Ward v. Washtenaw County Sheriff's Dept.

• Decision Date: 01 August 1989
• Docket Number: No. 88-1886,88-1886
• Citation: 881 F.2d 325
• Parties: Michael Charles WARD, Plaintiff-Appellant, v. WASHTENAW COUNTY SHERIFF'S DEPARTMENT and Thomas Minick, Sheriff, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 325

881 F.2d 325

Michael Charles WARD, Plaintiff-Appellant, v. WASHTENAW COUNTY SHERIFF'S DEPARTMENT and Thomas Minick, Sheriff, Defendants-Appellees.

No. 88-1886.

United States Court of Appeals, Sixth Circuit.

Submitted on Briefs June 16, 1989.

Decided Aug. 1, 1989.

Charles H. Polzin, Clay D. Creps, Hill, Lewis, Adams, Goodrich & Tait, Birmingham, Mich., for plaintiff-appellant.

Robert E. Guenzel, Miriam E. Meier, Harris, Lax, Guenzel & Dew, Ann Arbor, Mich., for defendants-appellees.

Before KENNEDY, GUY and NORRIS, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Plaintiff, Michael Charles Ward, a former inmate in the Washtenaw County Jail, filed a pro se complaint seeking damages and injunctive relief under 42 U.S.C. Sec. 1983. Plaintiff alleged that defendants unconstitutionally denied him "access to all publications legally available to the general public." The district court granted the defendants' summary judgment motion and, upon appeal, a panel of this court remanded the case to determine whether plaintiff could prevail on a due process claim based on an entitlement created by state law. On remand, the district court again granted summary judgment for defendants, and plaintiff appeals. For the following reasons, we affirm the district court's decisions that plaintiff does not have a statutorily created entitlement to the publications at issue and that defendants' regulation limiting plaintiff to receipt of magazines from publishers only did not unconstitutionally violate plaintiff's first amendment rights.

I.

Plaintiff, while a pretrial detainee at the Ingham County Jail, purchased magazines such as "Playboy," "Penthouse," and "Oui" from the jail commissary. Upon plaintiff's subsequent transfer to the Washtenaw County Jail, his magazines were confiscated and not returned to him during his stay at the facility. The Washtenaw County Jail officials also would not allow plaintiff to receive magazines that his brother brought to him while visiting plaintiff at the jail. Plaintiff was incarcerated at the Washtenaw County Jail from approximately March of 1979 until May of 1981, at which time he was transferred to a Federal Correctional Institution in Oklahoma. ¹ Plaintiff had filed his suit in March of 1981, seeking both injunctive relief and damages for a denial of "access to all publications legally available to the general public." Defendants answered that they acted pursuant to their policies and procedures which permitted inmates to receive newspapers, magazines, and books from publishers or book clubs only (hereinafter referred to as "publishers only" rule).

In October 1982, the district court granted defendants' motion for summary judgment on the basis that plaintiff's claim for injunctive relief was rendered moot by his transfer to another facility, and that Washtenaw County's "publishers only" rule was valid in light of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Plaintiff then appealed, and a panel of this court raised the issue of whether plaintiff could prevail on a due process claim based on an entitlement created by state law specifically within the Michigan Administrative Code. This court then remanded the case for further consideration in light of the then recent decision of Spruytte v. Walters, 753 F.2d 498 (6th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 788, 88 L.Ed.2d 767 (1986), and declined at that time to address all other issues in the case, "particularly the First Amendment issues." Ward v. Washtenaw County Sheriff's Dept., 782 F.2d 1044 (6th Cir.1985).

On remand, the district court determined that the Michigan Administrative Code sections at issue apply to state penal institutions, and not to county jails. A separate set of regulatory schemes applies to county jails, and gives the local administrator authority to develop policies and procedures. Therefore, the district court held, defendants could promulgate the policy establishing a "publishers only" rule in the jail. The court then concluded that summary judgment had been properly granted in defendants' favor, and granted defendants' renewed motion for summary judgment.

II.

