Koutnik, Joseph D. v. Brown, Lebbeus

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3193

JOSEPH D. KOUTNIK,

Plaintiff-Appellant,

v.

LEBBEUS BROWN, GERALD A. BERGE,

Warden, and MATTHEW J. FRANK,

Secretary,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04 C 580—Barbara B. Crabb, Chief Judge.

____________

SUBMITTED MARCH 28, 2006—DECIDED AUGUST 8, 2006

____________

Before RIPPLE, KANNE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Wisconsin prisoner Joseph Koutnik

brought this action under 42 U.S.C. § 1983 after an employee

of the prison in which he is incarcerated seized an article of

his outgoing mail. Mr. Koutnik claims that the Wisconsin

regulation relied upon by the defendants to justify the

seizure violates the First Amendment on its face and as

applied to him; he also claims that the defendants’ actions

violated his substantive due process rights. The district

court dismissed Mr. Koutnik’s facial challenge and his due

2 No. 05-3193

process claim, and it granted summary judgment to the

defendants on his remaining First Amendment claim. For

the reasons set forth in this opinion, we affirm the judgment

of the district court.

I

A.

Mr. Koutnik is confined at the Wisconsin Secure Program

Facility. In December 2002, he placed in the outgoing

mail a letter addressed to Northern Sun Merchandising

(“Northern Sun”), a company that sells politically oriented

products, including t-shirts, posters and stickers. Northern

Sun invites design proposals for its products and pays

royalties if an idea is marketed successfully. Mr. Koutnik’s

letter encouraged Northern Sun to add communist-themed

posters to its product line and also suggested developing a

line of small posters targeted at inmates who are prohibited

by prison regulations from possessing stickers and large

posters. Mr. Koutnik also wrote: “I noticed that prison

reform is not as well represented as is needed and am

therefore including some of my ideas you should consider

using. [L]et me know what you think.” R.10, Ex.D. Several

designs were included as attachments. One, taking a page

to itself, was a drawing of a swastika textured with the

image of cell bars. Above the swastika was the slogan “The

Department of Corruptions,” and below it was the slogan

“Keeping Kids in Kages” written with enlarged, stylized

capital Ks. Id., Ex.F.

Lebbeus Brown, then a lieutenant at the facility, prevented

Mr. Koutnik’s letter from being sent. He issued a “Notice of

Non-Delivery of Mail,” advising Mr. Koutnik that the

No. 05-3193 3

swastika drawing violated Wisconsin Administrative Code

DOC § 303.20. In relevant part, that section provides:

Any inmate who participates in any activity with an

inmate gang, as defined in [§] DOC 303.03(11), or

possesses any gang literature, creed, symbols or symbol-

isms 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. Institu-

tion staff may determine on a case by case basis what

constitutes an unsanctioned group activity.

Wis. Admin. Code DOC § 303.20(3). Lieutenant Brown later

would explain that, based on his training and experience, he

believes the swastika to be “a symbol of Aryan pride and

white supremacy, as well as racial hatred.” R.15 at 8.

Moreover, in this particular instance, he perceived the

capital Ks and the misspelling of “cages” in “Keeping Kids

in Kages” as a reference to the Ku Klux Klan. Id. at 9. The

Klan is not a sanctioned group at the facility, see Wis.

Admin. Code DOC § 309.365(c)(1), and Lieutenant Brown

reasoned that Mr. Koutnik “was identifying with and trying

to promote the growth of white supremacy groups while

merchandizing white supremacy material,” R.15 at 9. To

permit such activity, the Lieutenant concluded, would

create a security risk by emboldening white-supremacist

inmates to spark racial unrest on the assumption that the

facility and the Department of Corrections “were associated

with and condoned white supremacy activity.” Id. at 10.

Lieutenant Brown also decided that Mr. Koutnik’s desire to

merchandize his design was also incompatible with the

facility’s efforts to rehabilitate him, even if the design never

were reintroduced into the prison system.

4 No. 05-3193

B.

