Lyon v. Grossheim

• Decision Date: 30 October 1992
• Docket Number: Civ. No. 4-88-CV-31689.
• Citation: 803 F. Supp. 1538
• Parties: Everett Roy LYON, Plaintiff, v. Paul W. GROSSHEIM, Defendant.
• Court: U.S. District Court — Southern District of Iowa

803 F. Supp. 1538

Everett Roy LYON, Plaintiff, v. Paul W. GROSSHEIM, Defendant.

Civ. No. 4-88-CV-31689.

United States District Court, S.D. Iowa, C.D.

September 30, 1992.

As Amended October 30, 1992.

COPYRIGHT MATERIAL OMITTED

Patricia M. Hulting, Roehrick, Hulting & Moisan, Des Moines, Iowa, for plaintiff.

William A. Hill, Asst. Atty. Gen., for defendant.

MEMORANDUM OPINION AND ORDER

BENNETT, United States Magistrate Judge.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

Plaintiff, Everett Roy Lyon, ("Lyon"), is an inmate at the Iowa State Penitentiary at Fort Madison, Iowa ("ISP"). Lyon asserts that his First Amendment rights under the United States Constitution were violated by Defendant, Paul W. Grossheim ("Grossheim")¹ denying him certain religious comic books. In denying Lyon these religious publications, Grossheim relied upon administrative regulations providing that an inmate may be denied a publication if the publication "is likely to be disruptive or produce violence." Grossheim and other prison administrators claim that the religious publications at issue are "anti-Catholic," "blatant bigotry" and are, therefore, likely to be disruptive. Lyon challenges the constitutionality of the regulations, both facially and as applied. Lyon requests declaratory and injunctive relief, compensatory and punitive damages, and attorney fees.

Lyon initially filed this action pro se pursuant to 42 U.S.C. § 1983 against Grossheim, the Director of the Iowa Department of Corrections.² Counsel was subsequently appointed for Lyon. This case was initially referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for proposed findings of fact and recommendations for the disposition. The parties subsequently consented to a trial of this matter before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The case was tried without a jury, post trial briefs were filed, and the case is now fully submitted.

II. FINDINGS OF FACT

A. Regulations

Iowa Administrative Code r. 291-20.6(4)(a) (1989) provides that an authorized reason for denying a publication to an inmate is that the publication "is likely to be disruptive or produce violence."³ Rule 20.6(4)(a) is identical to State of Iowa, Department of Corrections policy IN-V-80 (4).⁴ Lyon challenges the constitutionality of the regulations, both facially and as applied.

A publication review committee ("the committee"), made up of three members appointed by the Director of the Iowa Department of Corrections, is authorized to determine whether a publication should be allowed into the correctional facility. See Iowa Admin.Code r. 291-20.6(2)-(3) (1989). At all times relevant to this litigation, the three members of the Committee were John Sissel, the Deputy Warden at the Iowa State Men's Reformatory in Anamosa, Iowa; Paul Hedgepeth, the Deputy Warden at ISP in Ft. Madison; and Linda Robertson, a librarian from Des Moines, Iowa. A list of publications which have been rejected by the committee is maintained at ISP called the Denied Publications list. If a publication is rejected, an inmate has ten days following the committee's decision to appeal to the Director of the Department of Corrections. See Iowa Admin.Code r. 291-20.6(7) (1989).⁵

B. Facts Relating to the Parties

On June 2, 1988, Lyon received a "Notice of Rejection of Correspondence" indicating that fifteen publications he had ordered from Chick Publications ("Chick") had been disapproved by the committee, and were being held in the mailroom.⁶ The notice stated that the staff person responsible for this decision was James Helling. On the same date, Lyon also received a notice that six additional publications were being referred to the committee for their inspection.⁷ Altogether, Lyon ordered twenty-one publications from Chick Publications.⁸ Eighteen of these publications were on the Denied Publications list for June 1988.⁹

On June 28, 1988, Lyon received a letter from Charles W. Lee, Deputy Director of Institutions, Iowa Department of Corrections, stating that the committee had approved his receiving the following six Chick publications: Reverend Wonderful, Witnessing Effectively to Mormons, Operation Bucharest, The Big Betrayal, The Last Missionary, and Who Are They Gonna Remember.¹⁰ On June 30, 1988, Lyon filed an inmate grievance in which he sought to receive the remainder of the Chick publications he had ordered.

