Christopher Lane v. Kevin L. Winter

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3373
C HRISTOPHER L ANE, K RISTOPHER K RAS, and T IMMY L URZ,
Plaintiffs-Appellants,
v.
T ARRY W ILLIAMS, F OREST A SHBY, and S HAN JUMPER,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:07-cv-03332-HAB-CHE—Harold A. Baker, Judge.
A RGUED JUNE 4, 2012—D ECIDED A UGUST 24, 2012
Before K ANNE, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. The plaintiffs were convicted
of sex crimes and completed their sentences years ago,
but they remain in state custody as civil detainees
pursuant to Illinois’ Sexually Violent Persons Commit-
ment Act, 725 ILCS 207/1-99. Proceeding pro se, and
then with the assistance of appointed counsel, the
plaintiffs asserted a variety of claims under 42 U.S.C.
2 No. 11-3373
§ 1983 alleging constitutional problems with the condi-
tions of their confinement at Rushville Treatment and
Detention Center. On appeal, only two issues remain:
(1) whether due process requires input from health pro-
fessionals prior to restricting opportunities for in-
person association among Rushville’s six 75-person units
and (2) whether the First Amendment entitles detainees
to use the facility’s internal mail system instead of the
U.S. mail to exchange letters with other detainees. The
district court granted summary judgment for the defen-
dants. We review the district court’s grant of summary
judgment de novo, viewing the facts in a light most
favorable to the nonmovant, and drawing all reasonable
inferences in that party’s favor. Kuhn v. Goodlow, 678
F.3d 552, 555 (7th Cir. 2012). Summary judgment is ap-
propriate “when the movant shows that there is no gen-
uine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law.” Id.
(quoting Fed. R. Civ. P. 56(a)). We affirm.
The Sexually Violent Persons Commitment Act autho-
rizes detention of individuals who have been ad-
judicated a “sexually violent person” or “SVP,” which
requires, among other things, evidence that the person
“suffers from a mental disorder that makes it sub-
stantially probable that the person will engage in acts
of sexual violence.” 725 ILCS 207/5(f). Civil commitment
of this sort lasts until the detainee is “no longer a
sexually violent person.” 725 ILCS 207/40(a). Commit-
ment under the Act is civil and so may be for purposes
such as incapacitation and treatment, but not punish-
ment. See, e.g., Allison v. Snyder, 332 F.3d 1076, 1079 (7th
No. 11-3373 3
Cir. 2003). And, as a general matter, “[p]ersons who have
been involuntarily committed are entitled to more con-
siderate treatment and conditions of confinement than
criminals whose conditions of confinement are designed
to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982).
The plaintiffs do not allege that they are being uncon-
stitutionally punished, but, as mentioned, that their
constitutional rights are nonetheless violated by the
limitations imposed on their ability to interact with
other detainees, in-person and by letter. These claims
appear to be a product of the plaintiffs’ dissatisfaction
with Rushville’s basic setup. Before Rushville, where
Illinois’ SVP population moved in 2006, SVPs were held
at a facility in Joliet that allowed them to mix more
freely. Even if that helps us understand the plaintiffs’
claims, that contrast is not material; the issues before
us concern the current situation at Rushville.
The Rushville facility is divided into six units—Alpha,
Baker, Charlie, Delta, Echo, and Fox—and each unit has
three living areas (“pods”), except Fox, which has four.
Approximately 25 detainees live in each pod. At the
suggestion of clinical staff, the units house different
types of detainees: Alpha and Baker are for detainees
who accept treatment, and Charlie and Delta are for
those who do not; Echo is for detainees with special
medical needs; Fox is for detainees with “chronic
behavior problems, typically some type of aggression or
intimidating violent behavior potential.” All detainees
are in their pods most of the time—in their rooms or
the pod’s common room. But a detainee’s social universe
4 No. 11-3373
does not end at his pod’s edge. For an hour each day,
detainees may go to the gym as a unit. Also as a unit,
detainees have a daily hour or two of outdoor “yard
time.” On weekends, units are allowed to mingle during
yard time—Alpha with Baker; Charlie with Delta and
Echo; and sometimes Echo with Fox. There is group
treatment for several hours each week, and groups are
not set by unit. Outside the normal weekly schedule,
detainees from different units can meet and socialize
at bimonthly movie nights, three summer picnics, a
band performance, and a Christmas concert. And,
finally, there are occasional chance encounters with
detainees from other units during transport to outside
appointments. So, setting aside special events and
chance encounters, Rushville detainees have oppor-
tunities to associate in-person with approximately one-
hundred and fifty detainees each week. As for written
communications inside Rushville, detainees are allowed
to pass letters within their units, but they have to use
the U.S. mail to write to detainees in other units.
