Gary D. Carpenter v. State of South Dakota , 536 F.2d 759 ( 1976 )

STEPHENSON, Circuit Judge.

Three inmates of the South Dakota Penitentiary appeal from the district court’s dismissal of their petition seeking damages and equitable relief.¹ Petitioners challenge the prison censorship board’s ban on the receipt by prisoners of mail containing sexually explicit material.²

The district court dismissed the petition as frivolous, without a hearing and without requiring a response from the defendants. The district court found:

The application clearly shows that Plaintiffs were given written notice that certain mail items were being rejected. Petitioners were granted a hearing at which they were present and given an opportunity to be heard. The mail items were rejected on the basis that they constituted a danger to rehabilitation.

Petitioners assert that the district court erred in failing to grant them an evidentiary hearing on whether prison officials were justified in refusing to allow prisoners to receive these publications. We disagree.

Assuming these materials are not obscene, non-prisoners would clearly have a right to receive the publications. In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the Supreme Court observed:

It is now well established that the Constitution protects the right to receive information and ideas. “This freedom (of speech and press) . . . necessarily protects the right to receive . . . Martin v. City of Struthers, 319 U.S. 141, 143, [63 S.Ct. 862, 87 L.Ed. 1313] (1943); see Griswold v. Connecticut, 381 U.S. 479, 482, [85 S.Ct. 1678, 14 L.Ed.2d 510] (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-308, [85 S.Ct. 1493, 14 L.Ed.2d 398] (1965) (Brennan, J., concurring); cf. Pierce v. Society of Sisters, 268 U.S. 510, [45 S.Ct. 571, 69 L.Ed. 1070] (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510, [68 S.Ct. 665, 92 L.Ed. 840] (1948), is fundamental to our free society.

394 U.S. at 564, 89 S.Ct. at 1247, 22 L.Ed.2d at 549. It becomes necessary to determine whether petitioners’ status as prisoners mandates a different result under the First Amendment.

In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), the Supreme Court stated:

We start with the familiar proposition that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 [68 S.Ct. 1049, 92 L.Ed. 1356] (1948). See also Cruz v. Beto, 405 U.S. 319, 321, [92 S.Ct. 1079, 31 L.Ed.2d 263] (1972). In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.

417 U.S. 822, 94 S.Ct. 2804, 41 L.Ed.2d 501.

Consistent with this general rule, it has been held that a prisoner retains the right to read what he wants unless the state can show a countervailing interest warranting censorship. See Burke v. Levi, 391 F.Supp. 186, 190-91 (E.D.Va.1975); Laaman v. Hancock, 351 F.Supp. 1265, 1267-68 (D.N.H.1972); Sostre v. Otis, 330 F.Supp. 941, 945 (S.D.N.Y.1971); Rowland v. Sigler, 327 F.Supp. 821, 824-25 (D.Neb.), aff’d sub nom., Rowland v. Jones, 452 F.2d 1005 (8th Cir. 1971); Seale v. Manson, 326 F.Supp. 1375, 1382 (D.Conn.1971); Payne v. Whitmore, 325 F.Supp. 1191, 1193 (N.D.Cal.1971); Fortune Society v. McGinnis, 319 F.Supp. 901, 904 (S.D.N.Y.1970).

In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court held that in order to justify censorship of prisoners’ personal correspondence, two requirements must be met: (1) prison officials must show that “censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation;” and (2) “the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” 416 U.S. at 413, 94 S.Ct. at 1811, 40 L.Ed.2d at 240.³ A number of cases have expressly held that the Martinez standards should be applied to prison censorship of publications. See Gaugh v. Schmidt, 498 F.2d 10 (7th Cir. 1974); Hopkins v. Collins, 18 Crim.L.R. 2318 (D.Md., December 11, 1975); Aikens v. Lash, 390 F.Supp. 663 (N.D.Ind.), modified on other grounds, 514 F.2d 55 (7th Cir. 1975); McCleary v. Kelly, 376 F.Supp. 1186 (M.D.Pa.1974); Gray v. Creamer, 376 F.Supp. 675 (W.D.Pa.1974).

Assuming that the Martinez standards apply, censorship of the publications involved here is constitutionally permissible only if it furthers the prison’s substantial interests in security, order, or rehabilitation, and no less restrictive means would suffice to protect the prison’s interests. The prison officials have the burden of proving that censorship is warranted.

This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow 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.

Procunier v. Martinez, supra, 416 U.S. at 414, 94 S.Ct. at 1811, 40 L.Ed.2d at 240.

