Nichols v. Nix

• Decision Date: 11 January 1993
• Docket Number: No. 4-90-CV-30316.,4-90-CV-30316.
• Citation: 810 F. Supp. 1448
• Parties: Tracy NICHOLS, Plaintiff, v. Crispus C. NIX and Darrold Dressler, Defendants.
• Court: U.S. District Court — Southern District of Iowa

810 F. Supp. 1448

Tracy NICHOLS, Plaintiff, v. Crispus C. NIX and Darrold Dressler, Defendants.

No. 4-90-CV-30316.

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

January 11, 1993.

John C. Barrett, Barrett Law Offices, Des Moines, Iowa, for plaintiff.

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

MEMORANDUM OPINION AND ORDER

BENNETT, United States Magistrate Judge.

Plaintiff Tracy Allen Nichols is an inmate at the Iowa State Penitentiary at Fort Madison, Iowa ("ISP"). Nichols asserts that his First Amendment rights under the United States Constitution were violated by the Defendants, Crispus C. Nix and Darrold Dressler, the warden and the mailroom clerk at ISP, by denying him three publications from the Church of Jesus Christ Christian ("CJCC"). The publications were denied based upon administrative regulations providing that an inmate may be denied publications that are "likely to be disruptive or produce violence." Nichols challenges the constitutionality of the regulations, both facially and as applied, as well as ISP's total ban on receiving publications from CJCC regardless of their content.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

Nichols filed this 42 U.S.C. § 1983 action pro se on June 12, 1990. He sought injunctive relief and compensatory and punitive damages. This case was initially referred to United States Magistrate Judge Longstaff¹ for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on March 5, 1991. On December 16, 1991, Judge Longstaff referred this case to the undersigned. On April 23, 1992, the parties, pursuant to 28 U.S.C. § 636(c), consented to trial of this matter before an United States Magistrate Judge.

Experienced civil rights counsel was appointed to represent Nichols. The trial was held on July 7, 1992, at ISP. Nichols was present and represented by John C. Barrett. Dressler was present and represented by William A. Hill, Assistant Attorney General for the State of Iowa. This matter is now fully submitted.²

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).

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 Administrative 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 Hedgepath, the Deputy Warden at ISP in Fort 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 and is referred to as the denied publications list. An approved publications list is also maintained at ISP.⁴ 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 Administrative Code r. 291-20.6(7) (1989).⁵

B. Facts Relating to the Parties

1. Nichols

In early 1990, Nichols, an inmate at ISP, was shown three pamphlets from the CJCC by another inmate, Terry Bodewine. Inmate Bodewine resided in the cell next to Nichols in cellhouse 319. Bodewine loaned Nichols the three pamphlets from the CJCC and Nichols reviewed them for several days. Bodewine received these three pamphlets by mail from the CJCC while he was an inmate at ISP.⁶ For reasons unexplained in the record, Bodewine apparently had no difficulty obtaining these publications.

Nichols found the information contained in the publications interesting and wrote to the CJCC for copies. Nichols is not, nor has he ever been, a member or follower of the CJCC.⁷ Nichols professes to not be the follower of any specific religious faith or sect. Rather, Nichols' interest in religion has led him to look into such varied religions as Catholicism, Islam, born-again christian, and Wicca. The CJCC is the latest religion Nichols has investigated. Nichols' exploration of these various religions has been motivated by a sincere spiritual quest or as he testified "soul searching."

2. The CJCC

The CJCC, which has been in existence since 1946, is based in Hayden Lake, Idaho. The current head of the CJCC is Dr. Richard G. Butler. Dr. Butler testified there are approximately 50,000 to 55,000 followers of the CJCC. The CJCC advocates separation of the races, and African-Americans are not permitted to be members of the church. If an inmate writes to the CJCC for information, the inmate will be provided with the first installment the Correspondence Bible Course, which teaches the tenets of the CJCC religion. The entire bible study course has been completed by 740 inmates, and approximately 2,000 to 3,000 others have taken part of the course. No known acts of violence have resulted from the CJCC's dissemination of this material to inmates. Dr. Butler, on behalf of the CJCC, has visited and conducted services in several prisons throughout the United States. There is no evidence in the record of acts of violence resulting from Dr. Butler's activities in prisons throughout the United States. Moreover, the record is also silent with regard to any security problems raised by the CJCC's dissemination of its publications to inmates.

