Petition for Writ of Certiorari — Mark Alan Lane, Petitioner v. Cynthia Swain, Warden
Supreme Court briefMay 25, 2019
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APPENDIX TABLE OF CONTENTS
Opinion of the Ninth Circuit
(December 20, 2018) .........................................................................................App.1
Order Accepting Magistrate Judge’s Second Report and Recommendation
(April 14, 2017) ...............................................................................................App.11
Second Report and Recommendation of United States Magistrate Judge
(December 7, 2016) .........................................................................................App.12
Order of the Ninth Circuit Denying Petition for
Rehearing and Petition for Rehearing En Banc
(February 27, 2019) ........................................................................................App.33
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK ALAN LANE,
Petitioner-Appellant,
Nos. 17-55578
17-55579
17-55582
v.
CYNTHIA SWAIN,
Respondent-Appellee.
D.C. Nos.
2:14-cv-01324-GW-PLA
2:13-cv-08448-GW-PLA
2:14-cv-04876-GW-PLA
OPINION
Appeals from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted November 6, 2018
Portland, Oregon
Filed December 20, 2018
Before: Ferdinand F. Fernandez and Sandra S. Ikuta,
Circuit Judges, and William K. Sessions III,*
District Judge.
Opinion by Judge Sessions
*
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
App.1
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LANE V. SWAIN
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s denial of three
28 U.S.C. § 2241 habeas corpus petitions in which Mark Alan
Lane challenged the revocation of good time credits.
Lane was accused by the Bureau of Prisons of sending
threatening letters from prison and was disciplined under
BOP Prohibited Acts Code 203, which prohibits
“[t]hreatening another with bodily harm or any other
offense.” He contended that the term “another” and the
phrase “any other offense” are so broad and vague as to
violate his rights under the First Amendment. The panel held
that when read reasonably in the context of the prison setting,
and limiting the phrase “any other offense” to criminal
offenses or violations of BOP rules, Code 203 is sufficiently
narrow and clear to protect inmates’ First Amendment rights.
COUNSEL
Alyssa D. Bell (argued) and Ashfaq G. Chowdhury, Deputy
Federal Public Defenders; Hilary Potashner, Federal Public
Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
App.2
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LANE V. SWAIN
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Sarah Marie Schuh Quist (argued), Assistant United States
Attorney; David M. Harris, Chief, Civil Division; Nicola T.
Hanna, United States Attorney; United States Attorney’s
Office, Los Angeles, California; for Respondent-Appellee.
OPINION
SESSIONS, District Judge:
Federal inmate Mark Alan Lane appeals the denial of
three habeas corpus petitions, each filed pursuant to
28 U.S.C. § 2241, in which he challenged the revocation his
good conduct time credits. Lane was accused by the Bureau
of Prisons (“BOP”) of sending threatening letters from prison
and was disciplined under BOP Prohibited Acts Code 203.
Code 203 prohibits “[t]hreatening another with bodily harm
or any other offense.” 28 C.F.R. § 541.3, Table 1. On
appeal, Lane contends that the term “another” and the phrase
“any other offense” are so broad and vague as to violate his
rights under the First Amendment. We hold that when read
reasonably in the context of the prison setting, and limiting
the phrase “any other offense” to criminal offenses or
violations of BOP rules, Code 203 is sufficiently narrow and
clear to protect inmates’ First Amendment rights. We
therefore affirm.
I.
On February 27, 2002, Lane was sentenced in the United
States District Court for the Southern District of Indiana to
360 months in prison for drug and money-laundering
offenses. The BOP lists his release date as January 23, 2028.
This Opinion addresses three § 2241 petitions filed by Lane
App.3
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LANE V. SWAIN
in the United States District Court for the Central District of
California. Although the cases have different underlying
facts, the appeals raise the same legal issues.
A. Lane v. Swain, Case No. 17-55579
On March 18, 2012, Lane mailed a letter to the Assistant
Director in Charge of the Federal Bureau of Investigation to
request an investigation of a federal judge and a federal
prosecutor. The letter stated, “I want to make sure you, and
the proper authorit[ies] have what they need, in the event, I’m
forced to kill a prison guard.” A BOP Discipline Hearing
Officer (“DHO”) subsequently conducted a hearing and
concluded that Lane had violated Code 203. Based on that
finding, the DHO sanctioned Lane with lost good time
credits, disciplinary segregation, and the loss of telephone,
commissary, email, and visiting privileges.
B. Lane v. Swain, Case No. 17-55578
On or about June 26, 2013, Lane mailed a letter to the
United States Attorney’s Office in Portland, Oregon, in which
he wrote: “The Bureau of Prisons may have plans to exercise
authority, it does[ ]not have, and that could cause people to
get hurt, or even worse, killed.” In the last line of the letter,
he wrote, “Please take action before the Warden, gets cut
down to size.” Following an investigation, a DHO conducted
a hearing and concluded that Lane had violated Code 203.
Based on that finding, the DHO sanctioned Lane with the loss
of good conduct time credits and disciplinary segregation.
App.4
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LANE V. SWAIN
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C. Lane v. Swain, Case No. 17-55582
In July 2013, Lane mailed a second letter to the U.S.
Attorney’s Office in Portland, Oregon, in which he wrote:
“The letter that I sent June 25, 2013, did you forward to local
law enforcement? No matter what, my family has your name,
address, and phone number.” The U.S. Attorney’s office read
the letter as posing a threat, and sent it to Lane’s prison for
administrative action. A DHO conducted a hearing,
concluded that Lane had violated Code 203, and sanctioned
him with lost good conduct time credits and a $50 monetary
fine.
D. Lane’s Section 2241 Petitions
In response to each of these three disciplinary actions,
Lane filed 28 U.S.C. § 2241 petitions in federal court. The
district court denied the petitions, finding that they were
supported by sufficient evidence. Lane appealed, and this
court vacated the district court’s judgment in light of Lane v.
Feather, 610 F. App’x 628 (9th Cir. 2015). Feather was a
consolidated appeal of three § 2241 petitions filed by Lane in
the United States District Court for the District of Oregon.
The panel in Feather remanded Lane’s petitions for a
determination of whether Code 203 is constitutional under
Procunier v. Martinez, 416 U.S. 396 (1974), overruled on
other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).
In the instant cases, the Magistrate Judge concluded on
remand that Code 203 satisfies Procunier, and therefore
recommended that Lane’s petitions be dismissed. The district
court adopted those recommendations, and these appeals
followed.
App.5
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LANE V. SWAIN
II.
A district court’s denial of a petition for writ of habeas
corpus brought pursuant to 28 U.S.C. § 2241 is reviewed de
novo. McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003).
Purely legal questions, such as whether Code 203 violates the
First Amendment under Procunier, are also reviewed de
novo. Royse v. Superior Court of Wash., 779 F.2d 573, 575
(9th Cir. 1986).
In Procunier, the Supreme Court struck down California
prison regulations allowing censorship of letters that “unduly
complain,” “magnify grievances,” or “expres[s] inflammatory
political, racial, religious or other views or beliefs” in
correspondence between inmates and non-inmates. 416 U.S.
at 399; see also id. at 415. The Court held that interference
with outgoing prisoner mail is only justified if the regulation
furthers “an important or substantial governmental interest
unrelated to the suppression of expression.” Id. at 413. The
Court further held that “the limitation of First Amendment
freedoms must be no greater than is necessary or essential to
the protection of the particular governmental interest
involved.” Id.
