Petition for Writ of Certiorari — Hammer v. Ashcroft
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Supreme Court, U.S.
OF ILE hi
09-504 OCT 23 2009
No.
cee cere bff ap paeficeenenhapiatentnmenmemanere-
IN THE
Supreme Court of the United Sites
DAVID PAUL HAMMER,
Petitioner,
Vv.
JOHN D. ASHCROFT, HARLEY G. LAPPIN,
KATHLEEN HAWK-SAWYER, and KEITH OLSON,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
Jerold S. Solovy Barry Sullivan
Counsel of Record Cooney & Conway Chair in
John R. Storino Advocacy and Professor of Law
Chad E. Bell LOYOLA UNIVERSITY CHICAGO
JENNER & BLOCK LLP 25 East Pearson Street
353 N. Clark Street Chicago, Illinois 60611
Chicago, IL 60654 (312) 915-7787
(312) 222-9350
Attorneys for Petitioner
QUESTIONS PRESENTED FOR REVIEW
Under 28 C.F.R. § 540.63, federal prisoners may
be interviewed face-to-face by the press, unless the
warden determines after an individualized inquiry
that the interview would endanger the interviewer or
“probably cause serious unrest or disturb the good
order of the institution.” However, after the
broadcast of an interview with Timothy McVeigh,
Attorney General John Ashcroft banned all face-to-
face press interviews with male federal death row
inmates. The Attorney General cited no security
reasons, but stated that such prisoners should be
denied “a podium” to communicate their ideas. Two
- questions are presented:
1. Whether the en banc Seventh Circuit erred in
upholding this abridgement of First Amendment
rights, when it held, contrary to decisions of the
Second, Third, Fighth, and Ninth Circuits, that the
“legitimate penological interest” required by Jurner
v. Safley, 482 U.S. 78 (1987), may be established as a
matter of law through post-hoc iitigation
declarations referrirg to “security concerns,” or,
alternatively, by a court’s ability to imagine or
hypothesize such concerns, even where the stated
reason for the abridgement was unconstitutional.
2. Whether the en banc Seventh Circuit erred by
ignoring the four factor test set forth in Turner and
by adopting a test of its own, under which it held
that a permanent ban on _ face-to-face _ press
interviews with male-death-row inmates, a sub-class
of federal prisoners, does not violate the First
Amendment.
ll
PARTIES TO THE PROCEEDING
Petitioner David Paul Hammer was the plaintiff-
appellant below. Respondents John D. Ashcroft,
Harley G. Lappin, Kathleen Hawk-Sawyer, and
Keith Olson were defendants-appellees below.
lll
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ............... i
PARTIES TO THE PROCEEDING ............. eee i
Eels CO PALF Cee Reee FB esintssvicnisssssancsanaictecavssvsanes vi
PETITION FOR A WRIT OF CERTIORARI ............. 1
STE SEAT vitnsanenes ease snnussessvaninicanenslainssaieaiid 1
STATEMENT OF JURISDICTION .......0 ee. 1
CONSTITUTIONAL AND REGULATORY
Rr VES BOE I RED isin ces senssvassucdvecevevedisrseiene 2
STATEMEGINE OF TEE CABS .00.00cccccccscsssvssssrnsesenssrees 2
Bi, — TR Re sen siiccsaiieivsnacodancesenssctuersvaracees 2
BH. FEAL E CP PACTS cvcsicccicccoscssecencssssene 4
C. PRROPCIDIUAL, FEEL IEE ciccccsccnsssccveccssseesess 8
REASONS FOR GRANTING THE WRIT................ 11
I. The Decision Below Conflicts With Prior
Decisions Of This Court, And With
Decisions Of Other Federal Courts Of
Appeals, By Holding That T7urners
“Legitimate Penological Interest”
Requirement May Be Satisfied By FPost-
Hoc, Litigation Declarations Or By Purely
Hypothetical Explanations, Even Where
Contemporaneous Statements Show That
The Restriction Was Adopted For Patently
Unconstitutional Reason... .................sccccscscseeseeeee 13
1V
II. The Decision Below Departs From This
Court’s Prior Holdings By Disregarding
Turner And Upholding The
Constitutionality Of A Permanent
Restriction On The First Amendment
Rights Of A Sub-Class Of Prisoners....................
IIT sa vies ischeixiscacashuinibedadsscsivmoscanusesiabiciins
Appendix A
Hammer v. Ashcroft, 570 F.3d 798 (7th Cir.
RRS ROA EL GOT es AE. Hee evn
Appendix B
Hammer v. Ashcroft, 512 F.3d 961 (7th Cir.
RE ee rear ie MORE AACR PS eR SEE PER EOD
Appendix C
Hammer v. Ashcroft, No. IP 01-558-C-T/G,
2006 WL 456177 (S.D. Ind. Feb. 23, 2006)
eeeteee
Appendix D
Hammer v. Ashcroft, 42 F. App’x 861 (7th
pS AASR Aa ees Dea! Ben shAL DO ie he contra
Appendix E
Hammer v. Ashcroft, No. IP 01-558-C-T/G
(S.D. Ind. May 24, 2001)
See eee eee eeeeeeeeeeeeeeeeeeeeeeseee
Appendix F
Constitutional Provisions and Regulations
INI ic 7c. co canchcacgeueacsiaiaicrsdeaneeinateussuagnioareenveueen 80a
Appendix G
Ashcroft Press Conference..............cccccecesecececeees 85a
Appendix H
Institution Supplement THA-1480.05A.......... 103a
v1
TABLE OF AUTHORITIES
CASES
Abu-Jamal v. Price, 154 F.3d 128 (3d Cir.
eee daseowenei 12, 19
Battle v. Anderson, 564 F.2d 388 (10th Cir.
Teen seecennell 15
Beard v. Banks, 548 U.S. 521 (2006).. 13, 23, 27, 28
Bell v. Wolfish, 441 U.S. 520 (1979) ........ccc:cccceeees 27
Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156 (1962) .............ccsccsssssssoeses 17
Citizens to Preserve Overton Park, Inc. v.
ee, BOT TFB. GE CITED vninsecccscssscesisessessess..:. 17
Johnson v. California, 543 U.S. 499 (2005).......... 15
Motor Vehicle Manufactures Ass’n of the
United States, Inc. v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29
SR LE IY 9: a ON RT OP 17
O’Lone v. Estate of Shabazz, 482 U.S. 342
is 13, 23, 27
Overton v. Bazzetta, 539 U.S. 126 (2003)..... 13, 16,
23, 27, 28
Pell v. Procunter, 417 U.S. 817 (1974) .......... 15, 23,
24, 27
Police Department of Chicago v. Mosley,
ee I aa aiicccchacssacecnucoustneseetemssauscicans 26
Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993)....12, 20
vii
RA.V. v. City of St. Paul, 505 U.S. 377
III is scersina sina sacebsahaadhasmeapaataieasae snare mea dnaiabuseliaed 26
Salahuddin v. Goord, 467 F.3d 263 (2d Cir.
a SaaS Se Os 12, 18, 19
Saxbe v. Washington Post Co., 417 U.S. 843
a ee 23, 24
SEC v. Chenery Corp., 318 U.S. 80 (1943)........... 17
SEC v. Chenery Corp., 332 U.S. 194 (1947)......... 17
Thornburgh v. Abbott, 490 U.S. 401 (1989)...23, 27
Turner v. Safley, 482 U.S. 78 (1987) ............ passim
United States v. Hammer, 404 F. Supp. 2d
676 (M.D. Pa. 2005), appeals dismissed,
BO4 F.BG GES God Cle. BOODP cocccccesccccsccescoscccocseoccs 4
Walker v. Sumner, 917 F.2d 382 (9th Cir.
| ___RaRRReas Sa acne Re es NEN NPE NSAN APS TOO MAU A 12, 20
West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943)... cece cece eee 22
Whitney v. California, 274 U.S. 357 (1927),
overruled in part on other grounds by
Brandenburg v. Ohio, 395 U.S. 444
Lcd eh Ree SO ct SSI SUT) NET OI OO 14
Wirdmar v. Vincent, 454 U.S. 263 (1981).............. 26
Williams v. Rhodes, 393 U.S. 23 (1968) ............... 26
Wolff v. McDonnell, 418 U.S. 539 (1974) ............. 14
STATUTES
ee ek, Ss iia chic eknci'sa bashed vasuuedeeka vaciuaececovscesaneens 2
Se ets Oe I cahabaiesececbocsasencncaes 2, 0, bp Ge Bb, OO
28 U.S.C. § 540.63(g)(4) .........ccccccsccccceees acdatae neuen 27
OTHER AUTHORITIES
OR, Tes Cae We i kccdcindisiacecentsa cae 8
Mary Bosworth, The U.S. Federal Prison
I Fi ikasesecstevcsecvearedanseeeeee 15
PETITION FOR A WRIT OF CERTIORARI
David Paul Hammer respectfully petitions for a
writ of certiorari to review the judgment of the
United States Court of Appeals for the Seventh
Circuit in this case.
OPINIONS BELOW
The Seventh Circuit, by a vote of 5-to-3, reversed
the unanimous panel decision in this case. The
majority and dissenting opinions of the en banc court
are reported at 570 F.3d 798 (7th Cir. 2009) and
reprinted at App. la-30a. The panel opinion is
reported at 512 F.3d 961 (7th Cir. 2008) and
reprinted at App. 31la-48a. The memorandum
opinion and order of the United States District Court
for the Southern District of Indiana, which granted
summary judgment in favor of respondents and
dismissed petitioner’s pro se amended complaint, is
not reported, but is reprinted at App. 49a°62a. An
earlier Seventh Circuit opinion, reversing the district
court’s dismissal of petitioner’s original pro se
complaint for failure to state a claim, is reported at
42 F. App’x 861 (7th Cir. 2002) and reprinted at App.
63a-70a. The district court’s memorandum opinion
and order dismissing the original complaint is not
reported, but is reprinted at App. 7la-79a.
STATEMENT OF JURISDICTION
The Seventh Circuit entered judgment on June
25, 2009. (App. la). On September 15, 2009, Justice
Stevens extended the time in which to file a petition
for a writ of certiorari to and including October 23,
2
2009. This Court has jurisdiction under 28 U.S.C. §
1254.
CONSTITUTIONAL AND REGULATORY
PROVISIONS INVOLVED
The First and Fifth Amendments to the United
States Constitution and the pertinent provisions of
Section 540.63 of Title 28, Code of Federal
Regulations, and Institution Supplement THA-
1480.05A are reprinted at App. 80a-84a, 103a-111a.
STATEMENT OF THE CASE
A. Introduction
To strike a proper balance between First
Amendment rights and prison security, the Federal
Bureau of Prisons (“BOP”), after notice-and-comment
rulemaking, promulgated 28 C.F.R. § 540.63, which
allows federal inmates to participate in face-to-face
press interviews, unless the warden determines,
after a individualized inquiry, that the interview
would “endanger the health or safety of the
interviewer, or would probably cause serious unrest
or disturb the good order of the institution.” (App.
82a). Absent such a finding, the interview must
proceed.
Following a nationally-televised interview with
Timothy McVeigh, however, Attorney General John
D. Ashcroft banned face-to-face interviews with all
male federal death row inmates. (App. 90a). The
Attorney General did not rely on any security
concern or other “legitimate penological purpose,”
but on his personal view that such prisoners should
3
be prevented from communicating their ideas to the
public. (App. 90a). He ordered the ban “to restrict a
mass murderer’s access to the public podium” and to
prevent the “irresponsible glamorization of a culture
of violence.” (App. 90a). Warden Harley G. Lappin,
who was then the warden at the United States
Penitentiary at Terre Haute, Indiana (“USP-TH”)
(which houses all male federal death row inmates),
subsequently memorialized the ban in Institution
Supplement THA-1480.05A. (App. 103a-111a).
Petitioner David Paul Hammer, a male federal
death row inmate, brought this pro se action to
challenge the constitutionality of the ban. The
district court dismissed his complaint for failure to
state a claim (App. 79a), but the Seventh Circuit
reversed and remanded, with instructions that the
case proceed to discovery. (App. 70a). On remand,
respondents refused to answer any of Mr. Hammer's
pro se discovery requests. (7th Cir. JA at 76-86).
The district court nonetheless granted respondents’
motion for summary judgment and again dismissed
Mr. Hammer’s pro se claims. (App. 62a). On appeal,
a panel of the Seventh Circuit unanimously reversed
the district court’s dismissal order, and once again
remanded for discovery and trial. (App. 48a).
The Seventh Circuit granted respondents’
petition for rehearing en banc. By a 5-to-3 vote, the
en banc court reversed the panel decision, holding
that respondents were entitled to summary
judgment because Mr. Hammer was not entitled to
discovery and had not presented a triable issue.
(App. 15a). According to the Seventh Circuit
4
majority, and contrary to the decisions of every other
circuit to have considered the question, respondents’
actual reasons for adopting the total ban were not
relevant to the inquiry mandated by Turner v.
Safley, 482 U.S. 78 (1987). According to the
majority, Turners “legitimate penological interest”
requirement may be satisfied, as a matter of law, by
the submission of conclusory, post-hoc declarations
as to the existence of “security concerns.” (App. 10a-
lla). Indeed, the majority held that Turner would be
satisfied even without such declarations, if a court
could simply imagine or hypothesize a “legitimate
penological interest” for violating First Amendment
rights. (App. 5a). Thus, summary judgment was
appropriate, according to the majority below, even
though Attorney General Ashcroft had cited only
constitutionally impermissible reasons to justify the
ban at the time he announced it.
B. Statement of Facts
Mr. Hammer, who was sentenced to death for
killing a cellmate, resides at the Special Confinement
Unit (““SCU”) of USP-TH. (7th Cir. JA at 125).' The
Although Mr. Hammer’s death sentence was later vacated, no
date has been set for resentencing, and the government has
been granted an extension of time to April 28, 2010 to state its
intentions with respect to resentencing. See United States v.
Hammer, No. 96-CR-239 (M.D. Pa. Aug. 27, 2009) (order
granting United States an extension of eight months to indicate
whether it will request a new death penalty phase trial); United
States v. Hammer, 404 F. Supp. 2d 676 (M.D. Pa. 2005),
appeals dismissed, 564 F.3d 628 (3d Cir. 2009). As respondents
concede, Mr. Hammer continues to reside on death row and is
subject to the policy. (App. 4a, 32a n.1)
5
SCU houses all male federal prisoners who have
been sentenced to death. (7th Cir. JA at 200). In
addition, the SCU houses prisoners who have not
been sentenced to death, but who have been placed
on “administrative detention status.” (7th Cir. JA at
200).
Mr. Hammer has received many requests for
press interviews to discuss conditions on death row,
his own case, and other matters related to his
confinement. In 1999, Mr. Hammer participated
without incident in three face-to-face press
interviews. (7th Cir. JA at 126-28). Those
interviews were conducted under 28 C.F.R. § 540.63,
which permits federal prisoners to participate in
face-to-face interviews unless a warden determines,
after an individualized inquiry, that the interview
would “endanger the health or safety of the
interviewer, or would probably cause serious unrest
or disturb the good order of the institution.” (App.
82a).
On March 12, 2000, “60 Minutes” aired an
interview with Timothy McVeigh, a federal death
row inmate known as the Oklahoma City Bomber.
(7th Cir. JA at 175). The public outcry was
immediate. Among other things, on March 14, 2000,
Senator Byron Dorgan sent a letter to BOP Director
Kathleen Hawk-Sawyer, to demand that the BOP
prohibit future interviews with federal death row
inmates. (7th Cir. JA at 175).
6
No other face-to-face interview with a male
federal death row inmate was ever allowed.” In late
2000 and early 2001, Mr. Hammer attempted to
communicate with the press through press releases
issued by his attorney, through personal written
correspondence, and by using his ordinary 15-minute
daily allotments of telephone time. Even in these
contexts, Warden Lappin repeatedly warned Mr.
Hammer that he was prohibited from disclosing “any
information about another inmate through any
manner of communication (oral, written, etc.).” (7th
Cir. JA at 172) (emphasis in original).
On April 12, 2001, Attorney General Ashcroft and
BOP Director Hawk-Sawyer held a press conference
announcing a categorical ban on _ face-to-face
interviews with male federal death row inmates.
That ban (which was not adopted pursuant to notice-
and-comment rulemaking) permanently and
categorically prohibits male federal death row
inmates (but not female death row inmates, non-
death row inmates housed on the SCU, or, indeed,
any other inmate in the federal prison system) from
having face-to-face interviews with any print or
broadcast journalist on any subject at any time.
(App. 95a-96a). The Attorney General explained:
From March 2000 until April 16, 2001, USP-TH Warden
Lappin denied all media requests for face-to-face interviews
with male federal death row inmates, including nine such
requests for interviews with Mr. Hammer. (7th Cir. JA at 177-
92). After April 16, 2001, THA-1480.05A was specifically
invoked to bar such interviews. (App. 105a).
7
As an American who cares about our culture, I
want to restrict a mass murderer’s access to
the public podium. On an issue of particular
importance to me as Attorney General of the
United States, I do not want anyone to be able
to purchase access to the podium of America
with the blood of 168 innocent victims. ... I’m
concerned about irresponsible glamorization of
a culture of violence, and that concern has
shaped our approach to these _ issues
profoundly.
(App. 90a, 97a).
