100 506 v. 1996 506 100 506 Shimer v. Washington, 94-2063

• Decision Date: 12 November 1996
• Docket Number: No. 94-2063,94-2063
• Citation: 100 F.3d 506
• Parties: Page 506 100 F.3d 506 Larry J. SHIMER, Plaintiff-Appellant, v. Odie WASHINGTON and Paul Barnett, Jr., Defendants-Appellees. United States Court of Appeals Seventh Circuit
• Court: U.S. Court of Appeals — Seventh Circuit

Page 506

100 F.3d 506

Larry J. SHIMER, Plaintiff-Appellant v Odie WASHINGTON and Paul Barnett, Jr., Defendants-Appellees.

No. 94-2063

United States Court of Appeals Seventh Circuit

Argued September 27, 1996

Decided November 12, 1996

Rehearing Denied December 17, 1996

Appeal from the United States District Court for the Central District of Illinois, Danville Division, No. 93-2172, Harold A. Baker, Judge.

James B. Speta (argued), Hille R. Sheppard, Sidley & Austin, Chicago, IL, for Plaintiff-Appellant.

Mary E. Welsh (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Before BAUER, FLAUM, and DIANE P. WOOD, Circuit Judges.

FLAUM, Circuit Judge.

Larry Shimer challenges an Illinois Department of Corrections policy which prohibits correctional employees from writing directly to the Prisoner Review Board on behalf of prisoners who have filed petitions for clemency. Alleging that this policy violated the First Amendment, Shimer filed a pro se complaint under 42 U.S.C. sec. 1983 against Howard Peters and George E. Detella, respectively Director and Warden of the Illinois Department of Corrections. The district court granted summary judgment for the prison administration. The court doubted whether Shimer had standing to challenge the prison policy, but determined that the policy was constitutional irrespective of the standing issue. Shimer appeals. We reverse and remand.

I.

Shimer is an inmate at the Illinois Correctional Center in Danville. In October of 1992, Shimer filed a petition for clemency. He desired that prison guards be permitted to write to the Prisoner Review Board in support of his petition. After making a series of inquiries, Shimer was informed that the unwritten prison policy is that prison employees may not write the Prisoner Review Board directly. Shimer submits that several prison guards have indicated their willingness to write on Shimer's behalf, but refrain from doing so in light of this policy.

II.

To create a justiciable cause of action, Larry Shimer must have standing before this court. First, we inquire whether Shimer can satisfy Article III's "case or controversy" requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). To achieve standing, Shimer must show that he has suffered an actual or threatened injury, which may be traced to the challenged action, and which is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).

In our judgment, Shimer satisfies the injury-in-fact, causality, and redressability requirements of standing. Shimer has petitioned the state for clemency; we assume his petition is pending. Shimer alleges that prison guards would have written letters to the Prisoner Review Board, but for the policy. Without the guards' letters before them, the Board has less information about Shimer. We note that this information may be particularly pertinent, as it is the guards who have daily contact with Shimer and therefore can realistically assess his person.¹ Assuming that the letters would reflect that Shimer is a fit candidate for clemency, their absence at his hearing will affect him adversely. While Shimer has not shown the ultimate injury, the denial of clemency, he has shown that the policy may hinder the flow of information -- a procedural defect which may act to his detriment. "All that a plaintiff need show to establish standing to sue is a reasonable probability -- not a certainty -- of suffering tangible harm unless he obtains the relief that he is seeking in the suit," Hoover v. Wagner, 47 F.3d 845, 847 (7th Cir. 1995). We therefore conclude that Shimer has suffered injury-in-fact caused by the prison's policy. A favorable decision by this court, i.e., an injunction of the prison's policy, would allow the prison guards to write directly to the Board and would remedy an informational shortcoming in the clemency proceedings.

In addition to the constitutional elements of standing embodied in Article III, the federal judiciary has established certain prudential boundaries on standing. Here, Shimer threatens to run afoul of our limitation on third-party standing. A litigant must generally assert his or her own legal rights and interests, Warth v. Seldin, 422 U.S. 490, 499 (1975). To establish third-party standing, we require that a litigant, in addition to alleging injury-in-fact, allege a sufficiently close relationship with the third party so that the court is assured that the litigant will be an effective proponent of the cause, Powers v. Ohio, 499 U.S. 400, 411 (1991), and we consider whether there is some hindrance to the third party's ability to protect his own interest. Id.

However, in the area of First Amendment litigation, the federal courts have relaxed their prudential concern with regard to third-party standing because of the challenged law or regulation's potential chilling effect on protected expression. Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984) (fund-raising organization allowed to assert First Amendment rights of charities). In Munson, the Supreme Court wrote, "Litigants . . . are permitted to challenge a statute not because their own rights of free expression are violated but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Id. at 956-57 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); Virginia v. American Booksellers Ass'n. Inc., 484 U.S. 383, 392-93 (1988) (book sellers asserting First Amendment rights of book buyers). The stringent requirements for third-party standing are rooted in prudence, rather than the Constitution; accordingly, where circumstances warrant and the Supreme Court allows, we may ease the strictures. Our concern that a law will stifle protected speech justifies such allowance of third-party standing.

This Circuit has followed the Supreme Court's lead in refusing to place a premium on prudence in the First Amendment context. In Penny Saver Publications v. Village of Hazel Crest, 905 F.2d 150 (7th Cir. 1990), we allowed a newspaper to assert the rights of its advertisers. The challenged ordinance applied to solicitation -- usually not the business of newspapers, but of the advertisers. Following Munson, we put third-party standing concerns aside in the face of a First Amendment challenge and allowed the newspaper to sue in the advertisers' stead. Pennysaver, 905 at 154.² In the instant case, we elect to do the same. The assurance of a cautionary approach to standing, requiring Shimer to demonstrate legitimacy as a third-party litigant, is outweighed by the potential chilling effect on prison guards' protected speech.

III.

Having determined that Shimer has standing to pursue this claim, we turn next to the standard governing the adjudication of constitutional rights within prison. While the chilling effect on protected speech may be as significant within prison walls, we hold prison administrations to a less stringent standard where constitutional rights are in question. This more deferential standard is applied to both the rights of prisoners and the rights of nonprisoners within prison walls, Keeney v. Heath, 57 F.3d 579, 581 (7th Cir. 1995), so that we apply it here, where the First Amendment rights of prison guards, rather than prisoners, are infringed.

We ask of the prison administration only whether its policy is reasonably related to a legitimate penological interest. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989). To satisfy this inquiry we adhere to a four factor test: we ask (1) whether a valid, rational connection exists between the regulation and a legitimate government interest behind the rule; (2) whether there are alternative means of exercising the right in question; (3) what impact accommodation of the asserted constitutional right would have on guards, other inmates, and on the allocation of prison resources; and (4) what easy alternatives exist to the regulation because, although the regulation need not satisfy a least restrictive alternatives test, the existence of obvious alternatives may be evidence that the regulation is not reasonable. Turner v. Safley, 482 U.S. 78, 89-90 (1987); Williams v. Lane, 851 F.2d 867, 877 (7th Cir. 1988). In order to make this inquiry, we need information.

The prison administration must proffer some evidence to support its restriction of prison guards' constitutional...