Bosch v. Raemisch

• Decision Date: 15 September 2011
• Docket Number: Nos. 09–4112,10–1408.,s. 09–4112
• Citation: 658 F.3d 778,39 Media L. Rep. 2321
• Parties: Frank VAN DEN BOSCH, Plaintiff–Appellant,v.Rick RAEMISCH, et al., Defendants–Appellees.Dennis E. Jones–El, Plaintiff–Appellant,v.William Pollard, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

658 F.3d 778

39 Media L. Rep. 2321

Frank VAN DEN BOSCH, Plaintiff–Appellant,

v.Rick RAEMISCH, et al., Defendants–Appellees.Dennis E. Jones–El, Plaintiff–Appellant,

v.William Pollard, et al., Defendants–Appellees.

Nos. 09–4112

10–1408.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 1, 2010.Decided Sept. 15, 2011.

Scott B. Wilkens (argued), Attorney, Jenner & Block LLP, Washington, DC, for Plaintiffs–Appellants.Frank Van Den Bosch, Montfort, WI, pro se in No. 09–4112.Ann M. Peacock (argued), J.B. Van Hollen, Attorneys, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants–Appellees in No. 09–4112.Dennis E. Jones–El, Wisconsin Secure Program Facility, Boscobel, WI, pro se, in No. 10–1408.Jody J. Schmelzer, J.B. Van Hollen, Attorneys, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants–Appellees in No. 10–1408.Jerold S. Solovny, Attorney, Jenner & Block LLP, Chicago, IL, for Amicus Curiae.Scott B. Wilkens, Attorney, Jenner & Block LLP, Washington, DC, pro se, for Amicus Curiae.Before BAUER and POSNER, Circuit Judges, and PALLMEYER, District Judge.^*

PALLMEYER, District Judge.

These consolidated appeals present constitutional challenges to regulations imposed by the Wisconsin Department of Corrections (“DOC”) on incoming prisoner mail. Frank Van den Bosch is the publisher of The New Abolitionist, a newsletter about the Wisconsin state prison system. After reviewing the March 2007 edition of the newsletter, Wisconsin prison officials concluded that its content posed an unacceptable risk to inmate rehabilitation and prison security, and therefore refused to distribute the issue to DOC inmates. Van den Bosch challenged this decision in a lawsuit against various prison officials pursuant to 42 U.S.C. § 1983. He alleged that the DOC's ban on the March 2007 edition of the newsletter violated his First Amendment rights and his Fourteenth Amendment right to due process. The district concluded that the defendants were entitled to qualified immunity and entered summary judgment in their favor on that basis.

The second appellant, Dennis E. Jones–El, is a Wisconsin state prisoner. Jones–El filed a First Amendment claim against various DOC employees after they confiscated medical records and legal documents regarding other inmates, as well as copies of an article he published in the May 2006 edition of The New Abolitionist. According to Jones–El, the prison officials wrongly interfered with his incoming mail in violation of the First Amendment. The prison officials moved for summary judgment, and the district court dismissed Jones–El's claims on their merits. For the following reasons, we affirm the judgments of the district courts in both actions.

I.

A. Van den Bosch

Frank Van den Bosch is a community organizer and publisher of the now-defunct The New Abolitionist, a newsletter affiliated with the Prisoners' Action Coalition, a not-for-profit organization in Wisconsin.¹ The newsletter generally advocates for prison reform, but often featured critical commentary about certain policies of the DOC. Any publication sent to an inmate at the DOC undergoes an individual review process by defendant Dan Westfield, Security Chief of the DOC's Division of Adult Institutions. Under the Wisconsin Administrative Code, the DOC may not deliver incoming or outgoing mail if it is “ ‘injurious,’ meaning material that: [p]oses a threat to the security, orderly operation, discipline or safety of the institution,” or “[i]s inconsistent with or poses a threat to the safety, treatment or rehabilitative goals of an inmate.” Wis. Admin. Code § DOC 309.04(4)(c)(8).

The March 2007 edition of The New Abolitionist contained eleven articles on a variety of issues related to Wisconsin prisons. Defendant Westfield concluded that four of those articles were objectionable under the Code. The first article, written by Van den Bosch, contained a brief discussion of a class-action settlement agreement involving the Wisconsin Secure Program Facility (“WSPF”) and remarked:

We have had word that the DOC is looking for volunteers to fill the Charlie unit cells at [the WSPF]. No school, no work, no cafeteria, less canteen, no contact visits, no storage for property, tiny cells, and the close proximity of the revolving door to the dungeons, all sound enticing, don't they? I'm sure guys will be lining up for a vacation in SW Wisconsin, even further away from their families. Don't fall into the trap!

