Owen v. Wille, 95-4909

• Decision Date: 24 July 1997
• Docket Number: No. 95-4909,95-4909
• Parties: 11 Fla. L. Weekly Fed. C 197 Duane Eugene OWEN, Plaintiff-Appellant, v. Richard P. WILLE, Sheriff, Defendant, and Steve Lasley, Director, Robert Kerr, Major, Captain Jackson, Mr., C. Kneisley, Lieutenant, Davis, Supervisor, Palm Beach County Detention Facility, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1235

117 F.3d 1235

11 Fla. L. Weekly Fed. C 197

Duane Eugene OWEN, Plaintiff-Appellant, v. Richard P. WILLE, Sheriff, Defendant, and Steve Lasley, Director, Robert Kerr, Major, Captain Jackson, Mr., C. Kneisley, Lieutenant, Davis, Supervisor,

Palm Beach County Detention Facility,

Defendants-Appellees.

No. 95-4909.

United States Court of Appeals, Eleventh Circuit.

July 24, 1997.

Kathleen Williams, Federal Public Defender, Bernardo Lopez, Asst. Federal Public Defender, Miami, FL, for appellant.

Kathryn L. Tignor, Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, FL, for Appellees.

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

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.

BARKETT, Circuit Judge.

Duane Owen appeals from an adverse summary judgment on his 42 U.S.C. § 1983 claim in which he alleges that the defendants, officials at the Palm Beach County Detention Facility, unconstitutionally deprived him of access to various publications. ¹ After receiving no relief from internal appeals, Owen filed the § 1983 suit now before us, claiming that the deprivation of his publications violated his First Amendment rights. The district court granted summary judgment in favor of the defendants, holding that the procedures used by the prison officials to screen Owen's mail did not violate the Constitution. Owen appeals. Because Owen has failed to show that there is a material issue to be tried, we affirm the summary judgment.

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). If the moving party carries this burden, "Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c), (e)). However, "[w]e do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.... Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred." Id. at 324, 106 S.Ct. at 2553. In this case, Owen filed a complaint alleging that he was denied access to his publications because they contained nude photos. The defendants moved for summary judgment, asserting that they banned the sexually explicit material for legitimate penological reasons, and that they provided a mechanism for internally reviewing any decisions prohibiting a prisoner from receiving a specific publication, thereby complying with the dictates of the Constitution. They supported their assertion with a sworn affidavit from defendant Steven Lasley, the Palm Beach County Director of Corrections.

The affidavit, along with sworn attached exhibits, reflected that all incoming mail for prisoners was subjected to three tiers of review before being prohibited. If an initial reviewer determined that an item of mail should be prohibited, the item would be forwarded to a supervisor to perform an independent review. If the supervisor agreed that the item of mail should be prohibited, it was then forwarded to a more senior supervisor for a final review. If the final reviewer agreed that the item should be prohibited, a notice was sent to the prisoner stating that the mail had been received and was being held with the prisoner's property, pending release from the correctional facility. Furthermore, prisoners dissatisfied with the prohibition of certain items could file an internal grievance, which itself provided for three levels of review.

Discussion

It is well established that prisoners retain First Amendment rights. As the Supreme Court has emphasized, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989) (quoting Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987)). However, the Court has also recognized that "these rights must be exercised with due regard for the 'inordinately difficult undertaking' that is modern prison administration." Thornburgh, 490 U.S. at 407, 109 S.Ct. at 1878 (quoting Turner, 482 U.S. at 85, 107 S.Ct. at 2259-60).

In Thornburgh, the Supreme Court held that "regulations affecting the sending of a 'publication' ... to a prisoner must be analyzed under the Turner reasonableness standard. Such regulations are 'valid if [they are] reasonably related to legitimate penological interests.' " Thornburgh, 490 U.S. at 413, 109 S.Ct. at 1881 (quoting Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62) (bracketed text in Thornburgh ). The Supreme Court then enunciated the factors that inform this reasonableness inquiry: (1) whether the governmental objective underlying the regulations at issue is legitimate and neutral, and whether the regulations are...