Keup v. Hopkins
| Decision Date | 04 March 2010 |
| Docket Number | No. 09-1079.,09-1079. |
| Citation | 596 F.3d 899 |
| Parties | Tyler J. KEUP, Appellee, v. F.X. HOPKINS; Dennis Bakewell; all being sued in their individual capacities, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Linda L. Willard, AAG, argued, Lincoln, NE, for Appellant.
Dana C. Bradford, III, argued, Omaha, NE, for Appellee.
Before RILEY, SMITH, and GRUENDER, Circuit Judges.
Tyler Keup, an artist in the custody of the Nebraska Department of Correctional Services (NDCS), tried to send drawings of a marijuana leaf and a bare-breasted woman to his mother and the Maoist Internationalist Movement (Maoists). When NDCS rebuffed Keup's efforts, Keup sued various NDCS officials under 42 U.S.C. § 1983 for violating his First Amendment rights. The district court directed a verdict in Keup's favor against F.X. Hopkins and Dennis Bakewell, awarded Keup nominal damages, and ordered Hopkins and Bakewell to pay approximately $25,000 in attorney fees and costs. Hopkins and Bakewell appeal. We affirm in part and reverse in part.
Keup is a prisoner in the custody of NDCS at the Lincoln Correctional Center (LCC). At all relevant times, Hopkins was one of NDCS's directors. Bakewell was LCC's warden. Salvador Cruz, Ty DeKoenig,1 and Diane Sabatka-Rine were lower-level NDCS employees at LCC.
While incarcerated, Keup challenged various restrictions upon his ability to send and receive mail. Keup availed himself of NDCS's three-level grievance procedure. To exhaust administrative remedies, a prisoner must file (1) an informal grievance, (2) a step-one grievance, and (3) a step-two grievance. 68 Neb. Admin. Code, ch. 2 § 004. See also 42 U.S.C. § 1997e; Neb.Rev.Stat. §§ 83-4,111 & 83-4,135-139.
Time limits apply at each level of the NDCS grievance process. A complaining inmate must file an informal grievance within three days of the "incident of concern." If the inmate is dissatisfied with NDCS's response, the inmate must file a step-one grievance within fifteen days. If the inmate remains dissatisfied, the inmate must file a step-two grievance within ten days of NDCS's response to the step-one grievance.
Four incidents are relevant to this appeal:
1. March 2005—Attempt to Mail Drawings to Mother
In March 2005, Keup tried to send his mother two drawings, one of a cross containing a small marijuana leaf and the other a bare-breasted woman. At the time, § 207.1.1 of LCC's Operational Memorandum (OM) forbade inmates from manufacturing, possessing, or distributing drawings of "[u]ncovered female breasts," "illegal drugs," and any other "obscene, nude, lewd, lascivious, ... or filthy" material. LCC personnel accordingly refused to let Keup mail the drawings.
Keup timely grieved NDCS's refusal, alleging a violation of his free speech rights. Keup reasoned "it seems illogical that I can receive explicit porn magazines [and] books containing images of drugs but I can't use my artistic abilities to create certain drawings for a good cause!" Cruz denied Keup's informal grievance, Bakewell denied Keup's step-one grievance, and Hopkins denied Keup's step-two grievance.
2. September 2005—Attempt to Mail Photocopies to the Maoists
In September 2005, Keup tried to send photocopies of his drawings of the marijuana leaf and the bare-breasted woman to the Maoists. Apparently, Keup was asking the Maoists for legal help.2 DeKoenig intercepted the photocopies.
Keup immediately grieved DeKoenig's seizure of the photocopies, asserting a violation of his right to send legal mail. On September 16, 2005, Cruz denied Keup's informal grievance. On November 3, 2005, Keup filed a step-one grievance, reasserting his right to "unrestricted/uncensored access for the conduction of legal affairs." On December 22, 2005, Bakewell denied the step-one grievance as untimely. On July 6, 2006, Keup filed a step-two grievance, in which he repeated the claims in his step-one and informal grievances. Keup alleged he was unable to file his step-one grievance in a timely manner because LCC personnel segregated him from the general prison population on September 24, 2005. On August 10, 2006, Hopkins denied Keup's step-two grievance as untimely and pointed out segregated prisoners have unfettered access to NDCS's grievance procedure.
3. December 2006—Attempt to Receive Pastor Sukraw's Card
In late December 2006, Pastor Joe Sukraw, a religious cleric from North Platte, Nebraska, purchased a religious book and a greeting card for Keup. The bookstore sent Keup the book and the card in a single mailing, and LCC personnel intercepted the shipment. Section 205.1.1 of the OM provided that "[a]ll publications ... must be prepaid and sent to the inmate directly from the publisher" but "cards ... can not be included in mailings from the bookstore/publisher." LCC personnel returned the card to the sender, stapled a return notice to the book, and delivered the book to Keup.
