Lindell, Nathaniel v. O'Donnell, Cindy

UNPUBLISHED ORDER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 8, 2006

Before

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 06-1983

NATHANIEL LINDELL, Appeal from the United States District

Plaintiff-Appellant, Court for the Western District of

Wisconsin

v.

No. 05-C-04-C

CINDY O’DONNELL, et al.,

Defendants-Appellees. Barbara B. Crabb,

Chief Judge.

ORDER

Nathaniel Lindell, an inmate at the Wisconsin Secure Program Facility, is a

frequent litigator in the federal courts. In this action under 42 U.S.C. § 1983,

Lindell lodged 18 different claims, most purportedly arising under the Free Speech

Clause of the First Amendment, against more than 30 employees of the Wisconsin

prison system. Two of the claims went to a jury, which found for the defendant, and

the rest were disposed of by the district court in a thoroughly reasoned, 79-page

order. Lindell appeals and raises a litany of arguments concerning both the district

court’s decision at summary judgment and its conduct of the trial, but most of his

*

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. 06-1983 Page 2

contentions are too insubstantial to warrant discussion. We commend Chief Judge

Barbara B. Crabb for her careful consideration of Lindell’s complaint, and, with the

following three exceptions, we see no reason to add to her exhaustive treatment of

his claims.

First, we consider Lindell’s claim that in April 2002 mailroom personnel

confiscated three used law books, two of them hardcover, that were sent by an

organization called Books Through Bars. Books are permitted at WSPF, but they

must be shipped directly from the publisher or a retailer and be accompanied by a

receipt. See WIS. ADMIN. CODE § DOC 309.05(2)(a); WSPF Policies & Procedures

Manual § 530.02(VII)(D)(1), (F)(1) (revised effective Jun. 25, 2001). It is undisputed

that the books were seized because they did not originate with the publisher or a

retailer, and were not accompanied by the required receipt, but Lindell claimed that

this “publishers only” policy violates his First Amendment rights. In the district

court, however, the defendants argued, not the merits of the claim, but that Lindell

did not exhaust his disagreement with the seizure through the administrative

grievance process. See 42 U.S.C. § 1997e(a). The defendants argued, and the court

agreed, that Lindell failed to exhaust because, while he tried to file a grievance

about the seizure, his grievance was returned unprocessed with the explanation

that he already had reached his limit of two grievances for that week, see WIS.

ADMIN. CODE § DOC 310.09(2), and, moreover, the grievance he submitted raised

more than one issue, see id. § DOC 310.09(1). In the district court’s view, Lindell

had not complied with the prison’s grievance procedure, and thus he did not

exhaust this claim. See Woodford v. Ngo, 126 S. Ct. 2378, 2382 (2006) (holding that

prisoner does not satisfy exhaustion requirement by filing untimely or otherwise

procedurally defective administrative grievances or appeals); Riccardo v. Rausch,

375 F.3d 521, 523 (7th Cir. 2004) (“Prisoners must follow state rules about the time

and content of grievances.”); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.

2002) (“[P]risoner[s] must file complaints and appeals in the place, and at the time,

the prison’s administrative rules require.”).

On appeal Lindell argues that § 1997e(a) is not an impediment to his claim

because the defendants’ “refusal” to process his grievance rendered the

administrative process “unavailable.” See Dole v. Chandler, 438 F.3d 804, 809 (7th

Cir. 2006) (explaining that administrative remedy is “unavailable” if prison

administrators “do not respond to a properly filed grievance or otherwise use

affirmative misconduct to prevent a prisoner from exhaustion”); Lewis v.

Washington, 300 F.3d 829, 833 (7th Cir. 2002) (explaining that inmates need only

exhaust those remedies that are available). For their part the defendants have

abandoned reliance on lack of exhaustion as a defense and tell us that the district

court “may have dismissed this claim for the wrong reason.” Still, the defendants

insist, the claim loses on the merits. We agree. As we emphasized in another of

Lindell’s suits against these very defendants, “publishers only” rules “are

No. 06-1983 Page 3

reasonably related to a prison’s interest in preventing contraband from being

smuggled into the prison.” Lindell v. Frank, 377 F.3d 655, 658 (7th Cir. 2004);

see Bell v. Wolfish, 441 U.S. 520, 555 (1979).