With respect to the first requirement, the Supreme Court
identified three relevant governmental interests: “the
preservation of internal order and discipline, the maintenance
of institutional security against escape or unauthorized entry,
and the rehabilitation of the prisoners.” Id. at 412 (footnote
omitted).
“Prison officials may not censor inmate
correspondence simply to eliminate unflattering or
unwelcome opinions or factually inaccurate statements.
Rather, they must show that a regulation authorizing mail
censorship furthers one or more of the substantial
App.6
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LANE V. SWAIN
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governmental interests of security, order, and rehabilitation.”
Id. at 413.
The second prong requires the limitation to be “no greater
than is necessary” to protect such interests. Id. The Supreme
Court has made clear, however, that Procunier should not be
read “as subjecting the decisions of prison officials to a strict
‘least restrictive means’ test.” Abbott, 490 U.S. at 411.
Procunier “require[s] no more than that a challenged
regulation be ‘generally necessary’ to a legitimate
governmental interest,” and that the regulation provide “a
close fit between the challenged regulation and the interest it
purported to serve.” Id. (quoting Procunier, 416 U.S. at 414).
With regard to legitimate governmental interests, Lane
highlights the Supreme Court’s observation in Abbott that
“outgoing personal correspondence from prisoners—did not,
by its very nature, pose a serious threat to prison order and
security,” 490 U.S. at 411, and this Court’s comment that
there is a “low security risk posed by written material not
addressed to prison officials.” Bradley v. Hall, 64 F.3d 1276,
1281 n.2 (9th Cir. 1995), overruled on other grounds by Shaw
v. Murphy, 532 U.S. 223, 230 n.2 (2001)). In Abbott,
however, the Supreme Court specifically preserved the
holding in Procunier as it applies to outgoing prisoner mail.
490 U.S. at 413 (limiting Procunier “to regulations
concerning outgoing correspondence”). Here, the district
court concluded that Code 203 addresses both prison security
and prisoner rehabilitation, and Lane does not contest those
specific findings.
Lane instead focuses his attack on the second prong of the
Procunier test: that the regulation be no greater than
necessary to protect those legitimate governmental interests.
App.7
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LANE V. SWAIN
Lane questions the broad scope of the regulation, arguing first
that it prohibits all threatening statements regardless of their
context. This argument ignores the setting in which Code
203 is applied: a federal prison. Seen in that light, the
regulation prohibits communications in a context where
threats by inmates may give rise to reasonable concerns about
institutional security and individual rehabilitation.
More specifically, Lane submits that Code 203 is overly
broad because it does not narrowly define the prohibited
targets of threats beyond the term “another.” He suggests that
an inmate could therefore be disciplined under Code 203 for
threatening, for example, fictional or historical characters
such as Superman or Joseph Stalin. To discipline an inmate
for threatening those types of characters would defy common
sense. There is no indication in the record that the BOP has
ever taken such a broad view of Code 203, and we are
reluctant to invalidate a rule based upon such hypotheticals.
The term “another” as set forth in Code 203 is commonly
understood to be another living person, and is not
impermissibly broad.1
Lane’s next attack on Code 203 submits that the phrase
“any other offense” is without limitation. His examples of
potentially punishable offenses include threats of frivolous
1
We note that the term “another” is widely used in statutes that
prohibit threatening conduct. See, e.g., 18 Pa. Cons. Stat. § 3701(a)(1)(ii)
(2014) (Pennsylvania robbery statute imposing punishment when accused
“threatens another with or intentionally puts him in fear of immediate
serious bodily injury”); N.M. Stat. Ann. § 30-3-2 (1978) (New Mexico
aggravated assault statute prohibiting “assault by threatening or menacing
another”); Tex. Penal Code Ann. § 22.01(a)(2) (2017) (Texas assault
statute prohibiting conduct that “intentionally or knowingly threatens
another with imminent bodily injury”).
App.8
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LANE V. SWAIN
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lawsuits, copyright infringement, or defamatory language.
Again applying common sense, threatening an “offense”
cannot mean posing a threat of civil suit. Rather, the
regulation is reasonably construed as threatening either a
criminal violation or an offense punishable under BOP
regulations.
Procunier supports that construction. Footnote 15 of the
Supreme Court’s decision commented on a set of revised
regulations, drafted while that case was on appeal, that “are
indicative of one solution to the [First Amendment] problem”
posed in that case. Procunier, 416 U.S. at 416 n.15. The
revised regulations included a provision allowing disapproval
of outgoing inmate mail containing “threats of physical harm
against any person or threats of criminal activity.” Id. The
cited provision nearly mirrors the language in Code 203, with
“criminal activity” being the parallel to “any other offense.”
Although the legitimacy of that specific provision was not
before the Supreme Court, its commentary provides useful
guidance for this case.
In Procunier, the Supreme Court acknowledged that
“[t]raditionally, federal courts have adopted a broad hands-off
attitude toward problems of prison administration” because
“courts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform.” 416 U.S. at
404–05. Accordingly, courts afford “deference to the
appropriate prison authorities,” but will nonetheless
“discharge their duty to protect constitutional rights” when a
prison regulation “offends a fundamental constitutional
guarantee.” Id. at 405–06. The regulation in Procunier was
impermissible because it infringed on inmates’ First
Amendment rights to air complaints and grievances. The
App.9
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LANE V. SWAIN
language of Code 203 is clearly distinguishable, curbing
threats of harm and other offenses.
As Lane’s own cases illustrate, legitimate governmental
interests are at stake, since allowing inmates to threaten a
warden, prison guard, or any other person with bodily harm
or other criminal conduct is clearly unacceptable. In light of
the regulation’s limited language, read reasonably in the
context of federal prisons, we find that Code 203 is a
sufficiently “close fit” with those legitimate interests to pass
the Procunier test.
AFFIRMED.
App.10
Case 2:14-cv-04876-GW-PLA Document 64 Filed 04/14/17 Page 1 of 1 Page ID #:419
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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MARK ALAN LANE,
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Petitioner,
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v.
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RANDY L. TEWS, Warden,
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Respondent.
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No. CV 14-4876-GW (PLA)
ORDER ACCEPTING
MAGISTRATE JUDGE’S
SECOND REPORT AND
RECOMMENDATION
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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files
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herein, and the magistrate judge’s second report and recommendation. The Court accepts the
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recommendations of the magistrate judge.
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ACCORDINGLY, IT IS ORDERED:
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1.
The second report and recommendation is accepted.
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2.
Judgment shall be entered consistent with this order.
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3.
The clerk shall serve this order and the judgment on all counsel or parties of record.
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DATED: April 14, 2017
HONORABLE GEORGE H. WU
UNITED STATES DISTRICT JUDGE
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App.11
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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MARK ALAN LANE,
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Petitioner,
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v.
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RANDY L. TEWS, Warden,
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Respondent.
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No. CV 14-4876-GW (PLA)
SECOND REPORT AND
RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
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This Second Report and Recommendation is submitted to the Honorable George H. Wu,
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United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United
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States District Court for the Central District of California. For the reasons discussed below, the
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Magistrate Judge recommends that the Petition for Writ of Habeas Corpus (“Petition”) be
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dismissed with prejudice.
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App.12
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I.
