Jackson, Jevon v. Pollard, William

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2006*
Decided November 2, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-3000
JEVON JACKSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 05-C-711
WILLIAM POLLARD, Warden & J.P. Stadtmueller,
MATTHEW J. FRANK, Secretary, Judge.
Defendants-Appellees.
ORDER
Jevon Jackson filed a civil rights action under 42 U.S.C. § 1983 against
William Pollard, the Warden of Green Bay Correctional Institution (“GBCI”), and
Matthew Frank, the Secretary of the Wisconsin Department of Corrections (“DOC”).
Jackson, a GBCI inmate, alleged that his First Amendment rights were violated
when prison officials refused to deliver to him two pieces of mail: (1) a catalog that
accepted as payment unused first class postage stamps; and (2) a hard copy of an
e-mail responding to his personal profile on an Internet-based pen pal service. The
*
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
record. See Fed. R. App. P. 34(a)(2).
No. 06-3000 Page 2
district court granted summary judgment for Pollard and Frank. We affirm in part,
and vacate and remand in part.
The following facts are undisputed. Beginning in November 2004, Jackson
(with the assistance of non-incarcerated family members) listed his personal profile
on the Internet site “Inmate Connections.” For $40 a year, Inmate Connections will
publish on the Internet a “professionally-designed, full-color” profile of inmates that
prospective pen pals can access to obtain their contact information. If the inmate
prefers, the service will also print and send to the inmate the “first e-mail letter
from each pen pal”; after that, the pen pal and inmate write to each other directly.
Jackson did not violate DOC regulations by having a profile listed on Inmate
Connections because DOC has no regulation prohibiting Wisconsin inmates from
having a personal web page. It also has no regulation barring inmates from
receiving handwritten responses to their personal web pages, and inmates may
receive e-mail print-outs unrelated to personal web pages as long as they are
printed on 8½" by 11" paper. See DOC 309 IMP 1, 4. During his prison term,
Jackson has received handwritten letters “from three different people” in response
to his profile but only one (undelivered) e-mail printout.
In 2005 GBCI refused to deliver to Jackson two pieces of mail: a catalog from
Mamarazzi, Inc., a company that accepts United States postage stamps as payment
for items it sells, and a letter from Inmate Connections containing a hard copy of an
e-mail responding to Jackson’s profile. In response, Jackson filed an offender
complaint challenging the non-delivery of the catalog. The prison’s inmate
complaint examiner dismissed the complaint on the basis that DOC regulations at
the time prohibited mail from companies that accept postage stamps as payment.
Jackson did not appeal this decision. Instead, three months later he attempted to
revive his original complaint by stating that he had additional reasons as to why
the non-delivery was improper. The inmate complaint examiner rejected this
renewed attack on the basis that it impermissibly re-raised the challenge that
already was decided in Jackson’s first complaint. See Wis. Admin. Code § DOC
310.11(5)(g). Jackson appealed the rejection of his second complaint and Warden
Pollard affirmed, making the decision final. See id. § DOC 310.11(6). In another
complaint, Jackson also challenged the non-delivery of the Inmate Connections e-
mail, which the inmate complaint examiner dismissed because prison regulations
prohibit “Internet material or e-mail from inmate personal web pages.” See id.
§ 306.04(4)(c)(5); DOC 309 IMP 1, 4. Jackson appealed this finding, and Pollard
again affirmed.
Jackson then filed his civil rights suit against Pollard and Frank, claiming
that his First Amendment rights were violated when GBCI refused to deliver the
Mamarazzi catalog and Inmate Connections letter. In granting summary judgment
for Pollard and Frank, the district court ruled that, because Jackson did not appeal
No. 06-3000 Page 3
the dismissal of his first offender complaint challenging the non-delivery of the
Mamarazzi catalog, he failed to properly exhaust his administrative remedies as to
that claim. According to the district court, the fact that Jackson failed to exhaust
his administrative remedies for his first offender complaint also doomed his second
offender complaint; because Jackson’s second complaint was an attempt to revive
his initial—and unexhausted—claim, the second complaint also must be dismissed
for failure to exhaust administrative remedies.