Keup timely grieved the return of the card, claiming LCC personnel violated the OM. Keup complained the stapling of the return notice to the book was "highly disrespectful," "degrading," and "equivical [sic] to leaving shoe prints all over ones [sic] mail before delivery." Keup asked for a new book, because the first fourteen pages of his book had staple holes in them. Cruz denied Keup's informal grievance, Sabatka-Rine denied Keup's step-one grievance, and Hopkins denied Keup's step-two grievance.
4. February 2007—Attempt to Receive a Bondage Sketchbook
In February 2007, LCC personnel intercepted a bondage sketchbook in Keup's mail, because the OM forbade prisoners from possessing depictions of violent sexual acts. Keup timely grieved the interception of the bondage sketchbook, opining that "bondage is a sexual fetish and is not of a violent nature or an illegal nature" and querying "how an art book containing various sketches of nude women could pose a threat?" Cruz denied Keup's informal grievance, Sabatka-Rine denied Keup's step-one grievance, and Hopkins denied Keup's step-two grievance.
In August 2005, Keup filed a complaint against Hopkins, Bakewell, and Cruz under 42 U.S.C. § 1983. Keup claimed Hopkins, Bakewell, and Cruz violated Keup's First and Fourteenth Amendment rights when they prohibited Keup from sending his drawings of marijuana and the bare-breasted woman to his mother. Keup requested compensatory and punitive damages, as well as declaratory and injunctive relief.
In May 2006, Hopkins, Bakewell, and Cruz answered the complaint. They denied the complaint's substance and asserted Keup's request for an "injunction is moot since changes have been made in the [OM] that allow the Plaintiff to do what he seeks the injunction to do." In September 2005, NDCS amended the OM to ban only drawings that "advocate or are likely to incite violent or illegal activity."
In August 2007, Keup amended his complaint with leave of court. In addition to the claims in the complaint, Keup lodged additional First and Fourteenth Amendment claims under § 1983 against Hopkins, Bakewell, DeKoenig, Cruz, and Sabatka-Rine for their respective roles in blocking the mailing of the photocopies to the Maoists; seizing the greeting card and the bondage sketchbook; and allegedly retaliating against Keup for filing the complaint (collectively, the new claims). Keup again requested monetary, declaratory, and injunctive relief.
In August and September 2007, Hopkins, Bakewell, DeKoenig, Cruz, and Sabatka-Rine answered the amended complaint. These defendants variously denied the substance of the amended complaint, asserted Keup's claims were moot to the extent Keup was asking for permission to send his drawings to his mother and the Maoists, and maintained Keup failed to exhaust his administrative remedies as to his new claims.
In November 2007, Hopkins, Bakewell, DeKoenig, Cruz, and Sabatka-Rine moved for summary judgment, asserting their exhaustion and mootness defenses. In February 2008, the district court rejected the defendants' exhaustion defenses because, in its view, dismissal of Keup's new claims would result in another lawsuit and foster judicial inefficiency. The district court rejected the defendants' mootness defenses as to Keup's request for monetary damages, but held Keup's requests for prospective injunctive and declaratory relief were moot because NDCS had amended the OM.
In July 2008, the district court held a jury trial on Keup's requests for damages. At the conclusion of Keup's case-in-chief, the district court directed a verdict in favor of Keup and against Hopkins and Bakewell for "prohibit[ing] the plaintiff from mailing his drawings ... to his mother and the [Maoists]." The district court awarded Keup $1.00 in nominal damages and invited an application for attorney fees. All of Keup's remaining claims failed when the district court directed a verdict in the defendants' favor as to some claims and the jury rejected all others.
In August 2008, Keup applied for over $30,000 in attorney fees and costs, pursuant to 42 U.S.C. § 1988(b) and Fed. R.Civ.P. 54(d). Hopkins and Bakewell objected on two alternative grounds: (1) Keup was not entitled to any attorney fees because he was not a "prevailing party" for purposes of § 1988(b), and (2) the cap on attorney fees at § 1997e(d)(2) limited the amount of attorney fees to 150% of the monetary damages award, that is, $1.50. The district court overruled these objections. The court declined to reduce Keup's attorney fees award for his lack of success at trial and awarded Keup approximately $25,000 in attorney fees and costs.3 Hopkins and Bakewell appealed.
Hopkins and Bakewell argue the district court erred in (1) rejecting their mootness defenses, (2) rejecting their exhaustion defenses, and (3) awarding attorney...
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