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SUMMARY OF PROCEEDINGS
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On February 27, 2002, in the United States District Court for the Southern District of
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Indiana, petitioner was sentenced to 360 months in federal custody for violating 21 U.S.C. §
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841(a)(1) and § 846 (conspiracy to possess with intent to distribute methamphetamine), and 18
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U.S.C. § 1956(a)(1)(A)(i) and § 1956(h) (conspiracy to launder monetary instruments). (Answer,
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Declaration of Werner Guth (“Guth Decl.”) ¶ 4(A), Exhibit A). Petitioner is currently incarcerated
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at the Federal Correctional Institution I in Victorville, California. (Answer, Guth Decl. ¶ 5, Exhibit
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B).
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On June 24, 2014, petitioner filed the instant Petition pursuant to 28 U.S.C. § 2241, in which
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he challenged a prison disciplinary finding by a Discipline Hearing Officer (“DHO”) that resulted
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in a loss of good conduct time credits. (Dkt. No. 1). Specifically, he challenged the DHO’s finding
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that he violated Bureau of Prisons Prohibited Act Code 203, 28 C.F.R. § 541.3 Table 1, 203
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(“section 203”), which prohibits prison inmates from threatening another with bodily harm. (See
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id.).
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On September 9, 2014, the undersigned issued a Report and Recommendation,
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recommending that the Petition be denied because, among other things, the DHO’s finding was
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supported by some evidence. (Dkt. No. 9). On February 5, 2015, the District Judge accepted the
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undersigned’s Report and Recommendation and denied the Petition with prejudice. (Dkt. Nos.
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17 & 18).
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Petitioner then appealed. On October 19, 2015, the Ninth Circuit vacated the judgment
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dismissing the Petition and remanded the matter in light of its decision in Lane v. Feather, 610 F.
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App’x 628 (9th Cir. July 23, 2015) (“Lane”). (See Dkt. No. 26). In Lane, the Ninth Circuit reasoned
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that it could not determine whether some evidence supported the DHO’s finding that petitioner,
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in a separate instance, violated section 203 without first resolving how to define a “threat” for
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purposes of section 203. Lane, 610 F. App’x at 629. Examining section 203’s plain language, the
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Lane court concluded that section 203 “should be interpreted to prohibit all threatening statements,
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whether they amount to true threats or not.” Id. But according to the Ninth Circuit, that
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App.13
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interpretation of the word “threat” implicated petitioner’s First Amendment rights, and, thus, section
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203’s prohibition on threatening bodily harm against another in outgoing prisoner mail could be
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valid only if it satisfied the test set forth in the Supreme Court’s decision in Procunier v. Martinez,
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416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). Id. Finding that the record was not
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sufficiently developed to make that determination, the Ninth Circuit in Lane remanded the matter
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“to determine whether section 203 satisfies Procunier.” Id. This Court on remand will address the
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same issue.
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In accordance with the Ninth Circuit’s mandate, the undersigned appointed the Federal
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Public Defender to represent petitioner, and ordered supplemental briefing on whether section 203
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satisfies Procunier.
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Supplemental Brief. (Dkt. No. 51). On October 31, 2016, respondent filed an Opposition to the
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Supplemental Brief. (Dkt. No. 59).
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(Dkt. No. 31).
On July 6, 2016, petitioner, through counsel, filed a
This matter has been taken under submission, and is ready for decision.
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II.
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RELEVANT FACTS
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From late 2012 until October 8, 2013, petitioner was housed at the Federal Correctional
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Institution in Sheridan, Oregon (“FCI Sheridan”). (Answer at 3; Guth Decl. ¶ 5, Exhibit B). In July
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2013, while at FCI Sheridan, petitioner mailed a letter to the United States Attorney’s Office in
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Portland, Oregon, in which he wrote: “The letter that I sent June 25, 2013, did you forward to local
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law enforcement? No matter what, my family has your name, address, and phone number.” The
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U.S. Attorney’s Office interpreted this language as a threat, and sent the letter to FCI Sheridan for
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administrative action. (Answer, Declaration of Daniel Cortez (“Cortez Decl.”) ¶ 4, Exhibit A). On
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July 22, 2013, petitioner was charged with violating prohibited act Code 203 (threatening another
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with bodily harm) and Code 296 (use of mail for illegal purposes). (Answer, Cortez Decl. ¶ 4(A),
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Exhibit A).
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Following an investigation, a Discipline Hearing Officer conducted a disciplinary hearing and
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subsequently concluded that, based on the greater weight of the evidence, petitioner violated
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App.14
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section 203’s prohibition on threatening another with bodily harm. Based on that finding, the DHO
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sanctioned petitioner in the following manner: 27 days loss of good conduct time credits and a
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monetary fine in the amount of $50.00 that was suspended pending 180 days of clear conduct.
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(Id., ¶ 10, Exhibit E at 3).
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III.
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DISCUSSION
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A.
Scope of Remand
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The Ninth Circuit remanded this case in light of that court’s disposition in Lane, which in turn
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had been remanded for the district court to determine one issue: whether section 203 satisfies the
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two-part test set forth in the Supreme Court’s opinion in Procunier v. Martinez, 416 U.S. 396, 94
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S. Ct. 1800, 40 L. Ed. 2d 224 (1974). See Lane v. Feather, 610 F. App’x 628, 629 (9th Cir. July
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23, 2015) (“[W]e remand to the district court to determine whether section 203 satisfies
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Procunier.”). Notwithstanding the limited nature of the Ninth Circuit’s remand order, petitioner asks
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the Court to address the following issues on remand: (1) whether his statement constituted a
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“threat” for purposes of section 203; (2) whether section 203 is facially invalid because it is either
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vague on its face or overboard; and (3) whether section 203 is vague as applied to petitioner.
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(See Supp. Brief at 1-8).
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The Court declines to address these issues for a number of reasons. First, the Court has
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already resolved the issue of whether petitioner’s statement constituted a threat for purposes of
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section 203. Indeed, in its order adopting the undersigned’s prior Report and Recommendation,
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the District Judge ruled that “some evidence” supported petitioner’s disciplinary violation, i.e., that
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there was some evidence that petitioner’s statement was a violation of section 203. (See Dkt.
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Nos. 19 & 20). That finding necessarily resolved the issue of whether petitioner’s statement
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constituted a threat. As such, revisiting this issue on remand would violate the rule of the case
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doctrine. See Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016).
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Second, petitioner has waived his vagueness and overbreadth challenges to section 203.
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See Singleton v. Wulff, 428 U.S. 106, 120, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976). Petitioner did
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not raise either of these challenges in this Court before appealing the District Judge’s Order
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dismissing his Petition. Nor did he raise either of these challenges on appeal. Accordingly, he
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cannot raise these challenges for the first time on remand.
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Third, addressing any of the issues that petitioner has identified would violate the rule of
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mandate. “The rule of mandate is similar to, but broader than, the law of the case doctrine.”
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United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). Under the rule of mandate, “a district
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court that has received the mandate of an appellate court cannot vary or examine that mandate
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for any purpose other than executing it.” Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir.
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2012). Although the rule permits a lower court to decide anything not foreclosed by the mandate,
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the lower court nevertheless “is limited by [the appellate court’s] remand when the scope of the
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remand is clear.” Id.; see also Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172-73 (9th Cir.
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2006) (holding that lower court “has no power to expand our remand beyond the boundary ordered
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by our court” where appellate court ordered lower court to consider specific issue of whether
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petitioner seeking asylum had established prima facie case of eligibility for asylum); United States
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v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994) (per curiam) (holding that order remanding case to
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determine whether lower court could depart from sentencing guidelines based on criminal
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defendant’s “family circumstances” precluded lower court from considering new argument
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regarding purported error in calculating sentence).
