Zimmerman v. Simmons

• Citation: 260 F.Supp.2d 1077
• Decision Date: 28 April 2003
• Docket Number: Civil Action No. 01-3017-GTV.,Civil Action No. 00-3370-GTV.,Civil Action No. 02-054-GTV.
• Parties: Kris ZIMMERMAN, Plaintiff, v. Charles SIMMONS, et al., Defendants. Joseph E. Jacklovich, Sr., Plaintiff, v. Charles Simmons, et al., Defendants. Prison Legal News, Inc., Plaintiff, v. Charles Simmons, Defendant.
• Court: U.S. District Court — District of Kansas

260 F.Supp.2d 1077

Kris ZIMMERMAN, Plaintiff, v. Charles SIMMONS, et al., Defendants.

Joseph E. Jacklovich, Sr., Plaintiff, v. Charles Simmons, et al., Defendants.

Prison Legal News, Inc., Plaintiff, v. Charles Simmons, Defendant.

Civil Action No. 00-3370-GTV.

Civil Action No. 01-3017-GTV.

Civil Action No. 02-054-GTV.

United States District Court, D. Kansas.

April 28, 2003.

COPYRIGHT MATERIAL OMITTED

Kris Zimmerman, Joseph E. Jacklovich, Sr., Hutchinson, KS, Bruce M. Plenk, Lawrence, KS, for Plaintiffs.

Brian R. Johnson, The Law Offices of John M. Knox, Chartered, Lawrence, KS, Rebecca Ann Weeks, Kansas Attorney General, Loren F. Snell, Jr., Timothy G. Madden, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

VANBEBBER, Senior District Judge.

Plaintiffs Kris Zimmerman and Joseph E. Jacklovich, Sr. are both inmates under the supervision of the Kansas Department of Corrections ("KDOC"). Plaintiff Prison Legal News, Inc. is a Washington state non-profit corporation that publishes the monthly periodical Prison Legal News. Plaintiffs bring these actions seeking injunctive and declaratory relief, actual damages, and, in Plaintiff Jacklovich's case, punitive damages. They allege that Defendants violated their constitutional rights to freedom of speech and due process by their enforcement of regulations and policies that place restrictions on the receipt by inmates of certain publications. Plaintiffs Zimmerman and Jacklovich have sued Charles E. Simmons, individually and in his official capacity as Secretary of Corrections for the State of Kansas, Louis E. Bruce, individually and in his official capacity as Warden of the Hutchinson, Kansas Correctional Facility, and Patricia Keen, individually and in her official capacity as the Mail Room Supervisor of the Hutchinson Correctional Facility. Plaintiff Jacklovich has also sued William L. Cummings, individually and in his official capacity as Secretary Designate of the KDOC. Plaintiff Prison Legal News has sued only Defendant Simmons. Plaintiffs in each case have filed motions for summary judgment (Doc. 66 in 00-3370-GTV; Doc. 76 in 01-3017-GTV; Doc. 29 in 02-4054-GTV), as have Defendants (Doc. 68 in 00-3370-GTV; Doc. 78 in 01-3017-GTV; Doc. 30 in 02-4054-GTV). For the reasons set forth below, Plaintiffs' motions for summary judgment are denied and Defendants' motions for summary judgment are granted.

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "material" if it is essential to the proper disposition of the claim. Id. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. "Any evidence tending to show triable issues will be viewed in the light most favorable to the nonmoving party." Black Hills Aviation Inc. v. United States, 34 F.3d 968, 972 (10th Cir.1994) (citation omitted).

II. DISCUSSION

At the heart of these cases is the constitutionality of certain KDOC regulations and policies that place restrictions on inmates' receipt of publications. The primary regulation at issue, K.A.R. 44-12-601(q)(1), provides:

Any inmate may receive books, newspapers, and periodicals except for those inmates assigned to the reception and diagnostic unit for evaluation purposes. All books, newspapers, and periodicals shall be purchased through special purchase orders. Only books, newspapers, and periodicals received directly from a publisher or vendor shall be accepted. However, an inmate shall be permitted to receive printed material, including newspaper and magazine clippings, if the clippings are included as part of a first-class letter that does not exceed one ounce in total weight.