Four days later, Warden Lappin signed
Institution Supplement THA-1480.05A, which
purportedly was designed to “provide guidelines for
implementing” the case-by-case review process
required by 28 C.F.R. § 540.63. (App. 103a). In fact,
THA-1480.05A did not “implement” the regulation; it
negated the regulation insofar as death row inmates
were concerned. In place of the case-by-case review
required by 28 C.F.R. § 540.63, THA-1480.05A
substituted a permanent and total ban, stating that
“in-person interviews (including video-recorded
interviews) will not be permitted.” (App. 105a). In
addition to banning the broadcast of recorded
interviews, the policy banned all face-to-face
interviews, even non-recorded interviews with print
journalists. (App. 105a).
It is undisputed that THA-1480.05A does not
apply (a) to prisoners housed on the SCU on
“administrative detention status,” (b) to female
federal prisoners sentenced to death, (c) to other
8
federal prisoners who have been convicted of murder,
but not sentenced to death, or (d) to other federal
prisoners who may be objects of acute public interest
because of who they are or what crimes they have
committed. (App. 35a, 105a). With respect to each of
those four groups of prisoners, interview requests
remain subject to the case-by-case policy set forth in
28 C.F.R. § 540.63. (App. 81a-84a).
C. Procedural History
Mr. Hammer filed an amended pro se complaint
on January 2, 2003, claiming that THA-1480.05A
violated both his First Amendment rights and his
Fifth Amendment right to equal protection of the
laws. He sought declaratory and injunctive relief, as
well as damages, under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971). (7th Cir. JA at 26-40).° Mr.
Hammer served three separate pro se discovery
requests. (7th Cir. JA at 56-62). Respondents
objected to all of those requests and moved for
summary judgment, without complying with any of
the requests. (7th Cir. JA at 63-65, 76-86).
Mr. Hammer filed a pro se motion to extend the
time for discovery under Fed. R. Civ. P. 56(f), but the
district court denied that motion. (7th Cir. JA 87-90,
3
Mr. Hammer filed his original pro se complaint on April 24,
2001. The district court dismissed that complaint for failure to
state a valid claim for relief. (App. 79a). Mr. Hammer filed a
pro se appeal. The Seventh Circuit reversed and remanded the
case for further proceedings, including discovery, on July 26,
2002. (App. 70a).
9
225). Thereafter, the district court granted summary
judgment against Mr. Hammer, holding that
“Hammer has not identified a genuine issue of
material fact as to his claims... .” (App. 62a). Mr.
Hammer filed a timely notice of appeal, and the
Seventh Circuit later appointed counsel to assist Mr.
Hammer with the briefing and argument of his
appeal. (7th Cir. JA at 238-39).
On January 15, 2008, a panel of the Seventh
Circuit unanimously reversed the district court’s
grant of summary judgment. The panel held that
Mr. Hammer had raised a triable issue of fact as to
whether the “proffered [security] justification for the
policy banning face-to-face interviews is pretextual.”
(App. 32a). That was so, according to the panel,
because Attorney General Ashcroft’s
contemporaneous’ explanation conflicted with
respondents’ litigation declarations and showed that
the actual purpose of the ban was “to control a
disfavored message rather than to secure the SCU.”
(App. 41a).
The Seventh Circuit granted respondents’
petition for rehearing en banc. (App. 3a).
On June 25, 2009, the Seventh Circuit, by a 5-to-3
vote, held that “Institution Supplement THA
1480.05A is consistent with the Constitution.” (App.
15a). In an opinion by Chief Judge Easterbrook, the
court held that respondents’ actual reasons for
adopting the ban were not relevant because “lilt is
not clear why one bad motive would spoil a rule that
is adequately supported by good reasons.” (App.
10a). The “good reasons,” of course, were not those
10
stated at the time the ban was adopted, but those
that respondents put forth in defense of Mr.
Hammer’s litigation, some three years later. Indeed,
according to the majority, it was not necessary for
respondents to provide any reasons at all, even after
the fact. So long as a court could hypothesize “good
reasons” for the ban, there was no need for discovery
or a trial concerning the abridgement of Mr.
Hammer’s First Amendment rights. (App. 5a, 10a-
lla). The majority further held that “[t]he Supreme
Court did not search for ‘pretext’ in Turner; it asked
whether a rule is rationally related to a legitimate
goal. That’s an objective inquiry.” (App. 10a).
Three judges dissented. Judge Rovner, joined by
Judge Bauer, noted that:
With scarcely a reference to 7urner, today’s
opinion holds that a ban on face-to-face
interviews in the prison system is justified if a
judge can “imagine” a legitimate basis for its
existence, glosses over facts regarding the
application of the relevant policies, and
concludes with the astonishing proposition
that the government may limit a prisoner’s
access to the media based on its distaste for
the anticipated content of the prisoner’s
speech.
(App. 16a).
Judge Wood dissented separately. Among other
things, she noted that “the majority has. . . adoptled]
a rule permitting wholesale censorship in prisons —
one that goes much farther than anything the
11
Supreme Court sanctioned in Pell v. Procunier, 417
U.S. 817 (1974), or Saxbe v. Washington Post Co.,
417 U.S. 848 (1974).” (App. 24a).
REASONS FOR GRANTING THE WRIT
1. This case raises a fundamental question of
First Amendment law on which the courts of appeals
are divided. In a 5-3-decision with far-reaching
consequences, the en banc court held that a federal
prisoner could not challenge the constitutionality of a
policy prohibiting him from having face-to-face
access to print or broadcast journalists, even if there
was evidence to show that the ban was adopted for
unconstitutional, content-based purposes.
Indeed, the evidence here was compelling:
Attorney General Ashcroft stated that the purpose of
the ban was to prohibit death row inmates from
communicating their ideas to the public, not because
of any reason related to prison security, but because
the Attorney General deemed such prisoners, and
any ideas they might express, to be repugnant and
unworthy of First Amendment protection. (App. 90a,
97a). That evidence was irrelevant, according to the
majority below, because respondents had provided
litigation declarations asserting that the ban served
a “legitimate penological interest.” That evidence
was also irrelevant, according to the majority below,
because a court could “imagine” a legitimate purpose
that might be furthered by the ban.
This Court has never held that the abridgement
of First Amendment rights may be justified by after-
the-fact or imagined reasons, or that the actual,
12
unconstitutional reasons for an abridgement of First
Amendment rights should be ignored.
Clearly, the decision below conflicts with this
Court’s decision in Turner v. Safley, 482 U.S. 78
(1987). In addition, the decision below conflicts with
decisions of the Second, Third, Eighth, and Ninth
Circuits, all of which have held that the existence of
a “legitimate penological interest,” and thus the
constitutionality of restrictions placed on a prisoner’s
First Amendment rights, must be measured by
reasons that were put forth at the time the policy
was adopted. In those courts, unlike the Seventh
Circuit, First Amendment rights do not give way to
post-hoc, \et alone hypothetical, explanations. See
Salahuddin v. Goord, 467 F.3d 263, 276-77 (2d Cir.
2006); Abu-Jamal v. Price, 154 F.3d 128, 132-34 (3d
Cir. 1998); Quinn v. Nix, 983 F.2d 115, 118-19 (8th
Cir. 1993); Walker v. Sumner, 917 F.2d 382, 385-87
(9th Cir. 1990).
2. Although this Court has held that prison
restrictions on First Amendment rights are to be
evaluated under the four-part test articulated in
Turner v. Safley, 482 U.S. 78 (1987), the Seventh
Circuit barely mentioned any of the Turner factors
and effectively created an analytical framework that
stands in competition with Jurner. The Seventh
Circuit’s decision did not even purport to address the
question whether THA-1480.05A “is reasonably
related to legitimate penological interests” under the
four-factor Turner test, and it never considered
whether the ban provided male federal death row
inmates with any reasonable alternative means for
13
communicating with the press. See Turner, 482 U.S.
at 89-90. Furthermore, the decision below
constitutes a dangerous innovation in First
Amendment law: no other reported decision has ever
upheld the constitutionality of a permanent
restriction on the First Amendment rights of a sub-
class of prisoners, particularly a sub-class identified
solely based on gender and sentence. Indeed, this
Court previously has expressed skepticism that a
permanent ban on the First Amendment rights of a
sub-class of prisoners could ever be deemed
“reasonable” under the Vurner criteria. Beard v.
Banks, 548 U.S. 521, 535-36 (2006); Overton v.
Bazzetta, 539 U.S. 126, 134 (2003). This case
squarely presents that question.
I. The Decision Below Conflicts With Prior
Decisions Of This Court, And With Decisions Of
Other Federal Courts Of Appeals, By Holding
That Zurner’ “Legitimate Penological Interest”
Requirement May Be Satisfied By Post-Hoc,
Litigation Declarations Or By #£Purely
Hypothetical Explanations, Even Where
Contemporaneous Statements Show That The
Restriction Was Adopted For Patently
Unconstitutional Reasons.
This Court has long recognized that “(lawful
incarceration brings about the necessary withdrawal
or limitation of many privileges and rights .
justified by the considerations underlying our penal
system.” O'Lone v. Estate of Shabazz, 482 U.S. 342,
348 (1987) (quoting Price v. Johnson, 334 U.S. 266,
285 (1948)). But this Court also has recognized that
14
there is no “iron curtain drawn between the
Constitution and the prisons of this country.” Wolff
v. McDonnell, 418 U.S. 539, 555-56 (1974).
Indeed, this Court has recognized that the ability
to share one’s ideas and opinions with others is a
fundamental right that is central to the concept of
human personhood and citizenship in a democratic
society. As Justice Brandeis noted long ago:
Those who won our independence
believed that freedom to think as you will and
to speak as you think are means indispensable
to the discovery and spread of political truth:
that without free speech and assembly
discussion would be futile: that with them,
discussion affords ordinarily adequate
protection against the dissemination of
noxious doctrine; that the greatest menace to
freedom is an inert people; that public
discussion is a political duty, and that this
should be a fundamental principle of American
government.
Whitney v. California, 274 U.S. 357, 375 (1927)
(Brandeis, J., concurring), overruled in part on other
grounds by Brandenburg v. Ohio, 395 U.S. 444
(1969).
The right to communicate one’s thoughts — a
right that is no less important to those who have lost
their physical freedom — is not extinguished by
conviction and incarceration. Once the requirements
of prison security have been satisfied, “a prison
inmate retains those First Amendment rights that
15
are not inconsistent with his status as a prisoner or
with the legitimate penological objectives of the
corrections system.” Pel/ v. Procunier, 417 U.S. 817,
822 (1974); see also Johnson v. California, 543 U.S.
499, 510 (2005). In that way, our law gives
recognition to the fundamental principle that
“persons are sent to prison as punishment, not for
punishment.” Battle v. Anderson, 564 F.2d 388, 395
(10th Cir. 1977); see also Mary Bosworth, The U.S.
Federal Prison System 53 (2004).
To reconcile the First Amendment rights of
prisoners with legitimate penological demands, this
Court, in Turner v. Safley, 482 U.S. 78, 89-90 (1987),
announced a framework for evaluating’ the
constitutionality of prison regulations. In Turner,
the Court held that “when a prison regulation
impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to
legitimate penological interests.” /d. at 89. To
structure that inquiry, the Court adopted a four-
factor test, focused on: (1) whether there is “a valid,
rational connection between the prison regulation
and the legitimate governmental interest put
forward to justify it”; (2) whether “alternative means
of exercising the right . . . remain open to prison
inmates”; (3) whether accommodating the
constitutional right will significantly impact prison
resources; and (4) whether there are “ready
alternatives” that could address the penological
interest without infringing on constitutional rights.
Id. at 89-91.
16
In Turner, this Court did not specifically explain
how, in the context of Turners first requirement, the
requisite reasonable relationship between a
restriction and a legitimate penological purpose was
to be established. /d. at 89. In subsequent cases, the
Court likewise has not had occasion to consider
whether a “legitimate penological interest” must be
articulated at the time the policy is adopted. Thus,
while this Court has held that TVurner requires
courts to “accord substantial deference to the
professional judgment of prison administrators,”
Bazzetta, 539 U.S. at 132, the Court did not consider
whether such deference must be given to non-
contemporaneous explanations offered only in
litigation declarations authored by lawyers long after
the fact. Certainly, no case from this Court suggests
that a post-hoc explanation will be given conclusive
effect in the face of contemporaneous statements
which admit that the contested action was taken for
constitutionally impermissible reasons. Moreover,
relevant decisions from the courts of appeals have
categorically rejected that notion.
In addition, this Court has never suggested that
the Turner test will be satisfied whenever the
reviewing court can “imagine” a_ legitimate
penological interest. Indeed, the holding below
simply negates this Court’s decision in 7urner, which
assumed that the courts would inquire into the
adequacy of the real reasons for administrative
action, rather than some hypothetical reason that
might be conjured to justify the administrative
17
determination. That is not the standard by which
administrative action is evaluated.*
The Seventh Circuit held otherwise. The Seventh
Circuit noted that Mr. Hammer had presented
evidence (including the Attorney General’s
contemporaneous explanation for his actions) to
show that “those who adopted or approved THA
1480.05A took content or viewpoint into account”
* this Court often has had occasion to hold that administrative
determinations may be upheld only on grounds that the agency
actually relied on at the time it acted, and that the propriety of
an agency’s action must be evaluated based on a properly
developed administrative record. SEC v. Chenery Corp., 318
U.S. 80, 95 (1943) (“Chenery I); SEC v. Chenery Corp., 332
U.S. 194, 196 (1947) (“Chenery IJ’); Motor Vehicle Mfrs. Ass'n
of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
50°52 (1983). “It will not do for a court to be compelled to guess
at the theory underlying the agency’s action; nor can a court be
expected to chisel that which must be precise from what the
agency has left vague and indecisive.” Chenery //, 332 US. at
196-97.
A reviewing court “must judge the propriety of such action
solely by the grounds invoked by the agency lat the time it
acted]. If those grounds are inadequate or improper, the court
is powerless to affirm the administrative action by substituting
what it considers to be a more adequate or proper basis.” /d. at
196; accord Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416, 419-20 (1971). Contrary to the decision
below, untested, post-hoc litigation affidavits cannot fill that
void, particularly where, as here, the affidavits directly
contradict the rationale given by the decision-maker at the time
he acted. See Overton Park, 401 U.S. at 419; Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962);
Chenery /, 318 U.S. at 87.
18
when they adopted the permanent ban. (App. 7a, 8a-
9a). According to the Seventh Circuit, however, a
contemporaneous admission of an unconstitutional
purpose was not relevant to Jurners’ “legitimate
penological interest” requirement, so long as the
court record contained a post-hoc litigation
declaration asserting that the challenged action
furthered some legitimate penological interest. (App.
10a-lla). Indeed, the Seventh Circuit held that a
court could enter summary judgment so long as it
could hypothesize a plausible permissible penological
interest, even where a patently unconstitutional,
contemporaneous explanation had been given. (App.
5a, 10a-lla). The Seventh Circuit majority stated:
“It is not clear why one bad motive would spoil a rule
that is adequately supported by good reasons.” (App.
10a).
The Seventh Circuit’s decision clearly conflicts
with decisions of the Second, Third, Eighth, and
Ninth Circuits, which have held that the only
relevant “penological interest” is that which actual/y
motivated the policy’s adoption.
In Salahuddin v. Goord, 467 F.3d 263 (2d Cir.
2006), the Second Circuit reversed a district court’s
dismissal, on summary judgment, of a prisoner's
challenge to a rule requiring Sunni and Shi'ite
Muslim inmates to participate in joint Ramadan
services, as well as the dismissal of his claim that he
was denied the opportunity to participate in Islamic
holiday services while placed in_ disciplinary
keeplock. The Second Circuit held that “[ulnder both
Turner and O'’Lone, once a prisoner shows that a
19
prison regulation impinges on a protected right,
prison officials must show that the disputed official
conduct was motivated by a legitimate penological
interest.” Salahuddin, 467 F.3d at 276-77. According
to the Second Circuit, Turners “legitimate
penological interest” standard ‘“requires’ the
government to close the circle — prison officials
must have been pursuing the interest in inmate
safety when limiting” First Amendment rights. /d.
at 277. “This requirement makes good sense because
it ensures that prison officials actually had, not just
could have had, a legitimate reason for burdening
protected activity.” Jd.
In Abu-Jamal v. Price, 154 F.3d 128 (3d Cir.
1998), the Third Circuit ordered the district court to
issue a preliminary injunction enjoining enforcement
of a policy that prohibited inmates from running
businesses after the policy was challenged by a death
row inmate who was publishing articles, books, and
radio commentaries. In that case, as here, the
inmate had presented evidence to show that the
“(t]he Department [of Corrections] began its
investigation [into the inmate’s press
communications] under public pressure to do so, and
because of the content of [his] writing,” and that the
decision to enforce the policy against him was
“motivated, at least in part, by the content of his
articles.” Abu-~Jamai/, 154 F.3d at 134. Based on this
evidence of an improper purpose, the Third Circuit
held that the policy did not satisfy Turners
“legitimate penological interest” requirement. /d. at
134, 137.
20
In Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993), the
Eighth Circuit likewise held that a “pretextual” post-
hoc articulation of security concerns could not satisfy
Turner, because “[p]rison officials are not entitled to
the deference described in Turner and Procunier [v.