In-Person Association Claim. The plaintiffs assert a
right to have the limits on their opportunities to associate
face-to-face with detainees in other units set by a health
professional. Health professionals decide how detainees
are grouped in particular units and pods, but security
officials have set the limits on association among units—
for example, that Baker will not have yard time with
Delta or Echo. The plaintiffs’ expert explained that one
of the purposes of sex offender treatment is to teach
appropriate social interaction. To do that, he thinks
that detainees should be exposed to the kind of “spontane-
No. 11-3373 5
ous” social interactions they will face outside the
facility rather than the limited interactions they are per-
mitted within their pods and units. The plaintiffs’
expert recognizes that restrictions will be necessary
for security, but he believes that the current restrictions
are too severe and fall below minimum standards for
sex offender treatment.
The plaintiffs’ in-person association claim rests on
Youngberg. In Youngberg, the Supreme Court considered
the substantive due process rights of involuntarily com-
mitted mentally retarded persons and held that they
have a right to “conditions of reasonable care and safety,
reasonably nonrestrictive confinement conditions, and
such training as may be required by these conditions.”
457 U.S. at 324. The Court recognized that these rights
are in tension, because, for example, safety and training
may require restraint, and so balancing is required. But
whether the state properly balanced rights to safety,
care, freedom from restraint, and training was not left
to the “unguided discretion of a judge or jury.” Id. at
321. Rather, the constitutional requirement is that prof-
essional judgment be exercised. In particular, decisions
about what constitutes “minimally adequate training”
must be made by an appropriate professional. If that
is done, the professional’s treatment decision will be
presumptively valid and offend the Constitution only
if it is such “a substantial departure from accepted pro-
fessional judgment, practice or standards as to demon-
strate” that it was not, in fact, based on professional
judgment. Id. at 323. Extending Youngberg to cover those
committed because they are sexually violent, we sum-
6 No. 11-3373
marized the treatment rule this way: “(a) committed
persons are entitled to some treatment, and (b) what
that treatment entails must be decided by mental-
health professionals.” Allison, 332 F.3d at 1081.
The plaintiffs in this case wisely do not argue that the
limits on interaction among some of the units is intended
to inflict punishment, see id. at 1079, or is not a legiti-
mate security measure, see West v. Schwebke, 333 F.3d 745(7th Cir. 2003), and understand that they can prevail only
if the contested restrictions on association are treatment
decisions. As explained, treatment decisions require
an exercise of professional judgment, and there is no
serious argument that the contested restrictions are
the product of that—the absence of a protest by
health professionals is not an exercise of professional
judgment subject to deference under Youngberg. It cannot
be, however, that all decisions that have an impact on
detainees are treatment decisions. Many policies and
practices at a facility like Rushville reflect what the
state can afford, what the site will allow, and what
security requires; the fact that such policies and practices
may frame opportunities for treatment does not make
them treatment. Of course, security or other administra-
tive decisions could so interfere with treatment that
the conditions of confinement no longer “bear some
reasonable relation to the purpose for which persons
are committed,” Seling v. Young, 531 U.S. 250, 265 (2001),
and that could violate due process. That, however, is
not this case.
Simply put, “Youngberg holds that, under the due
process clause, detainees are entitled to non-punitive
No. 11-3373 7
programs designed using the exercise of professional
judgment,” Allison, 332 F.3d at 1080; it does not hold
that every aspect of civil commitment must be evaluated
as a treatment program. In Allison, for example, SVPs
claimed their commitment violated due process because
(1) they were confined at a prison and (2) their treat-
ment involved group sessions in which they were forced
to confess their crimes. Id. at 1078. The second claim
was analyzed according to the Youngberg “profes-
sional judgment” rule and was rejected because profes-
sional judgment was in fact exercised; the first claim,
by contrast, was not about treatment, but only whether
confinement in a prison amounted to punish-
ment—no mental health professional had to endorse
that decision or decide how much contact the SVPs
could have with the general prison population. Id. at 1079.
