Court must
assess a constitutional challenge based on vagueness in a
common sense manner. See U.S. Civil Serv. Comm’n v. Nat’l
Assoc. Of Letter Carriers AFL-CIO, 413 U.S. 548, 578–79
(1973) (noting that “there are limitations in the English
language with respect to being both specific and manageably
brief, and it seems . . . that although [a] prohibition[ ] may not
satisfy those intent on finding fault at any cost,” a prohibition
is not vague if it is “set out in terms that the ordinary person
exercising ordinary common sense can sufficiently
understand and comply with”).
When a statute “is capable of reaching expression
sheltered by the First Amendment, the [vagueness] doctrine
demands a greater degree of specificity than in other
contexts.” VIP of Berlin, LLC v. Town of Berlin, 593 F.3d
179, 186 (2d Cir. 2010) (internal quotation marks and
footnote omitted). That said, in the prison setting
“[i]mprecision in penal legislation should be tolerated if the
language can be said nevertheless to give fair notice to those
who might violate it.” United States v. Gilbert, 813 F.2d
14 LANE V. SALAZAR
1523, 1530 (9th Cir. 1987) (citing Grayned, 408 U.S. at 112);
see also Meyers v. Aldredge, 492 F.2d 296, 310 (3d Cir.
1974) (“we reject the view that the degree of specificity
required of [prison] regulations is as strict in every instance
as that required of ordinary criminal sanctions”).
Accordingly, courts defer to prison officials’ interpretations
“unless fair notice was clearly lacking.” Hadden v. Howard,
713 F.2d 1003, 1008 (3d Cir. 1984).
Code 203 is not unlawfully vague. The regulation does
not prohibit threats generally, but rather is limited to threats
of bodily harm or any other offense. Inmates are therefore on
notice that they may not make threats of either bodily harm
or other activities that violate the criminal code or BOP
regulations. Moreover, the BOP’s interpretation comports
with a common-sense understanding of a threat. As the
Seventh Circuit once explained, “[w]hen making a threat one
hopes not to have to carry it out; one hopes that the threat
itself will be efficacious. Most threats, indeed, are bluffs.
But if the bluff succeeds in intimidating . . . it ought to be
punished.” United States v. Velasquez, 772 F.2d 1348, 1357
(7th Cir. 1985). We therefore find that although Code 203
encompasses non-true threats, it is not void for vagueness.
D.
Finally, Lane argues that the evidence was insufficient to
show that he violated Code 203. Lane has a liberty interest
in his good time credits, and may therefore only be deprived
of those credits if afforded due process. See Bostic v.
Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), overruled on
other grounds by Nettles v. Grounds, 830 F.3d 922, 931 (9th
Cir. 2016) (en banc). In Superintendent v. Hill, 472 U.S. 445,
455–56 (1985), the Supreme Court held that revocation of
LANE V. SALAZAR 15
good time credits requires only a “modicum of evidence” to
support the prison’s decision. Accordingly, due process
requirements are satisfied if there is “‘some evidence from
which the conclusion of the administrative tribunal could be
deduced.’” Id. at 455. “Ascertaining whether this standard
is satisfied does not require examination of the entire record,
independent assessment of the credibility of witnesses, or
weighing of the evidence. Instead, the relevant question is
whether there is any evidence in the record that could support
the conclusion reached by the disciplinary board.” Id. at
455–56.
Lane contends that none of the disciplinary actions
imposed by prison personnel were supported by “some
evidence” of a threat. He bases his argument on two claims:
first, that the context of each statement shows that it was
merely hyperbole; and second, that the statements did not
target “another” as required by the regulation. The first
statement at issue is the 2008 attachment to Lane’s
administrative remedy form, on which he wrote: “I’m going
to bet my life! Are you willing to Bet a Guard’s Life?” At
the hearing before the DHO, Lane stated that he was not
threatening anyone, and was instead “trying to let them know
I was serious about what I was doing.” His testimony
suggests that he did not actually intend to kill a prison guard,
but rather was stating a lethal threat in order to show his level
of commitment. From the prison’s perspective, this
reasonably constituted a threat of bodily harm. The law
requires only a “modicum of evidence” that Lane was making
a threat. Hill, 472 U.S. at 455. That standard is satisfied by
Lane’s suggestion that he would kill a prison guard if not
granted the relief he was seeking.
16 LANE V. SALAZAR
The 2009 letters to Brian Dempsey were equally
threatening, as Lane stated that he “may be forced to take a
life” and/or “cause the next person harm!” Lane’s counsel
argues that these statements were intended to communicate
threats of legal, rather than physical, harm, as Lane’s writings
referred to his own sentencing error as an attempt on his
(Lane’s) life. Counsel’s claim requires a tortured reading of
Lane’s statements, which plainly contemplated causing
physical harm to another.
The threats against AUSA Blackington are less clear. The
letter initially referenced legal action: “I want to make sure
they come for you and Mr. Brad Blackington (Criminal
charges).” However, elsewhere in the letter Lane spoke of
“that steel” doing “damage to the human body,” and
suggested that he had stabbed someone in Greenville. These
statements were perceived as threatening, and the Court
should defer to prison officials in that interpretation.
Like his 2008 administrative papers and the Dempsey
letter, Lane’s 2010 letter to Congress threatened to take a life.
As discussed above, prisons need not tolerate those kinds of
statements, both for fear of escalation and for rehabilitative
purposes. Accordingly, the district court properly concluded
that the BOP’s actions were supported by sufficient evidence.
AFFIRMED.