Rios v. Lane

• Decision Date: 13 February 1987
• Docket Number: No. 85-3205,85-3205
• Citation: 812 F.2d 1032
• Parties: Victor RIOS, Plaintiff-Appellant, v. Michael P. LANE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1032

812 F.2d 1032

Victor RIOS, Plaintiff-Appellant, v. Michael P. LANE, et al., Defendants-Appellees.

No. 85-3205.

United States Court of Appeals Seventh Circuit.

Argued Sept. 25, 1986.

Decided Feb. 13, 1987.

Gregory L. Padgett, Kirkland & Ellis, Chicago, Ill., for plaintiff-appellant.

Rita M. Novak, Illinois Atty. Gen. Office, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

BAUER, Chief Judge.

The issues presented for review on this appeal center upon the first and fourteenth amendment rights of those incarcerated in this country's prisons. Victor Rios ("Rios") the plaintiff-appellant, filed a civil rights action against defendants-appellees Douglas Wombacher ("Wombacher"), Judson Childs ("Childs"), James Thieret ("Thieret"), Salvador Godinez ("Godinez"), Richard DeRobertis ("DeRobertis"), and Michael Lane ("Lane") concerning an incident which occurred while Rios was an inmate at Graham Correctional Center ("Graham"). Rios alleged, inter alia, that the defendants violated 42 U.S.C. Sec. 1983 by depriving him of his first amendment right to free speech and his fourteenth amendment due process rights. The district court granted the defendants' motion for summary judgment which Rios now appeals. We reverse the order of the district court for the reasons set forth below.

I.

Victor Rios is an Hispanic American formerly imprisoned at Graham Correctional Center in Illinois. While in Graham on February 4, 1983, Rios became acquainted with fellow inmate Adolfo Matos. Matos had recently been transferred to Graham and asked Rios for information concerning Spanish radio programs that could be received at the prison. Subsequently, on February 18, 1983, Rios encountered Matos in the Graham dining area during breakfast. Rios handed Matos a 3"' X 5"' note card containing the following message:

HASTA LA VICTORIA SIEMPRE ["Until the victory forever"]. Radio Venceremos from El Salvador's FMLN transmits on two frequencies near 700kHz. Because of the condition under which they are working, the signal is not nearly as strong as that of major international broadcasters, making reception on an inexpensive set difficult. Since last March, the transmissions have been jammed frequently. Press reports indicate the jamming is coming from U.S. warships stationed in the Gulf of Fonesca. Due to the jamming, Radio Venceremos changes frequencies often. In recent weeks it has been on 6.952. The best reception is at night. Nicaragua vencio, Guatemala vencera, El Salvador la sequira! ["Nicaragua won, Guatemala will win, El Salvador will follow"!]

The other side of the card contained a list of four Spanish radio stations with a schedule of broadcast times and frequencies, including: Radio Havana, Voice of Nicaragua, Radio Free Grenada and Radio Venceremos. Also listed was the slogan, "Viva Puerto Libre Y Sociolista!" ["Long live Puerto [Rico] free and socialist!"].

Defendant Wombacher, a Correctional Captain at Graham who was responsible for monitoring inmates during breakfast, witnessed Rios hand Matos the card. Though Wombacher examined the card in the dining room, he was unable to understand its contents and returned it to Matos. Sometime later, Wombacher confiscated the card from Matos and had its Spanish slogans translated to English. After meeting with defendant Childs, the Chief of Security, and defendant Thieret, the Warden of Graham, Wombacher issued an Inmate Disciplinary Report ("IDR") against Rios.

The IDR was issued against Rios for engaging in gang activity in violation of Administration Regulation 804, Rule 205. Rule 205 defines "Gang Activity" as "engaging or pressuring others to engage in gang activities or meetings, displaying, wearing or using gang insignia, or giving gang signals." Wombacher reported that the IDR was issued because he believed that Rios' action constituted "an attempt by Inmate Rios to encourage others to participate in organized gang activities."

In a memorandum addressed to Deputy Director Meyer, Warden Thieret's immediate supervisor, Thieret explained the rationale for issuing an IDR against Rios:

As a result of the information on this paper, the fact that Inmate Matos is a self-confessed member of the FALN, an Inmate Disciplinary Report was issued to Inmate Rios citing Administrative Regulation 804, rule violation # 205, "Gang Activity." The rationale for this ticket was the connection or possible connection between the FALN and the FMLN, and what was our opinion that Inmate Rios was providing Inmate Matos with organizational material which could be utilized in the recruitment of additional members into the FALN from the Graham Correctional Center population.