The court also concluded that GBCI’s non-delivery of Jackson’s Inmate
Connections letter did not violate his First Amendment rights because the DOC
regulations prohibiting the delivery of e-mail responses to an inmate’s personal web
page passed the test expressed in Turner v. Safely, 482 U.S. 78 (1987). Turner
requires a party challenging the constitutionality of a prison regulation to
demonstrate four points, only one of which is pertinent to this appeal: that there is
no rational connection between the regulation and the legitimate penological
interest advanced as its justification. See id. at 89-91. In concluding that there was
a rational connection between the prohibition of e-mail responses to personal web
pages and legitimate penological interests, the district court relied solely on the
affidavit of Daniel Westfield, the DOC Security Chief. As relevant here, Westfield
attested that the regulations existed to: (1) protect the public from inmates who will
“victimize a person that may be susceptible to manipulation from an inmate with
criminal intentions”; and (2) “further DOC’s interest in efficient management and
preserving scarce resources” which would be depleted by the delivery of a possibly
large volume of Internet materials or e-mails responding to inmates’ web pages.
On appeal, Jackson argues that the district court improperly granted Pollard
and Frank summary judgment. He asserts that the district court erred by
determining that he failed to exhaust his administrative remedies as to his initial
and subsequent complaints challenging the non-delivery of the Mamarazzi catalog.
He also argues that there is a genuine factual dispute over whether the regulations
prohibiting inmates from receiving e-mail responses to their personal web sites are
rationally related to the penological interests of protecting the public and
preserving prison resources. We review the district court’s grant of summary
judgment de novo, Johnson v. Doughty, 433 F.3d 1001, 1009 (7th Cir. 2006) (citation
omitted), and examine whether the moving parties—that is, Pollard and
Frank—demonstrate that “there is no genuine issue as to any material fact” that
they are entitled “to judgment as a matter of law,” Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Johnson, 433 F.3d at 1009.
We can quickly dispose of Jackson’s claim that he exhausted his
administrative remedies when challenging the non-delivery of the Mamarazzi
catalog. Jackson candidly admits that he did not appeal his first offender complaint
challenging the non-delivery of the catalog; he thus failed to exhaust his
No. 06-3000 Page 4
administrative remedies as to that complaint. See 42 U.S.C. § 1997e(a); Wis.
Admin. Code DOC §§ 310.05, 310.07(5); Dixon v. Page, 291 F.3d 485, 489-91 (7th
Cir. 2002). Jackson’s second complaint was merely an attempt to resurrect his
unappealed and unexhausted challenge to the non-delivery of the catalog. Because
the prison’s administrative procedures prohibited Jackson from attempting to
exhaust by renewing an already-decided complaint, see Wis. Admin. Code DOC
§ 310.11(5)(g), the district court properly dismissed as unexhausted Jackson’s
challenge to the non-delivery of the catalog.
The district court, however, erred by granting summary judgment to Pollard
and Frank on Jackson’s First Amendment claim regarding the non-delivery of the
Inmate Connections letter. Inmates retain a First Amendment right to receive
information through the mail, see Beard v. Banks, 126 S. Ct. 2572, 2576-79 (2006)
(citing Turner, 482 U.S. at 84), but it is a right that can be restricted by prison
regulations that are “reasonably related to legitimate penological interests,” Turner,
482 U.S. at 89; Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). Although the
ultimate burden of persuasion with regard to the unreasonableness of a regulation
resides with the inmate, see Overton v. Bazzetta, 539 U.S. 126, 132 (2003), the
defendant administrators must “put forward” the legitimate governmental interest
alleged to justify the regulation, Turner, 482 U.S. at 89, and “‘demonstrate’ that the
policy drafters could rationally have seen a connection between the policy and [that
interest],” Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir. 2002) (internal quotations
and citation omitted).
Protecting the general public is a legitimate penological interest, see, e.g.,
Altizer v. Deeds, 191 F.3d 540, 549 (4th Cir. 1999), and we afford great deference to
prison administrators’ “expertise” when they proffer such justifications for prison
regulations, see Koutnik v. Brown, 456 F.3d 777, 785 (7th Cir. 2006) (citing
Procunier v. Martinez, 416 U.S. 396, 405 (1974)). But a regulation cannot stand if
“the logical connection between the regulation and asserted goal is so remote as to
render the policy arbitrary or irrational.” Turner, 482 U.S. at 89-90; see also Jones
v. Brown, 461 F.3d 353, 360 (3d Cir. 2006); Prison Legal News v. Lehman, 397 F.3d
692, 699 (9th Cir. 2005) (“[I]f a regulation is not rationally related to a legitimate
and neutral governmental objective, a court need not reach the remaining three
factors [of the Turner test].”).
