Sheets v. Moore

• Decision Date: 04 October 1996
• Docket Number: No. 94-2457,94-2457
• Parties: Michael SHEETS, Plaintiff-Appellee, v. Ozean MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 164

97 F.3d 164

Michael SHEETS, Plaintiff-Appellee, v. Ozean MOORE, Defendant-Appellant.

No. 94-2457.

United States Court of Appeals, Sixth Circuit.

Argued April 9, 1996.

Decided Oct. 4, 1996.

Michael Sheets, Jackson, Alvan P. Knot, Pandilidis, Lloyd & Knot (argued and briefed), Lansing, MI, for Plaintiff-Appellee.

Lisa C. Ward, Asst. Attorney Gen., Office of the Attorney General, Lansing, MI, for Defendant-Appellant.

Before: SUHRHEINRICH and SILER, Circuit Judges; ALDRICH, District Judge. ^*

SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined. ALDRICH, D.J. (pp. 169-70), delivered a separate opinion concurring in part and dissenting in part.

SUHRHEINRICH, Circuit Judge.

In this appeal of a prisoner's civil rights claim under 42 U.S.C. § 1983 we consider whether a Michigan policy directive that prohibits free advertising, fliers, and other bulk mail is constitutional. Also at issue is whether a state prison official who enforced the policy is entitled to qualified immunity. The district court held that the prohibition was unconstitutional and that the defendant was not entitled to qualified immunity. We REVERSE.

I.

Plaintiff Michael Sheets is an inmate at the Carson City Temporary Facility ("CCTF"). On August 1, 1991, he received a notice of rejection letter from the prison mail office regarding a catalog from "P.O. Box 1264, Englewood, Florida." The notice stated that "catalog & order form for women not allowed." On August 7, 1991, defendant Ozean Moore, a resident unit manager at CCTF, conducted a hearing regarding the rejection. Moore upheld the rejection because the catalog constituted "free advertising," under Michigan Department of Corrections ("MDOC") policy directive PD-BCF-63.03(N)(8) ¹.

Plaintiff filed a pro se complaint on February 17, 1993, later amended, alleging that defendant violated plaintiff's First Amendment rights in upholding the rejection. Plaintiff sued defendant in his official capacity, seeking injunctive and declaratory relief, and in his personal capacity for money damages.

On May 25, 1993, defendant filed a motion for summary judgment, arguing that he acted in accordance with a valid prison regulation rationally related to prison security. Defendant also raised qualified immunity as a defense. The district court held that defendant failed to articulate a legitimate penological purpose supporting the rejection of free advertising materials to plaintiff. The court also refused to grant qualified immunity, concluding that at the time Moore rejected plaintiff's mail, plaintiff's right to receive such mail was clearly established. The court therefore sua sponte granted summary judgment to plaintiff. It awarded plaintiff $1 in nominal damages and enjoined defendant from rejecting plaintiff's mail solely on the basis that it is free advertising or other bulk mail. This appeal by defendant followed.

II.

We review a grant of summary judgment de novo. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is appropriate when the pleadings, affidavits, and other submissions demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Defendant argues that rejection of the catalog, and therefore his ruling upholding that rejection, did not violate plaintiff's First Amendment rights because the decision was based upon a valid prison regulation prohibiting free advertising. Defendant also contends that he was entitled to qualified immunity because, at the time of his action in this case, there was no clearly established statutory or constitutional right of a prisoner to receive free advertising or other bulk rate mail. We begin with the immunity question.

A.

A state official is entitled to qualified immunity to the extent that his conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The standard for evaluating an official's conduct is "objective legal reasonableness." Id. at 819, 102 S.Ct. at 2739. That is, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). "This is not to say that an official action is protected by qualified immunity unless the very action has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent." Id. (internal citation omitted).

In determining whether a constitutional right is clearly established, a district court must find binding precedent by the Supreme Court, its court of appeals, or itself. Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir.1988).

