104 F.3d 149 (8th Cir. 1997), 96-1022, Weiler v. Purkett

Docket Nº:96-1022.
Citation:104 F.3d 149
Party Name:Clyde WEILER, Appellee, v. James PURKETT; Leah Embly, Appellants.
Case Date:January 03, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 149

104 F.3d 149 (8th Cir. 1997)

Clyde WEILER, Appellee,

v.

James PURKETT; Leah Embly, Appellants.

No. 96-1022.

United States Court of Appeals, Eighth Circuit.

January 3, 1997

Submitted Sept. 13, 1996.

Rehearing and Rehearing En Banc Granted;

Opinion and Judgment Vacated

March 14, 1997.

Page 150

Jeremiah W. (Jay) Nixon, John R. Munich, Jefferson City, MO, Gretchen E. Rowan and Paul M. Rauschenbach, St. Louis, MO, for Appellants.

Gary E. Wiseman, St. Louis, MO, for Appellee.

Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

James Purkett and Leah Embly appeal from the district court's denial of their second summary judgment motion in this case challenging the mail rules at the Farmington Correctional Center. Clyde Weiler brought this civil rights suit under 42 U.S.C. § 1983 (1994), claiming that the defendants violated his First Amendment rights by confiscating a package his son mailed to him at Farmington. Purkett and Embly initially moved for summary judgment, which the district court granted. We reversed. After remand, Purkett and Embly filed a second motion for summary judgment. This motion included supplementary affidavits, which they contend resolve the factual issues that prevented them from getting summary judgment on their original motion. The district court denied their second motion, and we affirm.

In September 1991, a package arrived at Farmington addressed to Clyde Weiler, an inmate. The package came from Weiler's son. It was labeled "legal papers," and contained legal files and a trial transcript of the case on which Weiler was in jail. Pursuant to the Farmington mail procedures, the Farmington mailroom supervisor, Leah Embly, sent Weiler a notice telling him that his package had been confiscated and giving him options for disposing of the package. The package was never delivered to Weiler.

Farmington mail policies distinguished packages from other types of mail and regulated more strictly the circumstances under which inmates could receive packages. Generally, inmates could only receive packages that came directly from an approved vendor, except that an inmate about to be released could receive packages of street clothes from other sources, and the Farmington Superintendent could approve other types of packages in advance of their receipt. Purkett approved the mail policy as Institution Head at Farmington. Weiler's package did not fall into any of the permitted categories so Embly confiscated it. Weiler sued under section 1983, alleging violation of his First Amendment and various other constitutional rights.

Embly and Purkett moved for summary judgment. Weiler opposed the motion by filing an affidavit signed by ten Farmington inmates averring that each of them had received packages containing legal papers from friends or family through the Farmington mailroom.

The district court granted Embly and Purkett's motion. We reversed. Weiler v. Purkett, No. 93-2041, 1995

WL 21660 (8th Cir. Jan.23, 1995). We held that the affidavits from the ten inmates indicating that the package policy was widely disregarded raised a material issue of fact as to whether the Farmington package regulations were arbitrary and not reasonably related to a legitimate government interest. Slip op. at 5 (citing Griffin v. Lombardi, 946 F.2d 604, 607-08 (8th Cir.1991), and Thongvanh v. Thalacker, 17 F.3d 256, 259 (8th Cir.1994)). We also held that Embly and Purkett were not entitled to qualified immunity because the conflicting affidavits created an issue of fact about whether it would have been reasonable for them to believe that their actions did not violate Weiler's First Amendment rights. Id.

On remand, Embly and Purkett again moved for summary judgment, supplementing the record with their separate affidavits stating in substantially identical language:

I have never made a policy decision ... that [the package policy] should not be applied to unauthorized packages received by some inmates.

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To my knowledge there has never been an exception made to these policies either officially or unofficially. If any inmate had received an unauthorized package, it would have been as a result of human error and not due to a policy decision to exempt certain inmates or packages from the operation of [the policies].

Purkett also argued that Weiler's claim against him could only be founded on a respondeat superior theory, which is not actionable under section 1983.