Mr. Koutnik filed the present action in which he alleged

that Lieutenant Brown’s seizure of the outgoing letter

violated both his first amendment and substantive due

process rights. Mr. Koutnik first submitted that the regula-

tion upon which Lieutenant Brown relied, DOC § 303.20(3),

is facially overbroad and that the seizure did not have a

legitimate penalogical purpose. The district court dismissed

the overbreadth challenge at the initial screening required

by 28 U.S.C. § 1915A(a),1 but allowed Mr. Koutnik’s as-

applied challenge—concerning the use of the regulation to

seize his outgoing correspondence—to proceed.

Mr. Koutnik further alleged that the seizure of his letter

violated his right to substantive due process. However, the

district court took the view that this claim was precluded

because the Supreme Court has directed that substantive

due process claims be analyzed under the specific provision

of the Constitution most relevant to the claim, here the First

Amendment. See Albright v. Oliver, 510 U.S. 266, 273 (1994);

Graham v. Connor, 490 U.S. 386, 395 (1989); see also Conyers v.

Abitz, 416 F.3d 580, 586 (7th Cir. 2005). Consequently, this

claim was dismissed in the court’s initial screening order as

well.

The district court later granted summary judgment in

favor of the defendants, analyzing Mr. Koutnik’s remaining

1

Title 28, § 1915A(a) of the United States Code requires district

courts to “review, before docketing, if feasible or, in any event, as

soon as practicable after docketing, a complaint in a civil action

in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity.” In conducting this

review, district courts must identify cognizable claims and

dismiss the complaint, or any portion thereof, that fails to state a

claim.

No. 05-3193 5

first amendment claim under the standard set out in

Procunier v. Martinez, 416 U.S. 396 (1974). That decision

authorizes censorship of outgoing correspondence if

justified by a substantial penalogical interest and if the

means employed are no more intrusive than necessary to

achieve that goal. See id. at 413. The prison ostensibly had

such a purpose, the court reasoned, because institutional

security and inmate rehabilitation are legitimate aims. See

Pell v. Procunier, 417 U.S. 817, 823 (1974). However, in

addressing each of these purposes, the district court ex-

pressed doubt that outgoing mail containing a political

or racial message constitutes a security risk. See Martinez,

416 U.S. at 416. Accordingly, it rested its grant of summary

judgment on its determination that the facility had a

substantial interest in rehabilitating Mr. Koutnik and that

the censorship of this article of his outgoing mail was a

measure that was no more intrusive than necessary to

achieve that goal. Even if Mr. Koutnik’s intent was solely to

criticize the penal system by associating it with a swastika

and the KKK, the court reasoned, Lieutenant Brown was

entitled to stop the outgoing mail because it contained those

references.

II2

2

Mr. Koutnik initially argues that the district court erred in

dismissing his substantive due process claim. In his complaint,

Mr. Koutnik alleged that “his right to Free Speech, Substantive

Due Process and Freedom of Expression were violated by

Defendants.” R.2 at 1. His complaint further alleges that the

defendants’ acts “violated Koutnik’s first and fourteenth amend-

ment rights,” that the harms were “based on an unconstitution-

(continued...)

6 No. 05-3193

2

(...continued)

ally vague and overbroad prison rule” and that the regulation

should be declared “unconstitutionally vague and overbroad in

that . . . it is used to punish protected activity as noted in this

case.” Id. at 4.

As noted above, in evaluating the substantive due process

claim, the district court was guided by the Supreme Court’s

admonition in Albright v. Oliver, 510 U.S. 266, 273 (1994): “When

a particular amendment provides an explicit textual source of

constitutional protection against a particular sort of govern-

ment behavior, that amendment, not the more generalized notion

of substantive due process must be the guide for analyzing these

claims.” Id. (internal quotation marks and citations omitted).

Because the “Petitioner allege[d] specifically that the actions of

the respondents violated his First Amendment rights to free

speech and freedom of expression,” the district court found it

unnecessary to address the claims in terms of substantive due

process. R.3 at 6. On appeal, Mr. Koutnik does not contest

directly the district court’s application of the Albright rule; the

section of his brief dedicated to his “substantive due process”

claim simply expands upon his complaint and asks that the

regulation “be declared unconstitutionally vague” and that its

application be enjoined. Appellant’s Br. at 10.

We believe the district court employed the correct approach.

Here, Mr. Koutnik is alleging that the Department of Corrections

promulgated a vague and overbroad regulation that was used to

punish protected activity; these allegations invoke the protections

against government interference with free speech that are

guaranteed by the First Amendment. Consequently, it was proper

for the district court to evaluate Mr. Koutnik’s claims according

to a first amendment framework, cf. Eby-Brown Co., LLC v.

