Lindell, Nathaniel A v. Frank, Matthew J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-2651 & 03-2765
NATHANIEL LINDELL,
Plaintiff-Appellant,
Cross-Appellee,
v.
MATTHEW J. FRANK,* et al.,
Defendants-Appellees,
Cross-Appellants,
and
CINDY O’DONNELL, et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 02-C-21-C—Barbara B. Crabb, Chief Judge.
____________
SUBMITTED MARCH 19, 2004**—DECIDED JULY 19, 2004
____________
*
Pursuant to Fed. R. App. P. 43(c), Matthew J. Frank, the cur-
rent Secretary of the Wisconsin Department of Corrections, is
substituted for Jon E. Litscher.
**
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal
and cross-appeal are submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2).
2 Nos. 03-2651 & 03-2765
Before RIPPLE, KANNE, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Nathaniel Lindell, an
inmate at the Wisconsin Secure Program Facility (WSPF),
sued prison officials and staff alleging numerous civil rights
violations. In a comprehensive order, the district court
dismissed much of Lindell’s complaint after screening it
under 28 U.S.C. § 1915A but granted him leave to proceed
in forma pauperis on seven claims. Later, in another
thorough order, the court granted summary judgment for
the defendants on six of the surviving claims, but it
awarded Lindell injunctive relief on the final claim. The
court found that the defendants had qualified immunity,
however, precluding an award of damages on that claim.
On appeal Lindell challenges the grant of summary judg-
ment for the defendants on the six claims he lost, as well as
the refusal to award more than injunctive relief for the
claim on which he prevailed. Lindell also challenges the
dismissals of all but one of his claims screened out under
§ 1915A and contests a number of procedural rulings by the
district court. In their cross-appeal, the defendants seek to
overturn the award of injunctive relief to Lindell, arguing
both that he was entitled to no relief at all and that the
injunction framed by the district court is overly broad and
thus violates the Prison Litigation Reform Act (PLRA), see
18 U.S.C. § 3626(a)(1). Although we concur with most of the
district court’s rulings, we conclude that one of Lindell’s
First Amendment claims dismissed at initial screening
should have been allowed to proceed. We also agree with
the defendants that the injunction entered by the court
must be modified to bring it into conformity with the PLRA.
Nos. 03-2651 & 03-2765 3
I
In light of the district court’s careful consideration of each
of Lindell’s claims, we find it necessary to address only the
single First Amendment claim that should have been
allowed to proceed. In his complaint Lindell alleged that the
defendants violated his right to free speech by “arbitrarily”
confiscating picture postcards from his cell; he says that the
defendants told him at the time that he could possess no
more than five postcards at one time. Lindell does not
describe the pictures on the confiscated postcards, but says
only that they “were meant to convey a message.” In
dismissing this claim, the district court reasoned that,
regardless whether Lindell had alleged a protected right
to possess his postcards, the defendants’ “policy” of allowing
only five postcards in a cell at a time was reasonably
related to the prison’s security interest in limiting the
number of items each inmate has in his cell.
When a prison regulation restricts a prisoner’s First
Amendment right to free speech, it is valid only if it is rea-
sonably related to legitimate penological interests. Turner
v. Safley, 482 U.S. 78, 89 (1987); Kikumura v. Turner, 28
F.3d 592, 598 (7th Cir. 1994). There are four factors that
courts must consider in determining whether a prison re-
gulation is constitutional: whether the regulation is ra-
tionally related to a legitimate and neutral governmental
objective; whether there are alternative means of exercising
the right that remain open to the inmate; what impact an
accommodation of the asserted right will have on guards
and other inmates; and whether there are obvious alterna-
tives to the regulation that show that it is an exaggerated
response to prison concerns. Turner, 482 U.S. at 89-91.
Although it might be possible to envision a security jus-
tification that would support the defendants’ action, we be-
lieve that the district court acted prematurely in presuming
such a justification. In his complaint Lindell did not concede
4 Nos. 03-2651 & 03-2765
that there even is such a prison policy limiting the number
of picture postcards that can be possessed in a cell. To the
contrary, he alleged that there was nothing in the prison
rule book about postcards and that the defendants’ confisca-
tion of his postcards was arbitrary. Thus, at the outset we
have a disputed issue of material fact: what exactly did the
prison’s policy provide, and what if any exceptions did it
recognize?
It is impossible to evaluate the First Amendment impli-
cations of this case without the answers to those questions.
We do not rule out, at this early stage, the possibility that
the defendants might be able to show that Lindell’s post-
cards were justifiably removed from his cell, but this deter-
mination cannot be made without knowing the reasons
behind their removal. See Procunier v. Martinez, 416 U.S.