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Here, the Ninth Circuit’s remand order, by reference to Lane, prohibits this Court from
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examining any issue other than the sole issue set forth in the remand order. Indeed, the Ninth
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Circuit ordered this Court to determine only whether section 203 satisfied the two-part test set forth
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in the Supreme Court’s opinion in Procunier. That clear remand order prohibits the Court from
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addressing the issues that petitioner has asserted for the first time on remand. Regardless, even
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if the Court had discretion to address petitioner’s vagueness and overbreadth arguments, the
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Court would not address those arguments because they are subsumed by Procunier’s two-part
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test. See Bahrampour v. Lampert, 356 F.3d 969, 975-76 (9th Cir. 2004) (applying more lenient
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test than Procunier test to address constitutional challenge to prison regulation, even though
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inmate challenged regulation on vagueness and overbreadth grounds); Perez v. Warner, 2016 WL
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App.16
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2894053, *5 (W.D. Wash. April 27, 2016) (applying same test that Bahrampour applied in
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addressing plaintiff’s arguments that prison regulation prohibiting sexually explicit letters was
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unconstitutional on its face and as applied to plaintiff).1
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Accordingly, the Court limits its analysis to whether section 203 satisfies the two-part test
set forth in the Supreme Court’s opinion in Procunier.
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B.
Federal Legal Standard
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Where, as here, a regulation restricts prisoners from, or punishes prisoners for, exercising
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their First Amendment right to send outgoing mail to non-prisoners, Procunier requires that the
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regulation meet two criteria. 416 U.S. at 413. First, the regulation must “further an important or
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substantial governmental interest unrelated to the suppression of expression.” Id. Second, the
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limitation of First Amendment freedoms must be no greater than is necessary or essential to the
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protection of the particular governmental interest involved. Id.
13
Although the Ninth Circuit unequivocally instructed this Court to apply the two-part test set
14
forth in Procunier, respondent urges the Court to ignore the Ninth Circuit’s instruction and, instead,
15
evaluate petitioner’s First Amendment claim under the test announced in Turner v. Safley, 482
16
U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). (Supp. Opp. at 3-6). In Turner, the Supreme
17
Court applied a more lenient test than the one set forth in Procunier to address the validity of a
18
prison regulation restricting inmates from receiving incoming personal correspondence from
19
prisoners incarcerated at other penal institutions. See Turner, 482 U.S. at 89. Turner held that
20
prison regulations impinging on inmates’ constitutional rights are valid if they are “reasonably
21
related to legitimate penological interests.” 482 U.S. at 89. After Turner, the Supreme Court held
22
that the Turner test applies equally to incoming correspondence from prisoners and non-prisoners.
23
24
25
26
27
28
1
In Bahrampour, the Ninth Circuit applied the test set forth in Turner v. Safley, 482 U.S. 78,
89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). See Bahrampour, 356 F.3d at 975. As explained
below, the Turner test is more lenient than the Procunier test. (See infra). Notwithstanding that
fact, the Ninth Circuit in Bahrampour refused to conduct a separate analysis to address the
petitioner’s overbreadth and vagueness challenges to the regulation at issue in that case. See
356 F.3d at 975. In refusing to do so, the Ninth Circuit stated: “The Turner analysis applies equally
to facial and ‘as applied’ challenges.” Id. Considering that Procunier holds prison regulations to
a stricter standard than does Turner, there is no reason to believe that Procunier would not,
likewise, apply equally to facial and “as applied” challenges.
6
App.17
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1
Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989). In doing so,
2
the Supreme Court overruled Procunier to the extent it required a more stringent standard when
3
reviewing regulations restricting incoming mail from non-prisoners. Abbott, 490 U.S. at 413. The
4
Supreme Court did not, however, overrule Procunier in its entirety. See id. Instead, the Supreme
5
Court explained that Turner “require[d] that [Procunier] be limited to regulations concerning
6
outgoing correspondence.” Abbott, 490 U.S. at 413 (emphasis added).
7
Notwithstanding Abbott’s holding regarding Procunier’s continuing, albeit limited,
8
applicability, respondent maintains that Turner is controlling in light of the Supreme Court’s opinion
9
in Shaw v. Murphy, 532 U.S. 223, 229, 121 S.Ct. 1475, 149 L. Ed. 2d 420 (2001). (See Supp.
10
Opp. at 6). In Shaw, which was decided after Abbott, the Supreme Court addressed the question
11
of “whether prisoners possess a First Amendment right to provide legal assistance [to fellow
12
inmates] that enhances the protections otherwise available under Turner.” Shaw, 532 U.S. at 225.
13
In doing so, the Supreme Court in Shaw stated that, in Turner, it had “adopted a unitary,
14
deferential standard for reviewing prisoners’ constitutional claims” and that Turner “provides the
15
test for evaluating prisoners’ First Amendment challenges. . . .” Shaw, 532 U.S. at 230.
16
Although, in Shaw, the Supreme Court applied Turner without mentioning any exception
17
for outgoing prisoner correspondence, the Supreme Court’s failure to do so hardly suggests that
18
the Supreme Court intended for Shaw to eliminate that exception. On the contrary, the Court in
19
Shaw had no reason to address or advert to the outgoing mail exception that survived Turner
20
because the issue in Shaw involved in-prison communications between inmates. In particular, the
21
Court in Shaw addressed only the limited issue of “whether inmates possess a special First
22
Amendment right to provide legal assistance to fellow inmates.” 532 U.S. at 232. Consequently,
23
this Court declines to interpret the Supreme Court’s understandable failure in Shaw to address the
24
continuing applicability of Procunier to cases involving outgoing mail as an implicit overruling of
25
not only Procunier, but of Abbott.
26
The Court’s refusal to so broadly interpret Shaw is, moreover, supported by the fact that,
27
since Shaw, the Ninth Circuit has unequivocally held that Procunier, not Turner, is controlling in
28
cases involving First Amendment challenges concerning outgoing correspondence sent by
7
App.18
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1
prisoners. See Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008).2 In Barrett, a case
2
decided nearly seven years after Shaw was decided, the Ninth Circuit stated, “Procunier is
3
controlling law in the Ninth Circuit and elsewhere as applied to claims involving outgoing prisoner
4
mail.” Barrett, 544 F.3d at 1062; see also Koutkin v. Brown, 456 F.3d 777, 784 n.4 (7th Cir. 2006)
5
(rejecting argument that Shaw required courts to apply Turner test to cases involving outgoing
6
prisoner mail); Nasir v. Morgan, 350 F.3d 366, 371 (3d Cir. 2003) (applying Procunier to seizures
7
of outgoing correspondence); but see Morgan v. Quarterman, 570 F.3d 663, 677 (5th Cir. 2009)
8
(applying Turner to regulation penalizing petitioner for sending prohibited outgoing mail).
9
Accordingly, this Court, which is bound to adhere to Barrett, applies the two-part test set forth in
10
Procunier in evaluating petitioner’s First Amendment claim.3
11
/
12
/
13
/
14
/
15
/
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Respondent argues that, in a subsequent unpublished case, the Ninth Circuit overruled
Barrett’s use of Procunier. (See Supp. Opp. at 6 (citing Barrett v. Belleque, 475 F. App’x. 653,
655, *1-2 (9th Cir. Apr. 6, 2012)). This argument is meritless because the case that respondent
cites is unpublished and, therefore, unlike the published decision in Barrett cited above, is not
binding either on the Ninth Circuit or on the district courts within the Ninth Circuit. See Ninth
Circuit Rule 36-3.