Wisconsin Dep’t of Agric., 295 F.3d 749, 754 (7th Cir. 2002) (citing

Albright and refusing to analyze complaints of unequal treatment

as substantive due process claims, as opposed to equal protection

(continued...)

No. 05-3193 7

A.

On appeal, Mr. Koutnik first argues that the district court

erred in dismissing his facial challenge to Wisconsin

Administrative Code DOC § 303.20(3) at the screening stage.

This section prohibits participating “in any activity with an

inmate gang” or “possessing any gang . . . symbols”; in turn,

DOC § 303.02 (11) defines “an inmate gang” as “a group of

inmates which is not sanctioned by the warden.” Mr.

Koutnik asserts that, at the Wisconsin Secure Program

Facility, there are no inmate groups sanctioned by the

warden. Therefore, he argues that DOC § 303.20(3) prohibits

the possession of symbolism which could be associated with

any group.3

Mr. Koutnik misreads the provision. The operative section

of the administrative code does not prohibit inmates from

possessing the symbolism of any group, but rather any

inmate group not approved by the warden. This distinction

is significant because it makes the provision quite narrow;

indeed, if strictly read, DOC § 303.20 would not authorize

prison administrators to ban the symbolism of white

supremacy groups if there were no inmate groups associ-

ated with that cause. With this understanding of the regula-

tion in mind, we turn to Mr. Koutnik’s legal arguments.

To launch a successful overbreadth challenge, a plain-

tiff must show “that a law punishes a ‘substantial’ amount

2

(...continued)

claims), and we address Mr. Koutnik’s overbreadth and vague-

ness claims below.

3

We note that Mr. Koutnik forwarded identical vagueness and

overbreadth arguments in a separate action; this court rejected

those arguments in an unpublished order. Koutnik v. Brown,

No. 05-4473, slip op. at 3-4 (7th Cir. July 24, 2006).

8 No. 05-3193

of protected free speech.” Virginia v. Hicks, 539 U.S. 113,

118 (2003); see also Hodgkins ex rel. Hodgkins v. Peterson, 355

F.3d 1048, 1056 (7th Cir. 2004). We have explained, however,

that “the concepts of ‘overbreadth’ and ‘vagueness’ in the

jurisprudence of the First Amendment were devised

in order to prevent the slightest discouragement of free

speech, and therefore have only limited relevance to a

sphere where the right of free speech is limited.” Ustrak v.

Fairman, 781 F.2d 573, 580 (7th Cir. 1986). Prison inmates

have limited first amendment rights, see, e.g., Turner v.

Safley, 532 U.S. 223, 228 (2001) (noting that “the constitu-

tional rights that prisoners possess are more limited in scope

than the constitutional rights held by individuals in society

at large”); therefore, “[w]hatever scope overbreadth analysis

has in criminal prosecutions . . . it has little or none in civil

litigation dealing with prisons’ internal operations,” Borzych

v. Frank, 439 F.3d 388, 391 (7th Cir. 2006). This limitation on

the overbreadth doctrine grows out of the inherent restric-

tions on the rights of prisoners and the concomitant special

need of prison administrators for flexible regulations. “Some

open-ended quality is essential if a prison is to have any

guidelines; it is impossible to foresee all literature that may

pose a threat to safety and security.” Id. Given the extremely

limited scope of overbreadth analysis in this context, we

conclude that any overbreadth in the regulation at issue

here “is not ‘substantial’ in relation to its proper applica-

tions.” Id. The district court correctly dismissed the

overbreadth claim pursuant to § 1915A(b)(1).

We turn, then, to Mr. Koutnik’s vagueness challenge.

[E]ven if a law does not reach a substantial amount of

constitutionally protected conduct, it can be found to be

impermissibly vague if it fails to define the offense with

sufficient definiteness that ordinary people can under-

No. 05-3193 9

stand what conduct is prohibited and it fails to establish

standards to permit enforcement in a nonarbitrary,

nondiscriminatory manner.