At his disciplinary hearing before the Adjustment Committee, Rios told the investigator that the card merely contained a schedule of Spanish-speaking stations, information which he had obtained from a magazine called The Militant, a socialist newspaper which had been approved by the Graham administration for Rios to receive. Rios also explained that the FMLN was not affiliated with the FALN and that the "Viva Puerto Rico" slogan was not an FALN slogan, but the slogan of a legitimate political party in Puerto Rico. Rios requested the Adjustment Committee to verify the radio stations. Additionally, he noted that the term "FALN" did not appear on the card. Based on the evidence before it, the Committee found that Rios violated Rule 205. Rios was demoted and transferred to Stateville prison, a maximum security institution. Thieret approved the Committee's finding of guilt and the punishment it imposed.

After his transfer, Rios appealed the decision of the Adjustment Committee to the Illinois Department of Correction's ("IDOC") Administrative Review Board. Rios was interviewed by the Board and told them that the card contained radio frequencies that "he had given to the other inmates who had inquired about the availability of Spanish music and news." He further stated that he was not an FALN member. The Board also considered the disciplinary report of Wombacher and the record of proceedings before the Adjustment Committee, as well as Rios' history at Graham which included four minor disciplinary reports during his 20-month stay. Based upon all the evidence, the Board recommended that the disciplinary report be upheld. The Board stated, "After reviewing the information that has been provided, the Panel is of the opinion that the list of radio frequencies and broadcasts as listed on the documentation constitute gang activity." Defendant Lane, the Director of the Department of Corrections, approved the Board's recommendation.

Rios subsequently made three requests for a transfer from Stateville which were denied. The rationale for the denials was Rios' recent failure to adjust at the medium security facility, Graham. Defendant Godinez, the Assistant Warden of Programs at Stateville, was the chairperson of one of the committees which denied Rios' request. Defendant DeRobertis was the Warden of Stateville and approved each of the denials.

Ultimately, Rios filed a five count complaint in federal district court. Upon the defendants' motion for summary judgment, Judge McGarr dismissed the plaintiff's action in its entirety, a decision from which Rios now seeks our review. Initially, Rios challenges his punishment for communicating the aforementioned information as a violation of his first amendment right of free speech. Next, Rios contends that the "gang rule" pursuant to which he was punished is overbroad and vague and thus failed to adequately notify him of prohibited conduct in violation of his fourteenth amendment right to due process. Finally, the defendants maintain that even if Rios' first and fourteenth amendment rights were violated, they are entitled to qualified immunity because they acted reasonably in an area of law which was not well settled.

II.

As is almost universally recognized, a prisoner is not stripped of all first amendment rights incident to internment. Rather, he "retains those first amendment rights that are not inconsistent with his status as a prisoner or with legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); see also Bell v. Wolfish, 441 U.S. 520, 544, 99 S.Ct. 1861, 1876, 60 L.Ed.2d 447 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977); French v. Heyne, 547 F.2d 994, 1000 (7th Cir.1976); but see Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir.1986) (questioning whether inmates retain any first amendment rights). At issue here is whether Rios retained the right to express the aforementioned information in the context of his prison environment.

In approaching this inquiry we believe that the intermediate scrutiny standard expressed in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) controls. We reject the government's assertions that the more permissive "reasonableness" standard applied in Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), is the appropriate criterion for judging the defendants' conduct.

As has been noted frequently, Jones involved inmates' associational rights and by its own terms only "barely implicated" the "free speech guarantees of the First Amendment." Id. at 130, 97 S.Ct. at 2540. See, e.g., Safley v. Turner, 777 F.2d 1307, 1311 (8th Cir.1985); Abdul Wali v. Coughlin, 754 F.2d 1015, 1031 (2d Cir.1985); Trapnell v. Riggsby, 622 F.2d 290, 293 (7th Cir.1980). In Jones, the court indicated that it is a prisoner's associational rights which are most severely and necessarily limited by the realities of confinement. Jones, 433 U.S. at 125-26, 97 S.Ct. at 2537-38. Thus, the Court concluded that prison officials could properly forbid inmate-to-inmate solicitation for...