West v. Schwebke, 333 F.3d at 745, illustrates the same idea.
In West, SVPs were placed in “therapeutic seclusion” for
long stretches—82 days for one detainee—and were
allowed out for only an hour a day and not at all on
weekends. Id. at 747. The Youngberg question was whether
this “treatment” could be defended either on security
grounds or as an exercise of professional judgment. In
affirming the denial of summary judgment for the de-
fendants, we emphasized that “if at trial defendants can
establish that their use of seclusion was justified on
security grounds, they will prevail without regard to the
question whether extended seclusion is justified as treat-
ment.” Id. at 748. A justified security policy is not, there-
fore, properly viewed as a treatment program that must
be supported by an exercise of professional judgment.
8 No. 11-3373
And that is so even if the security policy limits opportuni-
ties for treatment. In this case, the plaintiffs do not
argue that the limit on interaction among units is not a
justified security decision, but only that the decision had
to be made—in the first instance at least—by a health
professional. That, however, is wrong: Security decisions
do not violate Youngberg just because they restrict treat-
ment options. As here, where there has been no
showing (or even an argument) that a security decision
is unjustified on security grounds, we will not leap to
the conclusion that its impact on treatment is enough
to make it a treatment decision subject to Youngberg’s rule.
Internal Mail Claim. Detainees are permitted to pass
notes and letters within their units. If a detainee wants
to send a letter to a detainee in another unit, he must
use the U.S. mail. The plaintiffs argue that the First
Amendment entitles them to use Rushville’s internal
mail system, sometimes called “inner mail,” for that
purpose. Currently, inner mail is used for staff to com-
municate with each other and for detainees to communi-
cate with staff, but detainees are not allowed to use it to
communicate with each other. We will assume that
from the detainees perspective inner mail would be at
least as good as U.S. mail and potentially much nicer.
The U.S. mail can be slow and stamps cost 45 cents;
inner mail could be fast and free (for the detainees,
at least).
The parties disagree about the legal standard ap-
plicable to this First Amendment claim. The defendants
suggest, implausibly, that the plaintiffs would be entitled
No. 11-3373 9
to an injunction only if Rushville’s mail policy shocks the
conscience by, for instance, inflicting punishment. The
plaintiffs recommend that we apply the standard set out
in Turner v. Safley, 482 U.S. 78, 89 (1987): “when a prison
regulation impinges on inmates’ constitutional rights,
the regulation is valid if it is reasonably related to legiti-
mate penological interests.” The plaintiffs recognize
that this standard is used for prisoners’ claims, and so
believe that a less stringent standard should apply to
them as civil detainees, but they do not think we need
to articulate that less stringent standard because, as they
see it, they win under Turner. That is the standard the
district court applied, and it is the standard that other
district courts in this circuit have applied to constitu-
tional claims by civil detainees. Smego v. Ashby, No. 10-CV-
3240, 2011 WL 6140661, at *3 (C.D. Ill. Dec. 9, 2011);
Hedgespeth v. Bartow, No. 09-cv-246, 2010 WL 2990897, at *6
(W.D. Wis. July 27, 2010).
Because Turner tells courts to consider the challenged
regulation in relation to the government’s legitimate
interests, it would not be too difficult to adapt its
standard for claims by civil detainees. To do so, courts
would only have to recognize the different legitimate
interests that governments have with regard to pris-
oners as compared with civil detainees. In this appeal,
however, we do not have to decide whether and, if so,
how to make such an adjustment to the Turner standard.
Any standard that we would apply, including Turner,
would require that the challenged policy at least “impinge”
on the detainees’ constitutional rights. See Turner, 482
U.S. at 89. Here, there is no impingement, but only a
10 No. 11-3373
demand for a better way to communicate with detainees
outside their units—a way better than the U.S. mail. There
is, after all, a system in place for communication among
staff and for detainee communication with staff, and
the plaintiffs see no reason that they should not be
allowed to use that system for their own purposes. But
that is nothing more than a recommendation for the
officials at Rushville to consider—a suggestion about
how operations at the facility could be improved; it
does not state a constitutional claim. As maligned as the
United States Postal Service may be, there is no First
Amendment right to a means of sending letters superior
to the one it provides.
A FFIRMED.