3
Citing Witherow v. Paff, 52 F.3d 264 (9th Cir. 1995) (per curiam), respondent contends that
the Ninth Circuit has, in fact, reviewed a First Amendment challenge involving inmate letters to
public officials under the Turner standard. (Supp. Opp. at 6). However, in Witherow, the Ninth
Circuit acknowledged that the Turner test is inapplicable to prison regulations affecting outgoing
mail as opposed to incoming mail or complaints to prison officials. Witherow, 52 F.3d at 265 (“[A]
prison may adopt regulations which impinge on an inmate’s constitutional rights if those
regulations are ‘reasonably related to legitimate penological interests. . . .’ When a prison
regulation affects outgoing mail as opposed to incoming mail, there must be a ‘closer fit between
the regulation and the purpose it serves.’”) (citations omitted). Although respondent quotes
language from Witherow suggesting that the Ninth Circuit has acknowledged that Turner applies
to all prisoner mail cases (Supp. Opp. at 6), respondent’s reliance on Witherow is misplaced. In
the quoted portion of Witherow, the Ninth Circuit was only setting forth the view of the Fifth Circuit
in terms of whether a heightened standard of review was warranted when the outgoing mail
implicates a prisoner’s right to petition for grievances. 52 F.3d at 266.
8
App.19
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1
C.
2
Procunier Analysis
1.
Important or Substantial Governmental Interest
3
A prisoner’s outgoing personal correspondence generally does not pose a serious threat
4
to prison order and security. Abbott, 490 U.S. at 411. Consequently, prison officials are prohibited
5
from restricting a prisoner’s personal outgoing mail unless the restriction “further[s] an important
6
or substantial governmental interest unrelated to the suppression of expression.” Procunier, 416
7
U.S. at 413. In Procunier, the Supreme Court identified three such governmental interests that
8
might justify restrictions on outgoing prisoner mail -- namely, security, order, and rehabilitation.
9
416 U.S. at 413. Thus, a prisoner has an unrestricted right to send outgoing mail unless the
10
content of the mail falls into categories presenting a threat to one of these legitimate interests,
11
such as, but not limited to, “escape plans, plans related to ongoing criminal activity, and threats
12
of blackmail or extortion.’” Abbott, 490 U.S. at 412. By contrast, “[p]rison officials may not censor
13
inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually
14
inaccurate statements.” Procunier, 416 U.S. at 413.
15
Here, the challenged regulation, section 203, prohibits prisoners from “threatening another
16
with bodily harm.” Respondent maintains that the prohibition furthers several of the governmental
17
interests identified in Procunier -- namely, ensuring prison security and order and the effective
18
rehabilitation of prison inmates. (See Supp. Opp. at 8-9). In light of the comments of the Supreme
19
Court in Procunier, there can be no doubt that these interests constitute legitimate interests of
20
penal institutions. Thus, section 203 satisfies the first part of the Procunier test.4
21
/
22
/
23
/
24
25
26
27
28
4
The Court does not spend much time analyzing this part of the Procunier test because, as
the Seventh Circuit has noted, overcoming the first hurdle of the test is not difficult: “‘The more
difficult task however, is not in identifying an important governmental interest at stake, rather it is
in determining whether the enforcement of [the rule] was no greater an infringement upon [the
prisoner’s] first amendment liberties than [was] necessary to protect the state’s interest.’” Koutnik
v. Brown, 456 F.3d 777, 784-85 (2006) (quoting Rios v. Lane, 812 F.2d 1032, 1037 (7th Cir.
1987)).
9
App.20
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1
2.
2
Reach of the Regulation and Its Necessity to Further the Stated
Governmental Interests
3
Under the second prong of the Procunier test, the challenged regulation -- in this case, the
4
prohibition on threatening bodily harm on another -- is valid only if it limits inmates’ First
5
Amendment freedoms no more than “is necessary or essential to the protection of the particular
6
governmental interest involved.” 416 U.S. at 413. The Supreme Court, however, has explained
7
that Procunier should not “be read as subjecting the decisions of prison officials to a strict ‘least
8
restrictive means’ test.” Abbott, 490 U.S. at 410. Instead, according to the Supreme Court in
9
Abbott, Procunier “require[s] no more than that a challenged regulation be ‘generally necessary’
10
to a legitimate governmental interest.” Abbott, 490 U.S. at 411. Nevertheless, the Supreme Court
11
in Abbott cautioned that Procunier “require[s] a close fit between the challenged regulation and
12
the interest it purport[s] to serve.” 490 U.S. at 411.
13
In applying the Procunier test, courts must afford prison administrators some latitude in
14
anticipating the probable consequences of allowing certain speech in and out of a prison
15
environment. 416 U.S. at 412; Overton v. Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 156 L.
16
Ed. 2d 162 (2003) (noting that courts owe “substantial deference to the professional judgment of
17
prison administrators”). Accordingly, prison administrators are not required to show with certainty
18
that any particular correspondence would have adverse consequences. Procunier, 416 U.S. at
19
412.
20
a.
Prison Security and Order
21
Courts consistently have refused to uphold regulations restricting outgoing prisoner mail
22
based on concerns about prison security and order where the correspondence merely contains
23
disparaging, derogatory, of false remarks about a prison official. See, e.g., Brooks v. Andolina,
24
826 F.2d 1266, 1267-68 (3rd Cir. 1987) (holding that disciplinary action based on outgoing letter
25
to NAACP falsely stating that prison guard had searched visitor in “a very seductive manner” was
26
invalid because it was unnecessary to further any important penological interest); McNamara v.
27
Moody, 606 F.2d 621, 624 (5th Cir.1979) (holding that prison could not censor inmate’s letter to
28
his girlfriend in which inmate accused prison guard of bestiality because letter was directed to
10
App.21
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1
inmate’s girlfriend, and, therefore, any disparaging remarks contained therein were unlikely to
2
result in breakdown in prison security and discipline). In Loggins v. Delo, 999 F.2d 364, 365 (8th
3
Cir. 1993), for example, an inmate was disciplined for writing a letter to his brother in which he
4
called the prison mail room clerk a “a beetled eye’d bit–” and “a dyke,” who masturbated while
5
reading sexually explicit letters from inmates. The letter was found by the prison to have violated
6
the prison’s regulation prohibiting inmates from “using abusive or obscene language . . . or making
7
a written statement, intended to annoy, offend or threaten.” Id. On appeal, the Eighth Circuit held
8
that the disciplinary action violated Procunier because, as a matter of law, the language in the
9
inmate’s letter did not implicate security concerns. Id. at 367.
10
By contrast, courts have held that the goal of ensuring prison security and order justifies
11
disciplinary actions against prisoners for their statements in outgoing mail where prisoners direct
12
threatening or vulgar statements at prison officials. See, e.g., Leonard v. Nix, 55 F.3d 370 (8th
13
Cir. 1995) (upholding disciplinary action against prison inmate for sending outgoing mail containing
14
vulgar, obscene, and racist epithets against prison warden and other prison staff because
15
evidence showed that petitioner intended for prison staff to read mail and, further, took steps to
16
ensure that his correspondence was read by prison staff); Torres v. Clark, 2012 WL 4484915, *9
17
(M.D. Penn. Sept. 27, 2012). In Torres, for example, a district court held that an inmate’s
18
outgoing correspondence containing threats of violence against a prison official was not protected
19
by the First Amendment because the inmate “knew that [the prison official] was reading his mail”
20
and that his threat would be communicated to the prison official. Id.