Martinez, 416 U.S. 396, 404-05 (1974)] if their
actions are not actually motivated by legitimate
penological interests at the time they act.” Quuznn,
983 F.2d at 118 (emphasis added).
Finally, in Walker v. Sumner, 917 F.2d 382 (9th
Cir. 1990), the Ninth Circuit held that “{plrison
officials must ‘put forward’ a __ legitimate
governmental interest to justify their regulation, and
must provide evidence that the interest proffered is
the reason why the regulation was adopted or
enforced.” Jd. at 385-86 (internal citations omitted).
Post-hoc declarations created for litigation were not
sufficient to satisfy Turner. “Prison authorities
cannot rely on general or conclusory assertions to
support their policies. Rather, they must first
identify the specific penological interests involved
and then demonstrate both that those specific
interests are the actual bases for their policies and
that the policies are reasonably related to the
furtherance of the identified interests.” Jd. at 386.
The Seventh Circuit’s holding directly conflicts
with these decisions, as Judge Rovner recognized:
With scarcely a reference to Turner, today’s
opinion holds that a ban on face-to-face
interviews in the prison system is justified if a
judge can “imagine” a legitimate basis for its
existence, glosses over facts regarding the
21
application of the relevant policies, and
concludes with the astonishing proposition
that the government may limit a prisoner’s
access to the media based on its distaste for
the anticipated content of the prisoner's
speech. The en banc opinion thus authorizes
the government to deny the public a chance to
hear directly from prisoners who can offer a
glimpse of situations that may embarrass the
government, such as torture and prisoner
abuse, by invoking pretextual justifications for
policies that are unrelated to security.
(App. 16a).
There is no constitutional right more precious in a
democratic society than the right to speak, convey
information about the workings of government, and
communicate one’s ideas, whatever they may be.
Equally important is the right to receive information
and to hear what others have to say about matters of
public concern. In our day, much public attention
has been given to the administration of the death
penalty and to the proper treatment of prisoners.
Indeed, these matters have been the subject of acute
public attentic.: and vigorous debate. In this
context, the ban ordered by Attorney General
Ashcroft does not simply abridge the First
Amendment rights of those with special knowledge
and a particular viewpoint, it impedes the right of all
of us to hear what those individuals know and think.
Judge Wood illustrated this point with a vivid
example:
22
It is likely that the military authorities
running the infamous Abu Ghraib prison
would not have wanted the inmates talking to
the media, either about their own experience
or those of their fellow prisoners (some of
whom may have been too injured, or too
intimidated, to speak for themselves). Closer
to home, the sad but true fact is that abuse by
prison guards or police has not been entirely
abolished. One prisoner might want to write
letters that are self-aggrandizing, just as the
authorities feared, but another might want to
alert the media to the fact that human rights
abuses were occurring in a place like the
Special Confinement Unit.
(App. 28a).
The rights to speak and hear are too important in
themselves, and play too important a role in the
workings of a democratic society, to be extinguished
by executive fiat simply because the Attorney
General, no matter how wise or well-meaning, finds
communications from a subset of federal prisoners to
be personally repugnant. Justice Jackson identified
the genius of our governmental system, and its
relationship to First Amendment freedoms, when he
wrote: “If there is any fixed star in our
constitutional constellation, it is that no official, high
or petty, can prescribe what shall be orthodox in
politics, nationalism, religion or other matters of
opinion.” West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 642 (1943).
23
Mr. Hammer may have been convicted of serious
crimes, but he retains the right to speak, subject to
the legitimate demands of prison security. And the
rest of us, subject to those demands, have the right to
hear what Mr. Hammer has to say. Neither the
Attorney General nor the court below paid sufficient
attention to that basic fact of democratic
government, and the decision below requires review
for that reason.
Il. The Decision Below Departs From This Court’s
Prior Holdings By Disregarding TYurner And
Upholding The Constitutionality Of A Permanent
Restriction On The First Amendment Rights Of A
Sub-Class Of Prisoners.
This Court has repeatedly held that Turners
four-factor analysis “contain[s] the basic substantive
legal standard[s]” and is the proper inquiry for
evaluating constitutional challenges to prison
regulations. Banks, 548 U.S. at 528-29; Bazzetta,
539 U.S. at 132; Thornburgh v. Abbott, 490 U.S. 401,
404, 413-14 (1989); O'Lone, 482 U.S. at 348-50. The
decision below warrants review for the additional
reason that the Seventh Circuit simply disregarded
Turner and its progeny, and chose to create its own
standard for reviewing the constitutionality of prison
restrictions.
Instead of assessing Mr. Hammer’s claims under
the Yurner framework, the court below used the
opinions in two older cases — Pell v. Procunier, 417
U.S. 817 (1974), and Saxbe v. Washington Post Co.,
24
417 U.S. 843 (1974) — to fashion an alternative test.
(App. la-2a, 4a-7a, 13a-14a).
Obviously, it is not the business of an
intermediate appellate court to improve on this
Court’s jurisprudence. Even if it were, the court
below erred because neither Pel/ nor Washington
Post would support upholding THA-1480.05A.
Unlike the policy upheld in this case, the press
restrictions in Pel] and Washington Post applied
equally to all inmates in their respective prison
systems. Pell, 417 U.S. at 819; Washington Post, 417
U.S. at 844. In addition, and also unlike the case at
bar, it was undisputed in both Pel/ and Washington
Post that the restrictive policies were actually
motivated by legitimate “security” concerns. Fell,
417 U.S. at 826; Washington Post, 417 U.S. at 848-
49.
Moreover, neither policy restricted an inmate’s
ability to communicate with the press through
written correspondence (Pe//, 417 U.S. at 824, 827-
28; Washington Post, 417 U.S. at 847-48), whereas
Mr. Hammer has_ been_ prohibited from
communicating to the press “any information about
another inmate through any manner. of
communication (oral, written, etc.).” (7th Cir. JA at
172). As Judge Wood stated in dissent:
[Nleither Pel/ nor Washington Post approved a
total ban on contact with the media. To the
contrary, Fel] relied on the existence of
“alternative methods of communication that
are open to prison inmates,” 417 U.S. at 504,
and Washington Post made clear that
25
“members of the press are accorded
substantial access to the federal prisons in
order to observe and report the conditions they
find there,” 417 U.S. at 518. Washington Post
mentioned specifically the fact that “[olutgoing
correspondence from inmates’ to _ press
representatives is neither censored nor
inspected.” Jd. To the extent that the
majority’s opinion has swept away the need to
show adequate alternative avenues for
communication [under Turner’ second factor],
it has, in my view, overstepped an important
boundary that the Court has drawn.
(App. 29a). Unlike Pell and Washington Post, Mr.
Hammer presented evidence creating a _ triable
question as to whether any “reasonable alternatives”
existed for him to communicate with the press
regarding his case or his observations of prison
conditions — both being subjects that he was
prohibited from discussing in amy manner because of
the ban on communications regarding fellow
inmates. (App. 110a; 7th Cir. JA at 172).
The court below also erred in holding that this
Court’s decisions in Pel/ and Washington Post can be
extended to justify First Amendment restrictions
applied only to a sub-class of prisoners — especially
a sub-class defined solely by gender and sentence.
While Pel/ and Washington Post may permit prison
officials to bar all inmates equally from face-to-face
communication with the media, the Constitution
does not permit prison officials to grant the right to
communicate with the press selectively, or to deny
26
face-to-face communication with the press to a
disfavored group. See Widmar v. Vincent, 454 U.S.
263, 267-68 (1981) (“The Constitution forbids [the
government] to enforce certain exclusions from a
forum generally open to the public, even if it was not
required to create the forum in the first place”);
R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92
(1992) (holding that government’s power to proscribe
“fighting words” generally does not include power to
punish only “fighting words” directed at particular
disfavored topics).
While real differences between male and female
death row inmates (or between death row inmates
and inmates convicted of similar crimes but not
sentenced to death) might necessitate some
differences in their conditions of confinement, it is
not clear how those differences could ever be relevant
to adopting, let alone justifying, differential
treatment under the First Amendment. “Freedom of
expression, and its intersection with the guarantee of
equal protection, would rest on a soft foundation
indeed if government could distinguish among
[groups] on such a wholesale and categorical basis.”
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 101
(1972). This Court has recognized that “invidious
distinctions [in the allocation of cor.stitutional rights]
cannot be enacted without a violation of the Equal
Protection Clause.” Williams v. Rhodes, 393 U.S. 23,
30 (1968). Restricting only male federal death row
inmates from face-to-face interviews with both print
and electronic media (while allowing such access to
all other federal prisoners, including female federal
27
death row inmates) fails even rational-basis analysis
under Yurners first criteria that a restriction be
“reasonably related to legitimate penological
interests.” 482 U.S. at 89.
The permanent nature of the Attorney General’s
ban also offends the Constitution. Indeed, neither
this Court nor any other court has approved a
permanent restriction on First Amendment rights
that applies only to a sub-class of prisoners, let alone
a sub-class defined entirely by gender and sentence.
This Court has upheld prison restrictions on First
Amendment rights in two contexts. First, the Court
has upheld “permanent” restrictions that apply
equally and neutrally to an entire prison population.
See Abbott, 490 U.S. at 409-10, 415-16; Turner, 482
U.S. at 81, 89-90; O’Lone, 482 U.S. at 350-52; Pell
417 U.S. at 828; Bel] v. Wolfish, 441 U.S. 520, 551
(1979). Second, this Court has upheld temporary
restrictions on First Amendment rights applied to a
sub-class of recalcitrant inmates as a disciplinary
sanction. See Bazzetta, 539 U.S. at 134; Banks, 548
U.S. at 535-36. No reported case, however, has
upheld a permanent prison restriction on First
Amendment rights applied only to a sub-class of
prisoners based on gender and sentence.
Under 28 C.F.R. § 540.63, a federal prisoner will
be permitted to participate in a face-to-face press
interview unless his warden determines, after a case-
specific inquiry, that permitting the interview would
endanger the safety of the interviewer or “would
probably cause serious unrest or disturb the good
order of the institution.” 28 C.F.R. § 540.63(g)(4)
28
(emphasis added) (App. 82a). Female federal death
row prisoners, prisoners housed in the SCU with
death row prisoners because of individualized
security concerns, and all other non-death row
prisoners are entitled to have press interview
requests evaluated by their respective wardens, on a
case-by-case basis, under the test set forth in 28
C.F.R. § 540.63. (App. 81a-84a).
In the case of male death row prisoners, however,
no such case-by-case analysis is available, and the
warden has no duty to make the reasoned decision
required by 28 C.F.R. § 540.63. Instead, male
inmates sentenced to death are categorically
prohibited from having face-to-face press interviews
by THA-1480.05A. (App. 105a).
This Court has previously expressed skepticism
that a permanent restriction on the _ First
Amendment rights of a sub-class of prisoners could
ever satisfy the Turner standard. In Bazzetta, 539
U.S. at 134, the Court stated:
We agree the restriction is severe. And if
faced with evidence that [the] regulation is
treated as a de facto permanent ban on all
visitation for certain inmates, we might reach
a different conclusion in a challenge to a
particular application of the regulation. Those
issues are not presented in this case... .
539 U.S. at 134; see also Banks, 548 U.S. at 536.
Here, of course, those issues are squarely
presented. The Seventh Circuit went well beyond
this Court’s jurisprudence by upholding a ban on
29
First Amendment rights that was both “severe” and
“permanent” and applied only to “certain inmates.”
It is not surprising that the Seventh Circuit declined
to evaluate the ban at issue in this case under the
Turner framework. ‘The reason is clear: it is
inconceivable that the First Amendment restrictions
imposed by THA-1480.05A could ever pass muster
under Turner and its progeny. This case warrants
review for that reason as well.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Jerold S. Solovy Barry Sullivan
Counsel of Record Cooney & Conway Chair in Advocacy
John R. Storino and Professor of Law
Chad E. Bell LOYOLA UNIVERSITY CHICAGO
JENNER & BLOCK LLP 25 East Pearson Street
353 N. Clark Street Chicago, Illinois 6061 1
Chicago, IL 60654 (312) 915-7787
(312) 222-9350
Attorneys for Petitioner
October 23, 2009
APPENDIX
la
Appendix A
United States Court of Appeals,
Seventh Circuit
DAVID PAUL HAMMER, Plaintiff-Appellant,
Vv.
JOHN D. ASHCROFT, et al., Defendants-Appellees.
No. 06-1750
ARGUED SEPTEMBER 10, 2008—
DECIDED JUNE 285, 2009
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 01-0558-C-T/G—John Daniel Tinder, Judge.
Before EASTERBROOK, Chief Judge, and BAUER,
POSNER, KANNE, ROVNER, WOOD, EVANS, and
SYKES, Circuit Judges.t
EASTERBROOK, Chief Judge. “[Nlewsmen have no
constitutional right of access to prisons or their
inmates beyond that afforded to the general public.”
Pell v. Procunier, 417 U.S. 817, 834 (1974). The
Supreme Court applied that principle in Saxbe v.
Washington Post Co., 417 U.S. 843 (1974), when
holding that the Federal Bureau of Prisons did not
violate tiie Constitution by preventing face-to-face
interviews between reporters and inmates.
* Circuit Judges Flaum, Williams, and Tinder did not
participate in the consideration or decision of this appeal.
2a
In the years after Washington Post the Bureau
authorized some in-prison interviews. By the late
1990s reporters could talk to prisoners throughout
the federal system. See Program Statement 1480.05
(News Media Contacts) (promulgated Sept. 21, 2000,
and in force since). That changed in 2001, however,
for inmates housed in some of the Bureau’s most-
secure locations—including the “Special Confinement
Unit” at the prison in Terre Haute, Indiana, which
houses most federal prisoners under sentence of
death, plus some others in administrative detention
for disciplinary or security reasons.
Program statements generally applicable to federal
prisons may be modified by institution-specific
supplements. See Program Statement 1480.05(13)
(applying this exception-making power to media
contacts in particular). The Warden of Terre Haute
proposed, and the Bureau’s Director approved,
Institution Supplement THA 1480.05A, which bans
person-to-person meetings between reporters and
inmates of the Special Confinement Unit, though it
allows phone calls and correspondence. (The current
revision, THA 1480.05B, contains the same rule; for
simplicity we refer only to THA 1480.05A.) Phone
calls with reporters are subject to Program
Statement 1480.05(7)(d), which provides that “[a]
representative of the news media may not obtain and
use personal information from one inmate about
another inmate who refuses to be interviewed.”
Correspondence is unlimited; an inmate’s letters to
reporters are not subject to inspection or censorship.
3a
“All properly identified and labeled correspondence
from an inmate who is not on restricted mail status
to qualifying representatives of the news media shall
be sealed and forwarded without inspection, directly
and promptly.” Program Statement 5265.11(17)(a)
(July 9, 1999).
David Paul Hammer, who was sentenced to death for
killing another federal prisoner, contends in this suit
under Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), that he is entitled to
money damages from former Attorney General
Ashcroft and other public officials who drafted or
approved THA 1480.05A. Relying on Fel/ and
Washington Fost, the district court’ granted
summary judgment for the defendants. 2006 U.S.
Dist. LEXIS 9306 (S.D. Ind. Feb. 23, 2006). A panel
of this court reversed, 512 F.3d 961 (7th Cir. 2008),
and that decision was vacated in turn by the order
granting defendants’ petition for rehearing en banc.
Hammer's’ attempt to obtain damages _ has
complicated matters. The validity of federal
administrative rules usually is resolved in actions
under the Administrative Procedure Act seeking
prospective relief, not in suits for money against
officials whose positions and roles generally entitle
them to qualified if not absolute immunity. A district
judge held the policy valid, after all. Although the
panel thought that, on an enlarged record, Hammer
might yet prevail, “liJf judges . . . disagree on a
constitutional question, it is unfair to subject [public
officials] to money damages for picking the losing
4a
side of the controversy.” Wilson v. Layne, 526 U.S.
603, 618 (1999). Accord, Pearson v. Callahan, 129 S.
Ct. 808, 823 (2009). Indeed, a Bivens action is
improper when statutes specify how administrative
deeds are reviewed. See Wilkie v. Robbins, 127 8S. Ct.
2588, 2597-2605 (2007). But because we agree with
the district court that THA 1480.05A is valid, we
sidestep the complications introduced by Hammer’s
quest for damages. (Hammer’s death sentence was
set aside in 2005, United States v. Hammer, 404 F.
Supp. 2d 676 (M.D. Pa. 2005), but he remains in the
Special Confinement Unit pending appeal, now
under advisement in the Third Circuit, and so has an
ongoing interest in the rule’s constitutionality. His
other sentences exceed 1,200 years’ imprisonment, so
release is not imminent.)
Pell v. Procunier and Saxbe v. Washington Post
establish that the Bureau of Prisons could enforce a
system-wide rule against personal or _ video
interviews between. prisoners and _ reporters.
Hammer contends, however, that by curtailing press
access to some prisoners but not others, the Bureau
offends the equal-protection component of the due
process clause in the Constitution’s fifth amendment.
Yet it is hard to understand why all prisoners should
be treated the same. Some are in minimumz-security
prisons and others in more secure confinement; no
one thinks these differences unconstitutional. The
Justices observed in Pel/ and Washington Post that
the principal reason for limiting press contacts is the
maintenance of security; this implies that the greater
the need for security at a given prison (or unit within
da
a prison), the easier it is to justify limits on meetings
between reporters and prisoners. By the time the
Court decided Washington Fost, the Bureau of
Prisons had begun to allow reporters to interview
inmates of minimum-security prisons. See 417 U.S.
at 844 & n.2. The Justices did not perceive any
problem in this distinction. It is easier to justify
limiting press contacts at the few places holding the
most incorrigible prisoners (USP Florence and the
Special Confinement Unit at Terre Haute) than at all
medium- and maximum-security prisons.