But we add a caveat. At summary judgment Lindell maintained that WSPF

has a policy of banning all hardcover and used books, no matter the source, and

indeed the district court states in its order that the facility has such a policy

approved by the warden. We think the court’s understanding of the prison’s policy

is a fair reading of the defendants’ own statement of uncontested facts; they assert

that hardcover books may be employed as weapons or to conceal contraband, and

that used books may conceal contraband within their pages or the pages may even

be laced with drugs. These are valid justifications for “publishers only” rules, but

Lindell may have a point if the facility is using these reasons, not to regulate the

sources of publications coming into the prison, but to exclude some publications

altogether without considering alternative means of access. See Brownlee v.

Conine, 957 F.3d 353, 957 (7th Cir. 1992) (claim that inmate wasn’t permitted to

retain hardcover books in his cell was frivolous where inmate did not allege that he

also lacked access to reasonable alternatives such as softcover books or library) ;

Jackson v. Elrod, 881 F.2d 441, 446 (7th Cir. 1989) (affirming denial of qualified

immunity to jailers because they were on notice “under clearly-established case law”

that ban on hardcover books without regard for alternative means of access was

unconstitutional ); Kincaid v. Rusk, 670 F.2d 737, 744 (7th Cir. 1982) (holding that

“[m]aintenance of security and discipline do not justify the wholesale prohibition of .

. . hardbound books”). We need not delve further into this question, however,

because it is clear that Lindell’s three books would have been confiscated even if

they were new, and even if they were all softcover. Mailroom personnel seized

these books for reasons that are consistent with the First Amendment, and that is

all we decide in the case before us today.

Second, we consider Lindell’s claim that in July 2002 and August 2003

mailroom personnel violated his First Amendment rights by preventing him from

receiving printouts of materials downloaded from the internet and mailed to him

from outside the prison. When the first incident occurred (actually there were two

separate seizures in July 2002, but that fact is immaterial for our purposes), WSPF

limited inmates’ access to downloaded materials, though the scope of that limitation

is difficult to discern from this record. It is undisputed, however, that by the time of

the second incident the facility had in a place a policy allowing receipt of some

internet materials, but inmates still were not allowed to receive downloaded

materials sent by family or friends. It is also undisputed that this source restriction

was the reason given in August 2003 for confiscating the materials sent to Lindell.

In response to Lindell’s claim, the district court reasoned that the defendants

enjoyed qualified immunity for both incidents. The court explained that in Lindell

No. 06-1983 Page 4

v. Frank, No. 02-C-21-C, 2003 WL 23198509 (W.D. Wis. May 5, 2003), aff’d, 377

F.3d 655 (7th Cir. 2004), it had held for the first time that an outright ban on the

receipt of downloaded materials violated the First Amendment, and that in West v.

Frank, No. 04-C-173-C, 2005 WL 701703 (W.D. Wis. Mar. 25, 2005), it had added

that the friends-and-family restriction likewise was unconstitutional. It followed,

said the court, that the defendants were protected by qualified immunity for the

first incident because it occurred before Lindell v. Frank was decided on May 5,

2003, and the second because it preceded the announcement of West on March 25,

2005.

It appears that the district court was mistaken when it said that Lindell v.

Frank addressed restrictions on access to downloaded materials. See West, 2005

WL 701703, at *7 (explaining that Lindell v. Frank “did not involve an inmate's

inability to receive materials downloaded from the internet”). Lindell, however,

essentially has abandoned any argument about the first incident and focuses

instead on the second. He contends that the defendants cannot claim qualified

immunity for the August 2003 seizure because, in his view, another aspect of the

district court’s decision in Lindell v. Frank should have put them on notice that the

friends-and-family restriction would not survive constitutional challenge. In that

other litigation Lindell had challenged a broad policy that prohibited inmates from

receiving by mail photocopies and newspaper or magazine clippings except from a

publisher or other commercial source. Lindell, 2003 WL 23198509, at *1. Lindell

argues that this language put the defendants sufficiently on notice because the

internet is a published source. We review the district court’s grant of qualified

immunity de novo. Campbell v. Peters, 256 F.3d 695, 699 (7th Cir. 2001). Qualified

immunity shields government officials performing discretionary functions from

liability for civil damages “unless their conduct violates clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Id.

