Kikumura v. Turner

• Decision Date: 27 June 1994
• Docket Number: No. 93-1847,93-1847
• Citation: 28 F.3d 592
• Parties: Yu KIKUMURA, Plaintiff-Appellant, v. C.A. TURNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 592

28 F.3d 592

Yu KIKUMURA, Plaintiff-Appellant, v. C.A. TURNER, Defendant-Appellee.

No. 93-1847.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 1994.

Decided June 27, 1994.

Joan H. Burger, Teresa A. Massa (argued), Meites, Frackman, Mulder & Burger, Chicago, IL, for plaintiff-appellant.

Deborah D. Sorkin, Dept. of Justice, General Litigation/Legal Advice Section, Washington, DC, James M. Hipkiss, Office of the U.S. Atty., Civil Div., Fairview Heights, IL, Candice Will (argued), Dept. of Justice, Office of Professional Responsibility, Washington, DC, for defendant-appellee.

Before FAIRCHILD, CUDAHY and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

Yu Kikumura is a prisoner in the United States Penitentiary in Marion, Illinois. He is serving a 262-month sentence following a conviction for explosives and passport offenses. ¹ He is suing C.A. Turner, the prison warden, for prohibiting him from receiving mail in Japanese. This action, Kikumura claims, violates his rights under the First Amendment and the Equal Protection Clause. He seeks damages, as well as injunctive and declaratory relief.

The district court granted summary judgment in Turner's favor, finding that Turner was entitled to qualified immunity, and that the challenged actions did not violate Kikumura's "clearly established constitutional rights." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The court never expressly addressed Kikumura's claims for injunctive and declaratory relief, leading us at the outset to question whether we have before us a "final decision of the district court," which is a necessary predicate to our own jurisdiction. 28 U.S.C. Sec. 1291. But the court unequivocally entered a final judgment here, granting the defendant's motion for summary judgment in its entirety. R.O.A. 36; see also infra p. 8. Our jurisdiction is therefore certain, and we review the entry of summary judgment de novo.

I.

A

Kikumura's amended complaint alleges that the Bureau of Prisons on more than 20 occasions rejected incoming paperback books, letters, newspapers and magazines on the ground that such material posed a threat to prison security. Kikumura attached to his complaint several memoranda addressed to him and signed by Warden Turner. The memoranda indicate that "[u]pon review of the publication, I have determined that its entry into this institution could be detrimental to the security, good order and discipline of the institution. I have based this decision on the fact that these publications are printed in Japanese and, therefore, can not [sic] be monitored or reviewed by institution staff and could jeopardize the security and orderly running of the institution." R.O.A. 1.

Kikumura's amended complaint alleges that, in denying him these publications, Turner violated his First and Fifth Amendment rights. While the reference to the Fifth Amendment in the amended complaint suggests that Kikumura was raising a procedural due process claim, see R.O.A. 10 at 5b, Kikumura argued in his memorandum opposing the motion for summary judgment that the blanket policy of refusing all Japanese language publications violates the "Equal Protection element of the Fifth Amendment." R.O.A. 21 at 5. See generally Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694-95, 98 L.Ed. 884 (1954) (applying the equal protection clause to the federal government through the Fifth Amendment's due process guarantee). Warden Turner has never suggested that the complaint failed to put him on notice of Kikumura's equal protection claim, see Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). He has rather responded to the merits of that claim, both before the district court, R.O.A. 30 at 6, and on appeal, Br. at 21-23. We therefore read the complaint to allege violations of both the First Amendment and the equal protection clause, as made applicable to the federal government through the Fifth Amendment. ²

B

Throughout the relevant period the Justice Department Bureau of Prisons regulations provided that prisoners' incoming mail is to be rejected "only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity." 28 C.F.R. Sec. 540.71(b); Bureau of Prisons Policy Statement 5266.5. The regulations note that a publication may be rejected if it "is written in code," 28 C.F.R. Sec. 540.71(b)(4), though they say nothing about publications in languages other than English. The Supreme Court, in Thornburg v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), upheld these regulations as against a broad-based First Amendment challenge.

