Hunter v. Koehler, M83-329 CA.

• Citation: 618 F. Supp. 13
• Decision Date: 12 September 1984
• Docket Number: No. M83-329 CA.,M83-329 CA.
• Parties: Mariano J. HUNTER, Plaintiff, v. Ted KOEHLER and Tom C. Laitinen, Defendants.
• Court: U.S. District Court — Western District of Michigan

618 F. Supp. 13

Mariano J. HUNTER, Plaintiff, v. Ted KOEHLER and Tom C. Laitinen, Defendants.

No. M83-329 CA.

United States District Court, W.D. Michigan, N.D.

September 12, 1984.

Mariano J. Hunter, pro per.

Edgar L. Church, Jr. & Louis J. Porter, Asst. Attys. Gen., Lansing, Mich., for defendants.

OPINION

HILLMAN, District Judge.

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by an inmate at the Marquette Branch Prison against the warden, a counselor, and "mailroom personnel" at the prison.

In a somewhat rambling and confusing complaint and amended complaint, plaintiff alleges that the prison mailroom rejected a catalog entitled "Fantasy Images" and certain snapshots of nudes without an administrative hearing.¹ He also alleges that the prison at Jackson has a more liberal policy than the prison at Marquette regarding the receipt of such material. He seeks declaratory and injunctive relief for this alleged violation of his constitutional rights under the First and Fourteenth Amendments.

The defendants have filed an alternate motion to dismiss and for summary judgment. The motions are supported by a copy of the applicable policy directive regarding the prison mail policy, and copies of various records regarding an administrative hearing held with respect to the rejection of the materials here in question. None of these supporting documents (Exhibits A through H) have been controverted.

It is noted at the outset that plaintiff's allegation that he had been denied an administrative hearing after having requested one is both misleading and deceptive. The pertinent facts as evidenced by the uncontroverted documents are as follows:

1. On October 3, 1983, the warden wrote to the plaintiff with respect to the catalog as follows:

You have received a catalog entitled Fantasy Images. Unfortunately, this catalog seems to violate policy because it contains photographs of homosexual activity and acts of gross indecency. I intend to recommend that it be placed on the restricted publication list. However, you will have until 10/11/83 to submit your reasons why this action should not be taken (Exhibit A).

2. Certain nude snapshots mailed to plaintiff were also rejected on the ground that prisoners are not allowed access to nude snapshots taken with home-type cameras as specified in the Prisoner's Guide Book (Exhibits D and E).

3. On October 3, 1983, plaintiff wrote to the Warden and requested a hearing with respect to the rejected material (Exhibit B).

4. However, by October 7, 1983, plaintiff had changed his mind. He wrote to the Warden on that date as follows:

In the Matter of the Restricted Publication topic My letter of 10/3/1983 discussed, I would respectfully request the matter to remain at what-ever descretionary opinions you may have.

I do not wish to try to change whatever policies you have set for the institution, as I like it here, and however restrictive some of the Policies may seem in comparison to Jackson's. I do realize that Men, circumstances and other considerations I may not presently be aware of. Have, persuaded your thoughts, in setting policy according to the Institution.

I would however, wish an Administrative Meeting with you in regards to the catalog. If only to express lightly my apologies for taking rather abrupt offense to denial of receiving the catalog.

* * * * * *

Generally, with all the better things I now appreciate, I am not going to bring a Frivolous Matter into a Federal Case. Please consider the Matter Closed and Finished .. I Would still appreciate a brief meeting with you, to express personally my apology.

You have done a good job here, and considering the type of men that you must deal with inside the walls. I now see reason for your restricting certain literature.

* * * * * *

As for myself, I haven't that long to go, so am not interested in applying my time to something so trivial. (Exhibit C)

5. On December 5, 1983, plaintiff filed the present action, claiming, among other things, that his rights were violated because he had not been given an administrative hearing.

