Cotton v. Lockhart

• Decision Date: 18 September 1979
• Docket Number: No. PB-C-77-33.,PB-C-77-33.
• Citation: 476 F. Supp. 956
• Parties: Seymour X. COTTON, Jr., Plaintiff, v. A. L. LOCKHART, Superintendent of the Cummins Unit, Arkansas Department of Correction, Chris Monk, Assistant Superintendent of Treatment, Cummins Unit, Mr. Michael J. Hawke, Assistant Superintendent of Security, Cummins Unit, and Mr. Williams, Mail Room Supervisor, Cummins Unit, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

476 F. Supp. 956

Seymour X. COTTON, Jr., Plaintiff, v. A. L. LOCKHART, Superintendent of the Cummins Unit, Arkansas Department of Correction, Chris Monk, Assistant Superintendent of Treatment, Cummins Unit, Mr. Michael J. Hawke, Assistant Superintendent of Security, Cummins Unit, and Mr. Williams, Mail Room Supervisor, Cummins Unit, Defendants.

No. PB-C-77-33.

United States District Court, E. D. Arkansas, Pine Bluff Division.

September 18, 1979.

Seymour X. Cotton, Jr., pro se.

Darrell F. Brown, Asst. Atty. Gen., Little Rock, Ark., for defendants.

MEMORANDUM OPINION

ROY, District Judge.

This action is before the court pursuant to the substantive provisions of 42 U.S.C. § 1983¹ and its procedural counterpart, 28 U.S.C. § 1343(3) & (4). The petitioner herein, Seymour X. Cotton, Jr., is an inmate and is currently confined at the Arkansas Department of Correction's Cummins Unit.² In this action the petitioner challenges, on First Amendment grounds, the constitutionality of the Department of Correction's so-called "publishers only" rule, a departmental policy which prohibits inmates in the Arkansas penal system from receiving by mail books, magazines and newspapers unless such items are sent directly from the publisher.³ The defendants in this case are officials and employees of the Arkansas Department of Correction who are charged with the responsibility of enforcing the rules, regulations and policies promulgated or adopted by the Arkansas Board of Correction. This case, after being consolidated for trial with case number PB-C-77-67, Seymour X. Cotton, Jr. v. A. L. Lockhart, et al., was tried before the court sitting without a jury on May 8, 1979. This opinion is submitted in lieu of separate findings of fact and conclusions of law as the court's memorandum of decision pursuant to the provisions of Rule 52(a) of the Federal Rules of Civil Procedure.

Plaintiff Cotton testified that the basis of his lawsuit in this case was the "publishers only" rule, a policy of the Arkansas Department of Correction which was in force at the Cummins Unit during 1976. He further testified that the rule prohibited him from receiving books directly from his home in Tucson, Arizona and that the operation of the "publishers only" rule limited his access to books because some books cannot be obtained from the publisher.⁴ In support of his claim, the plaintiff testified that the publishers only rule had been abolished by a Mr. Jerry Campbell, a Department of Correction official, during 1975, ostensibly for the purpose of ending a federal court inquiry on the issue during the course of hearings which dealt with the constitutionality of conditions of confinement in the Arkansas penal system. Plaintiff Cotton further testified that defendant Monk reinstated the publishers only rule on orders from defendant Lockhart who, at that time, was the Superintendent of the Cummins Unit. The plaintiff asserted that the rule allows him to send books home but precludes him from getting them back. Although the plaintiff has sent written complaints about the rule to the Superintendent of Cummins and the Director of the Department of Correction, he has not yet obtained any relief through pursuit of administrative remedies. Plaintiff Cotton, a follower of the Islamic faith, argues that the publishers only rule prohibits him from receiving religious books which are no longer handled by the publisher and, thus, impedes the exercise of his right to freedom of religion under the First Amendment.

