622 F.2d 290 (7th Cir. 1980), 79-1856, Trapnell v. Riggsby

Docket Nº:79-1856.
Citation:622 F.2d 290
Party Name:Garrett Brock TRAPNELL, Plaintiff-Appellant, v. James D. RIGGSBY; Jerry Williford; Ronald Thompson; J. Brown and David Dalcher, Defendants-Appellees.
Case Date:May 27, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 290

622 F.2d 290 (7th Cir. 1980)

Garrett Brock TRAPNELL, Plaintiff-Appellant,

v.

James D. RIGGSBY; Jerry Williford; Ronald Thompson; J. Brown

and David Dalcher, Defendants-Appellees.

No. 79-1856.

United States Court of Appeals, Seventh Circuit

May 27, 1980

Argued Jan. 14, 1980.

Rehearing and Rehearing In Banc Denied Aug. 29, 1980.

Page 291

Larry Nyhan, Law Student; Allen E. Shoenberger, Chicago, Ill., for plaintiff-appellant.

Theodore J. MacDonald, Asst. U. S. Atty., East St. Louis, Ill., for defendants-appellees.

Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.

CASTLE, Senior Circuit Judge.

Plaintiff-appellant Trapnell, an inmate at the federal prison in Marion, Illinois filed this suit seeking both injunctive and monetary relief for infringement of his rights under the First Amendment. The defendants-appellees are officials and employees at the prison. The district court submitted the matter to a magistrate for evidentiary hearings and proposed findings, and subsequently adopted the magistrate's recommendation that Trapnell's requests for relief be denied. Trapnell appeals the decision of the district court. There are two issues presented for review: (1) whether the current prison regulations governing prisoner receipt of photographs of nude and semi-nude women are constitutionally valid; and (2) whether Trapnell is entitled to damages for official acts taken pursuant to earlier guidelines governing the receipt of photographs. We hold that the current standards are valid and that Trapnell is not entitled to any monetary relief. Accordingly, we affirm the decision of the district court.

I.

Trapnell currently is an inmate at Marion and has been there since 1975. He has studied art during his imprisonment and spends part of his free "cell" time painting. The inmates at Marion are, generally, sentenced to long terms of imprisonment and are considered assaultive in nature. During the period prior to January 18, 1978 the prison's mail regulations stated that "(p) hotographs should meet the standard of decency and must include the individual's name on the back of the photograph." Policy Statement MI 7300.1, dated April 1, 1976, Part 3(e); Policy Statement MI 7300.1A, dated February 1, 1977, Part 3(e). Trapnell's claims for monetary relief are based on the rejection, under this regulation, of three sets of photographs. Two of these sets, rejected by officials in October and November of 1976, depicted female acquaintances of Trapnell. The subjects in the rejected photos were nude and semi-nude. The final group of photographs upon which this suit is based, the only commercially released photos rejected by Marion officials, were ordered by Trapnell from Peter Gowland. All of the photographs ordered from Gowland, who is a commercial photographer, were contained in catalogues which Trapnell received from Gowland. The catalogues included photos of nude and semi-nude women and were sent to Trapnell pursuant to an inquiry about "figure

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studies." Trapnell was allowed to receive the catalogues; the regulation in question was limited to photographs. Trapnell selected and ordered thirty-six photographs from the catalogues, sending $88.80 with the order. In November, 1976 the photos were sent to the prison and rejected. There were no marks or stamps affixed to the Gowland photos to demonstrate that they indeed had been commercially published and distributed. Trapnell filed this suit in May, 1977 following denial of his requests for administrative relief.

During the course of this litigation the prison has promulgated new guidelines governing the receipt of the photographs. The parties have agreed that the claims for injunctive and declaratory relief contained in Trapnell's complaint will apply to the new guidelines, which are still in effect. We will review the earlier regulations only as they relate to Trapnell's claims for damages.

II.