We might agree with Lindell that there is no meaningful distinction between

a clipping from a newspaper and a print-out from a website. Nonetheless, his focus

on the order issued by the district court in May 2003 is misplaced. We have held

that a decision from a district court does not have sufficient weight to establish a

point of law so clearly as to defeat a qualified-immunity defense. See Campbell, 256

F.3d at 701; Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995). And while it

might be said, then, that our own decision in Lindell v. Frank, 377 F.3d at 660, was

enough to put the defendants on notice that banning the receipt of internet print-

outs from friends and family was no different than prohibiting clippings and copies,

our decision was not issued until March 2004, many months after the last seizure at

issue in this litigation. Therefore, we uphold the grant of summary judgment as to

this claim.

No. 06-1983 Page 5

Finally, we consider Lindell’s claim that prison staff confiscated an issue of

Stuff magazine because the address label had been torn off and, thus, he could not

prove that it belonged to him. Inmates at WSPF are forbidden from damaging,

destroying, altering, or disposing of their own property without prior permission.

See WIS. ADMIN. CODE § DOC 303.35. Administrators fear that inmates will conceal

contraband in altered or damaged goods. In challenging the seizure, however,

Lindell alleged that his magazine was undamaged and never even had an address

label. He insisted that the prison has no policy prohibiting the possession of

magazines without address labels, and suggested that the magazine’s erotic content

was the real reason for the seizure. The defendants countered with evidence that

because of his discipline problems Lindell was a “level 2” inmate at the time his

magazine was confiscated, and in that status he was not permitted to have

publications in his cell. The district court, noting that the defendants could have

been more explicit in explaining their policy, concluded that there was a legitimate

security interest underlying the prison’s refusal to allow inmates to have magazines

with missing mailing labels, and therefore granted the summary judgment for the

defendants.

In this court Lindell repeats his same contention that the magazine was

seized because of its erotic content and not because it lacked a mailing label. We

review the grant of summary judgment de novo, construing all evidence in favor of

Lindell. Sperandeo v. Lorillard Tobacco Co., 460 F.3d 866, 870 (7th Cir. 2006).

Prison inmates have a First Amendment right to receive and to read periodicals, in

the absence of legitimate restrictions. Sizemore v. Williford, 829 F.2d 608, 610 (7th

Cir. 1987). However, prisons may impinge on that right, provided the regulation is

reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S.

78, 89 (1987).

Lindell does not dispute the defendants’ contention that at the time of the

confiscation he was a “level 2” inmate and was not permitted to have publications in

his cell. Lindell presents no argument challenging that policy, and indeed any

argument would be unavailing. See Beard v. Banks, 126 S. Ct. 2572, 2575 (2006)

(holding that a prison policy which denies newspapers, magazines, and photographs

to a group of specially dangerous inmates does not violate the First Amendment).

Thus, the grant of summary judgment on this claim was also appropriate.

Lindell raises a number of other issues on appeal that do not warrant

discussion. He argues that the district court erred in finding that he failed to

exhaust administrative remedies with respect to his claims of retaliation by prison

staff, interference with his outgoing mail, and unlawful ban on inmate donations to

the prison library. He also contends that the district court wrongly granted the

defendants summary judgment with respect to his other claims of interference with

his outgoing mail, denial of postage stamps, damage to incoming mail by the

No. 06-1983 Page 6

prison’s electronic envelope opener, and unlawful prohibition on inmate possession

of damaged magazines. Finally, he alleges that the district court was wrong to deny

his motion for judgment as a matter of law at the close of his jury trial regarding

possession of a torn magazine. We have considered these arguments but find no

merit to any of them. Accordingly, the judgment is AFFIRMED.