Leonard v. Nix

• Decision Date: 16 May 1995
• Docket Number: No. 94-1364,94-1364
• Citation: 55 F.3d 370
• Parties: Stephen C. LEONARD, Plaintiff-Appellant, v. Crispus C. NIX, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 370

55 F.3d 370

Stephen C. LEONARD, Plaintiff-Appellant, v. Crispus C. NIX, Defendant-Appellee.

No. 94-1364.

United States Court of Appeals, Eighth Circuit Submitted Oct. 10, 1994.

Decided May 16, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied July

10, 1995. ^*

Patrick E. Ingram, Iowa City, IA, argued, for appellant.

William Hill, Des Moines, IA, for appellee.

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Stephen C. Leonard appeals the district court's ¹ denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. Leonard asserts that Iowa prison officials violated his First Amendment rights by disciplining him for using abusive and defamatory language. The district court found no First Amendment violation, and we affirm.

I.

Petitioner Stephen C. Leonard, an inmate at the Iowa State Penitentiary (ISP), wrote two letters purportedly as "jailhouse lawyer communications" to a former inmate, Daniel "Flash" Berkenbile, who was then residing in Davenport, Iowa. In the first letter, dated January 6, 1991, and labeled "jailhouse lawyer communication legal mail" on the envelope ² (App. at 75), Leonard raved the most vulgar, obscene, and racist epithets against the warden, Mr. Nix, an African-American, and other prison staff. As an example, Leonard wrote, "They really got p---ed off for me calling him [Warden Nix] a N-----. Ha. That's why I'm putting it in this letter so many times." (App. at 76.) Leonard then wrote that word in capital letters six times in a row. Leonard continued to make abusive comments about and to Warden Nix ("F--- THAT BLACK B------ AND ALL HIS F---ING MERRY LITTLE BAND"); comments which would certainly justify prison disciplinary action against Leonard for violation of prison rules if he had spoken the same words directly to the warden. Leonard also revealed his certainty that prison officials would read and copy his letter. Leonard's second letter, dated January 13, 1991, contained more of the same vulgarities. At the end of this letter, clearly referring to the warden and prison staff, Leonard states: "The chief n----- and his WHITE BOY gang will go down in flames. Ha." (App. at 56.)

Because of the abusive and defamatory language used against the warden and prison staff in these purported "jailhouse lawyer communications," prison officials issued disciplinary notices, citing Leonard for violating an ISP rule that prohibits verbal abuse of another person. The ISP disciplinary committee found Leonard guilty of violating ISP institutional rule number 26, which states as follows:

Verbal Abuse: An inmate commits verbal abuse when the inmate subjects another person to abusive or defamatory language, remarks, or gestures, in writing or orally, and includes insolence or disrespect to another person.

(App. at 173.) For this violation, Leonard received penalties including loss of 90 days of good time credits, 90 days of restriction to his cell, and 15 days of disciplinary detention.

Leonard filed two separate actions for state postconviction relief, alleging that ISP staff violated his First Amendment rights by disciplining him on the basis of the letters. With respect to the first letter, the Iowa district court found as a fact that Leonard "intended to direct the comments at Warden Nix, and that the comments would, in fact, be read by Warden Nix." (App. at 161.) Similar fact-findings were made with respect to the second letter. These findings were based upon the letters themselves in which Leonard states he knows that they will be read and copied and upon the attachments which reveal the source of a disagreement between the warden and Leonard. (Leonard's previous attempt to form a white supremacist "culture group" at the prison was opposed by the warden and resulted in litigation in federal court.) Furthermore, the Iowa district court found that "both letters sound in some form of jailhouse lawyer communication, which is an act of misuse of the mail," and "that the prison administrators have a legitimate interest in regulating the use of jailhouse lawyer privileges." (Id. at 165.)

The Supreme Court of Iowa affirmed the district court's dismissal of both postconviction actions, concluding that the letters "were designed to be used as a vehicle to protest prison authority" and that the prison officials had a legitimate penological objective of maintaining security and order within the institution when they took disciplinary action based upon the letters because "[d]efamation by its very nature causes discipline problems." (Id. at 174.)

