Timothy Wilks v. Welcome Rose

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 16, 2018 *

Decided March 16, 2018

Before

FRANK H. EASTERBROOK, Circuit Judge

DANIEL A. MANION, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 17-1874

TIMOTHY B. WILKS, Appeal from the United States District Court

Plaintiff-Appellant, for the Eastern District of Wisconsin.

v. No. 15-C-1053

WELCOME ROSE, et al., C.N. Clevert, Jr.,

Defendants-Appellees. Judge.

ORDER

Timothy Wilks, a Wisconsin inmate, principally argues in this appeal that prison

officials violated the First Amendment when they banned him from using his cell to

market a book that he has published. The district judge entered summary judgment for

the defendants, ruling that penological interests justify the restriction. We agree and

thus affirm the judgment.

*

We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).

No. 17-1874 Page 2

Ten years ago Wilks sued officials at Waupun Correctional Institution for barring

him from publishing religious books. The parties settled the case, and the Wisconsin

Department of Corrections set out rules under which prisoners may publish books that

they write while incarcerated. With the approval of Waupun’s administration, Wilks

then contracted with an outside company to publish at least one religious book.

This case involves a dispute over Wilks’s plan to market his book from his cell.

His publisher mailed him 100 marketing postcards that displayed the book’s cover

image, biographical information about Wilks, and instructions for ordering the book

from the publisher. A property officer told Wilks that the postcards were contraband.

Wilks replied that he would mail the postcards to a family member, but he later asked

the prison’s property department to hold his postcards while he contested their

classification as contraband. A prison supervisor has since explained that Wilks could

not keep the postcards in his cell because he risked violating two prison regulations:

soliciting inmates to buy his book and retaining in his cell more than 25 pieces of

personal correspondence. (Wilks does not contest either regulation.) The supervisor

proposed as a compromise that the prison’s mail staff store the postcards and mail them

individually in prepaid envelopes that Wilks would supply. Although the prison’s

security director tentatively approved that proposal, Wilks rejected it. The director has

since explained that the proposal is unworkable because mail staff would be diverted

from their necessary work of screening all prison mail. He further explained that

allowing inmates to market from their cells risks defrauding the public, “spawning

disputes between inmates and members of the public[,] and entangling the prison in

inmate business activities.”

Wilks filed a grievance accusing the prison of violating his “rights to perfect [his]

book publishing interests.” He wanted to keep the postcards in his cell and mail them

directly to potential customers. Waupun’s warden dismissed Wilks’s grievance, and a

complaint examiner recommended dismissing his administrative appeal. The examiner

also rejected the proposed compromise that Wilks too had rejected: It “cannot be

implemented” because “[t]here is no authority granted in the administrative rules to

allow an inmate permission to market a publication while in prison if the publication

(the enterprise) did not exist prior to the inmate’s sentencing.” The Secretary of the

Department of Corrections dismissed the appeal. At this point, Wilks could have mailed

the postcards to someone outside the prison to promote sales. But he opted to have the

postcards destroyed. Wilks was permitted to keep one in his cell, however.

No. 17-1874 Page 3

This litigation under 42 U.S.C § 1983 followed. The district judge allowed Wilks

to proceed on a claim that prison officials violated the First Amendment by barring

mailings from his cell to market his book. The judge dismissed a due-process claim

about the disposal of his postcards, reasoning that Wilks had asked for their disposal.

(Wilks also raised a claim for breach of the settlement contract but he does not contest

that claim’s dismissal on appeal.) The district judge then entered summary judgment

for the defendants because they had identified legitimate penological interests that

justified restrictions on Wilks’s marketing activities. The judge added that the

defendants would be entitled to qualified immunity even if they violated Wilks’s rights

because he pointed to “no case establishing an inmate’s constitutional right to market or

sell his published works.”

On appeal Wilks principally challenges the dismissal of his claim that prison

officials have violated the First Amendment by restricting how he may commercially

mass-market his book. The parties debate the standards that govern our analysis.

We usually analyze the constitutionality of prison regulations using the standard in

Turner v. Safley, 482 U.S. 78, 89–91 (1987), but we scrutinize the censorship of an

inmate’s outgoing mail under the less-deferential standard in Procunier v. Martinez,

416 U.S. 396, 413 (1974). Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); see Koutnik v.

Brown, 456 F.3d 777, 784 (7th Cir. 2006). Because the parties disagree about whether the

prison has “censored” Wilks’s outgoing mail, they also disagree about which standard

applies. We need not resolve this debate, however, because Wilks cannot prevail even

under the Martinez standard.

Martinez holds that a prison regulation that censors outgoing mail is permissible

if the regulation (1) furthers an important governmental interest “unrelated to the

suppression of expression” and (2) is no greater than necessary to accomplish that

interest. 416 U.S. at 413. Waupun’s regulation restricts Wilks by requiring that he have

someone outside the prison mail the postcards to market the book. But Wilks has not

created a triable question that this restriction fails under these two elements.

First, Wilks offers no evidence that reasonably questions the importance of the

prison’s identified interests in prohibiting marketing from an inmate’s cell. These are

the interests of preserving the resources of the mail room’s staff, who must screen the

mail of all of the inmates, and ensuring that the prison protects the public from

inmate-generated mail fraud. We have recognized both of these interests as substantial.

See Woods v. Comm’r of the Ind. Dep’t. of Corr., 652 F.3d 745, 749 (7th Cir. 2011)

(recognizing that prison officials have legitimate interest in preventing fraud by

No. 17-1874 Page 4

banning prisoners from advertising to the public for pen pals); Jackson v. Frank, 509 F.3d

389, 391 (7th Cir. 2007) (prison officials are constitutionally permitted to save resources

by limiting the types of mail staff must process).

Second, Wilks offers no evidence that the restriction is greater than necessary to

further these interests. He argues that the compromise (that both he and the prison staff

rejected) of having the mail room’s staff market the book for him is such evidence. As

he sees it, that compromise is workable; otherwise administrators would not have

proposed it. But the current regulation is not materially more restrictive than the

rejected compromise. Under the current regulation, Wilks may ask anyone outside the

prison (including the publisher) to send out his mailings. Wilks replies that he lacks

funds to pay someone to help market the book. But he offers no evidence that an

outsider requires payment from him. And even if outsiders do require payment, that fact

does not imply that Wilks may commandeer the prison’s staff to help him market his

book for his commercial gain. For prisons may permissibly bar an inmate from using

the prison’s resources to enhance an inmate’s business operations. See King v. Federal

Bureau of Prison, 415 F.3d 634, 636 (7th Cir. 2005). Thus because the restriction is no

greater than necessary to serve the prison’s legitimate interests, the First Amendment

claim fails.

We have one final matter. Wilks also challenges the dismissal of his due-process

claim at screening. To the extent that Wilks contends that he did not receive proper

procedural protections before the staff destroyed his postcards, his claim fails because

Wilks admits that he directed the destruction of the postcards. And to the extent that

Wilks suggests that the restriction on his marketing activities violated his right to

substantive due process, that argument amounts to little more than a futile repackaging

of Wilks’s First Amendment claim. When “a particular Amendment provides an explicit

textual source of constitutional protection against a particular sort of government

behavior, that amendment, not the more generalized notion of substantive due process,

must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994)

(internal quotation marks omitted); see also Koutnik, 456 F.3d at 781 n.2.

We have considered Wilks’s remaining arguments, and none merits discussion.

AFFIRMED