Koutnik, Joseph D. v. Brown, Lebbeus

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 19, 2006*

Decided July 24, 2006

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

No. 05-4473

JOSEPH D. KOUTNIK, Appeal from the United States District

Plaintiff-Appellant, Court for the Western District of Wisconsin

v. No. 04-C-911-C

LEBBEUS BROWN, et al., Barbara B. Crabb,

Defendants-Appellees. Chief Judge.

ORDER

Wisconsin inmate Joseph Koutnik brought this suit under 42 U.S.C. § 1983,

claiming that several prison officials violated his First Amendment rights by

preventing him from sending a letter containing illustrations to someone outside

the prison. He first challenged a state policy preventing prisoners from possessing

gang paraphernalia; next he challenged his restricted access to the mail. The

district court dismissed Koutnik’s first claim and granted summary judgment

against him on his second claim. 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. 05-4473 Page 2

The facts are undisputed. Defendant Lebbeus Brown is a supervisory officer

and a “disruptive groups coordinator,” trained to identify street gangs operating

within the prison. While reviewing incoming and outgoing mail for gang-related

content, Brown screened Koutnik’s letter and refused to mail it because he believed

that the illustrations contained in the letter were gang-related, in violation of

Wisconsin Administrative Code §§ DOC 303.20(3), 309.04(4)(c)(10). As relevant

here, that policy prohibits prisoners from possessing “any gang literature,” id.

§ DOC 303.20(3), and states that the “department may not deliver incoming or

outgoing mail if it . . . [t]eaches or advocates illegal activity, disruption, or behavior

consistent with a gang or a violent ritualistic group,” id. § DOC 309.04(4)(c)(10).

Koutnik’s drawing depicted a 24-hour clock with hands pointing to 19, 3, and

18—numbers that Brown interpreted to correspond with the letters “S,” “C,” and

“R.” Brown believed that these letters represented the initials of Koutnik’s gang,

the “Simon City Royals.” In addition, small lettering that encircled the clock

spelled out the phrase “Mister Kujo the Watchdog in the Shadow,” which Brown

believed was a reference to Koutnik’s efforts to protect gang interests while

incarcerated.

Brown issued Koutnik a “Notice of Non-Delivery of Mail” and demoted him

one prisoner-class level. In response Koutnik filed an inmate complaint, but Ellen

Ray, an inmate complaint examiner, agreed with Brown’s determination that the

letter and drawings related to Koutnik’s former gang membership and

recommended dismissal of the complaint. Peter Huibregtse, a deputy warden,

affirmed Ray’s recommendation. Koutnik appealed the dismissal, disputing that

the letter was gang-related, but Richard Raemisch, Deputy Secretary for the

Wisconsin Department of Corrections, agreed with Brown’s assessment of the

illustration and dismissed the appeal.

Koutnik then filed a complaint in the district court. As relevant here,

Koutnik alleged that Brown, Ray, Huibregtse, and Raemisch violated his First

Amendment rights to free speech and expression by refusing to allow him to send

his illustration by mail. He also claimed that § DOC 303.20(3) is unconstitutionally

vague and overbroad.

The district court screened Brown’s complaint under 28 U.S.C. § 1915A and

dismissed Ray, Huibregtse, and Raemisch because their decisions were judicial in

nature and thus protected by absolute immunity. Subsequently the court dismissed

Koutnik’s constitutional challenge to § DOC 303.20(3) because the provision was

reasonably related to a legitimate penological interest—“preventing the formation

and spread of inmate gangs.” Finally the court granted Brown’s motion for

summary judgment under the standard outlined in Procunier v. Martinez, 416 U.S.

396 (1974); the court concluded that § DOC 309.04(4)(c)(10) furthers important

government interests including security and rehabilitation, and that Brown’s use of

No. 05-4473 Page 3

this provision to restrict Koutnik from mailing gang-related material was generally

necessary to protect these governmental interests.

On appeal, Koutnik argues that the district court improperly dismissed his

claim that § DOC 303.20(3) is unconstitutional on its face. That provision prohibits

inmates from possessing gang parapharnelia:

Any inmate who participates in any activity with an inmate gang . . .

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.

Id. § DOC 303.20(3). Koutnik contends that this section is vague and overbroad

because the warden does not publish a list of sanctioned or unsanctioned groups,

and that the rule vests virtually complete discretion in the hands of prison officials,

thus denying him due process.

