392 F.3d 420 (10th Cir. 2004), 03-3227, Jacklovich v. Simmons

Docket Nº:03-3227 to 03-3230.
Citation:392 F.3d 420
Party Name:Joseph E. JACKLOVICH, Sr.; Prison Legal News, Inc.; Kris Zimmerman, Plaintiffs-Appellants, v. Charles E. SIMMONS, Secretary of Corrections for the State of Kansas; William L. Cummings, Secretary Designate, Kansas Department of Corrections; Louis E. Bruce, Warden of the Hutchinson Correctional Facility; Patricia Keen, OAIV Mail Room Supervisor of th
Case Date:December 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 420

392 F.3d 420 (10th Cir. 2004)

Joseph E. JACKLOVICH, Sr.; Prison Legal News, Inc.; Kris Zimmerman, Plaintiffs-Appellants,

v.

Charles E. SIMMONS, Secretary of Corrections for the State of Kansas; William L. Cummings, Secretary Designate, Kansas Department of Corrections; Louis E. Bruce, Warden of the Hutchinson Correctional Facility; Patricia Keen, OAIV Mail Room Supervisor of the Hutchinson Correctional Facility, individually and in their official capacities, Defendants-Appellees.

American Civil Liberties Union of Kansas and Western Missouri, Amicus Curiae.

Nos. 03-3227 to 03-3230.

United States Court of Appeals, Tenth Circuit

December 21, 2004

Page 421

Bruce Plenk, (Max Kautsch with him on the brief) Law Office of Bruce Plenk, Lawrence, KS, for Plaintiffs-Appellants.

Timothy G. Madden, Senior Counsel to the Secretary, Kansas Department of Corrections, Topeka, KS, for Defendants-Appellees.

J. Patrick Sullivan, Shook, Hardy & Bacon, L.L.P., Kansas City MO, filed an amicus brief for the American Civil Liberties Union of Kansas and Western Missouri, on behalf of Plaintiffs-Appellants.

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Before KELLY, HENRY, and HARTZ, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Plaintiffs-Appellants Prison Legal News ("PLN") and Kansas Department of Corrections ("KDOC") inmates Kris Zimmerman and Joseph E. Jacklovich, appeal from the district court's summary judgment in favor of Defendants-Appellees, KDOC corrections officials. The KDOC has promulgated various regulations and policies that (1) provide a $30 per month limit on outgoing inmate funds for books, newspapers and periodicals, subject to exceeding the limit once every three months for a newspaper subscription, (2) require that all inmate purchases of books, newspapers and periodicals be made by special purchase order through the institution, thereby prohibiting gift subscriptions, and (3) provide that books, newspapers and periodicals otherwise received be censored, with notice only to the inmate, but not the sender. Claiming the regulations and policies unconstitutional, the Plaintiffs sought declaratory and injunctive relief, as well as damages. I R. (03-3229) Doc. 33 at 2; I R. (03-3230) Doc. 53 at 3-4; I R. (03-3227) Doc. 54 at 2. On cross-motions for summary judgment, the district court upheld these regulations and policies against First and Fourteenth Amendment challenges, concluding that they are reasonably related to legitimate penological interests and do not infringe PLN's due process rights. See Zimmerman v. Simmons, 260 F.Supp.2d 1077, 1084-85 (D.Kan.2003). Our jurisdiction arises under 28 U.S.C. § 1291 and we reverse.

Background

Kansas Administrative Regulation § 44-12-601(g) (1) provides that "[a]ll books, newspapers, and periodicals shall be purchased through special purchase orders." 1 I R. Doc. 32, Ex. 1. This regulation essentially requires that all publications be purchased by inmates through their facility bank accounts, thus prohibiting the receipt of all gift publications. Inmates are allowed only a facility bank account; all of an inmate's funds must be deposited therein

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and transactions involving any other financial account are only permitted by written permission. 2 I R. Doc. 31 at 4-5, ¶ 16; 1 R. Doc. 34 at 1, item 4. Any person can mail a money order, certified check or cashier's check to an inmate account. I R. (03-3229) Doc. 29, attach. 16 at 11.

The regulation barring subscriptions to publications had an effective date of April 17, 1998, but it was not enforced initially; a May 3, 1999, memo gave notice that the policy would be enforced on June 23, 2000, allowing a one-year grandfathering period for inmates to receive newspaper and magazine subscriptions not purchased through a facility bank account. I R. (03-3229) Doc. 29, attach. 10; I R. (03-3230) Doc. 62 at ¶ ¶ 9-11, Doc. 53 at 5-6. Another one-year grandfathering period was allowed for Level II and III inmates until March 2, 2002, for one gift publication of the inmate's choice and for only one year, regardless of the amount of time remaining on the subscription. I R. (03-3229) Doc. 29, attach. 8.