On July 5, 1988, Lyon received a response to his inmate grievance from Sgt. P. Wachtendorf in which she explained that, pursuant to policy, the publication review decisions were not subject to inmate grievances, but that Lyon could appeal to the committee. In a letter dated July 7, 1988, Lyon appealed the denial of the Chick publications to the committee. As of July 12, 1988, two members of the committee, John Sissel and Paul Hedgepeth, voted on a review form that seven of the Chick publications ordered by Lyon should be denied because they violated standard "A" and were deemed to be "Anti-Catholic literature, blatant bigotry, potentially disruptive."¹¹ The review form was returned to Grossheim after the committee had reviewed the publication.¹²

Lyon timely appealed the committee's decision denying him the Chick publications. Grossheim, in a letter dated July 28, 1988, affirmed the decision of the committee. As a result, Lyon was forced to send the rejected Chick publications to an attorney in Des Moines, Iowa. The Denied Publications list for November 1988, proscribed the same eighteen Chick publications as the June 1988 list. See supra note 9. Lyon filed the instant action on December 6, 1988.

On April 17, 1991, Chick Publications mailed to Lyon two packs of material, the "comic pack" and the "inmate information pack." On April 24, 1991, a notice of rejection of correspondence was issued to Lyon indicating that sixteen Chick publications had been rejected, and one publication was being referred to the committee.¹³ On April 24, 1991, Lyon received the Chick publications Operation Bucharest and The Force. Lyon had previously been denied The Force in 1988.

Another inmate at ISP, Milton Weir, had ordered the same materials from Chick prior to Lyon's order. Weir's receipt of these materials was initially denied. On April 7, 1987, however, Grossheim, then Deputy Director of Institutions, informed Weir by letter that the committee had approved his receiving the Chick publications. On April 10, 1987, Weir received 18 Chick religious comic books, and two packets of booklets. Subsequently, Weir reordered additional religious comic books from Chick Publications. After these publications were initially rejected by correctional personnel, Weir was permitted to receive from Chick six religious booklets and the six religious comic books, King of Kings, Operation Bucharest, Chaos, Primal Man?, The Ark, and The Gift.¹⁴

Another inmate, Richard Lamphere, received the novel Satanic Verses by Salman Rushdie on April 27, 1989.¹⁵ A copy of Satanic Verses is also available from the prison library.

The court finds no quantitative or qualitative differences between those religious comic books by Chick Publications which were approved by the Publication Review Committee for dissemination to Lyon and those which were placed on the Denied Publication lists. The arbitrariness of the committee's decisions regarding which publications were to be permitted Lyon and those which were judged too combustible for the confines of ISP is demonstrated by the fact that the comic The Big Betrayal appears on the list of publications approved by the Publication Review Committee in the letter of June 28, 1988, and was also on the July 1988, list of publications which were to be denied Lyon. Furthermore, the arbitrariness of the review committee's decisions concerning the religious comic books by Chick Publications is also illustrated by the fact that Lyon was permitted one of the Alberto comics, the Force, but was denied the other five, even though the plots of the six Alberto comics are interrelated.¹⁶

Additionally, some of the comics which were denied to Lyon, such as the Primal Man? comic, do not contain any mention of the Catholic church, or anti-Catholic messages. Instead, the Primal Man? condemns the Hollywood film industry for making movies which promote the theory of evolution, rather than the creation theory. The plot of this religious comic book does not contain the type of polemic material which likely to cause disruption within ISP.

Paul Hedgepeth, Deputy Warden at ISP since 1972, testified that there has never been a problem at ISP with anti-Catholic sentiment among inmates creating a disciplinary or security problem. John Sissel, Deputy Warden of the Iowa Mens Reformatory at Anamosa, Iowa since 1972, testified he was unaware of any disciplinary or security problems at either ISP or Anamosa resulting from religious criticism of one inmate to another. The record is totally devoid of any evidence that religious criticism or religious discussions by inmates have ever created a disciplinary or security problem in any Iowa correctional facility. The court, as an ultimate finding of fact, specifically finds that none of the religious comic books by Chick Publications denied to Lyon are likely to cause disruptions within ISP if disseminated to inmates of that correctional facility.¹⁷

III. CONCLUSIONS OF LAW

A. Introduction

1. The Court's Role in Adjudicating Prisoner Constitutional Claims and the Proper Deference to be Given Prison Officials.

While inmates lose many valued freedoms upon incarceration, they retain at least some of their constitutional rights during confinement. Therefore, at a minimum, prisoners are to be accorded behind the prison gate those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objects of incarceration. Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987); Hudson v. Palmer, 468 U.S. 517, 523, 104...