Bressman v. Farrier, C 87-0123.

• Decision Date: 10 February 1993
• Docket Number: No. C 87-0123.,C 87-0123.
• Citation: 825 F. Supp. 231
• Parties: Rick Dean BRESSMAN, Plaintiff, v. Hall FARRIER, Paul Grossheim, Calvin Auger, John Sissel, Kurt Gunther, J. Manternach, Larry Brimeyer, and Butcher.
• Court: U.S. District Court — Northern District of Iowa

825 F. Supp. 231

Rick Dean BRESSMAN, Plaintiff, v.Hall FARRIER, Paul Grossheim, Calvin Auger, John Sissel, Kurt Gunther, J. Manternach, Larry Brimeyer, and Butcher.

No. C 87-0123.

United States District Court, N.D. Iowa, Cedar Rapids Division.

February 10, 1993.

Philip Mears, Iowa City, IA, for plaintiff.

William Hill, Asst. Atty. Gen., Des Moines, IA, for defendants.

ORDER

DONALD E. O'BRIEN, District Judge.

This matter comes before the Court on the defendants objections to the Report and Recommendation of Chief United States Magistrate Judge John A. Jarvey.The Court held a telephonic hearing on the objections on Monday, January 25, 1993.For the reasons stated herein, the objections are overruled.

I.FACTS

The facts of this case are outlined in full in the Report and Recommendation (R & R) of Chief United States Magistrate Judge John A. Jarvey and are adopted in full by this Court.R & Rat 1-3.In summary, plaintiff was an inmate at the Iowa Men's Reformatory (IMR) in June of 1985.On June 22, 1985, plaintiff received a "major" disciplinary report for a violation of Rule 26(verbal abuse) of the disciplinary rules governing inmates at IMR for comments included in a letter plaintiff wrote to his brother.Specifically, Bressman wrote, "yeah, their (sic) real assholes, my counselor is a dick head, the officers working here are punks, the ladies in the mail room are bitches, now I hope they all read this letter and get their kicks off of it."Rule 26 reads:

Verbal Abuse: A resident commits verbal abuse when the resident subjects another person to abusive or defamatory language, remarks, or gestures, in writing or orally, and includes insolence disrespect sic to another person.

Plaintiff pleaded guilty to the disciplinary violation and remained silent at his hearing.Plaintiff was found guilty of violating IMR Rule 26(verbal abuse), and spent two days in disciplinary solitary confinement as a result.Plaintiff appealed the decision arguing that the discipline violated his First Amendment right of free speech, but was unsuccessful.This federal court action followed.

The matter was referred to Judge Jarvey for a Report and Recommendation, which was filed and is at issue herein.Judge Jarvey found that the disciplinary action violated plaintiff's First Amendment right of free speech.Judge Jarvey also found that the preponderance of the evidence standard probably was required as the standard of proof in a prison disciplinary hearing but left the question open for another day.Judge Jarvey recommended that judgment in the amount of $80.00 ($40 per day for two days of solitary confinement) be entered in favor of the plaintiff and against defendants Grossheim, Sissel, Gunther, Manternach, and Brimeyer.Judge Jarvey also recommended judgment be entered against plaintiff and in favor of defendants Farrier, Auger, and Butcher.

II.DISCUSSION.

This Court must conduct a de novo review of the objections to Judge Jarvey's R & R. 28 U.S.C. § 636(b)(1)(B).The defendants object to Judge Jarvey's R & R on three grounds.First, defendants object to Judge Jarvey's finding that they violated plaintiff's First Amendment right to free speech.Second, defendants object to Judge Jarvey's discussion of the standard of proof.Third, and finally, defendants object on the ground that Judge Jarvey failed to consider and make findings on the issue of qualified immunity.The first objection is the most serious and the Court will address it last.The second objection is meritless because Judge Jarvey's R & R specifically withholds ruling on the standard of proof question.R & Rat 12.

The third objection is correct, for what it's worth; Judge Jarvey did not discuss qualified immunity.It appears to this Court that the issue was not really presented to him.Defendants raised the issue in their answer¹ but did not pursue it further.Defendants did not move for summary judgment on the issue nor brief the issue of qualified immunity in their post-trial brief.Further, it does not appear from the transcript that any evidence concerning qualified immunity was presented to Judge Jarvey.Judge Jarvey is not psychic.If defendants really wanted a ruling on the issue of qualified immunity, it was their obligation to make the issue known to Judge Jarvey.

