Ennis v. Berg

Decision Date02 December 1993
Docket NumberNo. 930076,930076
Citation509 N.W.2d 33
PartiesEdward ENNIS, Plaintiff and Appellant, v. Judy BERG, Property Officer, North Dakota State Penitentiary; Cordell Stromme, Security Chief, North Dakota State Penitentiary; Timothy Schuetzle, Warden, North Dakota State Penitentiary; Elaine Little, Director, Department of Corrections and Rehabilitation State of North Dakota; and other unknown parties; individually and in their official capacities, Defendants and Appellees, Joel Zahn, Inmate Supervisor, North Dakota State Penitentiary, Defendant. Civ.
CourtNorth Dakota Supreme Court

Edward Ennis, pro se.

Douglas A. Bahr, Asst. Atty. Gen., Atty. Gen.'s Office, Bismarck, for defendants and appellees.

SANDSTROM, Justice.

Edward Ennis, an inmate at the North Dakota State Penitentiary, is unhappy with prison rules and practices. He sued claiming violation of his civil rights. The district court granted summary judgment against Ennis. He appeals. We affirm the district court judgment.

Ennis claims prison officials wrongly denied him his Christmas "care package." Ennis's package was not received until January, beyond the time permitted. The prison fairly applied its reasonable rule.

Ennis objects to the prison's general policy of allowing inmates only to receive tape recordings directly from publishers, and to the exception for religious tapes. The prison fairly applied its reasonable general rule. The exception properly recognizes reasonable accommodation of inmate religious freedom under the First Amendment.

Ennis's objection to inmate security personnel was unsupported by competent evidence.

Ennis's claims are without merit. Summary judgment was properly granted.

I

Ennis claims on December 9, 1991, and on March 9, 1992, he was denied audio cassette tapes which had been mailed to him. Under the penitentiary's publisher-only policy, inmates can only receive tapes mailed directly from publishers. The penitentiary allows an unwritten exception for religious tapes. Religious tapes are allowed if sent from a religious source, even if not a publisher, but only after inspection and screening by prison officials. Ennis does not claim his tapes were religious.

Ennis also claims that on January 9, 1992, he was denied a care package of magazines, books, and boxed candy. Under the prison's 1991 Christmas care-package policy, each inmate was allowed one care package sent into the prison by either United States mail, or United Parcel Service. The package had to be received between December 1 and 31, 1991. The defendants say Ennis's package was not allowed because it was received after December 31, 1991, and because it contained homemade, unsealed food items, magazines and newspapers which did not comply with the Christmas care-package policy. Ennis does not contend his package met the requirements of the policy.

Ennis, acting pro se, filed a verified complaint with the Burleigh County District Court challenging the penitentiary's publisher-only and care-package policies, seeking declaratory and injunctive relief, and monetary damages. Ennis claims both policies violate his constitutional right to free speech and deprived him of property in violation of his right to due process. He also alleges the defendants wrongfully violated his rights by arbitrarily denying him indigent mailing supplies, by using penitentiary inmates as prison security personnel, and by threatening reprisal for his actions to protect his rights.

The defendants moved to dismiss the complaint, contending Ennis had failed to allege sufficient facts to support his claims for relief. Ennis resisted the motion to dismiss and moved for the appointment of counsel to assist him in the preparation of his case.

The district court denied Ennis's motion for counsel and partially granted the defendants' motion to dismiss. The district court, based solely on Ennis's complaint, concluded:

(1) The doctrine of sovereign immunity barred suit against the state or state officials acting in their official capacities.

(2) State officials could be held personally liable for money damages if they "took an action with the malicious intention to cause a deprivation of constitutional rights or other injury."

(3) The publisher-only rule for cassette tapes is valid.

(4) The Christmas care-package policy is valid.

(5) There were factual issues whether the defendants could establish the publisher distinction was in force when Ennis's tapes were denied, and whether the defendants were evenhandedly allowing religious tapes but not others.

(6) Possible fact issues existed whether the defendants were using penitentiary inmates as guards and whether the defendants retaliated against Ennis for attempting to vindicate his rights.

The defendants moved for summary judgment on the remaining issues. The defendants submitted copies of the penitentiary policies and affidavits. The Attorney General moved to withdraw as counsel for defendant Joel Zahn, an inmate at the penitentiary, because Zahn was not a state employee. Ennis resisted the defendants' motion for summary judgment, arguing the motion should be denied, or the proceedings stayed pending discovery.