21
When applying the Procunier test, the aforementioned courts have consistently examined
22
the content and circumstances of the prisoner’s speech, rather than the validity of the underlying
23
regulation. Doing so here, the facts of this case, admittedly, do not fall with the confines of any
24
of the above scenarios. To be sure, the contents of petitioner’s letter includes language that is
25
substantially more troubling than the merely disparaging and derogatory remarks at issue in
26
Loggins and McNamara. Rather than disparaging a prison official, petitioner, after complaining
27
about an AUSA’s failure to comply with petitioner’s request, ominously stated that his family knew
28
where the AUSA lived. Considered in the context in which it occurred, petitioner’s statement, no
11
App.22
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1
doubt, was meant to -- and in all likelihood did -- strike fear in the AUSA who received the letter.5
2
However, unlike the inmates in Torres and Loggins, who used outgoing mail to circumvent the
3
prison prohibition on making in-person derogatory and threatening statements directly to prison
4
officials, petitioner directed his letter only to the recipient of the letter, not to anyone within the
5
prison. Moreover, although petitioner’s letter included a not so subtle threat to the AUSA, the
6
threat pertained to someone outside of the prison context.
7
Nevertheless, the prohibition on threatening another with bodily harm is generally
8
necessary to ensure security and order within the prison. Unlike the regulation at issue in Loggins,
9
which prohibited inmates from using language that was, among other things, obscene, annoying,
10
or offensive, the regulation at issue here prohibits inmates only from threatening to commit acts
11
of violence against other people. As such, inmates are free to express in outgoing mail their
12
dissatisfaction with anyone within or without of the prison system in a variety of ways -- including
13
ways that might strike people as crude, vulgar, and offensive. The only thing the regulation
14
prohibits inmates from doing is expressing their dissatisfaction by threatening others with bodily
15
harm. Given the regulation’s limited reach, it is sufficiently tailored to accommodate petitioner’s
16
freedom of expression, while allowing prison officials to ensure prison security. See, e.g.,
17
Procunier, 416 U.S. at 416 (disapproving regulation that was not “narrowly drawn to reach only
18
material that might be thought to encourage violence”).
19
Furthermore, the fact that the regulation proscribes any threat, as opposed to only true
20
threats, does not undermine the “fit” between the regulation and the legitimate purpose it serves.
21
As an initial matter, the wording of the regulation in question, in large measure, mirrors a prison
22
regulation that the Supreme Court cited with approval in Procunier. See 416 U.S. at 416 & n.15.
23
Indeed, that regulation, which prohibited, among other things, “threats of physical harm against
24
any person,” did not in any way suggest that the prohibition on threats was limited to only “true
25
26
27
28
5
This conclusion is buttressed by the fact that petitioner regularly threatens to kill or injure
others in outgoing mail. (See, e.g., Lane v. McGrew, Case No. CV 13-8448-GW (PLA) (C.D. Cal.);
Lane v. Tews, Case No. CV 14-1324-GW (PLA) (C.D. Cal); Lane v. Feather, Case No. CV 122360-PA (D. Or.); Lane v. Feather, Case No. CV 13-100-PA (D. Or.); Lane v. Feather, Case No.
CV 13-00005-PA (D. Or.); Lane v. Grayer, Case No. CV 08-2142-RWS (N.D. Ga.)).
12
App.23
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1
threats.” Notwithstanding that fact, the Supreme Court noted that the regulation was “indicative
2
of one solution to the problem” presented by the overreaching prohibition that was invalidated in
3
Procunier. Id. Considering that the Supreme Court cited that regulation as a potential solution
4
for other prison administrators to follow, it would be quite difficult to find here that the current
5
regulation is deficient for its failure to limit the prohibition on threats to only true threats.
6
Regardless, considering the substantial deference owed to the professional judgment of
7
prison administrators, this Court is disinclined to conclude that only true threats to commit bodily
8
harm against another person present a threat to prison security. Prison officials are in a better
9
position than the Court to determine whether allowing the utterance of any threat of violence,
10
regardless of the context in which it occurs, makes the likelihood of a violent prison attack more
11
likely than if those threats were prohibited.
12
unquestioningly accept the judgment of prison administrators where those administrators have
13
attempted to restrict offensive or derogatory speech (see supra), the speech at issue in this case,
14
by its nature, involves a threat of violence by a prison inmate. Given that fact, there is a
15
heightened level of deference owed to the prison officials’ judgment that such speech presents
16
a threat to prison security. See, e.g., United States v. Conley, 531 F.3d 56, 59 (1st Cir. 2008)
17
(“We give great deference to a prison administrator’s determination that prison safety is at risk.”).
18
As the Second Circuit has recognized, “The maintenance of safety and discipline in our penal
19
institutions is best secured through the kind of professional administrative expertise that can be
20
forged only in the crucible of day-to-day experience.” Hall v. Curran, 818 F.2d 1040 (2d Cir. 1987).
21
Neither this nor any federal court has gone through that crucible. As such, the Court is not well-
22
positioned to second-guess the judgment of those who have been through that crucible where,
23
as here, they have determined that prison security is imperiled by speech that, by its nature,
24
includes a threat of violence. Having considered the security implications of such threats of
25
violence, the Court is convinced that restricting such threats, whether they fit the definition of true
26
threats or not, is generally necessary to ensure prison security.
Although courts correctly have declined to
27
Finally, there is no merit to petitioner’s suggestion that his statement in his letter to the
28
AUSA was too ambiguous to implicate any security concerns. The cold reality is that many,
13
App.24
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1
though certainly not all, prison inmates have demonstrated a propensity to commit violent acts
2
against others. Prison, furthermore, is far from a violent-free environment.6 And, while a prison
3
obviously is incapable of prohibiting prisoners from harboring thoughts of committing violent acts
4
against others, it is another matter to affirmatively allow prisoners to take the additional step of
5
freely publishing threats to carry out those thoughts. A prisoner who publishes such threats could
6
become so emboldened by the act that he may, indeed, commit a violent act against either a
7
prison guard or a fellow inmate. Such an event may, in turn, lead to additional violent acts by
8
inmates. See Giano v. Senkowski, 54 F.3d 1050, 1056 (2d Cir. 1995) (warning that “any increase
9
in the level of prison violence unnecessarily risks lighting a spark in an environment in which there
10
is no dearth of short fuses”). Put simply, the risk associated with allowing such expression is not
11
warranted in the prison context.
12
Allowing prisoners to issue threats to commit bodily harm, moreover, inflicts an
13
unnecessary toll on prison officials who are notified that one or more of their inmates are
14
publishing such threats. Indeed, this case shows -- as do petitioner’s other cases pending in this
15
Court -- that a prisoner’s threats in outgoing mail often come to the attention of prison officials.
16
Faced with the knowledge that a prisoner is openly publishing threats to commit bodily harm
17
against others, prison officials likely would be compelled to account for the heightened risk
18
associated with such expression. That result could, in turn, jeopardize the safety of the prison’s
19
inmates by diverting the prison’s limited resources from ensuring inmate safety in general to
20
accounting for the particularized danger of an inmate who has expressed a willingness to commit
21
bodily harm against others. See Turner, 482 U.S. at 90 (noting that “few changes will have no
22
ramifications on . . . the use of the prison’s limited resources for preserving institutional order”).