Although the district court did not require a response from the defendants, we are satisfied that petitioners on the face of their complaint and documents attached thereto demonstrated that further proceedings were not required and that the district court was justified in dismissing their complaint. For example, exhibit I, a summary of the board’s action attached to the complaint, stated that upon petitioner Bagley’s request a hearing was held on April 16, 1975, by the prison board at which Bagley agreed that one of the catalogues, entitled “Marital Aids for Lovers,” sent to him by a California mail order house could be withheld. He insisted, however, that he was entitled to receive “The Complete Adult Mail Order Catalogue.” The board described the catalogue as containing “pictures of couples in various sexual poses and advertisements for: Lotions for Love, Potions for Power, Jells for Joy, Turn on Mags., Lesbian Lovers, Bondage, Girl Spankings, Lesbian Lovers, Filthy Party Records.”

The board’s decision was stated thereon as follows:

The board agrees with the rejection of the material “Aids for Lovers” and the Complete Adult Mail Order Catalogue on the grounds that the material would be detrimental to rehabilitation.

The materials would tend to make inmates more unsettled in their surroundings and less capable of availing themselves to the rehabilitation programs. The hearing board could see no literary, educational or moral value in the material.

Similarly, exhibit II to petitioners’ petition summarizes the hearing on May 1, 1975, and rejection by the board of other materials requested by petitioner Bagley of a similar nature. The board stated:

The board agrees with the rejection of the materials. It is felt that the materials would lead to abnormal arousal and tend to lead to deviate sexual behavior on the part of some inmates.

Exhibits 3 and IV pertain to the hearing and the board’s rejection of materials requested by petitioners Carpenter and Loy. Again the board rejected the material requested in 3 for the reasons:

1— They are primarily for prurient reasons.

2— The primary purpose of these books is for sexual arousal.

3 — The literary value of these books is questionable.

The board rejected the material in IV upon the grounds that:

1— The text is primarily a Buddhist sex manual.

2— Many of the pictures constitute pornography and are prurient.

3— If the book were released to the inmate, it would not remain in the private library of the inmate.

Petitioners do not quarrel with the board’s description of the disputed material. The thrust of their complaint is the material does not present a clear and present danger to the penal institution or its security, order and rehabilitation.

It is well settled that pro se complaints should be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Although courts are reluctant to interfere with prison administration, regulations and discipline, allegations of First Amendment deprivation must be scrutinized carefully. Generally they are sufficient to call for the offering of supporting evidence. Brown v. Hartness, 485 F.2d 238 (8th Cir. 1973).

Here we are satisfied that the face of the petition including petitioners’ own exhibits demonstrates the court was warranted in dismissing the petition without requiring further response by the board or the conduct of further hearings.

The decision of the board that receipt of the items described in this case would have a detrimental effect upon rehabilitation was well within the discretion of the board and requires no further review by the courts.⁴

Affirmed.

1 . Although petitioners’ pleading is styled “A petition for a writ of habeas corpus,” it states a colorable claim under 42 U.S.C. § 1983. Viewed as such, the claims are not subject to the exhaustion doctrine. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

Petitioners may be entitled to equitable relief, but they have not alleged the bad faith necessary to overcome the immunity of the defendants from damages. Public officials are immune from damages under section 1983 where the alleged wrong arises out of official conduct done in good faith. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Sebastian v. United States, 531 F.2d 900 (8th Cir., 1976). It is clear that the defendants acted pursuant to a district court order establishing censorship guidelines and state regulations adopted in accord with the court order.

2 . The censorship board was comprised of three prison officials. Apparently, the procedures followed in this case were taken pursuant to a court order of January 29, 1975, directing the South Dakota Board of Charities and Corrections to adopt censorship policies in accordance with the following guidelines:

Penitentiary officials may not censor any publication or portion thereof unless it presents a clear and present danger to security, order and rehabilitation. Notice of censorship or disapproval of any publication shall be given the inmate addressee, who may request a hearing for the purpose of determining the existence of any foregoing governmental interests of security, order or rehabilitation.

Appellant’s brief at 3.

3 . Martinez turned upon the First Amendment rights of persons who correspond with prisoners, not the rights of the prisoners themselves.

4 . Compare regulations developed by the California Department of Corrections and approved by the district court after the latter held the original regulations unconstitutional. Procunier v. Martinez, supra, 416 U.S. at 416 n.15, 94 S.Ct. at 1812, 40 L.Ed.2d at 241.