Hammer’s argument amounts to a contention that,
once a prison system starts to allow access more
liberally, it must go all the way; any intermediate
position violates equal-protection principles. That
understanding is inconsistent with many established
doctrines. For example, thirty years ago a court held
that Congress had violated equal-protection limits by
subjecting members of the diplomatic service, but not
other federal workers, to mandatory retirement. The
Justices held, however, that it is possible to draw
such lines as long as a rational basis for them may be
imagined; the basis need not be supported in the
record. Vance v. Bradley, 440 U.S. 93 (1979). Just as
it was possible to imagine a rational basis for
distinguishing diplomats from postal carriers, so it is
possible to imagine a_e rational basis for
distinguishing the nation’s most secure institutions
from others. Indeed, to state the distinction is to
furnish the justification: security.
6a
The security justification that carried the day in Pe//
and Washington Post was that interviews with the
press make celebrities of some inmates. This
increases tensions within prisons (those who don’t
receive public attention may react with envy); and if
some inmates use the press to disparage others (or
their beliefs, or the organizations to which they
belong), the tensions will be greater. More: the
interviewed prisoners get swelled heads and “tend to
become the source of substantial disciplinary
problems that can engulf a large portion of the
population at a prison.” Washington Post, 417 U.S.
at 848-49. Prisons for tax evaders and credit-card
forgers may tolerate such tensions; prisons for killers
are more explosive, and the need to prevent lighting
the fuse to the powder keg is compelling.
Hammer maintains that prisons must use the least-
restrictive available options and that the Bureau’s
experience since Washington Post shows that the
risks associated with interviews are manageable.
This line of argument marks a transition from equal
protection to the first amendment, for it incorporates
elements of both bodies of doctrine. But this, too, is a
tired theme. It has been made in several cases
dealing with press interviews and correspondence
among prisoners, and the Justices have rejected it.
See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 409—
14 (1989); cf. Shaw v. Murphy, 532 U.S. 223 (2001).
The question is not whether prisons could find ways
to accommodate one or another change. It is whether
the rule that the prison chooses to implement is
“reasonably related to legitimate security interests.”
7a
Turner v. Safley, 482 U.S. 78, 91 (1987). And the
Court has held in Pel/ and Washington Post that a
no-interview policy is “reasonably related to
legitimate security interests.” The Justices added
that an attempt to be “less restrictive” by making
individual decisions could undermine security: “such
a selective policy would spawn serious discipline and
morale problems of its own by engendering hostility
and resentment among inmates who were refused
interview privileges granted to their fellows.”
Washington Post, 417 U.S. at 849.
Hammer maintains, however, that the Bureau has
engaged in content or viewpoint discrimination by
silencing inmates on death row. This may well be
true of a selective (or “less restrictive”) approach;
wardens who allow some prisoners but not others to
invite the press into their cells might well take
account of what they expect the inmates to say or the
reporters to relate to the public. But a blanket ban—
no inmate in a given prison or unit may meet face-to-
face with any reporter—is neutral with respect to
both content and viewpoint. This is one reason why
the Justices approved the policies at issue in Pe// and
Washington Post, giving the exception-free quality of
the policies as proof that the decisions were not
based on content. See Pel/ 417 U.S. at 825-26.
Perhaps Hammer’s point is not that the ru/e employs
content or viewpoint as a ground of decision, but that
those who adopted or approved THA 1480.05A took
content or viewpoint into account when deciding to
change the rules for some federal prisoners but not
8a
others. This line of argument starts with the fact
that reporters freely interviewed inmates of the
Special Confinement Unit, including Hammer
himself, for the first nine months of the Unit’s
existence—until shortly after an interview with
Timothy McVeigh was broadcast by CBS on “60
Minutes” in March 2000. (The Special Confinement
Unit was established in July 1999; Hammer and
McVeigh were among its first inmates.) McVeigh had
been sentenced to death for killing 168 people by
bombing the Murrah Federal Building in Oklahoma
City. He used the forum of national TV to justify and
extol terrorism. Shortly after the interview was
broadcast, Byron Dorgan, who represents North
Dakota in the Senate, wrote to Kathleen Hawk-
Sawyer, Director of the Bureau of Prisons,
complaining about the interview. Senator Dorgan
stated, among other things:
The American people have a right to expect
that the incarceration of a convicted killer
will not only remove him physically from
society, but will also prevent him from
further intrusion in our lives’ through
television interviews and from using those
forums to advance his agenda of violence.
About a month after Senator Dorgan sent that letter,
Attorney General Ashcroft and Director Hawk-
Sawyer announced arrangements for closed-circuit
telecasting of McVeigh’s execution and took some
questions. Ashcroft also announced that the Bureau
would replace its case-by-case evaluation system
with a prohibition on in-person interviews of inmates
9a
at the Special Confinement Unit. Hammer finds
telling these statements:
I am aware that several media outlets have
requested access to interview inmate
McVeigh. As an American who cares about
our culture, I want to restrict a mass
murderer’s access to the public podium. On
an issue of particular importance to me as
Attorney General of the United States, I do
not want anyone to be able to purchase
access to the podium of America with the
blood of 168 innocent victims.
I’m concerned about irresponsible
glamorization of a culture of violence, and
that concern has shaped our approach to
these issues profoundly.
On April 15, 2001, three days after the press
conference, Harley Lappin, the Warden of Terre
Haute, issued Institution Supplement THA
1480.05A.
Hammer wants discovery during which former
Attorney General Ashcroft, former Director Hawk-
Sawyer, and former Warden Lappin must explain
under oath why they adopted the policy in question.
If a belief that terrorists should not be able to obtain
publicity by committing murder played a role in the
decision, Hammer contends, the motivation for the
policy is infirm, and the policy itself would fall with
the bad motive.
10a
It is not clear why one bad motive would spoil a rule
that is adequately supported by good reasons. See
Mueller v. Allen, 463 U.S. 388, 394-95 (1983). The
Supreme Court did not search for “pretext” in
Turner; it asked instead whether a rule is rationally
related to a legitimate goal. That’s an objective
inquiry. If motive matters, why examine the
thoughts of those who adopted the rule to the
exclusion of those who have maintained it in force?—
Attorney General Gonzales, Solicitor General
Clement (who authorized the petition for rehearing
en banc), Attorney General Mukasey (who was in
office when the Department of Justice defended the
policy before the en banc court), and Attorney
General Holder, who could revoke THA 1480.05A
with one sentence plus a signature but has not done
so. (There is no special burden to justify a change of
administrative policy. See FCC v. Fox Television
Stations, Inc., 129 S. Ct. 1800, 1810-11 & n.2
(2009).)
Nor do we see how a demand that a Cabinet officer
give testimony about his thinking could be squared
with United States v. Morgan, 313 U.S. 409 (1941),
and PBGC v. LTV Corp., 496 U.S. 633 (1990). These
decisions hold that courts evaluating the validity of
an administrative action may not enlarge the
administrative record by demanding that the people
who proposed or approved the rule testify about their
thinking. See also Richard J. Pierce, Jr., I
Administrative Law Treatise § 8.6 (2002).
lla
For current purposes, however, we assume that
Attorney General Ashcroft’s successors share his
views. There’s nothing unconstitutional about them,
so we need not decide whether they led to the policy’s
adoption and maintenance, how motivation could be
proved consistent with Morgan, or what role it plays
in evaluating a policy’s validity. Opposing a “culture
of violence” is an ordinary, and desirable, goal for a
criminal prosecutor. Attorney General Ashcroft’s
statements combine the idea that criminals should
not be allowed to benefit from their deeds (see Simon
& Schuster, Inc. v. New York Crime Victims Board,
502 U.S. 105 (1991) (a state may apply all of a
criminal’s income, including royalties from books, to
satisfy restitution awards, though it can’t pick and
choose among books)) with variations of propositions
that can be found in Pell and Washington Post.
One of the reasons that state and federal prison
administrators gave for curtailing press access was
that they did not want people to become celebrities
by committing crimes. The Justices thought this a
good basis to curtail press access, not a
constitutionally infirm one. See Washington Post,
417 U.S. at 848-50. This is a reason why prisoners
are separated from society: Most prisons are remote,
and access to them tightly controlled, not simply to
make escape difficult, but because solitude is a
legitimate part of punishment. Becoming a celebrity
makes crime more attractive—and if not so
attractive as to outweigh the costs of prison, still
anything that reduces the (effective) punishment for
crime is of legitimate concern to Attorneys General
12a
and prison officials. For murderers on death row or
serving life sentences, celebrity is especially
attractive, as these persons do not expect to return to
the civilian world. They will receive few other
rewards in life.
Some criminal acts are both costly to society and
potentially attractive to imitators; the most notorious
criminals can be trend-setters. Timothy McVeigh
was such a person. He had a following, and one of his
admirers was recently convicted of threatening to
blow up a federal building in Milwaukee. See United
States v. Parr, 545 F.3d 491 (7th Cir. 2008). Other
“cause” criminals want to recruit; think of those who
blow up abortion clinics and kill physicians. Social
interests in curtailing and punishing crime support
keeping these prisoners in seclusion. No one
doubts—at least, no one should doubt—that a person
serving time for tax evasion may be prevented from
using the prison print shop to run off tracts
advocating the proposition that the _ sixteenth
amendment is invalid and no one need pay a penny
of taxes. See United States v. Benson, 561 F.3d 718
(7th Cir. 2009) (affirming an injunction that prevents
a convicted tax evader from selling a “16th
Amendment Reliance Package” that purports to give
other tax protesters a means to avoid both payment
and criminal liability). If what Attorney General
Ashcroft said in April 2001 evinces’ an
unconstitutional motive, much of what this court
wrote in Benson suffers from the same failing.
l3a
Naturally, Hammer insists that he is no McVeigh
and would not use the press to promote murder. He
wants to speak instead about prison conditions, his
current professed respect for life, and what he sees
as misconduct by guards and wardens. A system of
rules that permitted prison administrators to conceal
beatings or starvation of prisoners, violations of
statutes and regulations, and other misconduct
would be intolerable. The Court said as much in Pe//
and Washington Fost. It was important to both
decisions that all prisoners could correspond freely
with reporters, even though face-to-face interviews
were impossible. See fell, 417 U.S. at 824-28;
Washington Post, 417 U.S. at 847-48. Hammer sees
this as an opening, because (he says) the Bureau of
Prisons does not allow any uncensored channel of
communication to the press.
This line of argument relies on Program Statement
1480.05(7)(d), which we quoted at the outset of this
opinion. It provides: “A representative of the news
media may not obtain and use personal information
from one inmate about another inmate who refuses
to be interviewed.” As far as we can tell, this rule
applies to interviews (in person or by telephone) but
not to correspondence. Program Statement
5265.11(17)(a), which sets out the rules for written
exchanges, says that “[a]ll properly identified and
labeled correspondence from an inmate who is not on
restricted mail status to qualifying representatives of
the news media shall be sealed and forwarded
without inspection, directly and promptly.” That’s
exactly the sort oof uncensored outgoing
l4a
correspondence that the Court deemed adequate in
Pell and Washington Post. (Hammer does not
contend that persons held in the _ Special
Confinement Unit are “on restricted mail status” or
that the prison has ever red-penciled any letter he
sent to a reporter.) The limit on information about
other inmates deals only with oral interviews. And if
Hammer were to prevail in this suit, he would not be
rid of Program Statement 1480.05(7)(d), for it covers
in-person and televised interviews as well as phone
interviews.
To the extent that Hammer may be contesting the
validity of Program Statement 1480.05(7)(d) as
applied to phone calls with the press (the only way it
affects him), he has not’ established any
constitutional problem. The restriction is a rational
one, for reasons covered in Fel/ and Washington
Post. Telling tales about fellow inmates may make
them angry (if the tales are defamatory) or may
make yet other inmates envious (if the tales are
flattering). In either event, disorder may follow. As
the district court put it, “insults or provocations, real
or imagined, can result in inmate-on-inmate violence
and thus can have dire consequences for inmates,
penitentiary staff, and the public at large.” 2006 U.S.
Dist. LEXIS 9306 at *11-*12. Defamation is less
likely if the other inmate agrees to talk to the press;
Hammer may discuss such inmates by phone with
reporters. And if, to take the worst case, another
inmate is beaten and unable to talk, Hammer
remains free to send a letter informing a reporter
about that event. Pel// and Washington Post held that
15a
free correspondence supplies the needed channel of
communication; Hammer has that plus 15 minutes of
telephone time a day.
Correspondence is not the only way to expose
misconduct by guards and administrators. Prisoners
are free to file lawsuits, and papers sent to courts (or
lawyers) cannot be censored. See Bounds v. Smith,
430 U.S. 817 (1977); Procunier v. Martinez, 416 U.S.
396 (1974). So the limit in Program Statement
1480.05(7)(d) is not going to conceal any misconduct
in which the public has a legitimate interest.
Institution Supplement THA 1480.05A is consistent
with the Constitution, and the judgment of the
district court is
AFFIRMED.
ROVNER, Circuit Judge, with whom Judge Bauer
joins, dissenting. The original panel’s opinion was
firmly rooted in the Supreme Court’s long-standing
rule that a prison regulation infringing on an
inmate’s constitutional rights is valid only if “it is
reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).
When a prisoner challenges a prison policy on
constitutional grounds, the government must put
forward a “legitimate” government interest to justify
the restriction. Jd. Suppressing speech because
government officials find the content offensive is not
a legitimate penological interest. /d. at 90. The
original panel concluded that David Paul Hammer
presented evidence that created a question of
16a
material fact that the district court overlooked: is the
jailhouse-celebrity concern articulated by the warden
“legitimate,” or is it simply a convenient explanation
to justify a policy designed to control the speech
content of a particular subset of prisoners? Given the
fact dispute, the original panel reached the limited—
indeed, even pedestrian—conclusion that a trier of
fact must resolve the conflict.
Today’s en banc opinion is almost entirely unmoored
from the original panel’s narrow treatment of the
issues presented in this appeal. With scarcely a
reference to Turner, today’s opinion holds that a ban
on face-to-face interviews in the prison system is
justified if a judge can “imagine” a legitimate basis
for its existence, glosses over facts regarding the
application of the relevant policies, and concludes
with the astonishing proposition that the
government may limit a prisoner’s access to the
media based on its distaste for the anticipated
content of the prisoner’s speech. The en banc opinion
thus authorizes the government to deny the public a
chance to hear directly from prisoners who can offer
a glimpse of situations that may embarrass the
government, such as torture and prisoner abuse, by
invoking pretextual justifications for policies that are
unrelated to security. For the reasons set forth in the
original pancl’s opinion, I dissent. I write separately
only to memorialize my additional disagreement
with the unexpected breadth of the en banc opinion.
Let me begin with the most troubling aspect of
today’s opinion: the majority’s willingness to push
17a
aside Attorney General Ashcroft’s statement that “as
an American who cares about our culture” and is
“concerned about the irresponsible glamorization of a
culture of violence,” he wanted to prevent death-row
inmates, and only death-row inmates, from engaging
in face-to-face interviews with the media on any
subject. This rationale for censorship assumes that
what death-row inmates have to say, if broadcast
outside the prison, necessarily corrodes American
culture. But First Amendment jurisprudence is
grounded in the idea that the government may not
prevent a person, including a prisoner, from
speaking merely because it disapproves of the
speaker or what the speaker might say. See, e.g,
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)
(noting that “content-based restrictions are
presumptively invalid”); Turner, 482 U.S. at 90
(stating that prison regulations that infringe on
inmates’ First Amendment rights must operate “in a
neutral fashion, without regard to the content of the
expression”); Regan v. Time, Inc., 468 U.S. 641, 648-
49 (1984) (“Regulations that permit the Government
to discriminate on the basis of the content of the
message cannot be tolerated under the First
Amendment.”). Indeed, this court has recognized
that the government may not pass_ speech
restrictions in an effort to preserve its own notions of
valued American culture:
Racial bigotry, anti-semitism, violence on
television, reporters’ biases-these and many
more influence the culture and shape our
socialization. None is directly answerable by
18a
more speech, unless that speech too finds its
place in the popular culture. Yet all is
protected as speech, however insidious. Any
other answer leaves the government in
control of all of the institutions of culture, the
great censor and director of which thoughts
are good for us.
See American Booksellers Assn, Inc. v. Hudnut, 771
F.2d 323, 330 (7th Cir. 1985) (Easterbrook, J.). Yet
Attorney General Ashcroft said publicly that
preserving his version of American culture is exactly
why the Bureau decided to limit death-row inmates’
access to the media.
In order to circumvent this problem, the majority
applies its own interpretive spin to Attorney General
Ashcroft’s statements and decides that the Attorney
General meant that “criminals should not be allowed
to benefit from their deeds.” The majority thus
concludes that Attorney General Ashcroft articulated
a legitimate penological purpose to the interview ban
because he saw restricting face-to-face interviews as
a form of punishment or deterrence. But that is a
question for a fact finder, who might reject this post-
hoc rationalization and instead take Attorney
General Ashcroft at his word and conclude that what
actually “shaped” his mind in enacting the ban is his
desire to prevent death-row_ prisoners’ from
influencing our “culture.” That desire is not a
legitimate penological purpose.