23
This strain on the prison’s resources would only be magnified if inmates were free to issue as
24
many threats to commit bodily harm against others as they liked -- a scenario that could
25
materialize if prisoners were not prohibited from doing so. Although one could argue that it is
26
27
28
6
The Court notes that respondent has cited several instances where prison inmates have
attacked prison officials. (See Supp. Opp. at 9 n.9). These citations serve as sobering reminders
of the dangers inherent in the prison setting.
14
App.25
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1
unlikely that any prisoner would send multiple outgoing letters containing threats to others,
2
petitioner, himself, has sent at least six such letters. See Lane v. Tews, Case No. CV 14-1324-
3
GW (PLA) (C.D. Cal.) (challenging disciplinary finding for letter in which petitioner warned that
4
Bureau of Prisons’ abuse of power “could cause people to get hurt or even worse, killed” and
5
urging that action be taken “before the Warden, gets cut down to size”); Lane v. McGrew, Case
6
No. CV 13-8448-GW (PLA) (C.D. Cal.) (challenging disciplinary finding for letter in which petitioner
7
stated that he might be “forced to kill a prison guard” if no action was taken to correct his
8
sentence); Lane v. Feather, Case No. CV 12-2360-PA (D. Or.) (challenging disciplinary finding for
9
sending letter in which he stated, “I don’t think my judgment and commitment was ‘verified’[.] I’m
10
going to be [sic] my Life! Are you willing to bet a Guard[’]s Life?”); Lane v. Feather, Case No. CV
11
13-100-PA (D. Or.) (challenging disciplinary finding for sending letter in which he stated, “I give
12
the Bureau of Prisons staff a chance to follow orders from the Civil Rights Division. I don’t want
13
to, I may be forced to take a life”); Lane v. Feather, Case No. CV 13-00005-PA (D. Or.)
14
(challenging disciplinary finding for sending letter in which he accused prison officials of criminal
15
conduct and stated, “I May be Forced to Protect Myself and Take a Life”); Lane v. Grayer, Case
16
No. CV 08-2142-RWS (N.D. Ga.) (challenging disciplinary infraction he received for letter he sent
17
in which he stated, “I might put my hands on one (1) of your guards” and “Any harm comes to me,
18
a guard will pay with his life”).
19
In short, allowing prison inmates to freely threaten others with bodily harm presents an
20
unnecessary and unwarranted risk to the security of the prison’s inmates and of those charged
21
with ensuring prison security. To believe otherwise is not only naive, it is dangerous. Accordingly,
22
the prohibition on prisoners threatening bodily harm against others -- whether those threats occur
23
in prison or in outgoing mail -- is generally necessary to ensure prison safety.
24
b.
Rehabilitation
25
Although prison officials have a legitimate and substantial interest in rehabilitating prison
26
inmates, that interest does not justify restrictions on prisoners sending outgoing mail simply
27
because the mail contains disrespectful or derogatory remarks. See Procunier, 416 U.S. at 415-
28
16. Thus, in Procunier, the Supreme Court invalidated a prison regulation prohibiting inmates from
15
App.26
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1
sending outgoing correspondence to family and friends in which inmates “‘unduly complain[ed],’”
2
or “‘magnif[ied] grievances.’” 416 U.S. at 399-400, 415-16. While prison officials argued that the
3
regulation was necessary to, among other things, further inmate rehabilitation, they “failed to
4
specify what contribution the suppression of complaints ma[de] to the rehabilitation of [prison
5
inmates].” Id. at 416.
6
By contrast, rehabilitation of prisoners may justify restrictions on speech where the
7
prohibited speech goes beyond vulgar or disrespectful complaints, but instead promotes activity
8
that is detrimental to the goal of rehabilitation. See Koutnik v. Brown, 456 F.3d 777, 785-86 (7th
9
Cir. 2006). Thus, in Koutnik, the Seventh Circuit held that prison officials could lawfully confiscate
10
an inmate’s outgoing letter to a merchandise company urging it to design a product bearing a
11
swastika and referencing the Ku Klux Klan. In doing so, the Seventh Circuit distinguished
12
Procunier on the grounds that Procunier involved a prisoner’s correspondence with his family and
13
friends, which, according to the Supreme Court, was beneficial to prisoner morale, even though
14
the content of the correspondence was disrespectful and offensive to prison officials. Koutnik, 456
15
F.3d at 785. The inmate’s correspondence in Koutnik, according to the Seventh Circuit, stood on
16
a different footing because it constituted “an effort to appeal to groups that would hinder, rather
17
than foster, respectful human interaction, both inside and outside of prison.” 456 F.3d at 785.
18
Citing that fact, the Seventh Circuit reasoned that the prohibited correspondence undermined the
19
prison officials’ legitimate goal to “encourage [prison inmates] to live crime-free when [they are]
20
released from custody” and to foster “the ability to resolve conflicts without resorting to violence,
21
and to recognize that successful reintegration into society requires respecting the rights of others.”
22
Id. Accordingly, the Seventh Circuit concluded that the confiscation of the inmate’s outgoing mail
23
was necessary to further the “important or substantial governmental interest” in rehabilitation. Id.
24
at 785-86.
25
Moreover, at least one court has held that the goal of rehabilitation justifies regulations
26
prohibiting inmates from sending outgoing mail containing indecent or vulgar language when the
27
mail is directed to an unwilling recipient. See Morgan v. Quarterman, 570 F.3d 663, 677 (5th Cir.
28
2009). In Morgan, the Fifth Circuit held that prison officials could lawfully discipline a prison inmate
16
App.27
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1
for violating a regulation prohibiting inmates from using indecent or vulgar language where the
2
inmate mailed a note on a piece of toilet paper to opposing counsel in a habeas proceeding
3
stating, “Please use this to wipe your ass, that argument was a bunch of shit.” 570 F.3d at 665.
4
The inmate’s note, according to the Fifth Circuit, “demonstrated a completely unjustified disrespect
5
for authority, expressed in the most unacceptably vulgar form, which would be offensive in
6
mainstream society” and which would not be tolerated from either a “peer member of the bar” or
7
from “a pro se litigant in the free setting.” Id. By prohibiting such expression, “the disciplinary
8
action serve[d] to correct behavior that would seriously prejudice [the inmate] when he returns to
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the civil world.” Id. Consequently, the Fifth Circuit concluded that the disciplinary action was
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justified by the legitimate penological interest in rehabilitation. Id.7
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Applying the Procunier test as the aforementioned courts have done -- that is, examining
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the content and circumstances of the prisoner’s speech, rather than the validity of the underlying
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regulation -- this case closely resembles the Morgan case. Indeed, like the prisoner’s letter in
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Morgan, which directed an intolerable form of communication to an unwilling recipient, petitioner’s
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letter directed an ominous threat at an AUSA.
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ambiguous as to what action petitioner or his family would take, the letter nevertheless
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unmistakably communicated to the AUSA that his life, as well as the lives of his family, was at risk.
