Vester v. Rogers, 85-6639

• Decision Date: 18 July 1986
• Docket Number: No. 85-6639,85-6639
• Citation: 795 F.2d 1179
• Parties: John B. VESTER, Appellant, v. W.P. ROGERS, Warden, Powhatan Correctional Center & Allyn R. Sielaff, Director, Virginia Department of Corrections, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1179

795 F.2d 1179

John B. VESTER, Appellant, v. W.P. ROGERS, Warden, Powhatan Correctional Center & Allyn R Sielaff, Director, Virginia Department of Corrections, Appellees.

No. 85-6639.

United States Court of Appeals Fourth Circuit.

Argued April 7, 1986.

Decided July 18, 1986.

Scott M. Kleger, Third-Year Law Student, Post-Conviction Assistance Project, University of Virginia School of Law (Professor Stephen A. Saltzburg, Supervising Atty., Charlottesville, Va., on brief) for appellant.

Richard F. Gorman, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richmond, Va., on brief) for appellees.

Before RUSSELL, HALL, and MURNAGHAN, Circuit Judges.

K.K. HALL, Circuit Judge:

John B. Vester, an inmate in the Virginia penal system, appeals from an order of the district court granting summary judgment on behalf of officials of the Virginia Department of Corrections (the "Department") in an action brought pursuant to 42 U.S.C. Sec. 1983. Vester's complaint alleged that the Department's Guideline 851, which prohibits correspondence between inmates in different penal institutions without permission of the wardens involved, is an unconstitutional intrusion into an inmate's first amendment rights. We affirm. Because the first amendment implications of restrictions on prisoner-to-prisoner correspondence have not been fully addressed in this Circuit, some additional explanation is required.

I.

Vester was committed to the Virginia Department of Corrections in July of 1984 and was initially sent to the Powhatan Receiving and Classification Center ("Receiving Center"). While at the Receiving Center, he became acquainted with another inmate, Gary Boggs, with whom he shared an interest in certain legal issues. In October, 1984, Vester was transferred to the Powhatan Correctional Center. Shortly thereafter, without seeking official permission, he wrote to Boggs. Upon delivery of the letter to the Receiving Center, institutional personnel returned it as unauthorized correspondence.

Vester then filed a grievance under the Department's Inmate Grievance Procedure. At the Level I informal response stage, he was informed that correspondence between inmates at different institutions was subject to the restrictions contained in Guideline 851 ("DGL 851"). DGL 851 provides, in part, that "[c]orrespondence shall not be permitted with inmates serving sentences in other institutions under the authority of the Department of Corrections unless the Wardens/Superintendents of the involved institutions determine that such correspondence is in the best interest of both inmates and the institution." Vester subsequently appealed his grievance to the Level I formal committee, which concluded that the issue should be reviewed by the Attorney General's office.

Vester chose not to return his copy of the grievance to the Attorney General, thereby terminating the administrative procedure short of exhaustion. Instead, he and another inmate, Jonathan Tuller, brought an action pursuant to 42 U.S.C. Sec. 1983 against W.P. Rogers, Warden of the Powhatan Correctional Center and Allyn R. Sielaff, Director of the Virginia Department of Corrections. The complaint alleged that DGL 851 was an overly broad intrusion into rights protected by the first and fourteenth amendments. Plaintiffs sought to have the regulation declared unconstitutional and to enjoin its enforcement. Vester and Tuller also requested both compensatory and punitive damages. Subsequently, Tuller voluntarily withdrew from the action.

The Department moved for summary judgment and the district court granted the motion. In doing so, the court first determined that DGL 851 was a reasonably drawn regulation intended to protect a legitimate state interest in prison security. Accordingly, the regulation was held to be a constitutional limitation on prisoner speech in conformity with the standard established by the United States Supreme Court in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). ¹ The district court further held that Vester's failure to comply with the procedural requirements of the regulation precluded consideration of any claim that the regulation as applied to him was improper. This appeal followed.

II.