Under these standards, Jackson has raised a genuine issue of material fact
as to whether the regulation prohibiting delivery of printed e-mail responses to
personal web pages rationally advances the goal of protecting the public. It is
undisputed that DOC regulations allow inmates to: (1) have personal web pages;
(2) receive handwritten correspondence in response to their personal web pages;
(3) receive Internet materials and e-mail unrelated to personal web pages so long as
they are printed on 8½" by 11" paper; and (4) communicate with the general public
No. 06-3000 Page 5
through other pen pal organizations. As Jackson points out, this evidence shows
that inmates can potentially manipulate the public: (1) through their personal web
pages; (2) by soliciting and receiving non-electronic responses to those web pages;
(3) by responding to other e-mail deliveries unrelated to personal web pages; and
(4) by otherwise contacting the public through existing pen pal organizations.
Westfield offered evidence—in the form of an undeveloped conclusion—that
prohibiting inmates from receiving e-mail responses to personal web pages protects
the public. But a bare conclusion—even from a prison official—is insufficient to
compel a factual conclusion that the prison regulations promote public protection in
the face of contrary evidence. See Palmer v. Marion County, 327 F.3d 588, 596 (7th
Cir. 2003) (“The object of [Rule 56(e)] is not to replace conclusory allegations of the
complaint or answer with conclusory allegations of an affidavit.” (citing Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990))); Wolf, 297 F.3d at 308 (stating that
justification for prison policy “must ‘amount[] to more than a conclusory assertion.’”
(quoting Waterman v. Farmer, 183 F.3d 208, 218 n.9 (3d Cir. 1999))); cf. Zenith
Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 419-20 (7th Cir. 2005) (“‘An
expert [witness] who supplies nothing but a bottom line supplies nothing of value to
the judicial process.’” (quoting Mid-State Fertilizer Co. v. Exchange Nat’l Bank, 877
F.2d 1333, 1339 (7th Cir. 1989))). Westfield’s affidavit does not explain how
prohibiting the delivery of printed e-mail responses to personal web pages
materially advances public protection when, as Jackson’s evidence shows, inmates
may freely influence the public by soliciting and receiving from the public
handwritten responses to the inmates’ personal web pages. Accordingly, there is a
genuine factual dispute about whether the challenged regulation advances the goal
of public protection in a non-arbitrary manner.
Also in genuine dispute is Westfield’s conclusory assertion that the
regulations preserve prison mail room resources by ensuring a low volume of mail.
At least one federal circuit court has rejected this justification on the ground that
prohibitions on receiving Internet and e-mail printouts are, by themselves, an
“arbitrary way to achieve a reduction in mail volume.” See Clement v. Cal. Dep’t of
Corrs., 364 F.3d 1148, 1152 (9th Cir. 2003); cf. Morrison v. Hall, 261 F.3d 896, 903-
04 (9th Cir. 2001) (holding that prohibiting mail solely because of the postage rate
at which the mail was sent “is an arbitrary means of achieving the goal of volume
control”). Jackson’s experience reveals the arbitrariness underlying the regulation
at issue here—he received three handwritten responses to his Inmates Connection
profile but just one (undelivered) e-mail response. Westfield’s unexplained
conclusion that allowing hard-copies of e-mail responses to Internet profiles might
increase mail volume, while allowing handwritten responses would not, fails to
eliminate the factual dispute created by Jackson’s personal experience. Under
these circumstances, there is a triable issue as to whether banning e-mail responses
preserves prison mail room resources in a non-arbitrary manner.
No. 06-3000 Page 6
We accordingly AFFIRM the district court’s grant of summary judgment as to
Jackson’s claim regarding the non-delivery of the Mamarazzi catalog, but VACATE
and REMAND the court’s grant of summary judgment as to Jackson’s claim
regarding the non-delivery of the Inmate Connections letter.