The majority's comparison of this case to United
States v. Benson, 561 F.3d 718 (7th Cir. 2009), is
19a
unhelpful. In Benson we held that a convicted tax
offender may not market materials that encourage
other people to evade tax laws. Benson dealt with
commercial speech, which occupies its own niche in
First-Amendment jurisprudence, see Central Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm'n of New
York, 447 U.S. 557, 562-63 (1980), and concluded
tliat it is permissible to enjoin a person from making
false statements in connection with the sale of a
product, Benson, 561 F.3d at 725-26. Even accepting
the majority’s assumption that Attorney General
Ashcroft wanted to prevent inmates’ from
encouraging violence, the parallel to Senson is
unpersuasive. Deceiving the public into buying a
product designed to evade payment of required taxes
is illegal, see 26 U.S.C. § 6700(a); advocating
unpopular ideas is not, see Brandenburg v. Ohio, 395
U.S. 444, 448-49 (1969).
The original panel was also concerned that the
Special Confinement Unit’s prohibition on face-to-
face interviews does not leave sufficient alternatives
for death-row inmates to access the media. Today’s
opinion concludes that the alternatives are sufficient
because death-row inmates have 15 minutes of
telephone time each day that they can use to speak
with reporters, and because they are entitled to
unlimited correspondence. But the government
concedes that death-row inmates are not allowed—
1 Of course the government may regulate speech that amounts
to incitement of violence, see Brandenburg, 395 U.S. at 447, but
not even today’s majority suggests that Ashcroft intended the
media ban to target that category of speech.
20a
through any method of communication—to discuss
other inmates with members of the media. I am
particularly troubled by this aspect of the policy
because it may prevent inmates from reporting
prison abuse. Under the current policies an inmate
could be disciplined for informing the media—
whether on the phone or by letter—that another
inmate is being abused by a guard. When this
concern was raised at the en banc argument, counsel
for the defendants asserted that a victimized inmate
could report the abuse himself. But that suggestion
ignores the reality that any guard who abuses an
inmate is likely to pressure his victim not to disclose
the abuse, and such threats are particularly
effective.
Today the majority brushes aside this concern,
because “as far as [it] can tell,” the ban on talking
about other inmates does not apply to written
correspondence. It relies on a program statement
that says that outgoing mail to the media is sent
without inspection. But at the en banc argument,
counsel for the defendants said that all mail sent by
inmates at the Special Confinement Unit must be
given to prison officials unsealed for inspection
before it is mailed. When asked what would be the
consequence to an inmate who sends a letter
discussing another inmate, counsel for’ the
government had no answer. Thus our original fears
are unabated; on this record we cannot tell whether
there is any satisfactory alternative for inmates at
the Special Confinement Unit to give the media any
information that involves other inmates.
21a
Which leads to another concern that today’s opinion
glosses over completely—Hammer was denied the
opportunity to create a full record at the summary
judgment stage. As discussed in the original opinion,
the government moved for summary judgment before
the close of discovery and only then responded to
Hammer’s discovery requests by objecting to them.
Hammer asked for a continuance to allow him to
build an adequate record, but the district court did
not rule on his motion before the deadline for his
summary-judgment response. To avoid missing his
deadline, Hammer was forced to respond without
receiving any discovery from the defendants. Today’s
opinion is quick to fill in the blanks itself in the face
of ambiguity about the interests underlying the
challenged policy. That is a task that may not have
been necessary had Hammer had the chance to
conduct proper discovery or if the district court had
granted any of Hammer’s three requests for counsel.
The majority's treatment of Hammer’s_ equal-
protection argument is also untethered from the
governing legal standard and the facts of this case.
The majority assumes that the media ban applies to
all inmates housed in the Special Confinement Unit
and concludes that the policy passes constitutional
muster because the majority can “imagine a rational
basis for distinguishing the nation’s most secure
institutions from others.” But the parties agree that
the media ban applies only to those members of the
Special Confinement Unit who are under a death
sentence. It is not, as the majority assumes, a unit-
22a
wide ban, as not all inmates at the Special
Confinement Unit are death-row inmates. That
distinction casts doubt on the legitimacy of the
‘Jailhouse celebrity’ concern articulated by the
government because, as Hammer point out, it is
irrational to distinguish among inmates based solely
on their particular sentence. Under the policy as
applied by the Bureau of Prisons, famous mafia
members, leaders of violent drug gangs, and the
former governor of Illinois may all meet face-to-face
with the press. But an unknown inmate under a
death sentence may not because, the Bureau says,
such access could make them “jailhouse celebrities.”
It is unclear why speaking in-person with a
journalist would give an unknown death-row inmate
more influence over other prisoners than would, for
example, allowing Martha Stewart or George Ryan
to give face-to-face interviews during their
incarceration, which they would have been or are
free to do under the Bureau’s policies. As the
majority points out, distinguishing among inmates
risks “engendering hostility and resentment among
inmates who were refused interview privileges
granted to their fellows.” See Saxbe v. Washington
Post Co., 417 U.S. 8438, 849 (1974). Yet here the
Bureau of Prisons applies the media ban in such a
way as to risk the very dangers it says it wants to
avoid.
Finally, the majority is concerned that a remand in
this case could subject the former, and perhaps
current, Attorney General to discovery, and that any
demand for his testimony would rub up against
23a
United States v. Morgan, 313 U.S. 409 (1941). The
Morgan cases hold that an agency head should not be
required in lhitigation to explain all of the
considerations that went into a decision that was the
result of formal rulemaking or a quasi judicial
proceeding. /d. at 421-22. Administrative decisions
must be judged based on the administrative record or
evidence adduced by the parties. The Morgan
principle is not offended here because the media ban
was not the result of any formal agency process. On
the contrary, there was neither notice nor a hearing
before the media ban went into effect. Accordingly,
even if on remand Hammer sought to depose
Attorney General Ashcroft—who, after all, chose to
speak publicly about the rationale behind the media
ban—such scrutiny would not upset “the integrity of
the administrative process.” /d.
I believe that in the rare circumstances where a
prisoner submits evidence casting doubt on the
legitimacy of the security rationale supposedly
supporting a policy, he deserves to have the chance
to create a full record to shed light on those
circumstances, and ultimately, to have a trier of fact
resolve disputes of fact. I stand by that holding, and
accordingly, I dissent.
WOOD, Circuit Judge, dissenting. Although I agree
with much of Judge Rovner’s dissent, I write
separately in order to highlight my own concerns
with the majority’s opinion. Bricfly put, they are as
follows: first, the record does not support certain key
assumptions made in the majority’s opinion; second,
24a
and related to the first point, it was error to grant
summary judgment in favor of the defendants
without permitting the plaintiff, David Hammer, to
develop the record properly; and third, the majority
has erred by adopting a rule permitting wholesale
censorship in prisons—one that goes much farther
than anything the Supreme Court sanctioned in Pel/
v. Procunier, 417 U.S. 817 (1974), or Saxbe v.
Washington Post Co., 417 U.S. 843 (1974).
First, we must look at the record. Central to the
majority’s analysis is the assumption that inmate
“(clorrespondence is unlimited; an inmate’s letters to
reporters are not subject to inspection or censorship.”
Ante at 3. In support of this proposition, the majority
cites Bureau of Prisons (“BOP”) Program Statement
(“PS”) 5265.11(17)(a) (July 9, 1999). It then goes on
to say that “[p]hone calls with reporters are subject
to [PS] 1480.05(7)(d), which provides that ‘[a]
representative of the news media may not obtain and
use personal information from one inmate about
another inmate who refuses to be interviewed.”
What the majority brushes over, however, is the fact
that there is nothing in paragraph 7(d) of the
Program Statement (or any other part of that
Statement) that limits this restriction to information
collected through telephone calls. In fact, materials
in the record suggest strongly that the prohibition
extends to all forms of communication. For example,
the record includes a letter from Warden Lappin to a
lawyer who published a news release that included
statements that inmate Hammer made about other
inmates. (Plaintiffs Appendix at A169.) The
25a
Warden’s letter rebukes the lawyer and informs him
that 28 C.F.R. § 540.61(d) prohibits this publication.
That regulation applies to all collection of
information by the media, not just to telephone calls.
Id. In a memorandum of December 22, 2000, from
the Warden directly to Hammer, the Warden
reprimands Hammer for providing information
concerning other inmates “during a recent news
media interview.” (Plaintiff's Appendix at A171.) The
memorandum says nothing about the form the
interview took. Two weeks later, in response to
Hammer’s request for clarification, Warden Lappin
replies “You are hereby ordered not to provide any
information concerning other inmates during news
media interviews, social calls, or correspondence
with the media.” (Plaintiffs Appendix at A172;
emphasis added.)
At oral argument before this court, counsel for the
governmental defendants did not endorse the narrow
rule that the majority has postulated. To the
contrary, counsel said that a// mail sent by inmates
in the Special Confinement Unit (where Hammer is
incarcerated) must be given to prison officials
unsealed for inspection before it is mailed. Although
this might seem to conflict with PS 5265.11(17)(a),
which provides that properly identified and labeled
correspondence from an inmate not on restricted
mail status to qualifying representatives of the news
media “shall be sealed and forwarded without
inspection, directly and promptly,” that rule is not
unqualified. Most importantly, mail from inmates on
restricted special mail status is subject to inspection,
26a
and PS 5265.11(17) is expressly made subject to the
Program Statement on News Media Contacts—that
is, to PS 1480.05. The record does not establish
whether Hammer was on restricted mail status, but
it indicates that he may have been. (It would not
surprise me if everyone in the Special Confinement
Unit were subject to additional restrictions.)
Furthermore, it is still necessary to reconcile 28
C.F.R. § 540.61(d), PS 5265.11(17), and PS
1480.05(7)(d). It seems most consistent with all of
these materials (and consistent with both Warden
Lappin’s interpretation and the government's
representation) to conclude that if a prisoner wrote a
letter to a representative of the media that conveyed
information about a fellow inmate, the letter would
be confiscated. Without the linchpin provided by its
assumption that correspondence is_ free, the
majority’s rationale collapses.
This brings me to my second point—again one that
Judge Rovner has also emphasized: Hammer was
blocked completely from developing a record at the
summary judgment stage. The government moved
for summary judgment before the close of discovery
and then refused to comply with Hammer’s requests.
This left Hammer with little or nothing on which to
rely when he attempted to oppose the summary
judgment motion. The majority here sets up a straw
man, claiming that the only thing that would suffice
would be direct depositions of former Attorney
General John Ashcroft, former Director of the BOP
Kathleen Hawk-Sawyer, and former Warden of the
U.S. Penitentiary at Terre Haute Harley Lappin, in
27a
which Hammer tried to unmask their “true” reason
for the new rules. The majority is worried that such
untrammeled discovery would be inconsistent with
United States v. Morgan, 313 U.S. 409 (1941), and
PBGC v. LTV Corp., 496 U.S. 633 (1990). Its
concerns are misplaced. First, it is a mistake to lump
all three defendants into the same group. As the
Supreme Court’s recent decision in Ashcroft v. Iqbal,
129 S.Ct. 1937 (2009), undersccres, it is one thing to
acknowledge that a high official has knowledge of a
particular policy, or even approves of it personally; it
is quite another to plead that the official was
personally responsible for a_ violation of
constitutional rights. Here, the record already
includes the public statements—reproduced ante at
8-9—that former Attorney General Ashcroft made
about the media ban. In my opinion, the district
court could easily respect the policies animating
Morgan and LTV simply by limiting to publicly
available information (including whatever falls
within the scope of the Freedom of Information Act)
any further exploration of the Attorney General’s
position.
It is by no means unprecedented to seek the
deposition of the Director of the BOP or the warden
of a particular prison. Once again, the district court
would be in a position to decide whether such a
measure was necessary, or if alternatives (including
production of documents oor answers to
interrogatories; perhaps even depositions upon
written questions) would suffice. Hammer has a
right to explore whether the media ban was based
28a
upon legitimate penological concerns—in which case
it is legal under the well-established standards of
Turner v. Safley, 482 U.S. 78, 89 (1987)—or if it was
ins*ead designed to stifle speech because the
authorities fear that the content will be unwelcome.
The latter is, unfortunately, not beyond imagination.
It is likely that the military authorities running the
infamous Abu Ghraib prison would not have wanted
the inmates talking to the media, either about their
own experiences or those of their fellow prisoners
(some of whom may have been too injured, or too
intimidated, to speak for themselves). Closer to
home, the sad but true fact is that abuse by prison
guards or police has not been entirely abolished. One
prisoner might want to write letters that are self-
aggrandizing, just as the authorities feared, but
another might want to alert the media to the fact
that human rights abuses were occurring in a place
like the Special Confinement Unit. Censorship of all
avenues of communication—which, as I have said, is
what this record shows—would be an all-too-effective
way to prevent the public from ever learning about
such problems.
That leads me to the final moint, which is the one
that Judge Rovner has emphasized: the First
Amendment implications of the media ban. While I
certainly agree with her that there is a potential
First Amendment problem here, I see this case as a
textbook example of the wisdom of the rule of
constitutional avoidance. It seems elementary to me
that before this court, or any court, should reach an
important constitutional question, the record should
29a
be developed properly and we should know what we
are talking about. That has not happened in this
case. The majority has filled in the gaps with
speculation, both about possible loopholes that might
make written correspondence an adequate outlet for
prisoners despite the media rule, and about possible
penologicai justifications for the rule. This is not the
way that we should approach a question as
important as the balance between First Amendment
rights of prisoners—which J7urner recognizes are not
forfeited entirely—and the critical job of prison
officials to ensure security and safety within the
prison walls. It is worth noting, however, that
neither Pel] nor Washington Post approved a total
ban on contact with the media. To the contrary, Pel/
relied on the existence of “alternative methods of
communication that are open to prison inmates,” 417
U.S. at 504, and Washington Post made clear that
“members of the press are accorded substantial
access to the federal prisons in order to observe and
report the conditions they find there,” 417 U.S. at
518. Washington Post mentioned specifically the fact
that “lolutgoing correspondence from inmates to
press representatives is neither censored nor
inspected.” /d. To the extent that the majority's
opinion has swept away the need to show adequate
alternative avenues for communication, it has, in my
view, overstepped an important boundary that the
Court has drawn.
As the original panel opinion did, I would therefore
reverse the grant of summary judgment and remand
this case to the district court for further proceedings,
30a
along the lines I have outlined here. I therefore
respectfully dissent.
3la
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
DAVID PAUL HAMMER,
Plaintiff-Appeliant,
Vv.
JOHN D. ASHCROFT, et al.,
Detendants-Appellees.
No. 06-1750.
Argued Nov. 26, 2007.
Decided Jan. 15, 2008.
Rehearing En Banc Granted,
Opinion Vacated Aug. 19, 2008."
ROVNER, Circuit Judge.
David Hammer, a federal prisoner on death row,
sued various Bureau of Prisons (“BOP”) officials
alleging that they violated his First Amendment and
equal protection rights by implementing and
enforcing a policy that prevents him from giving
face-to-face interviews with the media and from
talking with the media about other inmates. The
current defendants-the former Attorney General of
the United States, John Ashcroft; a former BOP
Director, Kathleen Hawk-Sawyer: and _ former
wardens of the federal prison in Terre Haute,
Indiana, Harley Lappin and Keith Olson-moved for
* Judges Flaum, Williams and Tinder did not participate.
32a
summary judgment, arguing that the challenged
policy is rationally related to legitimate penological
interests. The district court granted the defendants’
motion, and Hammer appeals. Because we conclude
that Hammer raised a genuine issue of fact as to
whether the defendants’ proffered justification for
the policy banning face-to-face interviews is
pretextual, we reverse and remand.
I. Background
In July 1999 the BOP opened the Special
Confinement Unit (“SCU”) at the federal prison in
Terre Haute, Indiana, to house male inmates
sentenced to death by the federal courts. The SCU
also houses inmates who are not under a death
sentence, but who are considered to be on
“administrative detention status.” Hammer-who was
under a federal death sentence for killing his
cellmate-was among the first inmates transferred to
the SCU.!
Between August and December 1999, Hammer
gave three face-to-face interviews with members of
the media in the SCU’s non-contact visiting area. No
‘ Hammer's death sentence has been vacated, see United States
v. Hammer, 404 F. Supp. 2d 676 (M.D. Pa. 2005)-a decision the
government is challenging in the Third Circuit Court of
Appeals, see Hammer v. United States, No. 06-9001, 128 S. Ct.
43, 169 L. Ed.2d 41. Although Hammer is no longer under a
death sentence, Hammer’s counsel informed us during oral
argument-and the appellees do not dispute-that he is still
housed on death row at the SCU and is still subject to the
challenged policy.
33a
security problems arose as a result of these
interviews. But in late December 2000, Lappin
ordered Hammer not to provide information to
members of the media about other inmates. When
Hammer asked Lappin for clarification, he stated
that Hammer was “prohibited from disclosing to a
media representative any information about another
inmate through any manner of communication (oral,
written, etc.).” Just over a month later, the BOP
disciplined Hammer for providing information about
a fellow death row inmate to a reporter. Lappin did
not, however, generally prohibit Hammer from
giving face-to-face interviews.
