Johnson v. Raemisch, 07-cv-390-bbc.

• Decision Date: 23 May 2008
• Docket Number: No. 07-cv-390-bbc.,07-cv-390-bbc.
• Citation: 557 F.Supp.2d 964
• Parties: Lorenzo JOHNSON, Plaintiff, v. Rick RAEMISCH, Dane Westfield and Mike Thurmer, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

557 F.Supp.2d 964

Lorenzo JOHNSON, Plaintiff, v. Rick RAEMISCH, Dane Westfield and Mike Thurmer, Defendants.

No. 07-cv-390-bbc.

United States District Court, W.D. Wisconsin.

May 23, 2008.

Lorenzo Johnson, Waupun, WI, pro se.

David Hoel, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

This is a case about dissent. In particular, it requires this court to determine the extent to which prisoners retain the right under the First Amendment to speak and read about ideas that are critical of those who incarcerate them. Plaintiff Lorenzo Johnson is a Wisconsin prisoner and subscriber to The New Abolitionist, a newsletter addressing prisoner rights issues. In the context of providing information about Wisconsin prisons, the newsletter offers commentary that is critical of policies and practices of Wisconsin prison officials. Defendants blocked the delivery of this newsletter to plaintiff, concluding that certain passages were "inflammatory" and would "encourage disrespect" and "hopelessness."

Plaintiff has sued defendants under 42 U.S.C. § 1983, contending that their censorship of the newsletter violated his First Amendment right to free speech. The parties' cross motions for summary judgment are now ripe for review. Defendants' motion for summary judgment will be denied and plaintiffs motion will be granted. Even under the deferential standard of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), defendants' censorship of the newsletter cannot survive scrutiny. Many of defendants' reasons for denying plaintiff the newsletter suggest that it was the critical nature of the newsletter that prompted the decision rather than any true interest in security or rehabilitation. Even if defendants' concerns were genuine, their justifications amount to nothing more than "because we said so," which is not enough to pass constitutional muster. Any other conclusion would threaten the right of prisoners to criticize government officials, a result that cannot be squared with the First Amendment.

From the parties' proposed findings of fact and the record, I find the following facts to be undisputed.

UNDISPUTED FACTS

Plaintiff Lorenzo Johnson is a prisoner at the Waupun Correctional Institution in Waupun, Wisconsin. In 2007, petitioner subscribed to the newsletter of the Prisoner Action Coalition, which is called The New Abolitionist. He did not receive a copy of the March 22, 2007 edition of the newsletter because it was censored by defendant Dane Westfield.

Defendant Westfield is the security chief for the Wisconsin Department of Corrections. His duties include reviewing publications that have been sent to prisoners and determining whether they should be censored. One of these publications was the March 22, 2007 edition of The New Abolitionist. That newsletter included several different articles related to prisons in Wisconsin, including:

• an update on recent events such as the new settlement agreement in Jones `El v. Schneiter, 00-C-421-C (W.D.Wis.), and an upcoming legislative hearing about the parole commission;

• a letter to the chairperson of the parole commission from one of the contributors to the newsletter;

• a report on a recent forum on "Wisconsin's Correctional Future";

• a prisoner's perspective of the new Jones El settlement agreement;

• two news stories about prisoner civil rights cases that had settled;

• an interview with a member of the Wisconsin Assembly;

• two prisoners' perspectives of parole and classification decisions in Wisconsin prisons;

• a list of contact information for prison officials, politicians and prisoner rights advocates;

• an update on legal and political developments;

• a request for prisoner art to be displayed at an upcoming exhibit;

• a news story from Colorado about using prisoners to perform farm work traditionally performed by migrants.

After reviewing the newsletter, defendant Westfield concluded that prisoners should be prohibited from receiving or possessing it because of material he found objectionable in some of the articles. He relied on the following provisions of the Wisconsin Administrative Code:

[T]he department may not deliver incoming or outgoing mail if it does any of the following:

. . . .

8. Is "injurious", meaning material that:

. . . .

b. Poses a threat to the security, orderly operation, discipline or safety of the institution.

c. Is inconsistent with or poses a threat to the safety, treatment or rehabilitative goals of an inmate.

Wis. Admin. Code § DOC 309.04.