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Such activity undermines the legitimate goal of ensuring petitioner’s rehabilitation, as the activity
Although petitioner’s letter was somewhat
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In Morgan, the Fifth Circuit, without explanation, applied the Turner test, not the Procunier
test, in upholding the disciplinary action. See Morgan, 570 F.3d at 666. It is, however, doubtful
that the Fifth Circuit would have reached a different conclusion in Morgan if it had applied the
Procunier test instead of the Turner test. Indeed, in reaching its conclusion in Morgan, the Fifth
Circuit included a detailed discussion of its earlier opinion in McNamara (see supra), which
invalidated a regulation on outgoing mail under the Procunier test. Morgan, 570 F.3d at 667. The
Fifth Circuit took great pains in Morgan to distinguish the facts and the interests at stake in that
case from the facts and the interests at stake in McNamara. Id. In doing so, however, the Fifth
Circuit did not distinguish the two cases on the basis of the tests that were applied. On the
contrary, the Fifth Circuit never mentioned the fact that McNamara applied the Procunier test, nor
did the Fifth Circuit mention that the Turner test is more lenient than the Procunier test. If the Fifth
Circuit believed that Procunier would have dictated a different result in Morgan, the Fifth Circuit
surely could have -- and in all likelihood would have -- distinguished the two cases on that basis.
That the Fifth Circuit did not do so indicates that it would have reached the same result under
either test.
17
App.28
Case 2:14-cv-04876-GW-PLA Document 62 Filed 12/07/16 Page 18 of 21 Page ID #:415
1
involves a threat to do harm to another. Thus, as the disciplinary action in Morgan was necessary
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to further the goal of prisoner rehabilitation there, punishing petitioner for the communication at
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issue here, likewise, is necessary to advance the goal of rehabilitating petitioner.
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More importantly, however, there is a tight fit between the punishment for petitioner’s
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threatening statement in his outgoing mail and the prison officials’ legitimate goal in rehabilitating
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prison inmates. That legitimate goal is undermined by allowing an inmate, such as petitioner, to
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vent his frustration or dissatisfaction by resorting to threats to commit violent acts against others.
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Indeed, not only does such activity impede the inmate’s rehabilitation, it reinforces the inmate’s
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belief that criminal activity is a viable option when confronted with adversity or disappointment.
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Because this belief is the precise belief that prison officials strive to dispel, the regulation is
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generally necessary to achieve the goal of rehabilitation.
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Moreover, petitioner himself presents a strong argument as to why such expression by
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prison inmates should be prohibited. To be sure, this case does not represent an isolated incident
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for petitioner. On the contrary, this case represents only one of three cases that petitioner has
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pending in this Court involving his acts of sending unsolicited outgoing mail in which he has
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threatened others. In one of the other pending cases, petitioner wrote a letter to the United States
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Attorney’s office warning that, if no action was taken to curb what petitioner believed to be abuses
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of power, people could be killed and the prison warden might “get[] cut down to size.” (Case No.
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CV 14-1324-GW (PLA)). In the other case, petitioner wrote a letter to the FBI stating that he may
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be “forced to kill a prison guard” if appropriate actions were not taken to verify and correct his
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sentence. (Case No. CV 13-8448-GW (PLA)).
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In addition to his cases pending this Court, petitioner has at least three more cases pending
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in another district court involving disciplinary actions arising from his threats to kill prison officials
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or others. See Lane v. Feather, Case No. CV 12-2360-PA (D. Or.) (challenging disciplinary finding
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for sending letter in which he stated, “I don’t think my judgment and commitment was ‘verified’[.]
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I’m going to be [sic] my Life! Are you willing to bet a Guard[’]s Life?”); Lane v. Feather, Case No.
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CV 13-100-PA (D. Or.) (challenging disciplinary finding for sending letter in which he stated, “I give
28
the Bureau of Prisons staff a chance to follow orders from the Civil Rights Division. I don’t want
18
App.29
Case 2:14-cv-04876-GW-PLA Document 62 Filed 12/07/16 Page 19 of 21 Page ID #:416
1
to, I may be forced to take a life”); Lane v. Feather, Case No. CV 13-00005-PA (D. Or.)
2
(challenging disciplinary finding for sending letter in which he accused prison officials of criminal
3
conduct and stated, “I May be Forced to Protect Myself and Take a Life”)). And, in a case that
4
was resolved against petitioner in yet another district court, petitioner challenged a disciplinary
5
infraction he received for a letter he sent in which he stated, “I might put my hands on one (1) of
6
your guards” and “Any harm comes to me, a guard will pay with his life.” See Lane v. Grayer,
7
Case No. CV 08-2142-RWS (N.D. Ga.).
8
Petitioner’s statements in each of the foregoing cases exemplify the regularity and ease
9
with which he resorts to threats of violence as a way to express frustration and dissatisfaction --
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threats that, in several instances, involve the contemplation of murder. In each of these cases,
11
petitioner has reacted to a perceived slight by making disturbing statements that, directly or
12
indirectly, threaten violence against another. If prison officials were to permit petitioner -- or any
13
prison inmate -- to freely and repeatedly engage in this disturbing behavior as a way of expressing
14
grievances with prison officials or others, the officials’ goals of teaching petitioner to respect the
15
rights of others without resorting to violence and criminal activity would not only be difficult, but
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may well be impossible.
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Accordingly, the regulation prohibiting inmates from threatening another with bodily harm,
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even when those threats occur in outgoing mail, is generally necessary to further the legitimate
19
penological interest in prisoner rehabilitation.
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App.30
Case 2:14-cv-04876-GW-PLA Document 62 Filed 12/07/16 Page 20 of 21 Page ID #:417
1
IV.
2
RECOMMENDATION
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As Bureau of Prisons Prohibited Act Code 203 satisfies the test set forth in Procunier v.
4
Martinez, it is recommended that the District Judge issue an Order: (1) accepting this Second
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Report and Recommendation; and (2) directing that judgment be entered denying the Petition and
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dismissing this action with prejudice.
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DATED: December 7, 2016
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE
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App.31
Case 2:14-cv-04876-GW-PLA Document 62 Filed 12/07/16 Page 21 of 21 Page ID #:418
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NOTICE
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Reports and Recommendations are not appealable to the Court of Appeals, but are subject
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to the right of any party to file Objections as provided in the Local Rules Governing Duties of
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Magistrate Judges, and review by the District Judge whose initials appear in the docket number.
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No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until
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entry of the Judgment of the District Court.
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App.32
Case: 17-55578, 02/27/2019, ID: 11209637, DktEntry: 56, Page 1 of 2
FILED
FEB 27 2019
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK ALAN LANE,
No.
Petitioner-Appellant,
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
17-55578
D.C. No.
2:14-cv-01324-GW-PLA
v.
CYNTHIA SWAIN,
ORDER DENYING PETITION
FOR REHEARING AND
PETITION FOR REHEARING
EN BANC
Respondent-Appellee.
No.
MARK ALAN LANE,
17-55579
D.C. No.
2:13-cv-08448-GW-PLA
Petitioner-Appellant,
v.
CYNTHIA SWAIN,
Respondent-Appellee.
MARK ALAN LANE,
No.
Petitioner-Appellant,
17-55582
D.C. No.
2:14-cv-04876-GW-PLA
v.
CYNTHIA SWAIN,
Respondent-Appellee.
App.33
Case: 17-55578, 02/27/2019, ID: 11209637, DktEntry: 56, Page 2 of 2
Before: Ferdinand F. Fernandez and Sandra S. Ikuta, Circuit Judges, and William
K. Sessions III,* District Judge.
The panel has unanimously voted to deny Appellant’s petition for rehearing.
The petition for rehearing en banc was circulated to the judges of the court, and no
judge requested a vote for en banc consideration.
The petition for rehearing and the petition for rehearing en banc are
DENIED.
*
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
2
App.34
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.