That situation changed a few months later. In
March 2000, CBS aired a national broadcast of “60
Minutes” featuring an interview with Timothy
McVeigh. At that time McVeigh was housed at the
SCU awaiting execution for his role in the 1995
bombing of the Alfred P. Murrah federal building in
Oklahoma City. Following this interview, U.S.
Senator Byron Dorgan wrote to BOP Director Hawk-
Sawyer on March 14, 2000, criticizing the BOP for
allowing the McVeigh interview and demanding that
the BOP prohibit similar interviews with other death
row inmates. The published account of this criticism
described Dorgan’s view of the value of such
interviews:
The American people have a right to expect
that the incarceration of a convicted killer
will not only remove him physically from
society, but will also prevent him from further
intrusion in our lives through television
34a
interviews and from using those forums to
advance his agenda of violence.
Soon thereafter Lappin (then the SCU warden)
denied every media request for a _ face-to-face
interview with Hammer. When Hammer filed an
administrative grievance to protest these denials,
Lappin informed him that the procedures for
granting interviews “have evolved” since the SCU
opened and that requests for in-person media
interviews are evaluated on “a case-by-case basis.”
The policy on face-to-face interviews evolved
further one month later. On April 12, 2001, Ashcroft
and Hawk-Sawyer gave a press conference during
which tney announced a change from the case-by-
case policy to a blanket policy preventing SCU
inmates from having face-to-face interviews with
members of the media on any subject at any time.
The policy allows SCU inmates to speak to the media
only by telephone during their ordinary 15-minute
daily allotment of telephone time. In announcing
this policy, Ashcroft explained that it is designed to
prevent murderers from, in his view, altering our
culture by glamorizing violence:
I am aware that several media outlets have
requested access to interview’ inmate
McVeigh. As an American who cares about
our culture, I want to restrict a mass
murderer’s access to the public podium. On
an issue of particular importance to me as
Attorney General of the United States, I do
not want anyone to be able to purchase access
35a
to the podium of America with the blood of
168 innocent victims.
kke*
I’m concerned about irresponsible glamorization
of a culture of violence, and that concern has shaped
our approach to these issues profoundly.
Hawk-Sawyer announced that the 15-minute
telephone limitation “will become the policy for the
[SCU] in general.”
Three days after the press conference, Lappin
signed Institution Supplement 1480.05A (‘the media
policy”), which states that “[tlo maintain safety,
security and the good order of the SCU, in-person
interviews (including video-recorded interviews) will
not be permitted.” To gain permission for a 15-
minute telephone interview under the new media
policy, members of the press must agree that they
will not ask an SCU inmate any questions about
other federal or state prisoners. And members of the
press must agree not to publish any information that
an SCU inmate volunteers about other prisoners. All
parties agree that the media policy does not apply to
all SCU inmates-it applies only to those SCU
inmates who have been sentenced to the death
penalty.
Hammer sued the defendants under Bivens v. Six
Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d
619 (1971), alleging that the media policy’s ban on
in-person interviews and discussions about other
inmates violated his First Amendment and equal
protection rights. The district court dismissed the
36a
complaint under the Prison Litigation Reform Act, 28
U.S.C. § 1915A(b)(1), but we reversed, finding that
Hammer’s allegations-specifically, that the
defendants implemented the media policy to prevent
death row inmates from speaking publicly rather
than to further security concerns-stated a claim, see
Hammer v. Ashcroft, et al, 42 Fed. Appx. 861, 863
(7th Cir. 2002).
After we remanded the case, Hammer moved
three times for the court to recruit counsel on his
behalf. The district court denied each motion.
Hammer also filed three requests for discovery, but
instead of responding to those requests, the
defendants moved for summary judgment a full
month before the close of discovery. Only after filing
their summary judgment motion did the defendants
respond to Hammer’s discovery requests by objecting
to them all. Hammer filed a motion for a continuance
under Federal Rule of Civil Procedure 56(f), arguing
that he needed additional time to procure discovery
from the defendants. He also filed a brief opposing
the motion for summary judgment. The court
entered an order granting the continuance “to the
extent that his filings in this action ... shall be
deemed to have been timely made,” but it denied
Hammer any extension of time to conduct further
discovery.
In support of the defendants’ motion for summary
judgment, Lappin submitted a _ declaration
purporting to justify the SCU’s media policy. He
explained that broadcasting face-to-face interviews of
inmates can create “jailhouse celebrities,” giving
them heightened status among the inmates and
37a
leading to security breaches. He also explained that
it was necessary to restrict inmates from discussing
other inmates with the media to prevent privacy
breaches or “real or imagined slights, insults or
provocations” that could inflame tensions in the
SCU. In his response, Hammer argued that Lappin’s
articulated security rationale for the ban on face-to-
face interviews was “a guise” to cover up “the real
reason” behind the ban-anger over the McVeigh
interview and the resulting outrage over death row
inmates speaking to a national audience. The court
granted the defendants’ motion for summary
judgment, stating that the media policy is reasonably
related to legitimate penoiogical interests.
Il. Analysis
On appeal Hammer argues that the SCU’s media
policy preventing death row inmates from giving
face-to-face interviews with the media violates his
equal protection, First Amendment, and procedural
due process rights. Specifically, he argues that the
media policy treats death row inmates differently
from all other federal inmates based on an untested
assumption that giving death row inmates access to
the media poses a categorically heightened security
risk. Hammer also asserts that he submitted
evidence sufficient to show that the media policy was
passed for the impermissible reason of preventing
death row inmates from speaking publicly, and not to
further security interests. He also argues that the
manner in which the BOP adopted the media policy
deprived him of due process. Finally, Hammer
challenges the district court’s denial of his three
38a
motions for counsel and his Rule 56(f) motion for a
continuance.
A. Constitutional Claims
We review de novo the district court’s grant of
summary judgment for the defendants on Hammer’s
constitutional challenges to the media policy. See
Steen v. Myers, 486 F.3d 1017, 1021 (7th Cir. 2007).
Inmates retain constitutional rights that are
consistent with incarceration; those rights include
access to the media. See Turner v. Safley, 482 U.S.
78, 84, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); Pell v.
Procunier, 417 U.S. 817, 827-28, 94 S. Ct. 2800, 41 L.
Ed. 2d 495 (1974). But recognizing the deference
owed to the administrative judgment of prison
officials, the Supreme Court has held that a prison
regulation infringing on an inmate’s constitutional
rights is valid if “it is reasonably related to
legitimate penological interests.” Turner, 482 U.S.
at 89, 107 S. Ct. 2254. Accordingly, a prison
regulation that restricts an inmate’s access to the
media will be upheld if there is a “valid, rational
connection between the prison regulation and the
legitimate governmental interest put forward to
justify it.” Jd. (quotation marks omitted). Other
relevant factors include whether the regulation
leaves open alternative means of exercising the right;
the impact accommodation would have on other
inmates, guards, and prison resources; and whether
there are obvious, easy alternatives to the
restriction. Jd. at 89-90, 107 S. Ct. 2254; see also
Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004).
39a
Hammer argues that we should apply strict
scrutiny to his equal protection claim, rather than
the Yurner analysis, because he maintains that
Turner applies only to policies that affect all inmates
within a prison equally or that apply temporarily to
individual inmates in response to a disciplinary
infraction. Hammer argues that strict scrutiny
should apply here becauce the media policy
arbitrarily deprives death row inmates of First
Amendment freedoms that other federal prisoners
enjoy-namely, face-to-face media access. But the
Supreme Court has held that the Turner analysis
“applies to all circumstances in which the needs of
prison administration implicate constitutional
rights.” Washington v. Harper, 494 U.S. 210, 224,
110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990); see also
Russell v. Richards, 384 F.3d 444, 447 (7th Cir.
2004). Post-7urner, the Supreme Court applies
strict scrutiny only to prison regulations involving
suspect classifications such as race. See, eg,
Johnson v. California, 543 U.S. 499, 505, 125 S. Ct.
1141, 160 L. Ed. 2d 949 (2005). Federal inmates on
death row are not a suspect class. Cf Pryor v.
Brennan, 914 F.2d 921, 923 (7th Cir. 1990).
Accordingly, courts have declined to apply
heightened scrutiny in cases involving equal
protection challenges to prison regulations that
implicate First Amendment rights, see, eg,
Williams v. Lane, 851 F.2d 867, 881 (7th Cir. 1988);
Taylor v. Johnson, 257 F.3d 470, 474 (5th Cir. 2001);
Morrison v. Garraghty, 239 F.3d 648, 654-55 (4th
Cir. 2001), even where the regulations distinguish
among groups of inmates within a prison, see
DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000);
40a
Benjamin v. Coughlin, 905 F.2d 571, 575 (2d Cir.
1990). Thus we view Hammer’s equal protection and
First Amendment claims through the 7urner lens.
Turning then to the first prong of the J7urner
analysis and Hammer’s First Amendment claim, we
ask whether a valid, rational connection exists
between the media ban on face-to-face interviews
and the cited security interest. See Turner, 482 U.S.
at 89, 107 S. Ct. 2254. No such connection exists if
the purpose of the policy is to suppress the content of
the restricted message. See id. at 90, 107 S. Ct.
2254. And the penological interest that the prison
officials invoke in court to justify the restriction must
have actually motivated them at the time they
enacted or enforced the restriction; the invoked
interests fail under Turner if they are a pvretext for
an illegitimate, content-specific motivation. See
Salahuddin v. Goord, 467 F.3d 263, 276-77 (2d Cir.
2006) (holding that prison officials must show that
they “actually had, not just could have had, a
legitimate reason for burdening protected activity” to
survive summary judgment); Abu-Jamal v. Price, 154
F.3d 128, 134 (3d Cir. 1998) (noting that a prison
rule is “not content neutral as required by 7urner” if
it is enforced at least in part due to public pressure
rather than security concerns); Quinn v. Nix, 983
F.2d 115, 118 (8th Cir. 1993) (stating that “[p]rison
officials are not entitled to the deference described in
Turner ... if their actions are not actually motivated
by legitimate penological interests at the time they
act.”); Walker v. Sumner, 91: F.2d 382, 386-87 (9th
Cir. 1990) (holding that where a prisoner alleges that
a policy is enforced for a “dubious purpose” officials
4la
must demonstrate that the asserted penological
interests “are the actual bases for their policies”);
Baraldini v. Thornburgh, 884 F.2d 615, 620 (D.C.
Cir. 1989) (noting that “[al reviewing court must
always be careful to make certain that prison
administrators are not pretextually using alleged
concerns in order to punish an inmate for his or her
political or other views.”).
Here, Hammer submitted evidence suggesting
that the driving force behind the ban on face-to-face
interviews was not a security concern, but rather
outrage over McVeigh’s message and a desire to
prevent other death row inmates from expressing
their views about themselves or their fates and
thereby influencing “our culture.” For example,
without any concerns about security breaches Lappin
allowed Hammer face-to-face media interviews until
the McVeigh interview aired; after that (and after a
senator's written protest to the BOP about such
broadcasts) Lappin denied all media requests for
face-to-face interviews with Hammer. Most
significantly, in unveiling the blanket restriction on
face-to-face interviews with death row inmates,
Ashcroft-with Hawk-Sawyer at his side-explained
that he wanted to deny such inmates a platform from
which they could spread their “irresponsible
glamorization of a culture of violence.” This is
evidence from which a jury could conclude that when
Ashcroft’s subordinate Lappin implemented the
restriction at the SCU just three days later, the
defendants desired to control a disfavored message
vather than to secure the SCU.
42a
The defendants argue that this evidence amounts
to nothing more than “a coincidence of timing.” But
the evidence is more than just timing. Ashcroft
explained that his distaste for the content of
interviews given by death row inmates was the
reason for the policy. That is direct evidence of the
actual motivation, and it creates a genuine issue of
material fact as to whether Lappin was motivated by
a desire to prohibit a disagreeable viewpoint or to
advance prison security.
The defendants also argue that we must defer to
Lappin’s judgment that the challenged policy is
needed to combat the problem of jailhouse
celebrities. But in reviewing a grant of summary
judgment we must be careful to distinguish between
matters of prison administration-on which we give
substantial deference to prison officials’ professional
judgment-and matters of disputed fact on issues like
motivation-on which we draw inferences in favor of
the non-moving party. See Beard v. Banks, 548 U.S.
521, 126 S. Ct. 2572, 2578, 165 L. Ed. 2d 697 (2006).
If an inmate submits evidence showing that the
penological interests invoked by prison authorities
are pretextual, the policy is not neutral and fails
under Turner. See Abu-Jamal, 154 F.3d at 134.
Hammer submitted evidence from which a
reasonable jury could conclude that the media policy
was implemented and is now enforced not because of
safety concerns, but rather in response to public
pressure to prevent death row inmates from voicing
their views’ publicly. Accordingly, summary
judgment is inappropriate on Hammer's First
Amendment challenge to the ban on face-to-face
43a
interviews based on the first Vurner factor. See
Salahuddin, 467 F.3d at 276-77.
Summary judgment on the First Amendment
claim was also inappropriate as to two other 7urner
factors because Hammer has cast doubt on whether
the media policy leaves open sufficient alternate
routes of access to the media and whether there are
reasonable alternatives to the ban on face-to-face
interviews. See Turner, 482 U.S. at 90, 107 S. Ct.
2254. For example, Lappin’s justification for the ban
on face-to-face interviews is that the broadcast of
inmate interviews creates the risk of jailhouse
celebrity. The government has not explained why,
then, the prison needs to ban face-to-face interviews
that are not recorded or broadcast. Moreover, there
is a question of material fact whether the ban on
discussing other inmates with the media allows
Hammer an alternate route for discussing his
criminal case. Hammer's goal is to discuss his
criminal case (which involves inmate witnesses) with
members of the press to highlight his disagreement
with the prosecution. But he is subject to discipline
if he engages in those discussions. Thus there is a
question of material fact as to whether the policy
leaves open any meaningful way for Hammer to
access the media to discuss his case. Cf Pell, 417
U.S. at 827-28, 94S. Ct. 2800.
Turning to Hammer's equal protection claim, we
note that the district court gave this claim short
shrift, stating only that the media policy applies
equally to all inmates housed in the SCU. But this
ignores Hammer's evidence that the media policy
applies only to SCU inmates under a death sentence,
44a
a fact that the defendants do not dispute on appeal.
And Hammer’s evidence of pretext also casts doubt
on whether the defendants had a valid interest in
treating death row inmates differently from all other
federal inmates. The equal protection clause
prohibits the government from making distinctions
among groups of speakers based on the content of
their speech. See, e.g., Police Dep't of Chi. v. Mosley,
408 U.S. 92, 96, 92 S. Ct. 2286, 33 L. Ed. 2d 212
(1972). Here, Ashcroft said that his concern about
the “glamorization of violence” in American culture
shaped the BOP’s approach to the SCU-specific ban
on death row inmates giving face-to-face interviews.
A reasonable jury could thus conclude that death row
inmates are treated differently not because they are
disproportionately likely to become jailhouse
celebrities or inflame tensions with other inmates,
but because the policy makers believed that death
row inmates are disproportionately likely to promote
a “glamorization of violence.” Accordingly, the
defendants are not entitled to summary judgment on
Hammer’s equa! protection claim.
The district court did not address what Hammer
now argues is a claim that the defendants violated
his due process rights by adopting the media policy
without offering him notice or the opportunity to
comment. But the court did not address this claim
because Hammer did not make it; nothing in his
complaint or opposition to summary judgment would
have put the defendants or the court on notice that
he objected to the process through which the policy
was adopted. Because Hammer’s purported due
process claim is outside the scope of the court’s grant
45a
of summary judgment for the defendants, we need
not address it here.
We note that it can be an easy thing for an
inmate to allege that prison officials are lying about
the rationale behind a prison restriction; it is only
because Hammer has backed up his allegations with
admissible evidence from which a reasonable jury
could infer that an illegitimate reason lies behind the
interview ban that his First Amendment and equal
protection claims survive summary judgment.
B. Personal Involvement
The district court granted summary judgment for
Ashcroft and Hawk-Sawyer because, in its view, they
had no personal involvement in the_ events
underlying the allegations. A supervisory defendant
is personally involved in and liable for a
constitutional violation if he “create[s] a custom or
policy fostering the violation or allow[s] the custom
or policy to continue after learning of it.” Thomas v.
Ashcroft, 470 F.3d 491, 496-97 (2d Cir. 2006).
Ashcroft’s and Hawk-Sawyer’s participation in the
press conference in which they called for the BOP
ban on face-to-face interviews raises a triable issue of
whether they fostered the ban for the purpose of
suppressing expression. See Whitford v. Boglino, 63
F.3d 527, 531 (7th Cir. 1995). Thus summary
judgment on the basis of their non-involvement was
unwarranied.
Before addressing Hammer’s procedural
challenges to the district court’s decision, we note
two issues that the district court may address on
remand. Hammer has sued the defendants in their
46a
individual and official capacities for damages, and
for injunctive and declaratory relief. The defendants
may be entitled to qualified immunity from damages,
but given the unresolved issues of fact, we leave that
determination to the district court in the first
instance. Hammer’s claim for injunctive relief
against the defendants in their individual capacities
is now moot because none of the defendants
currently hold the positions in which they were sued.
But pursuant to Federal Rule of Appellate Procedure
43(c)(2) and Federal Rule of Civil Procedure 25(d),
the district court should substitute the current
officeholders for the official-capacity claims and
consider which of them are proper defendants for
injunctive relief under Ex Parte Young, 209 U.S. 123,
157, 28 S. Ct. 441, 52 L. Ed. 714 (1908) (requiring a
“special relation” between the public official sued and
the challenged rule).