3. The Rejection of the CJCC Publications

Nichols received a notice of rejection from the mailroom at ISP approximately eight to ten weeks after ordering the pamphlets from the CJCC. The rejection notice was signed by Defendant Dressler, the mail clerk at ISP. The rejection notice indicates that Nichols was denied the publications on March 28, 1990. The rejection notice indicated the reason for the rejection of the materials was that they had been disapproved by the Committee.⁸ Defendant ISP Warden Crispus C. Nix had no direct personal involvement in the denial of the three CJCC publications to Nichols.⁹

4. The CJCC Publications

The three publications which were rejected by Dressler (on March 28, 1990) and the Committee (on June 27, 1990) are America Needs the Divine Law, Who What Why When Where? Aryan Nations and Correspondence Bible Course. Who What Why When? Aryan Nations is a two-page pamphlet published by the CJCC and contains a one-half page biography of the Aryan Nations. The remainder of the pamphlet relates the tenets of the CJCC: That Adam was the origin of the white race, and that the children of the Bible are the twelve tribes of Israel and their progeny. The pamphlet also asserts that Yahweh (God) created separate races and that each of these races has a specific place in Yahweh's hierarchical order, with whites or Aryans being at the top. It states that "the Canaanite Jew is the natural enemy of our Aryan (White) Race," that there is an ongoing battle between Jews and Aryans, and that Aryans must preserve their own race. The publication does not encourage, support or condone violence toward any racial, religious or ethnic groups. Indeed, the pamphlet does not advocate any specific action.

America Needs the Divine Law is a thirty-eight page pamphlet written by Dr. J. Franklin Snoek, with a one-page introduction by Pastor Sheldon Emry. The central theme is that the Bible provides national instructions or "Divine instructions." The Ten Commandments form the basis for this divine law; "they are the plan and formula for the government of the nation and the conduct of the citizens." American Needs the Divine Law at 7. The article begins by discussing the notion that statements in the Old Testament have been mistranslated. Specifically, it argues that the term "law" as used in the King James version of the Bible is a mistranslation of a Hebrew term which means both law and ritual. The point being made by the publication is that the law described in Old Testament was not abolished by the teachings in the New Testament. Instead, only certain rituals described in the Old Testament were abolished by the New Testament.

The article then shifts to a discussion of what it terms "national problems." First, the article asserts that permitting slavery was one of three errors in the constitution. It states that legal barriers to "race mixing" have been struck down, and that this nation's leaders "are FORCING the mixing of the races. Race mixing is unnatural and is a violation of Divine law. It always results in crime and violence — not just in our time, but from the very beginning." Id. at 14. The publication then argues that the United States should negotiate with African nations in order to accomplish "the return of the Negroes to Africa." Id. It argues that the United States could direct foreign aid to those countries to aid them in the transition. The article then goes on to discuss at length usury and the banking industry in the United States, followed by critical discussions of taxes, monopolies, farming practices, criminal law, defense, health and foreign policy. It concludes by reenforcing the central theme of the publication, that if the divine law were followed in the United States, the county's woes would be eradicated. This publication does not encourage, support or condone acts of violence towards any racial, religious or ethnic groups.

The third publication which was rejected by the Committee is the fifty-seven page first installment of the American Institute of Theology Bible Study Course. It contains the first four lessons in the course. The first lesson is composed of six chapters. The first chapter is entitled "The Bible; How it Came to Us." This chapter commences by emphasizing that the Bible is the word of God. It notes how the Bible has been translated from Hebrew to Greek, then from Greek to...