Aikens v. Lash

• Decision Date: 14 February 1975
• Docket Number: Civ. A. No. 72 S 129.
• Citation: 390 F. Supp. 663
• Parties: Marvin Lee AIKENS et al., Plaintiffs, v. Russell E. LASH et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

390 F. Supp. 663

Marvin Lee AIKENS et al., Plaintiffs, v. Russell E. LASH et al., Defendants.

Civ. A. No. 72 S 129.

United States District Court, N. D. Indiana, South Bend Division.

February 14, 1975.

COPYRIGHT MATERIAL OMITTED

Harold R. Berk, Russell E. Lovell, II, Cynthia A. Metzler, Legal Services Organization of Indianapolis, Inc., Indianapolis, Ind., for plaintiffs.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, and Lon E. Mullins, Deputy Attys. Gen., State of Ind., Indianapolis, Ind., for defendants.

SUPPLEMENTARY MEMORANDUM AND DECISION

GRANT, District Judge.

This civil rights action, seeking various forms of injunctive and declaratory relief, was brought pursuant to Title 42, United States Code § 1983 et seq., by nine named plaintiffs, all of whom were then inmates of Indiana State Prison who had been transferred to the prison from the Indiana Reformatory. Plaintiffs attacked their transfer from the reformatory to the prison, and their confinement in segregation units upon arrival at the prison, all without a due process hearing, and also challenged many conditions and practices to which they were subjected, including a censorship program which prevented them from receiving literature which did not pose a clear and present danger to the security of the prison.

This court ordered that the cause be maintained as a class action pursuant to Rule 23(a)(1), F.R.Civ.P. The action was tried for approximately two weeks at the Indiana State Prison and on 23 January 1974 this court issued its ruling on many of the issues presented in the action. Aikens v. Lash, 371 F.Supp. 482 (N.D.Ind.1974). Noting some recent shifts in law in the area of prison censorship, the court withheld consideration of the literature censorship issue until such time as the Seventh Circuit Court of Appeals had an opportunity, in its en banc rehearing of Morales v. Schmidt, No. 72-1373, to determine what standard should be applied in reviewing prisons' censorship of personal correspondence. The Court of Appeals has now issued an en banc opinion in that case. Morales v. Schmidt, 494 F.2d 85 (7th Cir. 1974).

On 19 November 1974 plaintiffs filed a motion to dismiss their claim for injunctive relief as to the literature censorship issue and requested only a declaratory judgment with respect to that issue. Plaintiffs noted that defendants' Exhibit H, received in evidence at a hearing on 17 October 1974, contained a state-wide regulation concerning literature censorship released by the Indiana Department of Correction.¹ In view of the fact that no injunction could be sought against such a regulation on the grounds of its unconstitutionality without the convening of a three-judge court, plaintiffs moved to dismiss the claim for injunctive relief respecting literature censorship, but noted that the court could consider the request for declaratory relief without convening a three-judge court. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Defendants made no objection to the motion to dismiss and on 5 February 1975 plaintiffs' claim for injunctive relief was dismissed.

This court thereupon proceeded to consider plaintiffs' request for declaratory relief with respect to the literature censorship issue. Plaintiffs argue that literature censorship can be exercised by a prison only when the prison can establish that the censored material would pose a clear and present danger to the security of the prison. In Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967), this Circuit had held that censorship of literature was in violation of a prisoner's rights only when the prisoner could establish that the prison had abused its discretion in the censoring of published material. Thereafter, the federal courts had adopted a "variety of widely inconsistent approaches to the problem". Procunier, infra., 416 U.S. at 406, 94 S. Ct. at 1808. Some even held that prisons had the burden of establishing that there was a compelling state interest for excluding the material or that the material constituted a clear and present danger to the security of the prison. Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968) and Wilkinson v. Skinner, 462 F. 2d 670 (2nd Cir. 1972). In the midst of the confusion and without the benefit of definitive guidelines by the United States Supreme Court in this area, the Seventh Circuit issued its en banc opinion in Morales v. Schmidt, 494 F.2d 85 (1974). This Seventh Circuit held therein that censorship would be permitted where the state showed on challenge that restriction was related reasonably and necessarily to the advancement of a justifiable purpose of imprisonment. Morales, supra, at 87. Shortly thereafter the United States Supreme Court handed down its opinion in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). That court noted the confusion which had arisen over the disparity of judicial standards and the need for guidance from the Supreme Court. The court then held that in the case of direct personal correspondence, both the prisoner and the outside party had an interest in the communication and in the First Amendment guarantee of freedom of speech, and that the Fourteenth Amendment required that the communication be protected from unjustified governmental interference. The court held that such interference must be shown to be in furtherance of the substantial governmental interests of security, order and rehabilitation and that the interference must be no greater than necessary or essential to protect the legitimate governmental interest involved. Procunier, supra, 416 U.S. at 413, 94 S.Ct. 1800.

