McNamara v. Moody

• Decision Date: 15 November 1979
• Docket Number: No. 77-2466,77-2466
• Citation: 606 F.2d 621
• Parties: John P. McNAMARA, Plaintiff-Appellee, v. J. C. MOODY, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 621

606 F.2d 621

John P. McNAMARA, Plaintiff-Appellee, v. J. C. MOODY, etc., Defendant-Appellant.

No. 77-2466.

United States Court of Appeals,

Fifth Circuit.

Nov. 15, 1979.

Anthony J. Golden, Benedict Paul Kuehne, Asst. Attys. Gen., West Palm Beach, Fla., for defendant-appellant.

Hubert R. Lindsey, West Palm Beach, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Circuit Judge, SKELTON ^* , Senior Judge, and RUBIN, Circuit Judge.

GODBOLD, Circuit Judge:

Appellee is a prisoner in the Glades Correctional Institution at Belle Glade, Florida. He brought suit against two officials of that institution alleging that they had wrongfully prevented him from mailing certain letters. The district court found that appellant Moody, assistant superintendent of Glades, had violated McNamara's constitutional rights by refusing to mail a letter to his girlfriend. ¹ This two- page letter dealt in large part with McNamara's discontent with the prison mail censorship system, but it also charged that the mail censoring officer, while reading mail, engaged in masturbation and "had sex" with a cat. Moody found the part of the letter referring to the mail censoring officer to be "in poor taste" and returned it to McNamara with a warning that any future attempts to send similar letters would lead to disciplinary action. ² The district court granted the prisoner injunctive relief, nominal damages against appellant individually, and attorney's fees.

The law in this area has been well settled since the Supreme Court's decision in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). There the Court recognized that letters between inmates and individuals on the outside involve the First Amendment rights of the outside correspondents as well as those of the prisoners. ³ These rights are equally implicated regardless of whether the outsider is the sender or recipient.416 U.S. at 408-09, 94 S.Ct. at 1808, 1809, 40 L.Ed.2d at 237. The Court therefore set forth a rule that strictly limits prison censorship of such correspondence:

(C)ensorship of prisoner mail is justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad.

416 U.S. at 413-14, 94 S.Ct. at 1811, 40 L.Ed.2d at 240.

Appellant makes three attempts at identifying the required "substantial governmental interest." The first is his contention that to allow letters like this would result in "a total breakdown in prison security and discipline." This is similar to the contentions made by prison officials in Martinez and found unpersuasive by the Supreme Court. There it was claimed that mail containing "disrespectful comments" or "derogatory remarks", or statements that "magnify grievances" or "unduly complain" could be censored "as a precaution against flash riots and in the furtherance of inmate rehabilitation." 416 U.S. at 415-16, 94 S.Ct. at 1812, 40 L.Ed.2d at 241. The Court found this an inadequate justification, since the officials did not give any indication of what causal relationships there could be between such mail and these results. No one wants to be the target of insulting remarks like those in McNamara's letter. But coarse and offensive remarks are not inherently breaches of discipline and security, nor is there any showing that they will necessarily lead to the breaking down of security or discipline. As we have recognized, "Martinez . . . emphatically states that mere complaints and disrespectful comments cannot be grounds for refusing to send or deliver a letter." Guajardo v. Estelle, 580 F.2d 748, 757 (CA5, 1978). Censorship for violation of prison disciplinary rules is properly limited to communications that relate to more concrete violations such as "escape plans, plans for disruption of the prison system or work routine, or plans for the importation of contraband." Id.; ⁴ See Martinez, 416 U.S. at 413, 94 S.Ct. at 1811, 40 L.Ed.2d at 240. Appellant argues that if insults such as this were made orally to prison guards, face to face, they would be punishable as breaches of discipline. This may be so; we need not decide it. These remarks were in writing and were directed to the inmate's girlfriend, not the prison staff.

Appellant contends that the letter "could also be considered obscene." Vulgar it is; obscene it is not. The Supreme Court, faced with a similar situation in Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), ⁵ reminded that:

Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. . . . It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone . . .

403 U.S. at 20, 91 S.Ct. at 1785, 29 L.Ed.2d at 291. Judged by this standard, the inmate's letter in this case is not obscene. We have held that there may be some prison censorship of sexually explicit materials that fall short of obscenity. Guajardo, 580 F.2d at 757. But under Martinez there must still be some connection to a governmental interest. In Guajardo that interest was the prohibition of materials that might exacerbate a prison problem of sexual attacks. Id. at 762. No such interest is implicated by the mailing of non-erotic vulgarities from a prisoner to a person on the outside.

Finally, appellant argues that the letter was libelous. Even if it is libelous, Martinez indicates that letters may not be suppressed simply because they are "defamatory". 416 U.S. at 415-16, 94 S.Ct. at 1812, 40 L.Ed.2d at 224. Here again there must be some relation to a substantial governmental interest, and the appellant has advanced no such interest here. If the warden's purpose is to prevent strongly worded and exaggerated criticism of prison officials from reaching the public, this is precisely the sort of purpose ruled impermissible by Martinez.

The district court awarded nominal damages of one dollar against appellant individually. All the court said in support of the award is that despite lack of actual damages, "nominal damages may be presumed when constitutionally protected rights are violated," Citing Sexton v. Gibbs, 327 F.Supp. 134, 142 (N.D.Tex.1970), Aff'd 446 F.2d 904 (CA5, 1971), Cert. denied, 404 U.S. 1062, 92 S.Ct. 733, 30 L.Ed.2d 751 (1972). Appellant contends that he is immune from an award of damages because of his good faith. Although the district court did not address this issue in its order, we find no error with the award of damages.

The Supreme Court has recognized that while 42 U.S.C. § 1983 exposes state and local officials to individual liability for damages under some circumstances, Congress did not intend by enacting that section to strip such officials of immunity afforded them at common law. Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24, 30 (1978). Some officials, such as judges, prosecutors, and legislators, are absolutely immune. Id. Most other officials have a qualified immunity for acts performed with a good faith belief, based on reasonable grounds, of their legality. Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90, 103 (1974). This immunity varies according to the scope of the official's discretion and responsibility. ⁶ Id. Procunier v. Navarette, supra, establishes that it is this qualified immunity, as developed in Scheuer v. Rhodes and Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), that applies to state prison officials. 434 U.S. at 561-62, 98 S.Ct. at 859-860, 55 L.Ed.2d at 30-31. We recently discussed the application of this test to prison officials:

Wood v. Strickland clarified the Scheuer defense by establishing a dual test for measuring the existence of qualified immunity which requires both an objective and a subjective measurement of official conduct. Under the objective test of Wood, an official, even if he is acting in the sincere subjective belief that he is doing right, loses his cloak of qualified immunity if his actions contravene "settled, indisputable law." Thus, an official is liable under section 1983 "if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights" of the person affected. The fulcrum of this objective first half of Wood is the existence, at the time of the official's action, of clearly established judicial decisions that make his action unconstitutional. An official is not "charged with predicting the future course of constitutional law." Navarette brought the objective part of the Wood formulation forward without alteration . . . .

Bogard v. Cook, 586 F.2d 399, 411 (CA5, 1978) (citations omitted). ⁷

Under these principles, the evidence before the trial judge justified an award of damages against appellant. He made the decision not to allow the letter to be mailed and signed the note to the prisoner telling him that it was "in poor taste." For the reasons discussed above, suppression of the letter is clearly proscribed by the First Amendment. While...