W OOD , Circuit Judge, concurring in part and dissenting
in part. Although I join the court’s conclusion that the
plaintiffs’ “internal mail claim” falls short as a matter of
law, I regret that I do not share their assessment of the
“in-person association claim.” At root, this claim is about
the plaintiffs’ right to treatment for their condition;
it is what distinguishes them from prisoners. Even if
security concerns trump almost all other constitutional
interests of convicted criminals, the same is not true of
No. 11-3373 11
those suffering from a mental disorder. As I explain
below, I do not believe that the naked incantation of
the word “security” is enough to relieve the staff at the
Rushville Treatment and Detention Center of its duty to
exercise professional judgment when it makes decisions
that affect the rehabilitative aims of the facility. I would
reverse the district court’s grant of summary judgment
on this point, and thus, I respectfully dissent.
I
The plaintiffs are sexually violent persons (SVPs) who
have been civilly committed to the Rushville facility,
which is located in west central Illinois. The SVP designa-
tion means that the person “suffers from a mental
disorder that makes it substantially probable that the
person will engage in acts of sexual violence.” 725 ILCS
§ 205/5(f). Recognizing that this behavior stems from a
mental disease, the Illinois Department of Human
Services, Sexually Violent Persons Treatment and Deten-
tion Facility has as its stated mission the goal of pro-
viding “specialized treatment that promotes a personal
responsibility and pro-social behavioral change” so that
“[a]ll residents [may be] released and successfully
returned to their communities.” Illinois Department of
Human Services, Sexually Violent Persons Treatment and
Detention Facility, R ESIDENT H ANDBOOK 8 (August 2008).
Unfortunately, according to plaintiffs, these laudable
aims are far from being realized. Instead, plaintiffs say,
Rushville has adopted a policy under which their social
interaction is limited to the same 25 other patients for
12 No. 11-3373
between 20 and 22 hours a day, for practically the
entire duration of their commitment to the facility
(which often runs for years, if not decades). This severe
restriction on human interaction, they assert, stunts the
very treatment that should be the cornerstone of one’s
residency at Rushville.
In evaluating Rushville’s policy, we must not lose
sight of the legal justification for the detention of its
residents. As the Supreme Court has stated, civil commit-
ment may not “become a ‘mechanism for retribution or
general deterrence.’ ” Kansas v. Crane, 534 U.S. 407, 412
(2002) (quoting Kansas v. Hendricks, 521 U.S. 346, 372-
73 (1997) (Kennedy, J., concurring)). Indeed, because
Illinois’s SVP procedures “recommend[] treatment if
such is possible” and “permit[] immediate release upon
a showing that the individual is no longer dangerous or
mentally impaired,” it is beyond dispute that the
purpose of the plaintiffs’ detention is not punitive.
Hendricks, 521 U.S. at 368-69. Although the plaintiffs are
not free to leave Rushville until they are deemed cured,
they are not prisoners in the traditional sense; rather,
their commitment is meant to be rehabilitative and
aimed at the goal of their ultimate release.
It is against this backdrop that I turn to the plaintiffs’
claims in this case. They assert that even though undis-
puted testimony has established that “the ability of resi-
dents to engage in social interaction with a broad array
of other residents . . . is crucial to creating a positive
therapeutic atmosphere,” the Rushville facility has
decided to isolate the six housing units within Rushville
No. 11-3373 13
from each other without regard to these therapeutic
effects and without input from the clinical staff. The
majority has several responses to these allegations.
First, the majority questions the basic premise of the
plaintiffs’ argument: It questions whether Rushville’s
policies really have any effect on treatment, noting that
“[i]t cannot be . . . that all decisions that have an impact
on detainees are treatment decisions.” Ante at 6 (em-
phasis in original). This trivializes the plaintiffs’ point:
They are not saying that every decision, no matter how
inconsequential (bedtime at 9 pm, commissary hours, or
the like) is automatically a treatment decision. They are
saying, with the support of expert testimony, that the
particular policies they are challenging have a profound
impact on treatment, and they are saying that these
policies have not been developed with the proper pro-
fessional input.
The majority also suggests that even if the amount
of social interaction has an effect on the plaintiffs’ treat-
ment (a point we must assume as true at this stage of
the litigation), the “Rushville detainees have oppor-
tunities to associate in-person with approximately one-
hundred and fifty detainees each week.” Ante at 4.
