Toni Toston v. Michael Thurmer

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3914
T ONI T OSTON,
Plaintiff-Appellant,
v.
M ICHAEL T HURMER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:10-cv-288-JPS—J. P. Stadtmueller, Judge.
S UBMITTED M AY 16, 2012—D ECIDED A UGUST 2, 2012
Before P OSNER, M ANION, and K ANNE, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, an inmate of a
Wisconsin prison, brought this suit against prison
officials under 42 U.S.C. § 1983, complaining of viola-
tions of his rights of free speech and due process. The
district judge dismissed the due process claim and
granted summary judgment for the defendants on the
free speech claim, with which we begin.
The plaintiff had checked out two books from the
prison library, and he also purchased (with the prison’s
2 No. 11-3914
permission) a copy of To Die for the People: The Writings
of Huey P. Newton (1972)—the founder of the Black Pan-
thers. The plaintiff copied on a sheet of paper the
Panthers’ “Ten-Point Program,” id. at 3-6, which appears
in all three books and reads as follows:
1. We want freedom. We want power to determine
the destiny of our Black Community.
2. We want full employment for our people.
3. We want an end to the robbery by the white man of
our black community.
4. We want decent housing fit for shelter of human
beings.
5. We want education for our people that exposes the
true nature of this decadent American society. We
want education that teaches us our true history
and our role in the present-day society.
6. We want all Black men to be exempt from military
service.
7. We want an immediate end to POLICE BRUTALITY
and MURDER of Black people.
8. We want freedom for all black men held in federal,
state, county and city prisons and jails.
9. We want all Black people when brought to trial
to be tried in court by a jury of their peer group or
people from their Black communities, as defined by
the Constitution of the United States.
10. We want land, bread, housing, education, clothing,
justice and peace.
No. 11-3914 3
He put the sheet in the footlocker in his cell. A guard
discovered the sheet in a random search of the cell, and
the plaintiff was charged in a prison disciplinary pro-
ceeding with possession of “gang literature” in violation
of Wis. Admin. Code DOC § 303.20(3). He was found
guilty and given 90 days of confinement in segregation.
The prison also destroyed the sheet of paper on which
he’d copied the Ten-Point Program.
The freedom of speech of prison inmates is of course
limited by the prison’s legitimate concerns with security.
Turner v. Safley, 482 U.S. 78 (1987). The plaintiff argues
that possession of a copy of the Ten-Point Program
can’t create a security concern because two of the books
that recite the program are in the prison library, inmates
are permitted to borrow books from the library, and the
third book was one the prison had permitted him to
buy. But prison librarians cannot be required to read
every word of every book to which inmates might have
access to make sure the book contains no incendiary
material. There is no reason to think that a librarian
or other employee of the prison read cover to cover
any of the three books that contain the Ten-Point Pro-
gram. And even if a librarian read the book and de-
cided that on the whole it was not “gang literature,” that
decision would not preclude disciplinary proceedings
against an inmate who copied incendiary passages from it.
Point 8 of the Ten-Point Program is a call for “freedom
for all Black men held in federal, state, county and city
prisons and jails.” The plaintiff is a black man in a state
prison, and the Black Panthers were implicated in many
4 No. 11-3914
acts of violence, including murder. Huey Newton
himself may have killed a police officer. Hugh Pearson,
The Shadow of the Panther: Huey Newton and the Price of
Black Power in America 145-46 (1995); see also People v.
Newton, 87 Cal. Rptr. 394 (Cal. App. 1970). Black Panther
leader Richard Moore was convicted of shooting two
New York police officers. People v. Moore, 366 N.E.2d
1330 (N.Y. 1977). Eldridge Cleaver was convicted of
assault in a shootout between Black Panthers and
Oakland police officers. Cleaver v. Superior Court, 594 P.2d
984, 985-86 (Cal. 1979); In re Cleaver, 72 Cal. Rptr. 20, 23-24
(Cal. App. 1968). The “Black Panther Coloring Book”
depicted children murdering police officers. Hampton v.
Hanrahan, 600 F.2d 600, 654 (7th Cir. 1979) (dissenting
opinion).
The Black Panther Party is history. But the Ten-Point
Program could be thought by prison officials an incite-
ment to violence by black prisoners—especially since
there is a “New Black Panther Party,” active today,
which claims descent from the original Black Panthers
and like its predecessor both advocates and prac-
tices violence. Southern Poverty Law Center, “New
Black Panther Party,” www.splcenter.org/get-informed/
i n t e ll i g e n c e - f i le s /grou p s /n ew - b l a c k -p a n t h e r -p a r t y
(visited July 27, 2012); “There Is No New Black Panther
Party: An Open Letter From the Dr. Huey P. Newton
Foundation,” www.blackpanther.org/newsalert.htm (vis-
ited same day).
In context, in the book of Newton’s writings, point 8
is much less inflammatory than when read in isolation
No. 11-3914 5
in the sheet in the plaintiff’s cell; for in the book each
point is followed by an explanatory passage, and the
passage that explains point 8 states innocuously: “We
believe that all Black people should be released from
the many jails and prisons because they have not
received a fair and impartial trial.” To Die for the People,
supra, at 5. Indeed, although Newton’s book advocates
revolution, it could no more be regarded as a criminal
incitement than the Communist Manifesto could be. But
this underscores the difference between a book as a
whole and an arguably inflammatory nugget plucked
from it.