Leonard then filed this habeas corpus petition, challenging the punishment as an infringement on his First Amendment right to free expression. (Leonard also filed a claim for damages under 42 U.S.C. Sec. 1983, which has been stayed pending the outcome of this case.) The magistrate judge recommended that the writ be granted on the basis that the disciplinary action violated Leonard's First Amendment rights. The district court rejected this recommendation and denied the writ, concluding that the state fact-findings were fairly supported by the record considered as a whole. Leonard appeals.

One week before argument, the warden moved to dismiss the appeal as moot because Leonard had discharged his sentence and was released from custody. We were recently informed by Leonard's counsel that Leonard has since been returned to the custody of the Iowa Department of Corrections on a new sentence.

II.

A petition for habeas corpus must be filed while the petitioner is in custody. See Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). If a petitioner, though released from custody, faces sufficient repercussions from his allegedly unlawful punishment, the case is not moot. See Carafas v. LaVallee, 391 U.S. 234, 239-40, 88 S.Ct. 1556, 1560-61, 20 L.Ed.2d 554 (1968) (a habeas petitioner "should not be ... required to bear the consequences of [an] assertedly unlawful conviction simply because the path has been so long that he has served his sentence"). Collateral consequences are presumed to stem from a criminal conviction even after release. See Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968) (only possibility of collateral consequence needed to avoid mootness). Where the allegedly illegal punishment does not produce any collateral consequences independent of the underlying conviction, the case will be mooted by physical release. See Lane v. Williams, 455 U.S. 624, 632-33, 102 S.Ct. 1322, 1327-28, 71 L.Ed.2d 508 (1982) (parole violation has no collateral consequences); Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir.1987) (objections to penalty rather than conviction not enough to avoid mootness).

Leonard does not challenge his criminal conviction but rather the legality of prison discipline imposed while serving his sentence. As a collateral consequence, Leonard asserts that his separate civil rights damages claim under 42 U.S.C. Sec. 1983 will be foreclosed if the habeas petition is denied.

A successful habeas petition is a prerequisite to a section 1983 claim that hinges on a finding that the conviction was illegal. See Heck v. Humphrey, --- U.S. ----, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Post-release financial claims dependent on the legality of conviction may be stayed pending review of the conviction, or, as to section 1983 claims after Heck, may not accrue until habeas proceedings conclude; but in neither case are they mooted by release. Prisoner damages claims not challenging the underlying conviction likewise survive release from custody. See Scher v. Chief Postal Inspector, 973 F.2d 682, 683 (8th Cir.1992); Cotterall v. Paul, 755 F.2d 777, 780 (11th Cir.1985); Winsett v. McGinnes, 617 F.2d 996, 1004 (3d Cir.1980) (en banc), cert. denied, 449 U.S. 1093, 101 S.Ct. 891, 66 L.Ed.2d 822 (1981). Cf. Black v. Brown, 513 F.2d 652, 655 (7th Cir.1975) (release from isolation did not moot damages claim for cruel and unusual punishment). Leonard's section 1983 action gives this case life, for if Leonard wins this habeas action, the state becomes vulnerable to his section 1983 damages claim. Leonard's petition is therefore not moot.

Additionally, Leonard's return to custody dispenses with any doubt that may remain about the existence of collateral consequences in this case. Upon his return to ISP, Leonard's inmate status is marked by the previous rules violation, and if he commits any further infractions he faces more severe treatment because of this prior disciplinary action. Accordingly, Leonard's petition for a writ of habeas corpus is not moot, and we deny the motion to dismiss on this ground.

III.

In habeas proceedings, we presume state court determinations of fact to be correct unless the factual determinations are not fairly supported by the record. See 28 U.S.C. Sec. 2254(d)(8) (1988); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); Blair-Bey v. Nix, 44 F.3d 711, 713 (8th Cir.1995); Bainter v. Trickey, 932 F.2d 713, 715-16 (8th Cir.1991). Leonard contends that the state court findings of fact are not supported by the record and that he cannot be punished for making any comments, however demeaning, disrespectful, or derogatory, about prison officials in a letter bearing an address to a third party outside the prison. In his testimony before the Iowa district court, Leonard repeatedly testified that under his absolutist reading of the First Amendment, "I can write anything I want." (App. at 25, 26.) We believe that Leonard mischaracterizes the facts in this case, that the facts as found by the state courts are fairly supported by the record, and that the disciplinary action taken against him does not amount to a First Amendment violation.

"Assuming for the sake of argument that the First Amendment protects speech like that at issue here, although we doubt such proposition, the prison officials still did not violate [Leonard'...