Fuller by Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist. 61,

251 F.3d 662, 666 (7th Cir. 2001). A party raising a facial

challenge to a statute or regulation on vagueness grounds

“must demonstrate that the law is impermissibly vague

in all of its applications.” Vill. of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 497 (1982). “The nature of

the law” also affects the vagueness analysis. Fuller, 251 F.3d

at 667. Thus, for example, school officials may have greater

latitude in fashioning student disciplinary rules because of

the “need to be able to impose disciplinary sanctions for a

wide range of unanticipated conduct disruptive of the

educational process.” Bethel Sch. Dist. No. 403 v. Fraser, 478

U.S. 675, 686 (1986). Similarly, as we have noted above,

“[s]ome open-ended quality is essential if a prison is to have

any guidelines; it is impossible to foresee all literature that

may pose a threat to safety and security.” Borzych, 439 F.3d

at 392.

In the present context, we believe a reasonable person

would understand the regulation to prohibit the symbols

employed here, a swastika and the letters “KKK.” These

symbols have been associated with racist and white suprem-

acist groups for over half of a century—groups, not surpris-

ingly, that are not recognized by the warden. Furthermore,

the fact that the regulation provides some latitude to prison

officials in defining gang symbols does not render it void for

vagueness. Indeed, this court has upheld school regulations

prohibiting “gang-like activity” against a vagueness chal-

lenge. See Fuller, 251 F.3d at 667-68. Given the greater

flexibility accorded prison officials to ensure order and

safety in a prison population, we do not believe that the

10 No. 05-3193

regulation fails to inform the inmate population as to what

symbols are prohibited. The regulation, therefore, is not

unconstitutionally vague.

B.

Mr. Koutnik’s remaining first amendment claim is that the

statute is unconstitutional as applied to his activity. The

district court held, and we agree, that censorship of an

inmate’s outgoing mail still is scrutinized under the stan-

dard espoused in Martinez, 416 U.S. at 413. See Antonelli v.

Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996); Gaines v. Lane,

790 F.2d 1299, 1304 (7th Cir. 1986). Although Martinez later

was overturned in part, the Supreme Court specified in

doing so that the decision would remain the standard

for cases involving outgoing mail. See Thornburgh v. Abbott,

490 U.S. 401, 413 (1989). Other circuits have applied Marti-

nez in that context, and so shall we. See, e.g., Nasir v. Morgan,

350 F.3d 366, 371 (3d Cir. 2003) (applying Martinez to

seizures of outgoing correspondence); California First

Amendment Coalition v. Woodford, 299 F.3d 868, 878 (9th Cir.

2002). But see Altizer v. Deeds, 191 F.3d 540, 548 (4th Cir.

1999) (applying a more deferential standard where outgoing

mail was inspected, but not censored).4

4

In their brief, the defendants urge that we apply the standard

set forth in Turner v. Safley, 482 U.S. 78 (1987), “in light of the

Supreme Court’s indication in Shaw v. Murphy, 532 U.S. 223, 229

(2001), that there is a unitary standard applicable to prisoners’

constitutional claims.” Appellees’ Br. at 16. In essence, they

maintain that Shaw operated as a de facto overruling of Procunier

v. Martinez, 416 U.S. 396 (1974). We decline this invitation. In

Shaw, the Court framed the issue accordingly:

(continued...)

No. 05-3193 11

There are two prongs to the Martinez test. “First, the

regulation or practice in question must further an important

or substantial governmental interest unrelated to the

suppression of expression.” Martinez, 416 U.S. at 413; see also

Gaines, 790 F.2d at 1304. Such interests include “security,

order, and rehabilitation.” Martinez, 416 U.S. at 413. Second,

the challenged action “must be no greater than is necessary

or essential to the protection” of that interest. Id.

The district court identified the governmental interest at

stake in this case as the rehabilitation of Mr. Koutnik and

other inmates. There is no question that the rehabilitation of

inmates is a legitimate interest of penal institutions. “The

more difficult task however, is not in identifying an impor-

4

(...continued)

Under our decision in Turner v. Safley . . . restrictions on

prisoners’ communications to other inmates are constitutional

if the restrictions are “reasonably related to legitimate

penological interests.” In this case, we are asked to decide

whether prisoners possess a First Amendment right to

provide legal assistance that enhances the protections

otherwise available under Turner. . . .