396, 415 (1974) (prison officials violate the First
Amendment when for reasons unrelated to legitimate
penological interests they engage in “censorship of . . .
expression of ‘inflammatory political, racial, religious or
other views’ and matter deemed ‘defamatory’ or ‘otherwise
inappropriate.’ ”). Because this claim was dismissed at
screening, the defendants were never required to explain
the basis for confiscating some of Lindell’s postcards, and in
their brief in this court the defendants do not even address
his argument that this claim should have been allowed to
go forward. Accordingly, we vacate the district court’s
dismissal of this claim. In all other respects, we reject
Lindell’s arguments on appeal.
II
We turn now to the defendants’ cross-appeal. The Wiscon-
sin Department of Corrections (DOC) has implemented a
broad “publishers only” rule—a policy of allowing inmates
to receive published materials only from a publisher or
other commercial source. In his complaint Lindell claimed
Nos. 03-2651 & 03-2765 5
that this policy is unconstitutional to the extent that it
prohibits him from receiving clippings of published articles,
or photocopies of such clippings. Specifically, Lindell alleges
that he was not permitted to receive a clipping of an article
from the magazine, Farm and Ranch Living, that was sent
to him by his father. At summary judgment, the defendants
justified their ban on clippings and photocopies of clippings
by arguing that it is reasonably related to their interest in
reducing the time prison staff members must spend search-
ing for potential hidden messages in clippings mailed from
noncommercial sources.
There is no question that “publishers only” rules that
restrict prisoners from receiving hardcover books from any
noncommercial sources are reasonably related to a prison’s
interest in preventing contraband from being smuggled into
the prison. Bell v. Wolfish, 441 U.S. 520, 555 (1979). Courts
have extended the reasoning in Bell to other types of
materials from noncommercial sources that could easily
conceal smuggled contraband, such as magazines and
softbound books. See Ward v. Washtenaw County Sheriff’s
Dept., 881 F.2d 325, 329 (6th Cir. 1989) (“publishers only”
rule that restricted receipt of magazines reasonably related
to legitimate interests in controlling smuggled contraband
and saving staff resources); Hurd v. Williams, 755 F.2d 306,
308-09 (3d Cir. 1985) (“publishers only” rule that restricted
receipt of newspapers, periodicals, and softbound volumes
reasonably related to government interest in controlling
smuggled contraband and saving staff resources); Kines v.
Day, 754 F.2d 28, 30 (1st Cir. 1985) (“publishers only” rule
that restricted receipt of hardcover, softcover, and newspa-
per publications reasonably related to prison’s interest in
“internal security”); Cotton v. Lockhart, 620 F.2d 670, 672
(1980) (“publishers only” rule that restricted receipt of hard
and softcover books reasonable response to interest in
“institutional security”). But as far as we can tell, in all of
these situations the plaintiffs were demanding access to the
6 Nos. 03-2651 & 03-2765
entire publication and the dispute was focused on whether
it was permissible to require the inmate to obtain the
publication directly from the publisher. The difference here
is that for Lindell to obtain from the publisher or other
commercial source a clipping such as the one his father sent
would effectively require that he purchase the full publica-
tion.
The defendants cite Hause v. Vaught, 993 F.2d 1079,
1083-84 (4th Cir. 1993), for the proposition that, as a mat-
ter of law, clippings from periodicals can be assumed to pose
the same dangers as bound periodicals and hardcover
books. Although the court in Hause did hold that a ban on
all published materials (regardless of source or type) was a
constitutional restriction on a pretrial detainee’s free-
speech rights, the court also stated that its holding was
limited to the facts before it, including the fact that the
plaintiff was seeking damages for limitations placed on his
rights during limited periods of short-term confinement.
Apparently only one circuit has addressed the constitution-
ality of a specific ban on clippings from other than commer-
cial sources. In Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir.
1995), the Second Circuit reversed a grant of summary
judgment for prison officials and held that the defendants’
purported interests in such a ban—preventing the dissem-
ination of inflammatory material and saving staff re-
sources—were not reasonably related to the prison’s policy.
Id. at 80-81.
Here, Lindell challenges the way that officials at WSPF
interpreted the DOC’s general publications policy, which
merely states that “[i]nmates may only receive publications
directly from the publisher or other recognized commercial
sources in their packages,” see Wis. Admin. Code DOC
309.95(2)(a). The question before us is a narrow one. It does
not implicate the constitutionality of the DOC’s publishers’
only rule; rather, it concerns the question whether Lindell’s
right to receive and exchange information was violated by
Nos. 03-2651 & 03-2765 7
WSPF’s application of that general policy to publication
clippings and photocopies of clippings.
