Jackson v. Elrod, 86 C 1817.

• Decision Date: 09 November 1987
• Docket Number: No. 86 C 1817.,86 C 1817.
• Citation: 671 F. Supp. 1508
• Parties: Robert JACKSON, Plaintiff, v. Richard J. ELROD, Philip H. Hardiman, John Blanks, Robert N. Glotz, Willard Sullivan, Louis Quaglia, Amos Bullocks, Roy Patrick, John Does 1-5 and Jane Does 6-10, Defendants.
• Court: U.S. District Court — Northern District of Illinois

671 F. Supp. 1508

Robert JACKSON, Plaintiff, v. Richard J. ELROD, Philip H. Hardiman, John Blanks, Robert N. Glotz, Willard Sullivan, Louis Quaglia, Amos Bullocks, Roy Patrick, John Does 1-5 and Jane Does 6-10, Defendants.

No. 86 C 1817.

United States District Court, N.D. Illinois, E.D.

October 14, 1987.

On Motion to Modify November 9, 1987.

Robert D. Allison, Chicago, Ill., for plaintiff.

Madeleine S. Murphy, Asst. States Atty., Chicago, Ill., for defendants.

MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

Plaintiff Robert Jackson, a pretrial detainee at Cook County Jail, seeks partial summary judgment against five named defendants — Richard J. Elrod, former Cook County sheriff; Philip H. Hardiman, former director of the Cook County Department of Corrections; Robert Glotz, the jail's security chief; and John Blanks and Willard Sullivan, both division superintendents at the jail. Jackson's allegations of first and fourteenth amendment violations by jail officials were detailed in our denial of a motion to dismiss. Jackson v. Elrod, 655 F.Supp. 1130 (N.D.Ill.1987). At this juncture, we consider only these defendants' liability for alleged policies of barring detainees' receipt of all hardcover books and of not informing detainees of such rejections.

First, however, we revisit an issue left undecided in our earlier opinion: by what standard should we should evaluate these policies? See id., 655 F.Supp. at 1138. Defendants would have us uphold them if they prove reasonably related to a legitimate governmental interest. Defendants' Reply Memorandum to Plaintiff's Motion for Partial Summary Judgment Def.Mem. at 4. The American Booksellers Association, in an amicus curiae brief filed on plaintiff's behalf, argues that heightened scrutiny should apply. Memorandum of Points and Authorities by American Booksellers Association at 6. Plaintiff says it doesn't matter, because defendants' policies must fall under either standard. See Plaintiff's Memorandum in Support of Partial Summary Judgment as to Liability Plf. Mem. at 5. To assess these contentions, we examine three Supreme Court opinions pertaining to prisoners' constitutional rights.

In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), officials unsuccessfully defended their policy of screening all convicted prisoners' mail, censoring that which they found objectionable. The first amendment permits such restraints, the Court held, only when they "further an important or substantial governmental interest unrelated to the suppression of expression" and are "no greater than is necessary or essential to the protection of the particular governmental interest involved." Id. at 413, 94 S.Ct. at 1811. The Court did not determine to what degree the Constitution protected prisoners per se, but based its decision on the "consequential restriction on the First and Fourteenth Amendment rights of those who are not prisoners." Id. at 409, 94 S.Ct. at 1809.

Prisoners' rights were squarely addressed in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Federal pretrial detainees had challenged a number of jail policies, including a ban on hardback books from any source other than a publisher, book club, or bookstore. Id. at 528, 99 S.Ct. at 1868. The Court declared that detainees enjoy at least those constitutional rights that convicted prisoners retain, and held that detainees could be subjected "to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment or otherwise violate the Constitution." Id. at 536-37, 545, 99 S.Ct. at 1872-73, 1877. Punishment may be inferred, the Court continued, if a policy "is not reasonably related to a legitimate goal — if it is arbitrary or purposeless...." Id. at 539, 99 S.Ct. at 1874. Yet absent evidence that a regulation represents an exaggerated response to a government concern, it should be upheld. Id. at 548, 99 S.Ct. at 1879.

The so-called publishers-only hardcover book rule in Bell was reasonably related to prison security concerns, the Court concluded. Id. at 551, 99 S.Ct. at 1880. Informing this holding were these factors: the rule was content-neutral; the availability of softcover books, of hardback books from permitted sources, and of a large library afforded detainees sufficient options for acquiring reading material; and since the detainees were confined no more than sixty days, the rule had a limited impact on them. Id. at 551-52, 99 S.Ct. at 1880-81.