6. On February 6, 1984, the Hearing Administrator for the Michigan Department of Corrections wrote to the plaintiff as follows:

You have recently filed a lawsuit against the Department of Corrections regarding the rejection by the institution of certain nude photographs and a catalog that is apparently entitled "Fantasy Images." In that lawsuit, you allege, among other things, that you were not given hearings, as required by policy, on the rejection of these items. Although it was indicated in your correspondence with the institution at the time these items were rejected that you did not want a hearing, if you have changed your mind on that point and wish to have a hearing as to whether or not these rejections were proper, the Department is prepared to offer you a hearing at this time.

The hearing will be conducted to determine whether or not it was appropriate under policy for the nude photographs which you received to be rejected, under the provision on page 12(a) of the Prisoner Guidebook which states that prisoners will not be allowed to have "nude snapshots taken with home-type cameras." The hearing will also decide whether or not the "Fantasy Images" catalog was appropriately rejected under Department policy directive PD-BCF-63.03, which states that prisoners are not allowed to have published material which shows acts of homosexuality, sadism, violent sexual practices or unlawful sexual behavior.

Please let me know immediately if you would like to have a hearing on the rejection of these items. If so, I will contact the institution to have them set up the hearing. (Exhibit G).

7. On February 14, 1984, plaintiff wrote to the Hearing Administrator to request a hearing (Exhibit H).

8. On March 7, 1984, plaintiff was served with a Notice of Intent to Conduct an Administrative Hearing, which advised him of the purpose of the hearing as follows:

The institution has received an illustrated catalog of pornographic films and other materials entitled "Fantasy Images," which is addressed to you. You are not allowed to have this catalog in your possession as it violates PD-BCF-63.03, in that the illustrations show acts of homosexuality and unlawful sexual behavior. In addition, you have been sent nude photographs from Jackson Photo Center, as indicated on the attached Notices of Package Rejection, which you are not allowed to receive, as they are contraband. It is stated on page 12a of the Prisoner Guidebook that prisoners are not permitted to possess nude photographs taken with home-type camera. The intent of this prohibition is to prevent prisoners from receiving nude photographs of wives or girlfriends, as such photos could cause serious disruption between prisoners if they are seen by someone other than the prisoner to whom they were sent. Thus, only nude photos which have been published for commercial use are allowed. As the photos which were sent to you are not of a commercial nature, you will not be allowed to receive them. (Pleading # 14).

9. The administrative hearing was held on April 19, 1984. The Hearing Report states:

RESIDENT'S STATEMENT:

Resident Hunter was seen on 4-19-84 and stated that he already has the photos and that they are threatening to take them away from him. Resident presented the photo's at the hearing along with a copy of the above mentioned catalog that he already had.

DISPOSITION:

The catalogs from Fantasy Images as shown by the resident does show acts of homosexuality on the last page and is excluded under policy PD-BCF-63.03. It is noted that the resident already has one copy of the catalog and that this finding pertains only to the catalog in the mail room that has not yet been given to the resident.

As to the photos the resident already has them and there is no possibility of rejecting them at this time. If the institution wishes to conviscate(sic) them they need to do so with a new notice of intent. (Pleading # 14).

Plaintiff's complaint, in essence, is an attack on the validity of the Michigan Department of Corrections Policy Directive PD-BCF-63.03, "Prisoner Mail Policy," dated June 6, 1983, and its application to a catalog depicting acts of homosexuality and to certain snapshots of nudes taken with a home-type camera. The policy directive provides in pertinent part:

Whenever a first class letter or a package addressed to a prisoner is believed to be in violation of institutional mail rules, the prisoner will be advised as to the reason the item will not be delivered. The prisoner may request an administrative hearing to be held according to procedures set forth in Administrative Rule 791.3310, and may appeal nonacceptance of the item through the established prisoner grievance procedure. Institutions shall attempt to retain disputed items for a reasonable period to allow the prisoner to pursue administrative appeal processes.

Prisoners shall not be given access to the following items and publications which are considered disruptive to institutional order and/or security:

* * * * * *

(3) material describing or showing acts of

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