WSPF’s rule satisfies the first Turner factor. The defen-
dants’ security interest in screening for hidden messages
and their economic interest in saving staff resources are
both legitimate. Although the district court held otherwise,
there is a rational connection between these interests and
a policy that lowers the overall number of mailed items that
require screening.
But the remaining Turner factors, which relate to
whether the anti-clipping or anti-copy policy is a reasonable
solution to the stated security problem, weigh against the
defendants. First, Lindell did not have an alternative
means of exercising his rights. As the district court noted,
Lindell had been in WSPF’s most restrictive housing level,
level one, and he did not have access to the prison library’s
limited supply of publications. And even if he had access to
the prison’s material or paid for his own subscriptions,
subscriptions are not fully equivalent to clippings “because
subscribing requires inmates to anticipate which papers
might have articles that they like to read and to subscribe
to all such papers.” Allen, 64 F.3d at 80. Second, the de-
fendants could accommodate Lindell’s rights without a large
burden on staff. As the district court noted, the defendants
are already screening personal mail, which could just as
easily contain hidden messages. It appears that the problem
is not clippings exclusively; it is the overall volume of mail
that could potentially contain hidden messages. This overall
volume could be addressed by limiting the number of
clippings that can be sent to an inmate. Additionally, the
prison could allow only photocopies of clippings rather than
the clippings themselves, so that prison staff are screening
more manageable material. See Lake v. Borgen, No. 03-C-
372-S, slip opinion at 6 (W.D.Wis. Jan. 15, 2004) (holding
that prison rule that banned receipt of publication clippings
from noncommercial sources was constitutional when prison
8 Nos. 03-2651 & 03-2765
allowed inmate to receive photocopies of clippings as an
alternative means of exercising his right).
Although it is a close issue because of the deference pris-
on administrators enjoy in these cases, see Thornburgh v.
Abbott, 490 U.S. 401, 407 (1989), in light of Lindell’s lack of
other access to the restricted materials and the less exag-
gerated responses available to the prison, we agree with the
Second Circuit’s decision in Allen and with the district court
that WSPF’s ban as currently applied to all clippings and
copies violated Lindell’s First Amendment rights. Still, the
district court was correct to award only injunctive relief on
this claim. The constitutionality of a wholesale ban on
publication clippings is not a question that had been
answered previously in this circuit, and the breadth of any
permissible set of restrictions less than a complete ban has
yet to be determined. Accordingly, the district court was
correct in concluding that Lindell’s constitutional right to
receive clippings was not clearly established, and as a result
defendants are entitled to qualified immunity on this claim.
See May v. Sheahan, 226 F.3d 876, 881 (7th Cir. 2000).
The defendants alternatively argue that the district
court’s injunction is overbroad and should be vacated. The
relevant provision of the PLRA provides:
Prospective relief in any civil action with respect to
prison conditions shall extend no further than neces-
sary to correct the violation of the Federal right of
a particular plaintiff or plaintiffs. The court shall not
grant or approve any prospective relief unless the court
finds that such relief is narrowly drawn, extends no
further than necessary to correct the violation of the
Federal right, and is the least intrusive means neces-
sary to correct the violation of the Federal right. The
court shall give substantial weight to any adverse
impact on public safety or the operation of a criminal
justice system caused by the relief.
Nos. 03-2651 & 03-2765 9
18 U.S.C. § 3626(a)(1)(A). The defendants are correct that
the district court’s injunction “prohibiting defendants from
enforcing their publisher’s only rule to the extent that it
prohibits inmates from receiving any newspaper and mag-
azine clippings and photocopies in the mail” is too broad
because, as written, it applies to all inmates rather than
just Lindell. See generally Gomez v. Vernon, 255 F.3d 1118,
1130 (9th Cir. 2001) (holding that district court satisfied
§ 3626(a)(1) by limiting relief to the six named inmates
rather than entire prison population). The defendants also
contend that the injunction is overbroad because it could be
read to prevent the prison from banning any photocopies
rather than just photocopies of clippings from published
sources, or from imposing reasonable restrictions on the
form and number of clippings. We agree. On remand, the
district court must modify the injunction to make it conform
more closely to the violation that was found.
III
For these reasons, the district court’s dismissal of
Lindell’s free-speech claim premised on the defendants’
confiscation of postcards from his cell is VACATED, and
that claim is REMANDED for further proceedings. The dis-
trict court is also directed to redraft its injunction to con-
form with the requirements of 18 U.S.C. § 3626(a)(1)(A) and
this opinion. In all other respects the judgment of the
district court is AFFIRMED.
10 Nos. 03-2651 & 03-2765
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-19-04