Lomax v. Fiedler, 95-2304

Citation554 N.W.2d 841,204 Wis.2d 196
Decision Date22 August 1996
Docket NumberNo. 95-2304,95-2304
PartiesAdrian LOMAX, and Edge Cooperative, a Wisconsin cooperative, Plaintiffs-Appellants, d v. Patrick FIEDLER, Terri Landwehr, Oscar Shade, Ronald Molnar, Christopher Ellerd, Linda Milliren, Pat Poe # 1, Pat Poe # 2, Pat Poe # 3, Dan Buchler, Raymond Chavez, Mario Canziani, Jerry Konitzer, Jeff Smith, Ronald Torsella, Cathy Jess, Gregory Grams and Gordon A. Abrahamson, Defendants-Respondents.
CourtWisconsin Court of Appeals

For the plaintiffs-appellants the cause was submitted on the brief of Gillam Kerley of Madison.

For the defendants-respondents the cause was submitted on the brief of James E. Doyle, Attorney General, with Stephen J. Nicks, Assistant Attorney General.

Before EICH, C.J., and DYKMAN, P.J., and VERGERONT, J.

EICH, Chief Judge.

This appeal tests, on constitutional grounds, a prison's right to discipline an inmate, Adrian Lomax, for violation of prison rules, based on the content of articles written by him and sent to a newspaper, THE MADISON EDGE, for publication and eventual distribution inside the prison. It involves consideration of the appropriate standards for courts to apply in reviewing prison-imposed restrictions on inmates' First Amendment rights, as well as a determination of the merits of Lomax's claim of a constitutional violation.

While the United States Supreme Court, in several recent opinions, has discussed the applicable standard of review in such cases, the precise question presented by Lomax's appeal has yet to be decided in Wisconsin. Our review of those cases satisfies us that the "reasonable relationship" standard of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), applies to the prison's actions and, employing that standard, we conclude that they were " 'reasonably related to legitimate penological interests,' " Thornburgh, 490 U.S. at 409, 109 S.Ct. at 1879 (quoting Turner, 482 U.S. at 89, 107 S.Ct. at 2261), and thus pass constitutional muster. We therefore affirm the trial court's judgment dismissing Lomax's action--which he had commenced against several prison officials for their actions in charging him with violating prison rules and finding him guilty.

The facts are not in dispute. Lomax, an inmate at the Waupun Correctional Institution, and later at the Racine Correctional Institution, had for some time been submitting articles on prison affairs and conditions to THE MADISON EDGE, a free, biweekly newspaper published in Madison. Many of his articles were critical of prison authority and conditions of confinement. This case concerns two of those articles.

The first, entitled "Chronicle of a Death Foretold," was written about a Waupun correctional officer, Captain Patricia Garro. In the article, Lomax wrote that Garro was an "outrageously sadistic" guard who continually and illegally abused her authority and violated a variety of state laws and regulations in her relations with inmates. He said she was "emotionally disturbed" and her actions were "wreak[ing] havoc throughout the prison." Citing the work of a sociologist, he described Garro as a "hard-ass," and concluded that her actions constituted "an open invitation for a shiv in the back." He stated that "she will one day be killed by a prisoner," and that he "fully concur[red]" in her demise.

Lomax sent the article to the EDGE, where it was published after minimal editing. Copies of the paper were mailed to some sixty inmate subscribers at Waupun and to prisoners in other Wisconsin correctional institutions. A civilian teacher employed at Waupun also brought several copies of the article into the institution, posting one on her bulletin board and leaving copies on a table in her office.

When a Department of Corrections administrator, Terri Landwehr, saw a copy of the issue containing the "Chronicle" article, she instituted an investigation, which eventually resulted in the issuance of a conduct report to Lomax, charging him with violating various prison rules for his part in the publication and distribution of the article within the prison. After a hearing, the Racine disciplinary committee found Lomax guilty of violating several rules, including the rule on "disrespect," WIS.ADM.CODE § DOC 303.25, which states that an inmate "who overtly shows disrespect"--which is defined to include "derogatory ... writing" and "name-calling"--is guilty of an offense. Relying on the evidence before it, the committee concluded that the references to Captain Garro in the "Chronicle" article were disrespectful within the meaning of the rule and that the "threatening ... nature" of the article "show[ed] an intent to harm" and to harass her. The committee imposed discipline of eight days' adjustment segregation and 360 days' program segregation.

