Koutnik v. Brown

Citation456 F.3d 777
Decision Date08 August 2006
Docket NumberNo. 05-3193.,05-3193.
PartiesJoseph D. KOUTNIK, Plaintiff-Appellant, v. Lebbeus BROWN, Gerald A. Berge, Warden, and Matthew J. Frank, Secretary, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Joseph D. Koutnik, Green Bay Correctional Institution, Green Bay, WI, pro se.

David E. Hoel, Office of the Attorney General Wisconsin, Department of Justice, Madison, WI, for Defendants-Appellees.

Before RIPPLE, KANNE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

Wisconsin prisoner Joseph Koutnik brought this action under 42 U.S.C. § 1983 after an employee of the prison in which he is incarcerated seized an article of his outgoing mail. Mr. Koutnik claims that the Wisconsin regulation relied upon by the defendants to justify the seizure violates the First Amendment on its face and as applied to him; he also claims that the defendants' actions violated his substantive due process rights. The district court dismissed Mr. Koutnik's facial challenge and his due process claim, and it granted summary judgment to the defendants on his remaining First Amendment claim. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I
A.

Mr. Koutnik is confined at the Wisconsin Secure Program Facility. In December 2002, he placed in the outgoing mail a letter addressed to Northern Sun Merchandising ("Northern Sun"), a company that sells politically oriented products, including t-shirts, posters and stickers. Northern Sun invites design proposals for its products and pays royalties if an idea is marketed successfully. Mr. Koutnik's letter encouraged Northern Sun to add communist-themed posters to its product line and also suggested developing a line of small posters targeted at inmates who are prohibited by prison regulations from possessing stickers and large posters. Mr. Koutnik also wrote: "I noticed that prison reform is not as well represented as is needed and am therefore including some of my ideas you should consider using. [L]et me know what you think." R.10, Ex.D. Several designs were included as attachments. One, taking a page to itself, was a drawing of a swastika textured with the image of cell bars. Above the swastika was the slogan "The Department of Corruptions," and below it was the slogan "Keeping Kids in Kages" written with enlarged, stylized capital Ks. Id., Ex.F.

Lebbeus Brown, then a lieutenant at the facility, prevented Mr. Koutnik's letter from being sent. He issued a "Notice of Non-Delivery of Mail," advising Mr. Koutnik that the swastika drawing violated Wisconsin Administrative Code DOC § 303.20. In relevant part, that section provides:

Any inmate who participates in any activity with an inmate gang, as defined in [§] DOC 303.03(11), or possesses any gang literature, creed, symbols or symbolisms is guilty of an offense. An inmate's possession of gang literature, creed symbols or symbolism is an act which shows that the inmate violates the rule. Institution staff may determine on a case by case basis what constitutes an unsanctioned group activity.

Wis. Admin. Code DOC § 303.20(3). Lieutenant Brown later would explain that, based on his training and experience, he believes the swastika to be "a symbol of Aryan pride and white supremacy, as well as racial hatred." R.15 at 8. Moreover, in this particular instance, he perceived the capital Ks and the misspelling of "cages" in "Keeping Kids in Kages" as a reference to the Ku Klux Klan. Id. at 9. The Klan is not a sanctioned group at the facility, see Wis. Admin. Code DOC § 309.365(c)(1), and Lieutenant Brown reasoned that Mr. Koutnik "was identifying with and trying to promote the growth of white supremacy groups while merchandizing white supremacy material," R.15 at 9. To permit such activity, the Lieutenant concluded, would create a security risk by emboldening white-supremacist inmates to spark racial unrest on the assumption that the facility and the Department of Corrections "were associated with and condoned white supremacy activity." Id. at 10. Lieutenant Brown also decided that Mr. Koutnik's desire to merchandize his design was also incompatible with the facility's efforts to rehabilitate him, even if the design never were reintroduced into the prison system.

B.