The United States Constitution permits greater restriction of prisoners’ First

Amendment rights than it allows elsewhere. Beard v. Banks, No. 04-1739, 2006 WL

1749604, at *6 (U.S. June 28, 2006). Prison regulations are reviewed deferentially

and will be upheld if they are “‘reasonably related to legitimate penological

interests,’ even when [they] ‘impinge on inmates’ constitutional rights.’” Lewis v.

Casey, 518 U.S. 343, 387 n.9 (1996) (quoting Turner v. Safley, 482 U.S. 78, 89

(1987)). Gang suppression is a legitimate penological interest, Wilkinson v. Austin,

125 S. Ct. 2384, 2396-97 (2005); Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir.

2005); therefore, § DOC 303.20(3) is valid so long as it is reasonably related to this

goal. Koutnik suggests that for the regulation to be reasonable, the warden should

be required to identify those groups that are sanctioned and those that are not.

However we have upheld statutes designed to give police officers discretion to

identify gangs operating outside the prison setting, see Fuller ex rel. Fuller v.

Decautur Public Sch. Bd., 251 F.3d 662, 668 (7th Cir. 2001), and we do not find it

unreasonable that prison officials are afforded the same discretion, given the

dangerous environment in which they operate.

Koutnik next challenges the district court’s determination that his First

Amendment rights were not violated when Brown refused to mail his illustration

outside the prison, or when Ray, Huibregtse, and Raemisch declined to intervene.

He contends that the prison’s interests in security and order were not served by

refusing to mail the illustrations because they were “never to be seen by another

prisoner.” Further, Koutnik disagrees that censoring his illustrations furthered the

prison’s interest in rehabilitation; he argues that Brown lacked expertise to opine

No. 05-4473 Page 4

on the effect the drawing had on his rehabilitation, and in any event that Brown

never articulated how censoring the letter advanced the prison’s rehabilitative

goals.

Prisoners have a First Amendment right both to receive and send mail.

Kaufman v. McCaughtry, 419 F.3d 678, 685 (7th Cir. 2005). And the Supreme

Court has recognized that the implications of outgoing correspondence for prison

security are of a categorically lesser magnitude than the implications of incoming

materials. See Thornburgh v. Abbott, 490 U.S. 401, 411, 413 (1989). Still prisons

may regulate the transmission of outgoing mail so long as doing so “furthers one or

more of the substantial governmental interests of security, order, and

rehabilitation,” and is “generally necessary” to protect these interests. Procunier,

416 U.S. at 413-14. See Nasir v. Morgan, 350 F.3d 366, 371, 374 (3d Cir. 2003);

Leonard v. Nix, 55 F.3d 370, 374 (8th Cir. 1995); Martucci v. Johnson, 944 F.2d 291,

295-96 (6th Cir. 1991).

The district court properly concluded that the prison’s refusal to allow

Koutnik to mail his drawings advanced an important penological interest—gang-

suppression—and was generally necessary to protect that interest. See Westefer,

422 F.3d at 575. We “generally defer to the judgment of prison officials when they

are evaluating what is necessary to preserve institutional order and discipline,”

Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005), and here Brown—who, as the

district court noted, was specifically trained to monitor disruptive groups in the

Wisconsin prisons—adequately substantiated his conclusion regarding the concerns

posed by Koutnik’s drawings.

Finally because Koutnik’s constitutional argument lacks merit, we need not

address his argument that Ray, Huibregtse, and Raemisch were not absolutely

immune from liability. See Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 616-17

(7th Cir. 2002). However we point out that the Supreme Court has limited the

extension of absolute immunity in a similar context, affording only qualified

immunity to prison discipline committee members. Cleavinger v. Saxner, 474 U.S.

193, 206 (1985); see also Walker v. Bates, 23 F.3d 652, 656 (2d Cir. 1994). Similar to

the procedures used by the prison discipline committee in Cleavinger, the prison’s

policies here for reviewing prisoner complaints lacked procedural safeguards

common to the judicial process such as a hearing, the right to counsel, or discovery.

For the reasons outlined in Cleavinger, Ray, Huibregtse, and Raemisch were

entitled only to qualified immunity for their role in evaluating Koutnik’s complaint.

But the district court’s error was harmless because Koutnik still failed to establish

a constitutional violation. Moreover, Koutnik has earned a strike for purposes of 28

U.S.C. § 1915(g) for filing this frivolous appeal. See Hains v. Washington, 131 F.3d

1248, 1250 (7th Cir. 1997).

No. 05-4473 Page 5

AFFIRMED.