The district court granted the Attorney General's motion to withdraw, but denied the motion for summary judgment as premature because discovery had not been conducted. The court gave Ennis sixty days to complete discovery.

On December 14, 1992, the district court sent a letter to Ennis warning:

"In my Order of October 12 I gave you 60 days in which to complete any further discovery. I now expect that you will, within 10 days from the date of this letter, submit any further information you may have obtained in order to complete your response to the state's motion for summary judgment."

Ennis responded to the court's letter, but submitted no evidence to support his claims. On December 29, 1992, the district court dismissed Ennis's complaint. The court explained:

"Considering the record as it now exists, (over 120 filings) my conclusion is that the undisputed facts establish that the defendants have neither collectively nor individually denied to plaintiff any of the civil rights which he has retained and which are relevant to this proceeding."

Ennis appeals the district court's entry of summary judgment.

II

Ennis contends the district court erred in upholding the penitentiary's publisher-only cassette tape policy. The policy provides:

"Cassette tapes, CD's [sic], records may be sent into the institution directly from the publisher, by the inmate making the transaction with a transfer or downtown order. Sealed tapes sent in other than from the publisher will be sent out of the institution at the inmate's expense."

We are guided by the analytical framework developed by the United States Supreme Court in O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987):

"Several general principles guide our consideration of the issues presented here. First, 'convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.' Inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion. Second, '[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives--including deterrence of crime, rehabilitation of prisoners, and institutional security.

"In considering the appropriate balance of these factors, we have often said that evaluation of penological objectives is committed to the considered judgment of prison administrators, ... To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.... '[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.' This approach ensures the ability of corrections officials 'to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration...."

O'Lone 482 U.S. at 448-49, 107 S.Ct. at 2500-01 (citations omitted).

We find no case directly addressing a publisher-only rule for cassette tapes. Publisher-only rules, however, have been upheld in similar contexts. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the United States Supreme Court upheld a restriction prohibiting prisoners from receiving books from outside the institution unless the books were mailed directly from a publisher or a book club. The Court concluded:

"[a] prohibition against receipt of hardback books unless mailed directly from publishers, book clubs, or bookstores does not violate the First Amendment rights of MCC inmates. That limited restriction is a rational response by prison officials to an obvious security problem. It hardly needs to be emphasized that hardback books are especially serviceable for smuggling contraband into an institution....

"... The rule operates in a neutral fashion, without regard to the content of the expression. And there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient."

Wolfish 441 U.S. at 550-51, 99 S.Ct. at 1880-81 (citations omitted).

Similarly, publisher-only restrictions have been upheld for soft cover books, see Johnson v. Moore, 948 F.2d 517, 520 (9th Cir.1991); periodicals, see Kines v. Day, 754 F.2d 28, 29-30 (1st Cir.1985); and for greeting cards, see Avery v. Powell, 806 F.Supp. 7, 11 (D.N.H.199...

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6 cases
  • Walbert v. Walbert
    • United States
    • North Dakota Supreme Court
    • August 11, 1997
    ...prison' ..., '[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.' " Ennis v. Berg, 509 N.W.2d 33, 35 (N.D.1993) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282, 289 (1987) (citations omitted......
  • Howard v. State
    • United States
    • North Dakota Supreme Court
    • April 28, 2015
    ...evidence or other comparable means capable of opposing summary disposition. In addition to relying on Clark, Howard cites to Ennis v. Berg, 509 N.W.2d 33 (N.D.1993), to bolster his argument. Howard argues that under Ennis, because his verified post-conviction application provided a “detaile......
  • Gosbee v. Martinson
    • United States
    • North Dakota Supreme Court
    • July 6, 2005
    ...620 N.W.2d 362; In re Adoption of J.S.P.L., 532 N.W.2d 653, 657 (N.D.1995); In re Norman, 521 N.W.2d 395, 397 (N.D.1994); Ennis v. Berg, 509 N.W.2d 33, 38 (N.D.1993); Anton v. Anton, 442 N.W.2d 445, 446 (N.D.1989). Accordingly, if Gosbee's request for oral argument was properly submitted, h......
  • Burke v. ND DEPT. OF CORRECTIONS & REHAB.
    • United States
    • North Dakota Supreme Court
    • April 25, 2000
    ...often said that evaluation of penological objectives is committed to the considered judgment of prison administrators. Ennis v. Berg, 509 N.W.2d 33, 35 (N.D. 1993) (citation omitted). A prison regulation therefore will not be struck down if it is reasonably related to legitimate penological......
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