The general Bureau of Prisons regulations are supplemented by local prison rules. The Marion Institution Supplement, at issue here, saw a number of proposed changes and actual amendments during the course of this litigation. In rejecting Japanese language publications sent to Kikumura, Warden Turner cited to Institution Supplement MAR-5266.5B, which says that "[p]ublications in languages other than English may be received only by those inmates who are unable to read or understand English. These publications must be sent from a publisher or bookstore and the package must be clearly marked to indicate the sender."

Warden Turner does not maintain that--before Kikumura filed suit--Turner made any effort to try to find a translator or otherwise screen Kikumura's incoming mail before summarily rejecting it. Only after Kikumura filed his suit did the prison consider changing its policy of blanket rejection of incoming Japanese publications. Beginning in July 1992, the prison began looking for a way to translate the incoming publications, though found all such alternatives to be prohibitively expensive.

The Marion staff ultimately located a Bureau of Prisons employee, working at the Federal Correctional Institution in Englewood, Colorado, who is proficient in Japanese. Beginning January 11, 1993, Kikumura's incoming Japanese language publications have been forwarded to the employee in Colorado, who screens the materials and returns them to Marion.

The staff at Marion also drew up a draft document called Institution Supplement MAR-5266.5C, dated January 18, 1993, which was to replace Institution Supplement MAR-5266.5B. The proposed new policy contained far more elaborate protection for foreign language publications than the old. Under the proposed guidelines, incoming publications in foreign languages would be reviewed, where possible, by a Marion staff member with sufficient language skills. Where no such staff member was available, the "Inmate Systems Manager will attempt to locate a Bureau of Prisons employee at another location with foreign language skills in the language in which the publication is printed." The Inmate Systems manager will also "maintain a listing of Bureau of Prisons employees who are responsible for the review of foreign language materials," and the "Mail Room officer will maintain a log of all publications mailed, indicating the item mailed, date mailed, and date returned."

But the warden never signed this version of MAR-5266.5C. Instead, the new policy that Warden Turner in fact signed (which the government has attached to its appellate brief, though it is not part of the record on appeal) is dated January 27, 1993 (and signed by Warden Turner on February 25, 1993). This policy is far less expansive than the version that the warden apparently rejected, saying only that to "ensure the security, discipline and orderly operation of USP Marion, publications in a language other than English will be subject to translation, review, and verification which may cause a delay in receipt.... Publications which cannot be reasonably translated may be rejected." Though more restrictive than the earlier proposal, the enacted version of Institution Supplement MAR-5266.5C is of course far more expansive than the previous policy of summarily rejecting all Japanese language publications.

On January 22, 1993, Magistrate Judge Frazier issued a report and recommendation, recommending that the government's motion for summary judgment be granted. Kikumura raised objections to the report and recommendation, and the government filed a response to those objections with the district court on February 17, 1993. Significantly, the government attached to that reply the more expansive unsigned policy dated January 18, 1993, rather than the more restrictive policy, dated January 27, 1993 (which the warden ultimately signed on February 25, 1993). Whether the district court was led down the primrose path because the government's lawyers were careless, or worse, we of course cannot say. But the apparently misleading attachment is in any event unacceptable, and we should expect better.

C

But the district court did not, in any event, rely on the government's misstatement of its policy, agreeing with the magistrate's conclusion that because prisoners have no "clearly established constitutional right" to receive mail in foreign languages, Warden Turner was entitled to qualified immunity. ³ The court did not discuss Kikumura's equal protection claim, nor did it address his claims for injunctive or declaratory relief. ⁴

II.

Government officials who are performing discretionary functions are immune from liability for civil damages unless they violate clearly established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Elder v. Holloway, --- U.S. ----, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). We agree with the district court that a prisoner's First Amendment right to receive mail in a language other than English is not clearly established.

Whatever we might think about the constitutionality of the warden's policy as an initial matter--a question we take up in examining Kikumura's claim for...