Walker, Curtis v. McCaughtry, Gary

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 9, 2005*
Decided June 28, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04–2696
Appeal from the United States District
CURTIS L. WALKER, Court for the Western District of
Plaintiff-Appellant, Wisconsin
v. No. 04–C–095–S
GARY R. McCAUGHTRY, et al. John C. Shabaz,
Defendants-Appellees. Judge.
ORDER
Wisconsin inmate Curtis Walker appeals from the dismissal of his civil rights
lawsuit at the 28 U.S.C. § 1915A screening stage. During a search of Walker’s cell,
a guard found a letter from an inmate at another prison that referred to the Lords
of Islam, a gang. After a hearing, Walker was found guilty of violating Wis. Admin.
Code § DOC 303.20(3), which prohibits gang activity, and was punished with
segregation, disciplinary separation, and a transfer to another prison. He filed a
complaint claiming that the punishment violated his free speech rights, that
§ 303.20(3) is unconstitutionally vague and overbroad, and that he was deprived of
due process. The district court dismissed the complaint, holding that Walker failed
to state a claim. Walker now appeals, and we affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04–2696 Page 2
The regulation Walker challenges as vague and overbroad is entitled “Group
resistance and petitions” and provides in full:
Any inmate who participates in any activity with an inmate gang, as
defined in s. DOC 303.02(11), or possesses any gang literature, creed,
symbols or symbolisms is guilty of an offense. An inmate’s
possession of gang literature, creed symbols or symbolism is an act
which shows that the inmate violates the rule. Institution staff may
determine on a case by case basis what constitutes an unsanctioned
group activity.
In turn, § 303.02(11) defines an “inmate gang” as “a group of inmates which is not
sanctioned by the warden.” Another provision, § 309.365(5)(c)(2), provides that the
warden may not approve an inmate gang as an activity group.
On appeal Walker initially contends that his First Amendment claim was
improperly dismissed because only a compelling government need, addressed
through the least restrictive possible means, could justify punishing him for
possessing a letter. Walker is wrong: a prison regulation need only be reasonably
related to a legitimate penological interest in order to survive constitutional attack.
Turner v. Safley, 482 U.S. 78, 89 (1987); Lindell v. Frank, 377 F.3d 655, 657 (7th
Cir. 2004). And we accord prison administrators “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 v. Wolfish, 441 U.S. 520, 547 (1979). In Bell v. Wolfish, the Supreme Court
agreed with the Second Circuit on the basic premiss that a penal “institution must
be permitted to use reasonable means to insure that its legitimate interests in
security are safeguarded . . . [and courts] should not second-guess the expert
administrators on matters on which they are better informed . . . [for] [c]oncern
with minutia of prison administration can only detract the court from detached
consideration of the question presented to it: does the practice or condition violate
the Constitution?” Id. at 544. It is beyond question that prisons have a legitimate
interest in preventing gang activity—such as inmate communications with gang
members at other prisons—which poses a serious threat to institutional safety. See
Rios v. Lane, 812 F.2d 1032, 1037 (7th Cir. 1987) (upholding regulation preventing
gang activity even under earlier intermediate standard that required a substantial
state interest addressed through the narrowest possible means); see also Sasnett v.
Sullivan, 91 F.3d 1018, 1023 (7th Cir. 1996), vacated on other grounds, 521 U.S.
1114 (1997).
Walker next challenges the district court’s dismissal of his overbreadth and
vagueness claims, contending that the regulation vests so much discretion in prison
No. 04–2696 Page 3
officials in defining gang activity as to be unconstitutional. Insofar as Walker seeks
monetary and declaratory relief, however, these claims, if successful, would imply
the invalidity of his sentence and may not be raised in a suit under 42 U.S.C.
§ 1983. See Edwards v. Balisok, 520 U.S. 641, 645–47 (1997); Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2001). Proving the regulation unconstitutional would
necessarily impugn his disciplinary conviction and segregation sentence, which
extends his mandatory release date and therefore affects the duration of his
confinement. See Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004) (noting that
suspension of good time credits could lengthen confinement and therefore could not
be challenged in § 1983 suit). But Walker also seeks an injunction to prevent
enforcement of § 303.20, and succeeding would not impugn his sentence. See
Edwards, 520 U.S. at 648.
A regulation is overbroad and violates the First Amendment only if it
punishes a “substantial” amount of protected free speech. Virginia v. Hicks, 539
U.S. 113, 118–20 (2003); Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048,
1056 (7th Cir. 2004). But inmates have restricted First Amendment rights, so the
overbreadth concept has limited relevance to the prison context. Ustrak v.
Fairman, 781 F.2d 573, 580 (7th Cir. 1986). This regulation threatens no protected
speech at all—let alone a substantial amount—because, as noted above, it
reasonably relates to a legitimate penological interest.
A regulation is unconstitutionally vague if it is so unclear that people of
ordinary intelligence cannot determine what conduct it prohibits. United States v.
Turcotte, 405 F.3d 515, 531 (7th Cir. 2005). A plaintiff raising a facial attack must
demonstrate that the regulation is impermissibly vague in all of its
applications—including its application to his case. Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982). Here, Walker had notice
that the letter was prohibited: it referred to the Lords of Islam, a group of inmates
that the warden had not approved. Moreover, although Walker says the regulation
vests limitless discretion in prison officials to define gang activity, we have
observed that outside of prison, statutes may give police officers discretion to
identify gangs. See Fuller ex rel. Fuller v. Decatur Public Sch. Bd., 251 F.3d 662,
668 (7th Cir. 2001). We see no reason why prison officials, operating in a
dangerous environment rife with gang activity, cannot have the same discretion.
Finally Walker argues in general terms that he was deprived of due process
because the guards punished him “for doing something law enforce[ment] officials
said he could do”—namely, possessing the gang letter. Walker implies that the
prison officials screened the letter, observed the reference to the gang, and then
gave the letter to Walker only to change their minds later. But Walker’s complaint
reveals that the guards more likely missed the gang material when the letter
arrived, and confiscated it as soon as they caught the reference. Surely if a pistol
No. 04–2696 Page 4
somehow made its way through security to an inmate via the mail, Walker would
agree that prison officials could seize it upon discovery.
AFFIRMED.