Sizemore v. Williford

• Decision Date: 14 September 1987
• Docket Number: No. 85-3243,85-3243
• Citation: 829 F.2d 608
• Parties: Michael D. SIZEMORE, Plaintiff-Appellant, v. Jerry WILLIFORD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 608

829 F.2d 608

Michael D. SIZEMORE, Plaintiff-Appellant, v. Jerry WILLIFORD, et al., Defendants-Appellees.

No. 85-3243.

United States Court of Appeals Seventh Circuit.

Argued June 11, 1987.

Decided Sept. 14, 1987.

Robert E. Shapiro, Barack, Ferrazzano, Kirschbaum & Perman, Chicago, Ill., for plaintiff-appellant.

Laura J. Jones, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for defendants-appellees.

Before WOOD, CUDAHY, and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff-appellant, Michael Sizemore, appeals from the district court's dismissal of his suit against various officials and officers at the federal prison in Marion, Illinois. Sizemore, an inmate at Marion, alleges that defendants violated his First and Fourteenth Amendment rights by arbitrarily denying him access to certain published materials. We reverse and remand for further proceedings.

I.

While incarcerated at Marion, Sizemore has subscribed to a variety of publications, including sports and entertainment periodicals and at least one daily newspaper. Sizemore receives some of these publications directly at Marion and others are forwarded to him by his brother. Sizemore alleges that, as early as 1984, defendants commenced their interference with his regular and timely receipt of the above-described periodicals. Specifically, defendants are charged with consistently delivering Sizemore's copies of the Cincinnati Enquirer days late, in groups of three or more and seldom in sequential order. At other times, Sizemore alleges that he receives only two or three copies of the Enquirer per week and often receives no newspaper at all. A similar pattern of interference with Sizemore's receipt of magazines, whether obtained directly from the publisher or in packages forwarded by his family, is alleged. Sizemore's complaint charges corrections officers with withholding his publications for their own perusal. At any rate, despite several verbal and written complaints to Marion employees concerning these incidents, including a written request for administrative action to Marion's warden, the sporadic and interrupted delivery of Sizemore's newspapers and other reading materials continued unabated.

Rather than continue pursuing administrative redress, Sizemore filed a pro se complaint in the district court which the court, in turn, assigned to a magistrate. The magistrate initially denied Sizemore's request for the appointment of counsel and subsequently granted defendants' motion to dismiss. In his two-page report and recommendation, the magistrate construed Sizemore's suit as one for a tortious deprivation of property for which an adequate post-deprivation remedy existed and, accordingly, under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), concluded that Sizemore's allegations failed to state a due process violation. In timely objecting to the magistrate's report, Sizemore claimed, inter alia, that the magistrate "failed to consider the allegations in [his] ... complaint" and that Parratt involved negligent deprivations of property not intentional deprivations as were alleged by his cause of action. The district court addressed what it felt was Sizemore's "main objection" to the magistrate's report, that Parratt did not speak to intentional torts, by reference to Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (due process afforded by state post-deprivation remedies even in case of intentional tort), and then similarly concluded that Sizemore's claim did not constitute a due process violation. The magistrate's report was adopted on December 13, 1985 and the case dismissed.

II.

On appeal, Sizemore, now represented by appointed counsel, claims that the district court erred in failing to construe his complaint as alleging substantive constitutional violations. Specifically, Sizemore asserts that if liberally construed in accordance with the Supreme Court's decision in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) his pro se complaint set forth sufficient facts to state a claim under the First and Fourteenth Amendments and, therefore, dismissal of his suit upon a motion to dismiss was improper. In Haines, the Supreme Court held that pro se complaints should be held to less stringent standards than pleadings drafted by lawyers. That pro se complaints are generally to be liberally construed has been and continues to be the well-settled law of this circuit. See Caldwell v. Miller, 790 F.2d 589, 595-96 (7th Cir.1986). Thus, our primary inquiry in this case centers on the question whether the district court erred by narrowly considering Sizemore's complaint as nothing more than a procedural due process claim instead of also as a claim alleging substantive violations of the First and Fourteenth Amendments.

In attempting to determine whether the district court acted prematurely in dismissing Sizemore's suit for failure to state a claim, we must first consider whether Sizemore's allegations, in fact, implicate any of his constitutional rights. With respect to the First Amendment rights of prisoners, the Supreme Court has held, "[a] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Moreover, this circuit has held that in the absence of restrictions premised upon the legitimate goals and objectives of institutional confinement, prison inmates retain their First Amendment right to receive and to read newspapers and periodicals. See Kincaid v. Rush, 670 F.2d 737, 744-45 (7th Cir.1982). When viewed in this context, we are satisfied that, for purposes of overcoming a motion to dismiss for failure to state a claim, Sizemore's complaint, to the extent that he alleges that copies of his Cincinnati Enquirer were permanently withheld and intentionally never delivered by defendants, does implicate his substantive rights as guaranteed by the First Amendment. We are not here dealing with allegations that prison officials negligently misplaced a hobby kit, see, e.g., Parratt, or wrongfully confiscated a copy of War and Peace; instead, Sizemore's complaint alleges that his right to receive news and information from a privately obtained source has been seriously abridged without corresponding justification by defendants. ¹

In holding as we do, we want to emphasize that merely alleging an isolated delay or some other relatively short-term, non content-based disruption in the delivery of inmate reading materials will not support, even as against a motion to dismiss, a cause of action grounded upon the First Amendment. Defendants caution in their brief that if the district court's dismissal of Sizemore's complaint is reversed, courts will be inundated with prisoner suits each time a...