Even if the Court considers qualified immunity, notwithstanding defendants failure to present the issue, the argument is flawed.The law regarding outgoing prisoner mail was established in 1974 in Procunier v. Martinez,416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224(1974), and has not changed much in the nineteen (19) years since.See, e.g., Thornburgh v. Abbott,490 U.S. 401, 413, 109 S.Ct. 1874, 1881, 104 L.Ed.2d 459(1989)(Procunier v. Martinez still the correct standard in cases involving outgoing inmate mail).The United States Court of Appeals for the Eighth Circuit has been applying Procunier v. Martinez since 1974, seeFinney v. Arkansas Bd. of Corrections,505 F.2d 194, 210-11(8th Cir.1974), and the first cases involving an Iowa correctional facility were decided in 1978.SeeWatts v. Brewer,588 F.2d 646, 649(8th Cir.1978);Wycoff v. Brewer,572 F.2d 1260, 1263(8th Cir.1978).It is well-established in the Eighth Circuit and elsewhere that prison officials "may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements."Travis v. Norris,805 F.2d 806, 808(8th Cir.1986)(quotingProcunier v. Martinez);see alsoBrooks v. Andolina,826 F.2d 1266, 1267-69(3d Cir.1987).It cannot be said with a straight face that a reasonable prison official would not have known that Bressman's rights were being violated.SeeLoggins v. Delo,No. 90-2874, slip op. at 4, 985 F.2d 565(Table)(8th Cir.1991);²McNamara v. Moody,606 F.2d 621, 625-26(5th Cir.1979).

That brings the Court to the bottom-line question: Does disciplining a prisoner for abusive comments about prison staff in a letter to a family member violate the prisoner's First Amendment right to free speech?Judge Jarvey found that a violation of the prisoner's First Amendment right occurs when the prisoner is disciplined for comments that are not directed at particular members of the prison staff.Defendants object to this finding on two grounds.First, defendants object to Judge Jarvey's factual finding that plaintiff's comments were not directed at a staff member.Second, defendants contend that intent or direction is not necessary to save such discipline from constitutional invalidity.

With regard to the factual question, defendants' bottom-line position is that there is no doubt that Bressman had knowledge that the individuals about whom he made the comments could read his letter which means that he directed his comments toward those people.The Court has examined that transcript and is persuaded that Judge Jarvey correctly found that Bressman did not direct his comments toward any particular staff member.Bressman merely put the letter to his brother in the ordinary mail channels without doing anything more to cause the subjects of his disrespectful commentary to read the commentary.To say that Bressman knew his letter could be read is not the same as saying that Bressman directed disrespectful comments to or subjected someone to disrespectful comments.A prisoner cannot be disciplined for comments made in outgoing mail just because the inmate is aware that the mail can be read.McNamara v. Moody,606 F.2d 621(5th Cir.1979).

Defendants also contend that there is no legal requirement that disrespectful or abusive comments be made directly to an individual for those comments to be a valid subject of discipline.Reysack v. State,440 N.W.2d 392, 393-94(Iowa1989).Reysack does not stand for the defendants' proposition that it does not matter whether or not an inmate's comments are directed toward the object of the abuse.Reysack turned on the fact that the comments were oral, directed to someone else within the prison, and were disrespectful to whomever the comments were directed.Reysack,440 N.W.2d at 394(emphasis added).The security concerns implicated in Reysack are obvious, and properly the subject of the verbal abuse rule.Reysack does not apply to Bressman's situation.Here, Bressman's comments were in writing, directed to his brother outside the prison, and were not disrespectful to his brother.The risk of a security breach or a breakdown of discipline is virtually nonexistent.

The Court has considered the defendants' objections with care but finds that Judge Jarvey reached the right result for the right reasons.Accordingly,

IT IS ORDERED that defendants' objections to the Report and Recommendation of Chief United States Magistrate Judge John A. Jarvey are overruled.The Report and Recommendation is adopted.

REPORT AND RECOMMENDATION

JARVEY, United States Magistrate Judge.

This matter comes before the court pursuant to trial on the merits conducted on December 17, 1991 at the United States Courthouse, Cedar Rapids, Iowa.By order dated November 1, 1991, this matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation.The court recommends that judgment be entered in favor of the plaintiff.

FINDINGS OF FACT

In June 1985, Rick Dean Bressman was an inmate at the Iowa Men's Reformatory (IMR) in Anamosa, Iowa.On June 22, 1985, Bressman received a "major" disciplinary report concerning certain comments he had written in a letter to his brother.Specifically, Bressman wrote "yeah, their real assholes, my counselor is a dick head, the officers working here are punks, the ladies in the mail room are bitches, now I hope they all read this letter and get their kicks off of it."¹Mail room personnel read the letter and a guard issued the disciplinary report.²

Another officer investigated the report and talked with Bressman.Bressman admitted writing the letter and pleaded guilty to the...