Not being experts in prison administration, but aware
of the security problems in American prisons, judges
sensibly defer within broad limits to the judgments of
prison administrators. Florence v. Board of Chosen Free-
holders of County of Burlington, 132 S. Ct. 1510, 1515-16
(2012); Beard v. Banks, 548 U.S. 521, 528 (2006); Overton
v. Bazzetta, 539 U.S. 126, 131-32 (2003) (plurality opin-
ion); Van den Bosch v. Raemisch, 658 F.3d 778, 786 (7th
Cir. 2011); Singer v. Raemisch, 593 F.3d 529, 533-34
(7th Cir. 2010); Norwood v. Vance, 591 F.3d 1062, 1066-67
(9th Cir. 2010). The connection between the plain-
tiff’s copying the Ten-Point Program from To Die for the
People and gang activity may seem tenuous, but the
defendants argue that the likeliest reason the plaintiff
copied the Ten-Point Program was to show it to
inmates whom he hoped to enlist in a prison gang, a
local cell as it were of the Black Panthers; the Ten-
Point Program would be the gang’s charter.
6 No. 11-3914
This is merely a supposition, but it is not so implausible
that we can dismiss as groundless the prison’s concern
with the plaintiff’s possession of a copy of the Ten-
Point Program. That concern is bolstered by a substantial
affidavit by the prison’s “Gang Coordinator,” Bruce C.
Muraski. Here are some of the highlights of his
affidavit and that of Warden Thurmer:
In the United States, two main organizations that
monitor intolerance and hate groups are the Anti-
Defamation League (ADL) and the Southern Poverty
Law Center (SPLC) [and they] have deemed the New
Black Panther Party as a hate group…. [T]here would
be no other purpose . . . in the Ten-Point Program other
than recruiting group members and establishing,
reinforcing and maintaining an organizational struc-
ture for furthering gangs . . . . If left unchecked, the
dissemination of a document such as the Ten-Point
Program that was seized from the plaintiff could
lead to the structuring and organizing of a gang
within the institution and represent a threat to the
security, orderly operation, discipline or safety of the
institution . . . . Isolating the Ten-Point Program from
these library books allows it to be taken out of context,
easily circulated and simultaneously possessed by
gang members and changed or adopted for the specific
needs and activities of the group . . . . [I]nmate Darius
Hopkins…was alleged to have unsanctioned security
threat group items in his cell, . . . [including] a hand-
written paper titled ‘Notes on African American
Leaders.’ This sheet of paper contained the 10-Point
Program, which was identical in content to the 10-Point
Program found in Toston’s cell on July 15, 2009 . . . .
No. 11-3914 7
Warden Thurmer believed that Hopkins attempted
to disguise the handwritten Ten-Point Program that
was found in his possession by placing a title on the
paper making it appear to be a historical writing.
Since Hopkins had other materials in his cell related
to unsanctioned groups, it could be concluded
that Hopkins’ intent in possessing the Ten-
Point Program was also gang/unsanctioned group-
related . . . . Hopkins received 210 days of disciplinary
separation . . . . Hopkins is an identified member
of the Almighty Black P. Stones, which is also an
unsanctioned group.
At least a third of the inmate population of the prison
is affiliated with gangs and the plaintiff himself is
believed to be a member of the Gangster Disciples.
Confiscating the plaintiff’s copy of the Ten-Point Pro-
gram limited free speech only very slightly. Freedom of
speech does imply freedom to read. Stanley v. Georgia, 394
U.S. 557, 565 (1969); King v. Federal Bureau of Prisons, 415
F.3d 634, 638 (7th Cir. 2005) (“forbid a person to read
and you shut him out of the marketplace of ideas and
opinions that it is the purpose of the free-speech clause
to protect”). But does it also imply freedom to copy?
That freedom is limited by copyright law and by norms
against plagiarism, without the law or the norms being
thought to present First Amendment issues. Freedom
of speech is not absolute, and the curtailment challenged
in this case is slight and the justification adequate,
though not ample.
The plaintiff’s due process claim, to which we now
turn, is that the prison should have notified inmates
8 No. 11-3914
that they were not to copy certain passages from books
they checked out from the prison library; for the
plaintiff could not have anticipated that copying was
forbidden. The reference to “gang literature” in the Wis-
consin Administrative Code would not have alerted him
to the unlawfulness of copying the Ten-Point Program
from a book he was permitted to buy. There is no
evidence, only suspicion, that his motive in copying the
Ten-Point Program was gang-related.
A deprivation of liberty without fair notice of the
acts that would give rise to such a deprivation violates
the due process clause, but was there a deprivation of
liberty? A sanction of segregated confinement means
moving an inmate from the general prison population to
the near equivalent of solitary confinement. That is a
change in the character rather than length of confine-
ment, and is unlikely to be deemed a deprivation of
liberty (the inmate having already been lawfully deprived
of his liberty) unless the period of segregated confine-
ment is protracted, Rowe v. DeBruyn, 17 F.3d 1047, 1053-
54 (7th Cir. 1994); Williams v. Fountain, 77 F.3d 372, 374 n. 3
(11th Cir. 1996), or the conditions in segregation unusu-
ally harsh. E.g., Wilkinson v. Austin, 545 U.S. 209, 221-24
(2005); Marion v. Columbia Correctional Institute, 559
F.3d 693, 696-99 (7th Cir. 2009); Lekas v. Briley, 405 F.3d
602, 610-13 and n. 7 (7th Cir. 2005). The district judge
made no findings that would enable an inference that
the plaintiff’s 90-day sentence to segregation was, or was
not, a deprivation of liberty within the meaning of the
cases. So while affirming the grant of summary judgment
in favor of the defendants with regard to the plaintiff’s
No. 11-3914 9
free-speech claim, we vacate the dismissal of his due
process claim and remand the case for further pro-
ceedings concerning it.
A FFIRMED IN P ART,
V ACATED AND R EMANDED IN P ART.
8-2-12