A few weeks later, Lomax published another article in the EDGE, this one entitled "Of Mice and Men." The article focused on Christopher Ellerd, the security director at Racine, whom Lomax described as an "extortion[ist]" who has "stir[red] up gang animosity" against individual inmates and "is not above even the most outrageous lie" in his efforts "to justify oppressing ... prisoner[s]." It accused Ellerd of "shameless abuse of ... power" in intimidating prisoners and recounted stories of his purported actions--including one in which he allegedly denied medical treatment to an injured prisoner. Calling Ellerd "one of the slimiest correctional officials I've ever known," the article concluded that he "represents the worst in humanity" and "is a thoroughly sadistic, deceitful, unscrupulous wretch." Like the EDGE issue containing the "Chronicle" article, this one was also mailed to inmates at Waupun, Racine and other institutions.

A conduct report was issued to Lomax for this article as well, charging him again with "disrespect" and with "lying about staff" in violation of another DOC rule. As was the case with the conduct report resulting from publication of "Chronicle," the "Mice and Men" report discussed at length the prison staff's investigation of the various factual assertions made in the article and found them to be unsubstantiated. After a hearing, the disciplinary committee found Lomax guilty on both counts, specifically finding that his story of Ellerd's denial of medical treatment for an inmate's injury was "false and thus a lie" and, further, that the comments about Ellerd were both disrespectful and derogatory.

In both decisions, the committee expressly found Lomax knew that copies of the EDGE were sent into the Racine prison. And, in stating its reasons for the penalties imposed in both cases, the committee found the articles both created "a risk of serious disruption at the institution" and "undermine[d] the staff[']s authority to maintain an orderly environment" at the prison. Lomax appealed both cases to the wardens, who affirmed the committee's decisions.

Lomax and the EDGE 1 then sued Landwehr, Ellerd and several other prison officials, including the wardens and the secretary of the Department of Corrections, under the Federal Civil Rights Act, 42 U.S.C. § 1983, claiming the prison's actions violated his rights to freedom of speech and press under the First Amendment. Lomax also contended the disciplinary action taken against him deprived him of liberty without due process of law, claiming that the evidence before the committee was insufficient to support a finding of guilt in both cases. 2

The defendants moved for summary judgment dismissing the action. As in this court, the first issue before the trial court was the appropriate standard to apply in assessing Lomax's First Amendment claims. After holding hearings and considering voluminous sets of affidavits and other proofs submitted by all the parties, the trial court rejected Lomax's argument that the Racine prison's actions should be judged under the "strict-scrutiny" analysis of Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), a case in which the U.S. Supreme Court subjected a challenged prison rule restricting inmates' personal communications directed solely outside the prison to a high degree of scrutiny. The trial court concluded that because Lomax knew his article would be circulated to inmates, the proper analysis by which to judge his claim was that employed in subsequent Supreme Court cases, notably Turner and Thornburgh --an analysis that accords greater deference to the decisions of prison administrators in situations where the offensive communications are directed into the prison.

Analyzing Lomax's claims under the Turner /Thornburgh standard, the trial court held that the undisputed evidence contained in the parties' submissions on the summary judgment motion established as a matter of law that the prison's action in disciplining Lomax for writing and publishing the articles was reasonably related to legitimate penological interests and thus should not be overturned. Lomax appeals from the judgment dismissing his action.

In considering Lomax's appeal, we do not assume the role of editor, censor or prison administrator. The legislature has delegated the task of running the state's prisons to the Department of Corrections, not to the courts. Our only function is to determine whether the challenged actions strike a reasonable, constitutionally permissible, balance between the rights of prisoners and legitimate concerns of prison administration and security.

There is no question that imprisonment does not strip inmates of all constitutional rights--including free-speech rights protected by the First Amendment. As the Turner Court observed: "Prison walls do not form a barrier separating prison inmates from the protections of the...

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    ...to obtain a hearing in the state courts on complaints seeking relief from prison disciplinary measures: in Lomax v. Fiedler, 204 Wis.2d 196, 204, 554 N.W.2d 841 (Ct.App.1996), a plaintiff sued prison officials in state court under the federal civil rights statute, 42 U.S.C. § 1983; and in S......
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