Mr. Koutnik filed the present action in which he alleged that Lieutenant Brown's seizure of the outgoing letter violated both his first amendment and substantive due process rights. Mr. Koutnik first submitted that the regulation upon which Lieutenant Brown relied, DOC § 303.20(3), is facially overbroad and that the seizure did not have a legitimate penalogical purpose. The district court dismissed the overbreadth challenge at the initial screening required by 28 U.S.C. § 1915A(a),1 but allowed Mr. Koutnik's as-applied challenge—concerning the use of the regulation to seize his outgoing correspondence—to proceed.

Mr. Koutnik further alleged that the seizure of his letter violated his right to substantive due process. However, the district court took the view that this claim was precluded because the Supreme Court has directed that substantive due process claims be analyzed under the specific provision of the Constitution most relevant to the claim, here the First Amendment. See Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.2005). Consequently, this claim was dismissed in the court's initial screening order as well.

The district court later granted summary judgment in favor of the defendants, analyzing Mr. Koutnik's remaining first amendment claim under the standard set out in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). That decision authorizes censorship of outgoing correspondence if justified by a substantial penalogical interest and if the means employed are no more intrusive than necessary to achieve that goal. See id. at 413, 94 S.Ct. 1800. The prison ostensibly had such a purpose, the court reasoned, because institutional security and inmate rehabilitation are legitimate aims. See Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). However, in addressing each of these purposes, the district court expressed doubt that outgoing mail containing a political or racial message constitutes a security risk. See Martinez, 416 U.S. at 416, 94 S.Ct. 1800. Accordingly, it rested its grant of summary judgment on its determination that the facility had a substantial interest in rehabilitating Mr. Koutnik and that the censorship of this article of his outgoing mail was a measure that was no more intrusive than necessary to achieve that goal. Even if Mr. Koutnik's intent was solely to criticize the penal system by associating it with a swastika and the KKK, the court reasoned, Lieutenant Brown was entitled to stop the outgoing mail because it contained those references.

II2
A.

On appeal, Mr. Koutnik first argues that the district court erred in dismissing his facial challenge to Wisconsin Administrative Code DOC § 303.20(3) at the screening stage. This section prohibits participating "in any activity with an inmate gang" or "possessing any gang ... symbols"; in turn, DOC § 303.02(11) defines "an inmate gang" as "a group of inmates which is not sanctioned by the warden." Mr. Koutnik asserts that, at the Wisconsin Secure Program Facility, there are no inmate groups sanctioned by the warden. Therefore, he argues that DOC § 303.20(3) prohibits the possession of symbolism which could be associated with any group.3

Mr. Koutnik misreads the provision. The operative section of the administrative code does not prohibit inmates from possessing the symbolism of any group, but rather any inmate group not approved by the warden. This distinction is significant because it makes the provision quite narrow; indeed, if strictly read, DOC § 303.20 would not authorize prison administrators to ban the symbolism of white supremacy groups if there were no inmate groups associated with that cause. With this understanding of the regulation in mind, we turn to Mr. Koutnik's legal arguments.

To launch a successful overbreadth challenge, a plaintiff must show "that a law punishes a `substantial' amount of protected free speech." Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003); see also Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir.2004). We have explained, however, that "the concepts of `overbreadth' and `vagueness' in the jurisprudence of the First Amendment were devised in order to prevent the slightest discouragement of free speech, and therefore have only limited relevance to a sphere where the right of free speech is limited." Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir.1986). Prison inmates have limited first amendment rights, see, e.g., Shaw v. Murphy, 532 U.S. 223, 228, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) (noting that "the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large"); therefore, "[w]hatever scope overbreadth analysis has in criminal prosecutions ... it has little or none in civil litigation dealing with prisons' internal operations," Borzych v. Frank, 439 F.3d 388, 391 (7th Cir.2006). This limitation on the overbreadth doctrine grows out of the inherent restrictions on the rights of prisoners and the concomitant special need of prison administrators for flexible regulations. "Some open-ended quality is essential if a prison is to have any guidelines; it is impossible to foresee all literature that may pose a threat to safety and security." Id. Given the extremely limited scope of overbreadth analysis in this context, we conclude that any overbreadth in the regulation at issue here "is not `substantial' in relation to its proper...

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