This statistic, however, masks a much more troubling
reality: For all hours of the day except for, at most, four
hours, the plaintiffs spend all of their time with the
same 25 people (their pod-mates). Then, for two to
three hours per day, the plaintiffs get “yard” or “gym”
time, which they share with their unit. Practically,
during this recreational time the residents’ social circle
is expanded to include only the other two 25-person
14 No. 11-3373
pods in their unit. The patients also have small group
therapy for an average of less than one hour a day.
But once again, these episodic sessions are limited to
same small set of patients each time, and given the phil-
osophy dictating unit assignment, they probably do not
represent an increase in social interaction. The far
more sporadic encounters with people outside the unit
described by the majority (such as a movie every other
month, three summer picnics, and a Christmas concert)
add little, as the majority acknowledges. Ante at 4.
Importantly, as I have already noted, the plaintiffs
have presented unrebutted expert evidence suggesting
that the amount and nature of the actual (and undis-
puted) social interaction Rushville offers is inadequate
to promote their “release[] and successful[] return[] to
their communities. ”It is also telling that the efforts by
Rushville’s own clinical staff to increase the amount of
social interaction between patients have been quashed by
the facility’s administrative staff. This raises a crucial
threshold question that the majority’s analysis has over-
looked: Who is entitled to decide whether a policy is
(1) purely related to treatment, (2) purely related to
security, or (3) related to both?
One consequence of the important distinction be-
tween punitive incarceration and civil commitment is
that decisions that have more than an incidental impact
on the rehabilitative aims of a civil commitment facility
must be made with input from clinical professionals
(in addition to, rather than to the exclusion of, others
such as security experts). This requirement comes
No. 11-3373 15
straight from Youngberg v. Romeo, 457 U.S. 307 (1982), the
case that sets the rules for assessing the validity of
the policies set by civil commitment facilities. Youngberg
noted that the federal Constitution requires “that the
courts make certain that professional judgment in fact
was exercised.” 457 U.S. at 321 (emphasis added). Fol-
lowing that lead, we have similarly emphasized the
need for professional judgment in balancing “pro-
gress toward that goal that justified plaintiffs’ commit-
ment” and “institutional security.” Johnson by Johnson
v. Brelje, 701 F.2d 1201, 1209 (7th Cir. 1983); see also
Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003).
The majority argues that our decision in West v.
Schwebke, 333 F.3d 745 (7th Cir. 2003), obviated the need
for any such clinical input; it focuses on the statement
that “ ‘if at trial defendants can establish that their use
of seclusion was justified on security grounds, they
will prevail without regard to the question whether
extended seclusion is justified as treatment.’ ” Ante at 7
(quoting Schwebke, 333 F.3d at 748). But this overlooks
the fact that in Schwebke we also emphasized the need
for “considered judgment,” 333 F.3d at 748, and so we
actually remanded to the district court to determine
whether the policy at issue was, in fact, justifiable on
either security or treatment grounds. 333 F.3d at 748-49
(noting conflicting evidence on whether policy was
“appropriate from a security perspective”). Because it
was an open question whether the policy was justifiable
on security or treatment grounds, we had no occasion
to reach the issue of who was entitled to make such a
determination and whether a policy affecting treatment
16 No. 11-3373
can be re-branded—without any input from a clinical
professional—as one that is only security-related.
One powerful reason to reject a reading of Schwebke
that implies that the word “security,” once uttered by
the administrative staff of a civil commitment facility to
justify a policy, trumps all treatment needs, is that such
a ruling would be inconsistent with the Supreme
Court’s directives in Crane and Youngberg. This is not to
say that security does not have an important role to play
in facilities such as Rushville; it is merely to recognize
that security and treatment goals both have a part to
play. The job of reconciling these two interests does not
belong to the courts. To the contrary, it is precisely
because courts are ill-equipped to “second-guess the
expert administrators on matters on which they are
better informed,” Youngberg, 457 U.S. at 323 (quoting
Parham v. J.R., 442 U.S. 584, 607 (1979)), that the Supreme
Court held that qualified professionals from both the
security and the treatment sides must have a say in
matters that simultaneously implicate both treatment
and security.