On appeal, Vester's primary contention is that the district court misapplied the test of Procunier v. Martinez. He argues that the standard established in that decision is one of strict judicial scrutiny which requires proponents of a regulation limiting first amendment rights to defend against a charge of overbreadth by demonstrating that the regulation is the least intrusive alternative available. Vester argues that the district court's failure to require the Department to prove that DGL 851 is preferable to other less expansive methods of protecting institutional security constitutes reversible error. In support of his position, Vester cites the recent decision of Safley v. Turner, 777 F.2d 1307 (8th Cir.1985), in which the Eighth Circuit Court of Appeals determined that a Missouri prison regulation substantially identical to DGL 851 was unconstitutional under the Procunier test.

We find that Vester's argument falls prey to the same error as did the Eighth Circuit in Safley. By focusing excessively upon the Procunier test, Vester, like the Eighth Circuit, fails to recognize the impact of a continuing effort by the Supreme Court in cases such as Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), Jones v. North Carolina Prisoner's Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), to articulate the standards by which penal officials may regulate their institutions. ²

We must note initially that the Supreme Court has not dealt with the precise factual circumstance posed in this case. Nor have the first amendment implications of regulations limiting prisoner-to-prisoner correspondence been addressed by this Court. Procunier dealt with a California Department of Corrections rule restricting correspondence between inmates and non-prisoners. Indeed, the Court therein expressly based its ruling not on "prisoner rights" but on the fact that the challenged regulation caused a "consequential restriction on the first and fourteenth amendment rights of those who are not prisoners." 416 U.S. at 409, 94 S.Ct. at 1809 (emphasis added).

To the extent, therefore, that the Procunier test is relevant to regulations affecting only prisoners, the process of applying the standard is subject to the well-established policy of judicial deference to the reasonable decisions of prison administrators. The Court in Procunier noted that the task of maintaining an orderly prison was "Herculean" and required a specialized expertise which courts were ill-equipped to supply. 416 U.S. at 404-05, 94 S.Ct. at 1807. Deference gave way to strict scrutiny in Procunier not because a prisoner's first amendment rights were affected but because prison officials extended a rule outside their area of responsibility.

This distinction between deference and strict scrutiny was further illustrated in Pell v. Procunier. The Court upheld a California regulation that absolutely prohibited "press and other media interviews with specific inmates." 417 U.S. at 819, 94 S.Ct. at 2802. Unlike Procunier v. Martinez, the rule at issue in Pell limited only the first amendment rights of prisoners. ³ In that context the Court held that "in the absence of substantial evidence in the record to indicate that officials have exaggerated their response ... courts should usually defer to their expert judgment in such matters." 417 U.S. at 827, 94 S.Ct. at 2806.

The Supreme Court retained its analytical focus on the absence of exaggerated response in Jones v. North Carolina Prisoner's Labor Union, Inc., where the Court upheld certain regulations which limited prisoner speech with regard to the operation of a prisoner union. The district court had originally found the regulations defective because no evidence had been presented to show that the union had been utilized to disrupt the institution. In reversing, the Supreme Court stated that "[t]he District Court ... got off on the wrong foot in this case by not giving appropriate deference to the decisions of prison administrators...." 433 U.S. at 125, 97 S.Ct at 2537.

The Court in Jones noted that state correctional officials had testified with regard to the potential dangers connected with an unregulated prisoner labor union. The Court then held that

Without a showing that these beliefs were unreasonable, it was error for the District Court to conclude that appellants needed to show more. In particular, the burden was not on appellants to show affirmatively that the Union would be "detrimental to proper penological objectives" or would constitute a "present danger to security and order." ... Rather, "[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v. Procunier, 417 U.S., at 827, 94 S.Ct., at 2805. The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations in situations such as this.

433 U.S. at 127-28, 97 S.Ct. at 2538-39.

The Pell-Jones rationale was reaffirmed in Bell v. Wolfish, where the Court sustained a variety of regulations and internal practices utilized in a federally-operated custodial facility in New York. Again the Court found no evidence of an "exaggerated response" by prison officials. With regard to those rules that directly affected inmate first amendment rights the Court found them acceptable as long as th...