Defendant Lockhart, who is presently employed as the Assistant Director for Institutional Services in Arkansas' Department of Correction, was the warden of the Cummins Unit during July of 1976. During the course of his testimony, Mr. Lockhart indicated that the publishers only rule could be repealed by the Board of Correction, the Director of the Department of Correction or by the courts. He further testified, however, in direct contradiction to the plaintiff's testimony, that the publishers only rule had never been repealed. He indicated that the publishers only rule was not an inflexible or "hard and fast" rule but, as with most rules or policies, was subject to exceptions. Religious literature was considered by him to be an exception to the general application of the publishers only rule.⁵ Mr. Lockhart testified that the wardens of the various units were authorized to grant exceptions to the publishers only rule and that he, while serving as warden of the Cummins Unit, had granted such exceptions to the plaintiff as well as other inmates.⁶

Defendant Lockhart justified the publishers only rule as a necessary security measure. He testified that the rule provided a workable method of controlling material coming into the institutions. He indicated that there was much less chance for drugs or contraband to come into an institution in a book sent directly from a publisher than if the book originated from some other source. He suggested that the rule had significantly facilitated the Department's ability to handle inmate mail since materials sent from a publisher require only a cursory examination whereas materials which are sent from sources other than publishers require a much more extensive examination or inspection. Defendant Lockhart testified that the rule had served its purpose. He further testified that inmates were notified when books were going to be returned for failure to obtain prior approval for their receipt from sources other than publishers and that inmates were given an opportunity to request an exception to the publishers only rule in such circumstances.

We disagree with the plaintiff's contention that the publishers only rule, as written or as applied, violates the plaintiff's First Amendment freedom of religion. We hold that the rule is a rational response to the Arkansas Department of Correction's legitimate interest in maintaining prison security. Accordingly, we find that the plaintiff has not been deprived of his First Amendment freedom of religion either by virtue of the existence of the publishers only rule or its operation.

The courts which have considered alleged constitutional deficiencies in publishers only rules have reached a variety of conclusions. In Woods v. Daggett, 541 F.2d 237, 240 (10th Cir. 1976), the Court sustained the publishers only rule at Leavenworth Penitentiary, a federal maximum security institution, despite allegations that the rule infringed upon the First Amendment rights of inmates. The court noted that the nature of the institution and its past history of problems with contraband entering the prison justified the rule. In another case which involved a constitutional challenge to the Texas Department of Correction's publishers only rule, Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978), the Court concluded that the rule did not deprive inmates of their right of access to the courts. A number of other courts have concluded that publishers only rules impermissibly restrict the reading material available to inmates. See Wolfish v. Levi, 573 F.2d 118, 129-130 (2nd Cir. 1978), reversed and remanded, Bell v. Wolfish, ___ U.S. ___, ___ - ___, 99 S.Ct. 1861, 1880-1882, 60 L.Ed.2d 447 (1979); Cruz v. Hauck, 515 F.2d 322, 333 (5th Cir. 1976), cert. den. sub nom., Andrade v. Hauck, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322 (1976); Zaczek v. Hutto, 448 F.Supp. 155 (W.D. Va.1978). We believe that most issues with regard to publishers only rules have now been resolved, however, by the United States Supreme Court's recent decision in Bell v. Wolfish, ___ U.S. ___, ___ - ___, 99 S.Ct. 1861, 1880-1882, 60 L.Ed.2d 447 (1979).

Although the Court's decision in Bell, supra, specifically dealt with conditions of confinement and practices in the Metropolitan Correctional Center, a federally operated short-term custodial facility in New York City designed primarily to house pre-trial detainees, much of the decision applies with equal force to convicted prisoners such as plaintiff Cotton. Before addressing the specific issue of the MCC's publishers only rule, the Court summarized its cases dealing with prisoner's rights in the following manner:

"Our cases have established several general principles that inform our evaluation of the constitutionality of the restrictions at issue. First, we have held that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. `There is no iron curtain drawn between the Constitution and the prisons of this country.' So, for example, our cases have held that sentenced prisoners enjoy freedom of speech and religion under the First and Fourteenth Amendments, that they are protected against invidious discrimination on the basis of race under the Equal Protection Clause of the Fourteenth Amendment, and that they may claim the protection of the Due Process Clause to prevent additional deprivation of life, liberty or property without due process of law. A fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.

But our cases also have insisted on a second proposition: simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. `Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' The fact of confinement as well as the legitimate goals and policies of the penal institution limit these retained constitutional rights. There must be a `mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.' This principle applies equally to pretrial detainees and convicted prisoners. A detainee simply does not possess the full range of freedoms of

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