On the date of defendant's decision, August 7, 1991, it was clearly established that inmates retain their First Amendment right to receive mail, but that the right is subject to legitimate penological interests. Thornburgh v. Abbott, 490 U.S. 401, 407-09, 109 S.Ct. 1874, 1878-79, 104 L.Ed.2d 459 (1989); Turner v. Safley, 482 U.S. 78, 84-89, 107 S.Ct. 2254, 2259-62, 96 L.Ed.2d 64 (1987); Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S.Ct. 1861, 1877-78, 60 L.Ed.2d 447 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S.Ct. 2532, 2539-40, 53 L.Ed.2d 629 (1977); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 408-10, 94 S.Ct. 1800, 1808-10, 40 L.Ed.2d 224 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Parrish v. Johnson, 800 F.2d 600, 603 (6th Cir.1986); Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985). In other words, although an inmate has a First Amendment right to receive mail, an inmate's constitutional rights may be limited if the prison regulations are "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89, 107 S.Ct. at 2261. Further, in Abbott, the Supreme Court specifically held that "regulations affecting the sending of a 'publication' ... to a prisoner must be analyzed under the Turner reasonableness standard." Abbott, 490 U.S. at 413, 109 S.Ct. at 1881.

To date, there are no Supreme Court or appellate decisions which directly address a prisoner's right to receive nonsubscription, bulk rate mail. Thus the question becomes whether the "unlawfulness" of PD-BCF-63.03(N)(8) was "apparent" at the time Moore made his decision. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039. By 1991, the Supreme Court had already upheld prison regulations prohibiting packets of union publications mailed in bulk to several inmates to be distributed to the general prison population, Jones, 433 U.S. at 130-31, 97 S.Ct. at 2540-41; restricting inmates' receipt of hardback books unless mailed directly from publishers, Bell, 441 U.S. at 550, 99 S.Ct. at 1880; banning correspondence between inmates of different institutions, Turner, 482 U.S. at 91-92, 107 S.Ct. at 2262-63; and authorizing a prison warden to reject any publication for good reason pursuant to specific criteria on case-by-case basis, Abbott, 490 U.S. at 419, 109 S.Ct. at 1884-85. Furthermore, this court had ruled that prison officials could limit receipt of magazines, books, and other types of publications to "publishers only," Ward v. Washtenaw County Sheriff's Dep't, 881 F.2d 325, 330 (6th Cir.1989); and ban material advocating homosexuality on a case-by-case basis. Espinoza v. Wilson, 814 F.2d 1093, 1099 (6th Cir.1987) (per curiam).

In contrast, the Supreme Court had struck down as unconstitutional mail censorship regulations proscribing inmate correspondence that, inter alia, "unduly complain[ed]" "magnif[ied] grievances," and expressed "inflammatory political, racial, religious or other views", because they allowed prison officials to apply their own personal prejudices. Martinez, 416 U.S. at 415-16, 94 S.Ct. at 1812-13. This court had also ruled that a prison guard's arbitrary interference with prisoner's incoming mail violates the First Amendment, Parrish, 800 F.2d at 604; and that prison officials could not withhold personal subscription publications. Brooks, 779 F.2d at 1180-81 (noting that "[l]ike personal correspondence, a subscription represents the exercise of volition by both sender and recipient").

In light of the foregoing precedent, we think that an official in defendant's position could have reasonably concluded that PD-BCF-63.03(N)(8) was constitutional. First, it is based on specific, content-neutral criteria, like Abbott, and leaves little discretion for a prison official, unlike Martinez. Second, bulk rate mail, unlike personal correspondence or a personal subscription, does not represent the exercise of volition by the recipient, as was the case in Brooks. ² Third, the prison regulation is ostensibly grounded in concerns for prison order and security and the rehabilitation of prisoners. See PD-BCF-63.03(N) ("Prisoners shall not be allowed to receive the following items or publications as they are considered to be threat to the order and security of an institution or to the rehabilitation of prisoners...."). In short, we do not think that the unlawfulness of PD-BCF-63.03(N)(8) was "apparent" by any means.

In concluding that the law was clearly established, the district court relied upon two unpublished decisions, both of which held that the total ban on all bulk rate mail in PD-BCF-63.03(N)(8) was unconstitutional because not grounded in some legitimate penological interest. See Wright v. Toombs, G89-50641 (W.D.Mich. July 16, 1990) (holding that plaintiff was entitled to summary judgment on First Amendment claim where officials deprived him of newsletter sent to him bulk rate because...