Last term the Court assessed convicted prisoners' constitutional rights by a rational relation test like that applied to detainees in Bell. Turner v. Safley, ___ U.S. ___, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Answering the question it had sidestepped in Martinez, the Court wrote, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 2261. Prison officials could establish a regulation's reasonableness by proving that: (1) there is a rational connection between the policy and some legitimate, content-neutral governmental interest; (2) alternative avenues allow the prisoner to exercise the right; (3) accommodation of the prisoner's request does not impact significantly on prison resources, prison guards, or other inmates; and (4) no obvious, easy alternatives to the regulation exist. Id. at 2262.

Applying this four-factor analysis, the Court in Turner held that limiting correspondence between plaintiff inmates and those at other prisons was logically connected to prevention of criminal activity by mail; thus the content-neutral ban survived constitutional scrutiny. Id. at 2263-64. But the same prison officials failed to prove any rational link between a restriction on inmate marriages and legitimate security and rehabilitation concerns. Id. at 2266.

The Court's opinions in Turner and Bell indicate that reasonableness is the preferred standard for evaluating prison restrictions. Cf. O'Lone v. Estate of Shabazz, ___ U.S. ___, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (reaffirming Turner analysis in upholding restraint on inmates' free exercise of religion). But the American Booksellers Association would have us apply Martinez' heightened scrutiny to the ban on hardbound books alleged here, reasoning that it restricts the first amendment rights of nonprisoners as well as detainees. The Court in Turner considered a similar argument but did not resolve it, since the marriage regulation failed even a reasonableness analysis. Turner, 107 S.Ct. at 2266. Similarly, we do not reach the question here because we agree with plaintiff that the hardback book ban cannot pass the reasonable relation test.

The jail's General Order 17.1 states that detainees have a "right of access to any reading material except pornography as defined by the courts or reading matter which might pose an imminent threat to jail security." Plaintiff's Motion for Partial Summary Judgment Plf.Mot., Ex. C at 553. In keeping with this declaration, General Order 14.9 permits detainees to receive up to three softcover publications per mailing, as well as "hard cover books from publishers if suitable for inspection; hard cover books from any source other than the publishers may be accepted at the discretion of the Superintendent." Id., Ex. C at 460.

Yet defendants admit that contrary to these orders, the actual "policy of all superintendents has been to prohibit all hardcover books from any source." Id., Ex. J Answer 1 to First Set of Interrogatories. This actual practice has been in effect about seventeen years. Addendum to Plaintiff's Reply Brief, Ex. DD at 43-44. See also Plf.Mot., Ex. A ¶ 27. Nor may detainees keep hardbacks in their cells. Plf.Mot., Ex. B ¶ 12, Ex. J-2 Supplemental Answer 2 to Plaintiff's Interrogatories.

Plaintiff alleges in an affidavit that he was denied books sent to him by Alcoholics Anonymous, the Church of God Evangel, Barnes & Noble, and Pathway Books. Plf. Mot., Ex. D Jackson aff. ¶¶ 3-7. He offers letters from senders further demonstrating that some books were sent and rejected. Jackson aff., Exs. 1-12. Defendants initially denied the charge regarding Alcoholics Anonymous, but eventually stated they had insufficient information regarding any alleged rejection. Compare Plf.Mot., Ex. A ¶ 16 with Plf.Mem. Ex. B. In any event, defendants have offered no proof controverting any of the rejections plaintiff alleges.

The detainees in Bell were incarcerated no more than sixty days. Plaintiff in this case spent 959 days in pretrial detention. Jackson aff., ¶¶ 8-9. During that time, plaintiff had no alternative means of obtaining the information he sought. Most of the books were published only in hard cover. Appendix to Plaintiff's Reply Memorandum Plf. Reply App., Ex. N. Few if any were available through the jail's library service. Jackson aff. ¶ 11; see Plf. Reply App., Ex. N. Defendants at first denied the latter assertion, but later admitted they had no listing of the library books available. Compare Plf.Mot., Ex. A ¶¶ 43, 46 with Plf.Mem., Ex. B at 11. Therefore, the denial of books to plaintiff encroached upon his first amendment right to receive information and the senders' right to convey that information to him.

To justify these infringements, defendants offer one document, an affidavit from defendant Glotz, the jail's security head since 1980. Def.Mem., Ex. B Glotz aff.. Glotz demonstrates that the jail's population of up to 5,560 inmates is extremely transient, requiring "strict security measures to ensure that contraband drugs and weapons do not enter the facility." Id. ¶¶ 4-9. Hardcover books present a security problem, Glotz states, because they may be hollowed out to hide contraband. Unlike soft covers, hard covers comprise layers of paper and cloth, making inspection for concealed drugs more difficult both in the mailroom and in cells. Id. ¶¶...