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