The district court denied the second motion. The court held that the affidavits do not resolve the factual disputes about the reasonableness of the package policy that were raised by the evidence of irregular enforcement of the policy. The same factual issue that precluded summary judgment on the merits also precluded summary judgment on the qualified immunity claim. The court rejected Purkett's respondeat superior argument because Weiler attacked the reasonableness of the regulation itself, which Purkett had personally approved, thus providing a basis for personal, rather than respondeat superior liability.

We conclude that the new affidavits do not resolve the factual issues on which we based our first decision.

We review the district court's grant of summary judgment de novo. See Uhl v. Swanstrom, 79 F.3d 751, 754 (8th Cir.1996). Summary judgment is appropriate when there is no material issue of fact and when the moving party is entitled to judgment as a matter of law. Id.

Purkett and Embly argue that their affidavits establish that any irregular application of the package policy had nothing to do with them. This argument fails for two reasons. First, Weiler's evidence tends to prove that exceptions were being made to the policy. Purkett and Embly's affidavits contradict that evidence by indicating that there has never been an official or unofficial deviation from the policy, hence perhaps no deviation at all. Obviously, on summary judgment motion we may not resolve this conflict in evidence about whether exceptions have or have not been made. Second, to the extent that Purkett and Embly admit that exceptions could have been made, but deny knowledge of any exception, Purkett and Embly are again asking us to resolve a factual issue in their favor. Evidence of a pervasive practice at Farmington can support an inference that they did know of the practice, despite their affidavits to the contrary. They argue that they are not responsible for other people's errors, but this is beside the point; the theory we reversed on before was not that deviations from the package policy were actionable, but rather that widespread deviations created a factual issue as to whether the policy was reasonably related to a legitimate government interest. Weiler, slip op. at 5.

Similarly, Purkett's argument about respondeat superior misconceives the theory of the case. He is not potentially liable for the acts of others, but for his own acts in approving and maintaining regulations that could be found to be arbitrary. Therefore, Weiler's claim against him does not depend on respondeat superior principles.

As we held in the first appeal, the same factual issues that preclude summary judgment on the merits also preclude summary judgment on the ground of qualified immunity. See slip op. at 5; Griffin, 946 F.2d at 608; see generally Greiner v. City of Champlin, 27 F.3d 1346, 1352 ("[I]f there is a genuine dispute concerning predicate facts material to the qualified immunity issue, there can be no summary judgment.").

Finally, Purkett and Embly attack Weiler's access to courts claim. The district court noted that they had not raised that theory before the district court in their second motion. This being the case, we need not consider an argument on appeal that they did not present to the district court.

We affirm the judgment of the district court.

BEAM, Circuit Judge, dissenting.

A funny thing happened to this case on the way to this forum: a metamorphosis occurred. Whether analyzed in its present or original formulation, however, the matter should be reversed and dismissed. Accordingly, I dissent.

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I. BACKGROUND

Weiler is an eighty-two-year-old sex offender who is incarcerated in Missouri after conviction in 1989, at age seventy-three, of one count of sodomy and two counts of first degree sexual abuse of a ten-year-old female child. He had apparently been abusing her since she was seven. State v. Weiler, 801 S.W.2d 417, 418 (Mo.Ct.App.1990). Since being incarcerated, he has become a frequent litigator in federal court. 1

The major allegation in Weiler's initial complaint was summarized by the district court in its order preceding Weiler's first appeal, Weiler v. Purkett, No. 93-2041, 1995 WL 21660 (8th Cir.1995) (per curiam) (Weiler I ) as follows: "defendants wrongfully confiscated and destroyed a package that contained legal materials [Weiler] needed in order to pursue post-conviction relief procedures." Weiler v. Purkett, No. 91-2294 C(2), mem. op. at 3 (E.D.Mo. Oct. 14, 1992).

The package was, without dispute, marked "From R. Weiler" who is allegedly Weiler's son. He is not a lawyer, judge or other public official. Weiler contends that the parcel was also labeled "legal mail" (the court in its current opinion says "legal papers") and such allegation must be taken as true at this stage of the litigation. The contents, according to Weiler, were a trial transcript and, perhaps, other legal papers which Weiler wanted to use to prepare an additional state court postconviction pleading and/or a federal habeas petition.

There is also no dispute that Embly, the prison mailroom supervisor, confiscated the package and sent Weiler a contraband notice. The notice gave him at least four choices for disposition of the mailing: it could be returned by mail to the sender if Weiler provided the postage; he could have someone who visited him remove the package from the...

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