For purposes of these cases, the critical provision of K.A.R. 44-12-601(q)(1) is that which requires an inmate to personally purchase publications only through his or her own correctional facility banking account—the only banking account an inmate is allowed to use without express written permission of the correctional facility administrator. In essence, this limitation prevents an inmate from receiving gift subscriptions or publications purchased by third parties or free subscriptions or publications.¹ This limitation is not confined solely to the purchase of subscriptions and publications, however. All items purchased for an inmate's use must be purchased through the inmate's facility account.

KDOC also issues interpretations of and guidance regarding Kansas statutes and regulations in what is known as an Internal Management Policy and Procedure ("IMPP") Manual. IMPP 11-101 addresses KDOC's Offender Privileges and Incentives System. Under that system, inmates—once they complete the initial intake process and are transferred to a correctional facility—are grouped into one of three levels. In general, Level I inmates receive the fewest privileges, while Level III inmates receive the most. Two specific provisions of IMPP 11-101 are at issue in these cases: (1) Level I inmates are prohibited from purchasing books (unless it is a "primary religious text"), magazines, or newspapers; and (2) a limit of $30 per month is placed on Level II and Level III inmates for purchase of items outside the facility canteen, including books (unless it is a "primary religious text"), magazines, or newspapers (although one newspaper subscription exceeding this amount is permissible once every three months).

Finally, in the event that a publication arrives at a KDOC correctional facility but is restricted for one of the above-noted reasons, K.A.R. 44-12-601(k) requires that the facility provide notice to the inmate to whom the publication is addressed. The inmate is then given the opportunity to contact the publisher if he or she desires, and either the inmate or the publisher may protest the decision to restrict the publication The publisher itself is not directly notified of the decision by KDOC officials.

Plaintiffs advance a variety of related claims based on the enforcement of these regulations and policies. Plaintiffs contend that their First Amendment freedom of speech and Fourteenth Amendment due process rights² were violated by Defendants' enforcement against them of K.A.R. 44-12-601(q)(1), the regulation barring inmates' receipt of gift or free subscriptions. Plaintiff Jacklovich alleges that Defendants also engaged in a conspiracy to deprive him of those rights. In addition, Plaintiffs Zimmerman and Prison Legal News contend that Defendants' enforcement of IMPP ll-10Ts policies preventing Level I inmates from purchasing publications and limiting Level II and Level III inmates to $30 per month for the purchase of publications also violated their First and Fourteenth Amendment rights. Next, Plaintiff Jacklovich claims that his Fourteenth Amendment due process rights were violated by Defendants' "cookie cutter" and allegedly false responses to his grievances regarding the seizure of publications sent to him. Finally, Plaintiff Prison Legal News argues that Defendant Simmons's failure to provide direct notice to it that its publications were not reaching some of the inmates to whom they were addressed violated its Fourteenth Amendment due process rights. The court will address these claims in turn.

A. Constitutionality of K.A.R. 44-12-601(q)(1) and IMPP 11-101 Provisions

The United States Supreme Court has noted that "`[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,' nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the `inside.'" Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (citations omitted). It is recognized, however, "that these rights must be exercised with due regard for the `inordinately difficult undertaking' that is modern prison administration," Id. (quoting Turner v. Safley, 482 U.S. 78, 85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)), and when a case involves decisions of administrators of a state correctional facility, the court has "additional reason to accord deference to the appropriate prison authorities," Turner, 482 U.S. at 85, 107 S.Ct. 2254 (citing Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)).

"[B]y virtue of their convictions, inmates must expect significant restrictions, inherent in prison life, on rights and privileges free citizens take for granted." McKune v. Lite, 536 U.S. 24, 122 S.Ct....