532 U.S. at 225 (quoting Turner, 482 U.S. at 89; emphasis added).

The Court, however, determined that Turner provided the

appropriate analytical framework and “decline[d] to cloak the

provision of legal assistance with any First Amendment protec-

tion above and beyond the protection normally accorded

prisoners’ speech.” Id. at 231.

Shaw, therefore, did not address the right of prisoners to send

mail outside the prison—the regulation of which is governed

by the Martinez standard. Furthermore, as noted above, after

the Court handed down Shaw, other courts of appeals have

applied the Martinez standard, not the Turner standard, to

evaluate the regulation of prisoners’ outgoing mail.

12 No. 05-3193

tant governmental interest at stake, rather it is in determin-

ing whether the enforcement of [the rule] was no greater an

infringement upon [Mr. Koutnik’s] first amendment liberties

than [was] necessary to protect the state’s interest.” Rios v.

Lane, 812 F.2d 1032, 1037 (7th Cir. 1987). It is on this element

of the Martinez test that Mr. Koutnik focuses his challenge

to the district court’s judgment. Specifically, Mr. Koutnik

claims that the defendants have not established that the mail

sent to Northern Sun contained gang symbols or that “the

drawing [of] a swastika and referencing the Ku Klux Klan

in an outgoing letter threatens a prisoner’s rehabilitation.”

Appellant’s Br. at 20. We now address each of these conten-

tions.

With respect to whether Mr. Koutnik’s mail to Northern

Sun contained gang-related symbols, we believe that this

is an assessment that prison staff is uniquely suited to make.

Knowledge of prison gang symbols—how they are used and

what they mean—is acquired primarily through interaction

with, and observation of, prisoners. Additionally, gang

symbolism is not static; symbols change and are added as

gangs expand their bases and combine with other groups.

Consequently, because the prison staff has daily contact

with gang members and because the number and kind of

gang symbols do not remain constant, we shall defer to the

staff’s assessment that Mr. Koutnik’s correspondence to

Northern Sun contained gang symbols. Cf. Beard v. Banks,

126 S. Ct. 2572, 2578 (2006) (plurality opinion) (reiterating

that “courts owe ‘substantial deference to the professional

judgment of prison administrators’ ” (quoting Overton v.

Bazzetta, 539 U.S. 126, 132 (2003))); Martinez, 416 U.S. at 405

(observing that problems related to prison administration

require “expertise” “peculiarly within the province of the

legislative and executive branches of government”).

No. 05-3193 13

Mr. Koutnik also maintains that his inclusion of a swas-

tika and his veiled reference to the KKK are not related in

any way to his rehabilitation. In his brief, he points to the

Supreme Court’s statement in Martinez that “the weight of

professional opinion seems to be that inmate freedom to

correspond with outsiders advances rather than retards the

goal of rehabilitation.” 416 U.S. at 412. However, the Court’s

statement was premised on two internal policy statements

of the Federal Bureau of Prisons. The first of these stated:

“Constructive, wholesome contact with the community is a

valuable therapeutic tool in the overall correctional pro-

cess.” Id. at 412 n.13 (internal quotation marks and citations

omitted). The second acknowledged that “[c]orrespondence

with members of an inmate’s family, close friends, associ-

ates and organizations is beneficial to the morale of all

confined and may form the basis for good adjustment in the

institution and the community.” Id. (internal quotation

marks and citations omitted). Taken in that context, we

believe that the Supreme Court’s statement in Martinez

actually supports the defendants’ position here. Mr.

Koutnik’s correspondence was not an effort to establish

“constructive, wholesome contact” with the outside commu-

nity that would foster successful reintegration into society,

id.; it was an effort to appeal to groups that would hinder,

rather than foster, respectful human interaction, both inside

and outside of prison. Mr. Koutnik’s attempts to market

symbols affiliated with racially intolerant groups obviously

thwarted the State’s legitimate goals “to encourage the

plaintiff to live crime-free when he is released from cus-

tody” and to foster “the ability to resolve conflicts without

resorting to violence, and to recognize that successful

reintegration into society requires respecting the rights of

others.” R.15 at 11. Accordingly, the confiscation of his

outgoing mail in this case did “further [the] important or

14 No. 05-3193

substantial governmental interest” in rehabilitation. Marti-

nez, 416 U.S. at 413.

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-8-06