Section DOC 309.04 applies to receipt of publications. In addition, the department shall restrict receipt of publications by inmates as follows:

. . . .

(b) Inmates may not receive publications that:

. . . .

4. Are injurious as defined in s. DOC 309.04(4)(c) 8.

Wis. Admin. Code § DOC 309.05.

The first article contained the following discussion of a modified settlement agreement regarding the Wisconsin Secure Program Facility:

As it stands now, the entire Settlement Agreement is finished except for one year of monitoring by a panel of three psychiatrists. They will review all prisoners entering the Supermax [now called the Wisconsin Secure Program Facility]. There will be no evidentiary hearing after this period, no review, it's over, period.

The entire issue of the Level System (now called HROP) was washed away. The entire issue of due process — how guys ended up in Supermax — washed away. The entire issue of how guys stay in long term admin, seg. without periodic review, without a meaningful reevaluation from time to time, has been washed away. This decision is a travesty.

We have had word that DOC is looking for volunteers to fill the Charlie unit cells at Supermax. No school, no work, no cafeteria, less canteen, no contact visits, no storage for property, tiny cells, and the close proximity of the revolving door to the dungeons, all sound enticing don't they? I'm sure guys will be lining up for a vacation in SW Wisconsin, even further away from their families. Don't fall into the trap!

Defendant Westfield concluded that this article contained inaccurate information about the conditions of the Wisconsin Secure Program Facility that would "discourage" prisoners "from taking advantage of basic education opportunities at WSPF and interfere with their rehabilitation and program completion."

One of the prisoner's articles on the Wisconsin parole and classification decisions contains the following discussion:

For many of you reading this, you may comprehend where I am coming from when it comes to the imbecilic totalitarian decisions made by the parole board & the PRC personnel staff in prison who are clueless as to what they are doing, or are they?

Before I go any further regarding the above abusers of prisoners & prisoner families, I would like to address something.

We have the power, we have the upper hand to make a change.... We, as prisoners, may not be able to vote, but we sure as hell can have our families & friends vote on our behalf & elect the right person(s) to the senate.

If we work together, we can get things accomplished. If Prisoners Action Coalition (PAC), Forum For Understanding Prisons (FFUP) and many other organizations unite and spread this message, I can only guarantee changes and results, so we must begin by getting rid of the problem & finding a solution.

It doesn't take a genius, fancy words or the printing of a long article when it comes to the parole board. The problem is very simple, no matter [whether you're] under the old law, you may as well fall under the truth in sentencing laws. I mean let us not forget about the crook Governor Tommy Thompson who put a lot his directives into motion.

. . . .

Programs are being denied to prisoners for no legitimate reason at all.... [T]he Program Review Committee ... is a group of inexperienced people who think alike. The most we can do is harass the hell out of the system & expose them by putting our stories on internet blogs, newsletters, have friends and families call and write letters on your behalf every week until somebody listens, because truth is not only violated by falsehood it may be equally outraged by silence.

According to defendant Westfield, these statements are "inflammatory," "encourage disrespect" and "encourage hopelessness" because they could lead prisoners to believe they will be unable to obtain early release. The hopelessness and disrespect could then lead prisoners "to distrust staff and act out" and "subvert [their] appreciation of the value of good behavior and program participation in furtherance of their rehabilitation."

In the other prisoner's article on parole decisions, the prisoner discussed a decision denying his parole that was later overturned because the review committee had falsely represented department regulations. He wrote:

The purpose of this letter is to show the deceiving and manipulative tactics which are fabricated stories by PRC at RGCI [Red Granite Correctional Institution] is using to keep us longer than possible.... I completed my recommended treatment programs & the recommendation by the parole board was never even considered by the PRC at RGCI, because PRC at RGCI make up their own rules, policies & quash any recommendations made by the parole commissioner.

According to Westfield, this article is "inflammatory" and "encourages distrust of staff and "unrest" and "hopelessness" among prisoners. Westfield believes the article could lead to "group resistance and other bad behavior."

Another prisoner's article includes the following discussion:

Some additional good news is Comrade Gillis, for those of you who remember, just won his appeal in the 7th Circuit regarding the "Behavior Modification Program" at the Supermax. Well the WDOC, rather than go to trial, decided to settle the case. So he settled for a nice sum, and, after speaking with me, has agreed to send a real...