We will first review the validity of the standards now in use at Marion. The current standards, in contrast to the regulations under which the photographs were initially rejected, set out carefully written and objective guidelines governing the receipt of photographs. The new regulation, MI 7300.1B(f) provides:

f. Nude and Pornographic Photographs.

(1) Nude photographs are defined as any photograph exposing the nipples of the breasts, buttocks, pubic hair and genitalia of a female and buttocks, pubic hair and genitalia of a male. This includes exposure through "see through" materials.

(2) Pornographic photographs are defined as photographs depicting acts of fornication, felattio (sic) and/or sodomy.

Inmates will not be allowed to receive or have in their possession photographs as described above unless the photographs are received as a part of a publication approved under the provisions of Bureau of Prisons Policy Statement 7300.42D, and/or the photographs have been published for commercial use (postcards, etc.). Such photographs must have some identifying marking or publication label to distinguish them as published for commercial use.

The distinction between photographs published for commercial use and original photographs intended for individual viewing must be made to maintain the security and orderly running of the institution consistent with the Bureau of Prisons mandate to provide for the safekeeping of the inmate population. Those persons who pose for photographs to be published for commercial use are aware that viewing of such photographs will be widespread; whereas persons who pose for original photographs may be doing so only for select viewers, such as inmate wives and girlfriends posing for one particular inmate. These types of intimate photographs are considered highly emotionally charged items for an inmate to have in his possession. If such photographs were viewed by other inmates, conflicts or assaults are likely to result. Unfortunately, even in the most secure prison setting, intentional or inadvertent viewing of such photographs cannot be prevented. Since this population is primarily long-term offenders with assaultive patterns of behavior and considered to have a high propensity toward violence, regulations must be established in this area for the safekeeping of both staff and inmates.

Inmates will not be able to receive or have in their possession photographs which depict sadistic acts, homosexual acts, beastiality, (sic) and sexual acts with children, regardless if the photograph has been published for commercial use or not. This regulation is needed as these types of photographs tend to increase anxiety, aggression and sexual arousal, thus threatening the orderly running of the institution. 1

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We hold that the current regulations of Marion are constitutionally acceptable. The policy "furthers one or more of the substantial governmental interests of security, order, and rehabilitation." Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). The officials have adequately demonstrated that the regulations further the substantial interests of security and order. The defendants proved, to the satisfaction of the magistrate in the proceedings below, that "the propensity for violence is increased by the possession of such photos." Magistrate's Report and Recommendations at 6. This conclusion is supported by the "highly emotionally charged" nature of the photographs and the assaultive background of Marion's inmates. Id. Prison officials must be allowed "(s)ome latitude in anticipating the probable consequences of allowing certain speech in a prison environment." Procunier v. Martinez, 416 U.S. at 414, 94 S.Ct. at 1812. We note the Supreme Court's admonition that "(r)esponsible prison officials must be permitted to take reasonable steps to forestall such a threat (of violent confrontation), and they must be permitted to act before the time when they can compile a dossier on the eve of a riot." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 132-33, 97 S.Ct. 2532, 2541, 53 L.Ed.2d 629 (case involving First Amendment associational rights).

Moreover, the governmental interest furthered here is not an attempt "to eliminate unflattering or unwelcome opinions." Procunier v. Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. Although the regulations are related to the content of the photos, the prison is not attempting to take a moral stance on the propriety of pictures of nude and semi-nude women. The prison is, in fact, unconcerned with whether the prisoners have or obtain photos of nude and semi-nude women. Such materials are sold at the prison commissary, are shown to the prisoners in the form of sexually explicit films, and can be sent to prisoners in the form of commercially released photographs. Indeed, the prison's Chief of Classification and Parole testified that if a prisoner's wife were to have a picture commercially released and published, the published photographs would be acceptable under the regulation. Transcript of Hearing Before Magistrate at 39. Rather than attempt to suppress expression per se, the regulation is an attempt to diminish the possibility that, when certain photos are in the possession of inmates, those photos will be the cause of violence between the inmates. We note that...

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