In defendant Westfield's view, Van den Bosch's article was harmful because it contained inaccurate information about the availability of inmate jobs at WSPF, and could also limit the DOC's ability to maximize its programming resources if it effectively discouraged inmates from transferring to WSPF.

The other three articles that drew defendant Westfield's attention were written by prison inmates. One criticized the Wisconsin Parole Commission and Program Review Committee (“PRC”) for making “totalitarian decisions,” described the PRC as “abusers of prisoner[s] and prisoners' families,” and suggested that certain programs were being denied “to prisoners for no legitimate reason at all.” Another article presented the inmate writer's concerns about the PRC's parole decisions and stated that the purpose of his article was to “show the deceiving [and] manipulative tactics” and “fabricated stories” that PRC used to keep individuals incarcerated indefinitely. Finally, the fourth article updated its readers on recent prisoner litigation in the Seventh Circuit, suggested that prisoners erroneously rely upon courts to seek social change, and urged readers to “employ any and all means necessary,” including mass protests in front of prisons, in order to “bring some attention to this madness they call prison life.”

Defendant Westfield concluded not only that these articles included false information, but that the authors' inflammatory statements could potentially encourage “distrust of staff, paranoia, and hopelessness among inmates seeking release on discretionary parole ... as well as discouraging rehabilitation efforts by inmates, who are wrongly under the impression that DOC is making allegedly illegal efforts to keep them confined as long as possible.” As a result, defendant Westfield banned the entire March 2007 newsletter on April 11, 2007, and sent an e-mail notice to all DOC Security Directors throughout the state ordering the officials to enforce the ban by notifying their respective mailrooms that inmates should not receive the newsletter.² Prisoners who subscribed to the newsletter received a notice from defendant Westfield explaining that the newsletter would not be delivered because it “pose[d] a threat to the [s]ecurity, orderly operation, discipline or safety of the institution.”

In April 2007, Van den Bosch received similar “non-delivery” notices from the DOC stating that the March 2007 edition of the newsletter was banned because prison officials considered it a security threat under Wis. Admin. Code § DOC 309.04(4)(c)(8). In response, Van den Bosch filed suit against Westfield and various other prison officials under 42 U.S.C. § 1983 in the Western District of Wisconsin in February 2009. He alleged that defendants violated his First Amendment rights by refusing to distribute the newsletter to inmates, and his Fourteenth Amendment right to due process by failing to give him proper notice of that decision. The parties filed cross-motions for summary judgment and the district court granted defendants' motion. The court found defendants were entitled to qualified immunity on the First Amendment claim because Van den Bosch failed to meet his burden of showing it was “clearly established” in 2007 that prohibiting distribution of his newsletter in prison violated the First Amendment. The court, therefore, did not reach the question of whether defendants' conduct violated Van den Bosch's constitutional rights.

On appeal, Van den Bosch does not challenge the district court's ruling regarding his due process claim, but contends that Judge Crabb's prior ruling in Johnson v. Raemisch, 557 F.Supp.2d 964 (W.D.Wis.2008) precludes the qualified immunity defense to his First Amendment challenge. In Johnson, a Wisconsin prisoner and subscriber to The New Abolitionist sued three DOC officials for refusing to deliver his March 2007 issue of the newsletter. As in this case, defendants submitted an affidavit from Westfield asserting that the articles in the newsletter contained false information about the conditions of the Wisconsin Secure Program Facility, encouraged distrust of prison staff, and were likely to foster “ ‘hopelessness' ” among inmates. Id. at 965. The district court was not persuaded. Judge Crabb concluded that the content of the newsletter was not threatening and that the DOC's justifications for censoring the newsletter amounted to nothing more than “ ‘because we said so.’ ” Id. The district court concluded that defendants failed to show that their decision to ban the newsletter was reasonably connected to a legitimate penological interest under Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and ordered the DOC to deliver a copy of the newsletter to Johnson immediately.³ Johnson, 557 F.Supp.2d at 965, 975. Plaintiff Van den Bosch now relies upon Johnson to argue that the DOC's censorship of the March 2007 issue violated a clearly established right of which the prison officials should have known.

B. Jones–El

Dennis E. Jones–El, also known as Mustafa–El K.A. Ajala, was formerly confined at the Green Bay Correctional Institution (“GBCI”).⁴ He has been an active litigant in prisoners' rights cases, see Jones–El v. Berge, 374 F.3d 541 (7th Cir.2004), and has previously written various articles on prison conditions. In April 2006, following the suicide of John Virgin, a fellow inmate and friend, Jones–El wrote an article for the May 2006 edition...