While this court recognizes that the mail being censored in the case before us is published material and not personal correspondence, we find that the author of such material has a similar interest in having such mail delivered to the prisoner and that the First Amendment guarantee of free speech, and the Fourteenth Amendment, protect such published material from unjustified governmental interference. Very recently this Seventh Circuit vacated a district court ruling on prison censorship of published material, thus indicating that the standards set out in Procunier applied. Gaugh v. Schmidt, 498 F. 2d 10 (7th Cir. 1974). The significance of the right involved and the need for one clear standard of review require, and we hold, that the standard set forth in Procunier, supra, applies in this action. The plaintiffs contend that the standard of review set forth in Procunier actually means that the prison must establish that the censored literature poses a clear and present danger to the security of the prison. We must reject this contention. We find that the standard set forth in Procunier speaks for itself and is less stringent than "clear and present danger". In fact, the Supreme Court, after noting the various approaches which various courts had applied to censorship, spoke as follows: "At the other extreme some courts have been willing to require demonstration of a `compelling state interest' . . . . Other courts phrase the standard in similarly demanding terms of `clear and present danger'." Procunier, supra, 416 U.S. at 406-407, 94 S.Ct. at 1808.

In his concurring opinion in Morales Chief Judge Swygert indicated that he would require that any restriction be reasonably and necessarily related to a justifiable purpose of imprisonment and that there be a substantial necessity for the restriction.² If the standard which Judge Swygert described differs in any way from the one prescribed by the Supreme Court, it certainly is not weaker. Judge Swygert indicated that his recommended standard would be less forceful than the `compelling interest' test. Likewise, we find that the test set out in Procunier, is less stringent than a "clear and present danger to the security of prison". Furthermore, the standard set forth in Procunier would permit those restrictions which further the governmental interests in order and rehabilitation as well as security.³

In determining whether the defendants have complied with the standard set forth above, we must examine the regulation on censorship of the Indiana Department of Correction as issued on 18 February 1974. As heretofore noted, the evidence presented at the trial established that, although a directive on literature censorship from the Department of Correction was in effect at that time, the State Prison here under challenge sought to censor literature on the basis of its own policy position paper and, as a matter of fact, the prison official who made those censorship determinations acted in a more restrictive manner than the policy position paper of the prison directed. See Aikens, supra, 371 F. Supp. at 499. Accordingly, this court will review the Department of Correction's 1974 regulation as well as the prison's policy position paper and the actual censorship practices which were in effect in the prison.

The Indiana Department of Correction's regulations on literature censorship as issued on 18 February 1974, and as contained in its Manual of Policies and Procedures, provides in pertinent parts as follows:

General

Institutions shall allow inmates access to periodicals to the greatest degree consistent with institutional goals, and without impairing internal discipline and security. The determination of whether a specific periodical will be permitted in the institution shall be made in conformity with the procedures and criteria stated herein. Approved periodicals and newspapers may be received by inmates directly from the publisher. In addition, institutions may subscribe to approved periodicals in sufficient quantity to give coverage in the institution and to provide for the diverse interests of the inmate population.

No periodical shall be prohibited solely on the basis of its appeal to a particular ethnic, racial, or religious audience. As a general rule, however, institutions should not permit inmates to receive periodicals

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