C. Denial of Motions for Counsel and for a
Continuance
Hammer also argues that the district court
erroneously denied his three motions to recruit
counsel and his Ruie 56(f) motion for a continuance.
We review the district court’s rulings on these
motions for abuse of discretion. See Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006); Davis
v. G.N. Mort. Co., 396 F.3d 869, 885 (7th Cir. 2005).
In resolving a motion for the recruitment of counsel,
the district court must consider both the complexity
of the case and the pro se plaintiffs ability to htigate
it himself. Prustt v. Mote, 503 F.3d 647, 654-55 (7th
Cir. 2007). The court must analyze the plaintiffs
capabilities in light of the challenges specific to his
47va
case, including “the tasks that normally attend
litigation: evidence gathering, preparing and
responding to motions and other court filings, and
trial.” Jd. at 655. In reviewing a court’s decision to
deny a motion for counsel, we must ensure that the
court meaningfully engaged in the correct analysis,
and did not render a decision arbitrarily. /d. at 658,
660.
Here, the district court’s three orders denying
Hammer’s requests for counsel do not demonstrate
that the court meaningfully considered’ the
complexity of Hammer’s claims. Its first order is
silent regarding the difficulty of his case. The second
two orders state that Hammer “has demonstrated
familiarity with his claims and the ability to present
them, because the issues presented by his claims are
not complex, and because this does not appear to be a
case in which the presence of counsel would make a
difference in the outcome.” But this is nothing more
than a restatement of the applicable legal standard,
without any reasoning showing that the court
actually considered the standard in light of the
particulars of Hammer’s case. See id. at 660.
But we wil! reverse the district court’s decision to
deny counsel only on a showing of prejudice, see id.
at 659, which leads us to Hammer’s Rule 56(f)
motion for a continuance. Hammer asked for more
time to conduct discovery because the defendants
moved for summary judgment before the close of
discovery and then objected to all of his discovery
requests. Because Hammer filed his opposition to
summary judgment before the court ruled on his
motion, it concluded that he did not need further
48a
time for discovery. But the fact that Hammer filed
his response before waiting to see if the court would
grant the continuance shows only that he made the
best of what he had, not that he had a fair
opportunity to avail himself of discovery. And
nothing in the court’s order denying the continuance
suggests that it considered the impact that the
defendants’ premature summary judgment motion
had on Hammer’s ability to obtain the discovery
necessary to defend against the motion.
The appellees now defend the district court’s
denial of the continuance on the ground that
Hammer did not specify what documents he needed
time to procure. But that is precisely the kind of
failure that could have been cured had the court
granted his motion for counsel. The appellees cannot
have it both ways-they cannot argue that Hammer
has the ability to litigate his own claims and then
fault him when he fails to do so with the
sophistication of an attorney. We thus conclude that
the denial of counsel prejudiced Hammer, and,
especially in light of Hammer’s pro se status, that
the court abused its discretion in denying his Rule
56(f) motion for a continuance.
For the reasons set forth above, the district
court’s decision is REVERSED and REMANDED for
further proceedings.
49a
Appendix C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DAVID PAUL HAMMER,
Plaintiff,
7:
JOHN ASHCROFT, Attorney General
of the United States, et al.,
Defendants.
No. IP 01-558-C-T/G.
Feb. 23, 2006.
TINDER, J.
This cause is before the court on the amended
complaint of plaintiff David Paul Hammer, on the
defendants’ answer, and on the defendants’ motion
for summary judgment.
Whereupon the court, having considered the
pleadings, the motion for summary judgment, the
response thereto and the defendants’ reply, and
being duly advised, now finds that the motion for
summary judgment must be granted. This conclusion
rests on the following facts and circumstances:
1. As used in this Entry, “Hammer” refers to the
plaintiff, David Paul Hammer, “USPTH” refers to
the United States Penitentiary at Terre Haute,
Indiana, “BOP” refers to the Federal Bureau of
Prisons, “Attorney General Ashcroft” refers to former
50a
United States Attorney General John Ashcroft,
“Director Lappin” or “Warden Lappin” refers to BOP
Director Harley Lappin, “Director Sawyer-Hawk”
refers to former BOP Director Kathleen Sawyer-
Hawk, and “Warden Olson” refers to USPTH Warden
Keith Olson.
2. As noted, the defendants seek resolution of
Hammer’s claims through the entry of summary
judgment.
a. The purpose of summary judgment is to
“pierce the pleadings and to assess the proof
in order to see whether there is a genuine
need for trial.” Advisory Committee Note to
1963 Amendment of FED. R. CIV. P. 56(e)
(quoted in Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).
“Summary Judgment is not appropriate ‘if
the evidence is such that a reasonable jury
could return a verdict for the nonmoving
party.” In a motion for summary judgment,
the court “may not make _ credibility
determinations, weigh the evidence, or
decide which inferences to draw from the
facts; these are jobs for a factfinder.” Payne
v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)
(citations omitted). “Rather, ‘[t]he court has
one task and one task only: to decide, based
on the evidence of record, whether there is
any material dispute of fact that requires a
trial.” Jd. (quoting Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920 (7th Cir.
1994)). If a reasonable jury could return a
5la
verdict in favor the nonmovant, summary
judgment should not be_ granted. Id.
(citation omitted).
b. A court will grant summary judgment if
“there is no genuine issue as to any material
fact and that the moving party is entitled to
judgment as a matter of law.” Scott v.
Edinburg, 346 F.3d 752, 755 (7th Cir. 2003)
(quoting FED. R. CIV. P. 56(c) and citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
The court must “construe all facts in a light
most favorable to ... the party opposing
summary judgment, anda ... draw all
reasonable inferences in his favor.” McGreal
v. Ostrov, 368 F.3d 657, 672 (7th Cir. 2004)
(citation omitted). “In the light most
favorable’ simply means that summary
judgment is not appropriate if the court
must make ‘a choice of inferences.” Draghi
v. County of Cook, 184 F.3d 689, 691 (7th
Cir. 1999) (quoting Smith v. Severn, 129
F.3d 419, 425 (7th Cir. 1997)). However, the
nonmoving party bears the burden of coming
forward with specific facts from the record
which show a genuine issue of material fact.
Morfin v. City of E. Chi., 349 F.3d 989, 997
(7th Cir. 2003) (citation omitted). “It is a
well-settled rule that a party opposing a
summary judgment motion must inform the
trial judge of the reasons, legal or factual,
why summary judgment should not be
52a
entered.” JLiberles v. County of Cook, 709
F.3d 1122, 1126 (7th Cir. 1983).
3. “Relief from misconduct by federal agents may
be obtained either by a suit against the agent for a
constitutional tort under the theory set forth in
Bivens v. Six Unknown Named Agents, 403 U.S. 388,
91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), or by a suit
against the United States under the Federal Tort
Claims Act [FTCA] ... which permits claims based
upon misconduct which is tortious under state law.
28 U.S.C. §§ 1346(6), 2680.” Sisk v. United States,
756 F.2d 497, 500 n.4 (7th Cir. 1985). Hammer has
chosen the Bivens route.
a. Claims asserted under a Bivens theory
are brought pursuant to subject matter
jurisdiction conferred by 28 U.S.C. § 1331,
which provides that “[t]he District Courts
shall have original jurisdiction of all civil
actions arising under the Constitution, laws,
or treaties of the United States.”
b. A prerequisite to maintaining an action
under § 1331 is that the plaintiff “must
allege a violation of the United States
Constitution or a federal statute.” Goulding
v. Feinglass, 811 F.2d 1099, 1102 (7th Cir.
1987), cert. denied, 482 U.S. 929, 107 S. Ct.
3215, 96 L. Ed. 2d 701 (1987).
c. Bivens “authorizes the ffiling’ of
constitutional tort suits against federal
officers in much the same way that 42
U.S.C. § 1983 authorizes such suits against
53a
state officers.” King v. Federal Bureau of
Prisons, 415 F.3d 634, 636 (7th Cir. 2005).
Thus, one feature of a Bivens action is that
the plaintiff must allege that the individual
defendants were personally involved in the
violation of his constitutional rights. See
Barbera v. Smith, 836 F.2d 96, 99 (2d Cir.
1987), cert. denied sub nom. Barbera v.
Schlessinger, 489 U.S. 1065, 109 S. Ct. 1338,
103 L. Ed. 2d 808 (1989).
4. Hammer’s claims which survive prior rulings
and certain voluntary dismissals are that the
defendants violated his First Amendment rights by
denying and restricting his access to the news media
based on the content of his message and his status as
a federal death-row inmate. He alleges that between
March 2000 and April 2001 a number of news
organizations wished to conduct face-to-face or video-
conference interviews with him, but that Warden
Lappin denied every one of his requests. to
participate in the interviews. In addition, Hammer
alleges that Warden Lappin unconstitutionally
restricted Hammer’s ability to communicate with the
media via telephone or maii correspondence.
Hammer seeks compensatory and punitive damages
and injunctive relief.
5. Several general principles guide the court’s
consideration of the free speech and association
claims presented. Among these principles are those
on which the Court of Appeals relied in finding that
the dismissal of the present action pursuant to 28
U.S.C. § 1915A(b) was premature. Hammer v.
54a
Ashcroft, 2002 WL 1732580 (7th Cir. 2002)
(unpublished).
a. Lawful “incarceration brings about the
necessary withdrawal or limitation of many
privileges and rights, a retraction justified
by the considerations underlying our penal
system.” O’Lone v. Estate of Shabazz, 482
U.S. 342, 348, 107 S. Ct. 2400, 96 L. Ed. 2d
282 (1987) (citing Price v. Johnston, 334
U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356
(1948)).
b. Nonetheless, “convicted prisoners do not
forfeit all constitutional protections by
reason of their conviction and confinement
in prison.” Bell v. Wolfish, 441 U.S. 520,
545, 99S. Ct. 1861, 60 L. Ed. 2d 447 (1979).
c. Inmates retain First Amendment rights
that are consistent with incarceration, and
prison restrictions limiting or interfering
with those rights must reasonably relate to
legitimate penological interests. Turner v.
Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96
L. Ed. 2d 64 (1987); Rowe v. Shake, 196 F.3d
778, 782 (7th Cir. 1999).
d. While inmates’ free-speech rights include
access to the media, inmates do not have a
right to face-to-face interviews so long as
other avenues of communication are open to
them, and regulations denying face-to-face
interviews are applied in a neutral, equal
manner without regard to content. See Pe/l/
v. Procunier, 417 U.S. 817, 827-28 (1974);
55a
Rowe, 196 F.3d at 782; Abu-Jamal v. Price,
154 F.3d 128, 134 (3d Cir.1998). Prison
officials are given deference in establishing
regulations and in determining appropriate
restrictions, and a court will not second:
guess regulations or practices that serve
legitimate penological interests. 7urner,
482 U.S. at 89. Additionally, as an incident
of their incarceration, prisoners lack the
same freedom to criticize they would enjoy
on the outside. Gibbs v. King, 779 F.2d 1040
(5th Cir.), cert. denied, 476 U.S. 1117, 106 S.
Ct. 1975, 90 L. Ed. 2d 659 (1986).
e. The Supreme Court has delineated four
factors for determining whether a specific
regulation or practice serves a legitimate
penological interest. 7urner, 482 U.S. at 89-
90. The primary factor is whether a valid,
rational connection exists between the
restriction and a legitimate interest. /d A
restriction on speech that fails to meet this
connection fails under Turner. See Shaw v.
Murphy, 532 U.S. 223, 229-30, 121 S. Ct.
1475, 149 L. Ed. 2d 420 (2001). The other
factors relevant in determining” a
restriction’s reasonableness include whether
the inmate has alternative means of
exercising the right; the impact
accommodation of the asserted right would
have on guards, other inmates, and prison
resources; and the absence of a reasonable
alternative to the regulation or practice.
Turner, 482 U.S. at 90.
56a
f. In determining whether a _ prison
regulation is “reasonably related to
legitimate penological interests,” a prisoner
“must overcome the presumption that the
prison officials acted within their ‘broad
discretion.” Shaw v. Murphy, 532 U.S. 223,
121 S. Ct. 1475, 149 L. Ed. 2d 420 (2001).
“The burden, moreover, is not on the State to
prove the validity of prison regulations but
on the prisoner to disprove it.” Overton v.
Bazzetta, 582 U.S. 126, 132 (2003).
6. As to each of the various specifications of
improper action, whether it be the promulgation or
implementation of BOP policies or actions assertedly
taken outside the bounds of such policies, Attorney
General Ashcroft and Director Hawk-Sawyer were
not personally involved. The consequence of this is
that these defendants are not liable to Hammer for
any of those actions and they are entitled to the
entry of summary judgment as to the claims against
them.
7. Warden Lappin was Warden of the USPTH
from October 25, 1998, until July of 2001. As
Warden, Lappin had overall responsibility of all
functions of the institution and in that role he
planned, directed and _ coordinated institution
programs covering a broad range of diverse issues
related to complex institution safety and security
requirements. Warden Olson was Warden of the
USPTH from August 26, 2001, until September 30,
2004.
57a
8. On July 13, 1999, the Special Confinement
Unit (““SCU”) was activated at the USPTH. The SCU
is the assigned housing unit for male prisoners under
federal sentences of death. While at the USPTH,
Hammer has been assigned to the SCU.
9. The BOP promulgates Program Statements
that contain the internal operating policies and
procedures of the Bureau in order to provide
direction to Bureau personnel in the operation of the
federal prison systems. Following the activation of
the SCU, numerous institution supplements were
reviewed to ascertain if modifications were needed to
specifically address the special and unique needs of
the SCU. An institution supplement is a statement
of procedure which is required in order to given
direction to operations of a BOP facility because of
local conditions. Institution supplements are
reviewed by institution staff and signed by the
Warden. Because the USPTH is the only federal
facility with such a unit, these policies are specific to
the USPTH. Management of the SCU at the USPTH
requires consideration of factors not present, or not
present to the same degree, in other housing units of
the USPTH or other units of other prisons operated
by the BOP. The SCU is unique, as is its inmate
population. In considering the supplement to
Program Statement 1480.05, prison personnel
(including Warden Lappin) intended to balance the
interests of the inmate and the journalist along with
the interests of the BOP with respect to its
responsibility of maintaining security and good order
at the institution. Additionally, it was the intent of
those involved with implementing the Supplement to
58a
safeguard the safety and the rights (including
privacy rights) of institution staff and of the inmate
population. These were legitimate concerns in the
specific environment which was being administered.
There was the potential for inmates to be perceived
as “jail celebrities,” which could disrupt the orderly
operation of the prison by undermining prison
security. Additionally, the right of privacy of other
inmates was a consideration. In a correctional
setting, slights, insults or provocations, real or
imagined, can result in inmate-on-inmate violence
and thus can have dire consequences for inmates,
penitentiary staff, and the public at large. The
result of this effort was the adoption of Institution
Supplement THA 1480.05A. !
The procedures implemented as the result of
these concerns were determined to be the least
restrictive method of protecting the various interests
involved-the interest of the individual inmate, the
interests of the inmate as a whole, and the interests
of the public as a whole. Although Institution
Supplement THA 1480.05A restricts Hammer's
access to face-to-face interviews with members of the
media, it does so in a manner fully in accord with the
standard established in Turner. That is, the
restriction contained in Institution Supplement THA
1480.05A is reasonably related to legitimate
penological interests. Hammer has not shown
' Institution Supplement THA 1480.05A was replaced with In
stitution Supplement THA 1480.05B in January 2003. For the
purpose of the present record, no substantive changes were
made to the section addressing media interviews for SCU in-
matcs.
59a
otherwise, even though it is his burden to do so,
Overton v. Bazzetta, 532 U.S. 126, 132 (2003), and
the evidentiary record shows in every respect that
the regulation adopted by Warden Lappin via
Institution Supplement THA 1480.05A withstands
Hammer's constitutional challenge. Not only is the
restriction reasonably related to legitimate
penological interests, but the restriction is applied in
a neutral manner without regard to content. The
restriction is applied equally among inmates housed
in the SCU. Hammer and other inmates assigned to
the SCU may contact media representatives through
general and special mail, as well as through
monitored and unmonitored telephone calls, giving
these inmates an alternative means of exercising the
right. Accommodating the unfettered right Hammer
asserts would have a disruptive impact on the
operation of the prison. Institution Supplement THA
1480.05A sets forth restrictions on inmate content
with the media only in areas reasonably deemed
proper for the purpose of operating the prison.
Although Warden Lappin denied several requests by
media representatives for personal interviews with
Hammer, Hammer and other inmates assigned to
the SCU have meaningful access to the media, and
Institution Supplement THA 1480.05A does not
infringe on the constitutional guarantee of that
access. See Johnson v. Stephan, 6 F.3d 691, 692
(10th Cir. 1993) (prisoner’s First Amendment rights
not violated when prison officials denied face-to-face
interview with prisoner since alternative means of
communication were available); Mitford v. Pickett,
363 F. Supp. 975, 978 (E.D. Ill. 1973) (prison
regulations limiting personal interviews of inmates
60a
by the press is an internal] affair of prison and does
not violate the First Amendment where inmates and
the press have ample opportunity to communicate by
mail). The fact that Hammer does not assess his
own history of communication with the media as
anything other than benign is not significant, Lujan
v. National Wildlife Federation, 497 U.S. 871, 888,
110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990) (“[t]he
object of [Rule 56(e) ] is not to replace conclusory
allegations of the complaint or answer’ with
conclusory allegations of an affidavit”), just as the
fact that the restrictions imposed in Institution
Supplement THA 1480.05A were not always in place
is not significant, for inmates acquire no interest in
unchanging conditions of their confinement.
Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532,
49 L. Ed. 2d 451 (1976) (transfer of inmates to prison
with more burdensome conditions of confinement not
a violation of due process). The Supreme Court has
stated that content-based speech restrictions are
“neutral” so long as distinctions are drawn “solely on
the basis of their potential implications for prison
security.” Vhornburgh v. Abbott, 490 U.S. 401, 415-
16, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989). Thus,
while the government here is proscribing the content
of the speech of SCU inmates, this is “neutral” for
purposes of this analysis. See also Giano v.
Senkowski, 54 F.3d 1050, 1055 (2d Cir. 1995)
(discussing neutrality under Turner).
10. Warden Olson was not involved in the
drafting or implementation of Institution
Supplement 1480.05A in any respect. He did
approve the replacement document in January 2003,
6la
this being Institution Supplement THA 1480.05B.
As noted, however, no substantive changes were
made to the section addressing media interviews for
SCU inmates.
11. Hammer’s case is built around the view that
he is entitled to participate in interviews without
regard to the management and control of the SCU.
This ignores the realities of the SCU, the reason for
its existence, and the legitimate-even' the
paramount-interests of prison authorities in carrying
out the difficult task of operating the SCU.2 This
task warrants deference from the courts, which must
be sensitive to their expert judgment and mindful
that the judiciary is “ill equipped’ to deal with the
difficult and delicate problems of prison
management.” Vhornburgh v. Abbott, 490 U.S. 401,
407-08, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989). At
the same time, that deference “must be schooled, not
absolute.” Campbell v. Miller, 787 F.2d 217, 227 n.17
(7th Cir.), cert. denied, 479 U.S. 1019, 107 S. Ct. 673,
93 L. Ed. 2d 724 (1986). The fact that initial
responsibility for the prison is vested in prison
administrators “does not mean that constitutional
rights are not to be scrupulously observed.” Bell, 441
U.S. at 562. For the reasons explained above, prison
authorities-including the defendants-have not
overstepped the constitutional limits, and _ the
regulation they have crafted is not, as Hammer
characterizes it, a simple limit on speech they would
find offensive. In the specific environment in which
2 As Hammer himself concedes, he is on death row for having
murdered a fellow inmate at a federal prison in Pennsylvania.
62a
Hammer finds himself, the regulation is a compelling
adjunct to the sound management of the SCU-amply
passing the constitutional challenge pressed in this
case. See, e.g., Hewitt v. Helms, 459 U.S. 460, 473,
1U8 S. Ct. 864, 74 L. Ed. 2d 675 (1983) (“[t]he safety
of the institution’s guards and inmates is perhaps
the fundamental responsibility of the prison
administration”); Pel/ v. Procunier, 417 U.S. 817,
823, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974) (security
is “central to all other corrections goals”).
12. Claims such as those presented in this case
must be considered in light of the special
environment of a prison, where administrators “must
be accorded wide-ranging deference in the
execution of policies and practices that in their
judgment are needed to preserve internal order and
discipline and to maintain institutional security.”
Pardo v. Hosier, 946 F.2d 1278, 1280-81 (7th Cir.
1991) (internal quotations omitted). Nonetheless,
“[flederal courts must take cognizance of the valid
constitutional claims of prison inmates.” Babcock v.
White, 102 F.3d 267, 275 (7th Cir. 1996) (quoting
Turner v. Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 96
L. Ed. 2d 64 (1987)). Hammer has not identified a
genuine issue of material fact as to his claims
against the defendants. Their motion for summary
judgment is therefore granted.
Judgment consistent with this Entry shall now
issue.
IT IS SO ORDERED.
63a
Appendix D
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
DAVID PAUL HAMMER,
Plaintiff-Appellant,
Vv.
JOHN D. ASHCROFT,
Attorney General of the United States, et al.,
Defendants-Appellees.
No. 01-2898.
Submitted July 24, 2002.}
Decided July 25, 2002.
Before BAUER, RIPPLE, MANION, Circuit Judges.
ORDER
Federal death-row inmate David Paul Hammer
brought this lawsuit under Bivens v. Six Unknown
Agents of the Federal Bureau of Narcotics, 403 U.S.
388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), alleging
that the defendants violated his First Amendment
rights by denying and restricting his access to the
1 Appellees notified this court that they were never served with
process in the district court and would not be participating in
this appeal, which has been submitted without a brief from
them. After examining the appellant’s brief and the record, we
have concluded that oral argument is unnecessary. Thus, the
appeal is submitted on the appellant’s brief and the record.
64a
news media. The defendants are Attorney General
John D. Ashcroft, Warden Harley G. Lappin, and
Federal Bureau of Prisons Director Kathleen Hawk-
Sawyer. The district court screened the complaint
under the Prison Litigation Reform Act, 28 U.S.C. §
1915A(b)(1), and dismissed it for failure to state a
claim. Mr. Hammer appeals, and, for the reasons
explained below, we reverse and remand.
Mr. Hammer is incarcerated in the Federal Death
Row Unit at the United States Penitentiary in Terre
Haute, Indiana. In April 2001 Mr. Hammer filed
this lawsuit, alleging that since March 2000 the
defendants have unconstitutionally infringed on his
right to freedom of speech by denying and restricting
his access to the news media based on the content of
his message and his status as a federal death-row
inmate. In his complaint, Mr. Hammer alleged that
between March 2000 and April 2001 a number of
news organizations wished to conduct face-to-face or
video-conference interviews with him, but that
Warden Lappin denied every one of his requests to
participate in the interviews. In addition, Mr.
Hammer alleged that the Warden Lappin
unconstitutionally restricted his ability’ to
communicate with the media via telephone or mail
correspondence.
According to Mr. Hammer, these restrictions
limiting his access to the media are part of the
defendants’ deliberate plan to deny him a public
forum and are in response to “public outcry” over a
television interview conducted in March 2000 of
federal death-row inmate Timothy McVeigh. Mr.
Hammer further alleged that the reasons prison
65a
officials provided for restricting his speech and
denying his requests-namely, safety and privacy
concerns-are not the real reasons they are restricting
his speech. He contended that the prison’s purported
reasons are a “guise.” He claimed that prison
officials are restricting his speech because he is a
death-row inmate and they want to prevent his views
from being publicized. In particular, he alleged, they
seek to suppress his views about capital punishment
and his experience on federal death row. Mr.
Hammer also alleged that before March 2000 he was
allowed to participate in a number of interviews
without causing any disruptions or prompting safety
concerns.
In May 2001 the district court dismissed Mr.
Hammer’s complaint under § 1915A for failure to
state a claim. The district court concluded that Mr.
Hammer failed to state a claim because he had no
constitutional right to face-to-face interviews, and
because the restrictions on his access to the media
served legitimate penological interests of safety,
privacy, and order.
We review de novo a district court’s dismissal
under § 1915A for failure to state a claim. Wynn v.
Southiward, 251 F.3d 588, 591 (7th Cir. 2001). We
apply the same standard as for dismissals under
Rule 12(b)(6): we take all well-pleaded allegations in
the complaint as true and draw _ reasonable
inferences in the plaintiffs favor. Id. at 592;
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.
2000). A complaint fails to state a claim only if relief
could not be granted under any set of facts consistent
with the allegations. Wynn, 251 F.3d at 592.
66a
Inmates retain First Amendment rights that are
consistent with incarceration, and prison restrictions
limiting or interfering with those rights must
reasonably relate to legitimate penological interests.
Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96
L. Ed. 2d 64 (1987); Rowe v. Shake, 196 F.3d 778,
782 (7th Cir. 1999). While inmates’ free-speech
rights include access to the media, inmates do not
have a right to face-to-face interviews so long as
other avenues of communication are open to them,
and regulations denying face-to-face interviews are
applied in a neutral, equal manner without regard to
content . See Pel/ v. Procunier, 417 U.S. 817, 827-28,
94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974). Prison
officials are given deference in_ establishing
regulations and in_ determining’ appropriate
restrictions, and we will not second-guess regulations
or practices that serve legitimate penological
interests. Turner, 482 U.S. at 89.
The Supreme Court has delineated four factors
for determining whether a specific regulation or
practice serves a legitimate penological interest. Jd.
at 89-90. The primary factor is whether a valid,
rational connection exists between the restriction
and a legitimate interest. /d. A restriction on speech
that fails to meet this connection fails under Jurner.
See Shaw v. Murphy, 532 U.S. 223, 229-30, 121 S.
Ct. 1475, 149 L. Ed. 2d 420 (2001). Relevant to this
factor is whether the restriction on speech is applied
in a neutral manner without regard to content and is
applied equally among inmates. Turner, 482 U.S. at
90; Rowe, 196 F.3d at 782; Abu-Jamal v. Price, 154
F.3d 128, 134 (3d Cir. 1998). The other factors
67a
relevant in determining a restriction’s
reasonableness include whether the inmate has
alternative means of exercising the right; the impact
accommodation of the asserted right would have on
guards, other inmates, and prison resources; and the
absence of a reasonable alternative to the regulation
or practice. Turner, 482 U.S. at 90.
Given these standards, Mr. Hammer’s complaint
stated a claim. In regard to whether the restrictions
on his speech have a valid, rational connection to a
legitimate interest, Mr. Hammer specifically alleged
that the defendants are restricting his speech based
on his status as a death-row inmate and to suppress
his views, and, despite their assertions to the
contrary, not to serve legitimate interests. In
addition, he alleged that the prison is not applying
the restrictions in a neutral fashion, but is instead
using the guise of unspecified security concerns to
restrict his speech based on status and content. In
regard to whether alternative avenues are open to
him, Mr. Hammer alleged that the prison not only
restricts his access to face-to-face interviews, but also
unconstitutionally restricts his access via telephone
and mail correspondence. He also alleged that the
prison is already equipped for video-conferencing and
that this would provide a_ readily available
alternative to face-to-face interviews. In regard to
the impact that accommodating his rights would
have on the prison, Mr Hammer alleged that prior to
March 2000 he participated in a number of
interviews and that these interviews did not create
any disruptions or security concerns. Finally, Mr.
Hammer also alleged that the prison’s practice of
68a
ordering him, under threat of reprimand, not to
mention any other inmate in any type of
communication with the media does not conform to
the Bureau of Prison’s own regulations.2. These
allegations state a claim. See Turner, 482 U.S. at 89-
90; Abu-Jamal, 154 F.3d at 134 (prison’s restrictions
directed at content of inmate’s writings and in
response to public pressure not valid under Turner);
see also Antonelli v. Sheahan, 81 F.3d 1422, 1432
(7th Cir. 1996) Gnmate’s allegations stated a first
amendment claim, and “lalt this early stage in the
litigation, we cannot determine, of course, whether
the defendants may be able to justify” their conduct);
Shimer v. Washington, 100 F.3d 506, 510 (7th Cir.
1996) (“The prison administration must proffer some
evidence to support its restriction.”).
Rather than taking the allegations in Mr.
Hammer’s complaint as true, the district court
erroneously relied on materials outside’ the
2 On this point, Mr. Hammer alleged that the restrictions the
prison placed on him were broader than those provided for in
the regulations. Mr. Hammer alleged that in ordering him not
to mention any other inmate in his communications with the
media, Warden Lappin mainvained that the restriction was
warranted by Bureau of Prisons Regulation 28 C.F.R. §
540.61(d). The district court also relied on this regulation to
conclude that the restrictions placed on Mr. Hammer’s speech
were warranted. On appeal, Mr. Hammer correctly points out
that § 540.61(d) states that, “the news media may not obtain
and use personal information from one inmate about another
inmate who refuses to be interviewed,” whereas, he alleged that
he was ordered not to mention any other inmate under any cir”
cumstances, regardless of whether or not the inmate refused to
be interviewed.
69a
complaint in order to conclude that it failed to state a
claim. See Covington v. Illinois Sec. Serv., Inc., 269
F.3d 863, 864-65 (7th Cir. 2001) (motion to dismiss
under Rule 12(b)(6) erroneously granted by relying
on attached EEOC letter rather than complaint);
Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir.
2000). Mr. Hammer had attached several
administrative-review documents to his complaint to
show that he had exhausted his administrative
remedies. 42 U.S.C. § 1997e(a); Dixon v. Page, 291
F.3d 485, 488 (7th Cir. 2002). The district court
focused on two documents that were responses from
Warden Lappin denying two of Mr. Hammer’s
requests for interviews on the basis of safety and
privacy concerns. Instead of accepting Mr. Hammer’s
allegations that these explanations were a “guise”
and not the reasons his speech is being restricted,
the district court accepted Warden Lappin’s
explanations as true: “Warden Lappin’s response
shows that he considered the very unique
environment of the death row unit ... It is clear that
Lappin’s decision and the supporting regulations are
reasonably related to legitimate penological
interests.” At this early pleading stage, the district
court erred by relying on those documents rather
than on Mr. Hammer’s complaint. Covington, 269
F.3d at 865; Wynn, 251 F.3d at 593-94; Jacobs, 215
F.3d at 766.
To be clear, we express no opinion about the
merits of Mr. Hammer’s claim, whether the prison’s
restrictions were justified, or the constitutionality of
any regulations. But Mr. Hammer has properly
70a
stated a claim and his complaint should not have
been dismissed.
Accordingly, we REVERSE and REMAND to the
district court for further proceedings.
7la
Appendix E
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID PAUL HAMMER,
Plaintiff,
v.
JOHN ASHCROFT, Attorney General
of the United States, et al.,
Defendants.
No. IP 01-0558-C-T/G.
ENTRY DISCUSSING COMPLAINT AND
DIRECTING ENTRY OF JUDGMENT
I.
“A provision added to the Judicial Code by the
rison Litigation Reform Act of 1996 requires the
district judge to screen prisoner complaints at the
earliest opportunity and dismiss the complaint, in
whole or part, if... it “fails to state a claim upon
which relief can be granted.” Sanders v. Sheahan,
198 F.3d 626 (7th Cir. 1999) (quoting 28 U.S.C. §
1915A(b)(1)).
The screening process just described must be ap-
plied to the complaint of plaintiff David Paul Ham-
mer, a prisoner at the United States Penitentiary at
Terre Haute, Indiana, even though the filing fee pre-
scribed by 28 U.S.C. § 1914(a) has been paid. See
Rowe v. Shake, 196 F.3d 778 (7th Cir. 1999) (affirm-
ing that the district court is required to screen pris-
72a
oner complaints at the earliest opportunity and dis-
miss the complaint, in whole or part, if it fails to
state a claim upon which relief can be granted)(citing
§ 1915A(b)(1)).
U.
A.
Plaintiff David Paul Hammer is an inmate on
death row at the United States Penitentiary in Terre
Haute (USPTH). In his complaint, signed on April
14, 2001, and filed with the clerk on April 24, 2001,
Hammer alleges that the defendants have violated
his First Amendment rights. He seeks damages and
injunctive relief. The defendants are (1) John
Ashcroft, Attorney General of the United States, (1)
Harley Lappin, Warden of the USPTH, and (3) Kath-
leen Hawk-Sawyer, Director of the Federal Bureau of
Prisons (BOP). Each defendant is sued in both his or
her official and individual capacities. He seeks com-
pensatory and punitive damages and injunctive and
declaratory relief. He invokes the theory set forth in
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971).
Hammer alleges that since March of 2000, the de-
fendants have personally denied, or supported the
policy of such denials, several media requests for
face-to-face or videoconference interviews’ with
Hammer. Hammer alleges that although the defen-
dants have approved access to the media through
telephonic interviews and correspondence, they have
placed the condition on Hammer that he not provide
information concerning any other inmate to any
member of the media. The defendants have also re-
73a
quired the media to sign an agreement that they will
not ask Hammer any questions about any other in-
mate, will not print anything Hammer might say
about any other inmate, and will not broadcast any
recording made of any telephonic interview. An addi-
tional requirement, that media agree to submit a
prepublication draft to the Warden to review for any-
thing that might adversely affect the orderly or safe
operation the prison, was eliminated some time prior
to December 13, 2000.
B.
Hammer’s complaint fails to state a claim upon
which relief can be granted. It must therefore be
dismissed, with this disposition being compelled by
the following facts and circumstances:
1. To the extent Hammer complains of restric-
tions placed by the defendants on members of the
media, he lacks standing to assert such claims. See
Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir.
1993)(prisoner has no standing to assert claims on
behalf of the media).
2. It is true that, “above all else, the First
Amendment means that government has no power to
restrict expression because of its message, its ideas,
its subject matter, or its content.” Police Department
v. Mosley, 408 U.S. 92, 95 (1972). Nonetheless, under
the circumstances alleged, Hammer has no constitu-
tional right to give face-to-face interviews with the
media. “Denying media access to conduct face-to-face
interviews with inmates is constitutional as long as
alternative means for communicating with the media
are available.” Johnson v. Stephan, 6 F.3d at 692
74a
(citing Pel/ Pell v. Procunier, 417 U.S. 817, 834
(1974); Saxbe v. Washington Post Co., 417 U.S. 843
(1974)). Here,
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