In addition to the ban on publications not purchased through facility bank accounts, KDOC Internal Management Policy and Procedure ("IMPP") 11-101 limits the amount of an inmate's outgoing funds to $30.00 per month. Inmates assigned to Intake Level and Level I may not use outgoing funds to purchase books, or newspaper or magazine subscriptions. 3 Although inmates at Level I may have a hot pot, fan, alarm clock, blow dryer, extension cord, curling iron, lamp, ice chest and all consumable post-intake property, they may not have books, magazines or newspapers. I R. (03-3227) Doc. 54, Ex.24,

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attach. A to IMPP 11-101. Inmates assigned to Level II and III may purchase books, or newspaper or magazine subscriptions subject to the $30.00 limit. That limit may be exceeded once every three months for the purchase of one newspaper subscription.

Former Kan. Admin. Regs. § 44-12-601(l) (Feb. 15, 2002) provided that "[e]xcept for material ordered through approved special purchase orders, incoming bulk-rate mail shall not be delivered." The current regulation is more specific: "Incoming mail addressed solely to a specific inmate and not otherwise subject to censorship shall be delivered regardless of whether the mail is sent free of charge or at a reduced rate." Kan. Admin. Regs. § 44-12-601(b) (7) (July 2, 2004). In answers to interrogatories, the Defendants stated that inmates may receive free publications, provided that the publications are truly free and do not require the inmate to take affirmative action to cancel a trial subscription. I R. (03-3229) Doc. 32, Ex. 3 at 9. As we understand it, "gift subscriptions" are subscriptions that are paid for by anyone other than the vendor. Id. at 10. To be "truly free," it must not be possible for an inmate to pay for it. I R. (03-3230) Doc. 53, Ex. 20 at ¶ 5. Kan. Admin. Regs. § 44-12-209 provides that an inmate may not enter into a contract or incur a financial obligation absent approval.

According to regulation, publications received not in conformity with these policies are censored. Kan. Admin. Regs. § 44-12-601(g) (2) & former Kan. Admin. Regs. § 44-12-601(q) (2) (Feb. 15, 2002). Inmates are notified in writing and given the reason for the censorship, and are given the name and address of the sender if known; it is up to the inmate to contact the sender if he so desires. Kan. Admin. Regs. § 44-12-601(d) (2). 4 The author (sender) of the censored item is given a reasonable opportunity to protest the censorship decision to a different prison official. Kan. Admin. Regs. § 44-12-601(d) (2) (C) & (D).

While acknowledging the mail review process contained in the regulation, an affidavit from Defendant Bruce, the Warden of the Hutchinson Correctional Facility, suggests a different procedure. Seizures of materials sent to Plaintiff Zimmerman were treated "as a property issue alone with the inmate's option within 10 days of notification being whether to send out the material to a designated address or that it be destroyed." I R. (03-3230) Doc. 53, Ex. 19 at ¶ 12. According to the Warden, the procedure in the censorship regulation was not followed because the seizure was not

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content-based and, if the regulation was followed, the material would have to be held for 45 days during the appeals process, rather than 10 days, causing serious storage and fire concerns. Id.

Plaintiff KDOC inmates proceed under 42 U.S.C. § 1983, alleging that Defendant corrections officials have deprived them of their First Amendment rights by refusing to deliver to them numerous publications (including more than one newspaper and several magazines) not purchased with a special purchase order, including gift subscriptions. Included among those publications is Prison Legal News, paid for by friends and family outside of the prison. Plaintiffs claim their rights are further infringed by the limits on the amount of money that may be spent each month on publications, as well as by the limit of one newspaper subscription. 5

Plaintiff Prison Legal News, Inc. is a non-profit publisher of Prison Legal News, a monthly magazine that focuses on prison issues. Although friends and family of KDOC inmates have paid for subscriptions to Prison Legal News for certain inmates, corrections officials have refused to deliver the publications. In addition, corrections officials do not notify PLN when a publication is not delivered. PLN contends that the refusal to allow inmates to receive publications unless purchased from a facility bank account, the $30.00 limit, the limit on the number of subscriptions, and the complete ban on publications for Level I inmates violates its First Amendment right to communicate with inmates. I R. Doc. 1 at 7; Doc. 33 at 5. PLN also complains that the prison policies deprive it of due process because it is never notified of non-delivery, given a reason for the non-delivery, and/or given an opportunity to contest it. I R. Doc. 1 at 8.

Defendants advance two rationales for the policies--security and behavior management. First, they contend that the ban on gift publications allows the facility to monitor and regulate all inmate financial transactions, and control the property entering the facility. This monitoring allows them to be better able to detect financial transactions that violate prison rules and regulations or state law, such as theft, drug dealing, debt adjustment, as well as entering into contracts without authorization and obtaining property by false pretenses. In particular, Defendants seek to prevent the practice of strong-arming, where one inmate coerces another to arrange for a gift subscription to be purchased by someone on the...

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