Summary judgment in the defendants’ favor can be
justified only if the clinical staff at Rushville either
(1) acceded to the view that the facility’s social interac-
tion policy does not implicate substantial rehabilitative
concerns (a professional judgment that we would review
under Youngberg’s deferential standard) or (2) have had
an appropriate amount of input into a decision-making
process that balances the rehabilitative concerns against
the security and administrative interests of the facility.
A policy that emerged from such a process would pass
No. 11-3373 17
muster so long it complied with minimum professional
standards and was otherwise constitutional. Thus, al-
though it may be true that “[s]ecurity decisions do not
violate Youngberg just because they restrict treatment
options,” ante at 8, security decisions that restrict treat-
ment options without any input from clinical staff do
violate Youngberg. The majority appears to concede that
the clinical staff neither agreed that the social inter-
action policy had nothing to do with rehabilitation nor
did it have any input into the policy. Ante at 6 (“[T]here
is no serious argument that the contested restrictions
are the product of [the exercise of professional judg-
ment]”); ante at 8 (adopting flat rule that security deci-
sions never violate Youngsberg only because “they re-
strict treatment options”). That is why this aspect of
the case should be moving forward.
The undisputed facts in the record before us are
not sufficient to permit a judgment on the question
whether the policies challenged in this case were valid.
There is a material question of fact on the question
whether Dr. Jumper, Rushville’s Clinical Director, made
a reasoned professional judgment that he and his staff
had no need to participate in the process that set the
policy regarding social interaction among units. Dr. Jumper
insisted in his deposition that he “is not involved in
the decisions regarding which units use yard,” that “no
one on the clinical staff is involved in that decision”
and that he is “not involved in any of the decisions re-
garding who goes on the yard.” He has changed his
tune a bit in his brief, where he now says that his “decision
not to be involved . . . was in fact evidence of his
18 No. 11-3373
exercise of discretion.” But it is well-established that
people cannot rewrite or revise their depositions in
later affidavits or briefs. In addition, the plaintiffs have
presented other evidence that the clinical staff tried to
change the social interaction policies but their efforts
were rebuffed. Contradictorily, Dr. Jumper testified
that “clinical reasons” are “irrelevant” because “the
operational needs of the facility would supercede.” This
evidence might be interpreted by a reasonable jury in
either of two ways: They might conclude that Dr. Jumper
did not consider the clinical impact of the security
policy, but they might equally infer that Rushville had
put him in his place, and he knew that he and his
clinical staff were excluded from the decision-making
process by its operational staff.
The extent of the clinical staff’s participation in the
decision-making process is also highly contested. The
plaintiffs have presented significant evidence sug-
gesting that clinical staff had little, if any, input into
policy decisions regarding social interaction, and that
their suggestions often fell on deaf ears. They have evi-
dence suggesting that no clinical staff member was in-
volved in yard time decisions, that clinicians expressed
serious doubts about the administrative personnel’s
decisions to decrease unit interaction, and that their
suggestions to increase social interaction were
unapologetically rejected by security staff. In response,
Rushville argues that the clinical staff’s input into
placing new residents into their respective housing
units and pods is an adequate substitute for input into
setting the overall policies. Again, a trier of fact might
No. 11-3373 19
ultimately conclude (depending on how much mean-
ingful interaction occurred) that such an initial assess-
ment is adequate to compensate for the clinical staff’s
ongoing inability to effect change in the social interaction
policies, but it is not our role to resolve that issue. In
light of this evidence, I cannot conclude that summary
judgment was appropriate on this claim. A reasonable
fact-finder could find that Dr. Jumper and his clinical
staff were excluded from a decision-making process
to which they should have been party. This claim
should proceed to trial.
II
As I noted at the outset, I join my colleagues’ assessment
of the plaintiffs’ “internal mail” claim. The requirement to
use the United States Postal Service for inter-unit mail
is not a sufficiently substantial “impingement” of the
detainees’ constitutional rights. This is not a case like
Lindell v. Frank, 377 F.3d 655 (7th Cir. 2004), where the
challenged policy (there, a publishers-only restriction)
clearly violates an expressive right. Nothing in this
policy limits the inmates’ ability to communicate, or
imposes a content- or viewpoint-based restriction on
their correspondence.
* * *
For these reasons, I respectfully D ISSENT from the court’s
resolution of the “in-person association” claim, which
I would remand for further proceedings.
8-24-12