Plaintiff's first claim on appeal is that the district court erred in holding that the Michigan administrative rules at issue in Spruytte do not apply to the Washtenaw County Jail. Spruytte involved a state prison inmate who brought a 42 U.S.C. Sec. 1983 action against prison officials who prohibited Spruytte from receiving a paperback dictionary from his mother. 753 F.2d at 501. Spruytte claimed that the officials' refusal to give him the dictionary was based on a prison policy which was invalid under Michigan law. Id. Michigan's Administrative Code rule 791.6603(3) states in relevant part: "A resident may receive any book, periodical, or other publication which does not present a threat to the order or security of the institution or to resident rehabilitation." The Spruytte court concluded that the inmate was entitled to receive the dictionary as a matter of state law, and that this state-law entitlement rose to the level of a federally protected property interest. ² 753 F.2d at 508.

The question in the case at bar, both on remand and on appeal, is whether rule 791.6603(3) applies to the Washtenaw County Jail. Michigan has established a complex scheme of regulatory authority over its prison system. The Department of Corrections, which is administered by the Commission of Corrections, has complete jurisdiction over Michigan's penal institutions. See Mich.Comp.Laws Ann. Secs. 791.204 and 791.206. (West Supp.1989). The Department of Corrections also has authority to supervise and inspect local jails, and to promulgate rules and standards pertaining to the administration of the institution. Mich.Comp.Laws Ann. Sec. 791.262 (West Supp.1989). The promulgated administrative rules are divided into two sections. One section applies to facilities maintained by the Department of Corrections which are Michigan's state penal institutions. See Mich.Admin.Code r. 791.1101-791.10001. The second section applies to facilities operated by local units of government. See Mich.Admin.Code r. 791.501-791.665. A "local unit of government" is defined as including any county. Mich.Comp.Laws Ann. Sec. 791.262(1)(d) (West Supp.1989).

The administrative rule at issue in Spruytte, rule 791.6603(3), falls within the section pertaining to state institutions. In contrast, the section of administrative rules pertaining to local units of government has no corresponding rule entitling inmates to receive any publications. Instead, substantial regulatory authority is delegated to the local prison administrator, defined as including the sheriff or chief of police. Mich.Admin.Code r. 791.501(1). This local administrator is authorized to develop rules regarding inmates, limited only in scope by rule 791.644(3) which states: "A rule applying to an inmate shall be pertinent and necessary to the safety, security, or function of the facility or harmony of the inmates. A capricious or redundant rule shall be avoided...."

As a result of this administrative authority, the Washtenaw County Sheriff's Department developed a "Policy and Procedure Manual" which included the following section:

Each ward will receive a copy of the Ann Arbor News every day. Inmates will be allowed to receive and read magazines and books. No form of censorship will be exercised over an inmate's choice of reading matter except for hard core pornography with pictures, and except for literature which there is reason to believe will cause a clear and present danger of disruption.

In addition, the Washtenaw County Sheriff's Department developed an "Inmate Guide Manual" which states in part:

All inmates shall be permitted to receive newspapers, magazines, books and other types of publications which are legally available to the public generally; but only from the publishers or from book clubs. None of these articles may be received from visitors.

(Emphasis added). The officials who denied plaintiff access to his magazines acted pursuant to this latter policy. ³ Plaintiff also argues in his appeal that these policies are contrary to rule 791.655(2), which applies to county jails and states that "[i]nmate mail shall be inspected for contraband." Plaintiff contends that this rule requires an inspection of mail before it can be excluded, and does not advocate a general exclusion policy such as that imposed by a "publishers only" rule. We disagree, and find that the local administrator has the authority to establish a policy such as "publishers only," as long as the established policy complies with rules 791.501-791.655, which includes rule 791.655(2). The administrative rules pertaining to local governments' institutions are not all-inclusive and, instead, leave considerable authority to the local administrator for the management of the local jail.

Plaintiff also argues that as a pretrial detainee he was entitled to at least those privileges afforded to convicted state inmates, citing O'Bryan v. County of Saginaw, 437 F.Supp. 582 (E.D.Mich.1977). O'Bryan held that "pretrial detainees have an unqualified right to receive any publication which is legally available to members of the public generally; regardless of whether they receive such publications through the mail or from some other source." Id. at 600 (citation omitted). While O'Bryan was on appeal, the Supreme Court decided Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). ⁴ In Wolfish, the Court upheld a "publishers only" rule which permitted pretrial detainees to receive hardcover books from publishers or book stores only. The Court noted that there was no reason to distinguish between security risks of pretrial detainees and convicted inmates and that, in some circumstances, pretrial detainees may pose a greater security risk. Id. at 546 n. 28, 99 S.Ct. at 1878 n. 28. In addition, defendants assert that...