Free speech, expression, association.

19. Free Speech, Expression, Association

U.S. Appeals Court    Bear v. Kautzky, 305 F.3d 802 (8th Cir. 2002).
                      State prisoners brought a [section] 1983 action
  PRISONERS           against prison officials, challenging a prison
                      policy that prohibits prisoners from
                      communicating with other prisoners who serve as
                      jailhouse lawyers. The district court entered a
                      preliminary injunction barring enforcement of
                      the policy. The appeals court affirmed, finding
                      that the prisoners demonstrated that they had
                      suffered actual injury for the purpose of a
                      right-of-access to court claim. The prisoners
                      had testified that they had pending post-
                      conviction proceedings and they did not
                      have the knowledge or skill to pursue those
                      claims without legal assistance, and that they
                      were receiving or had sought such assistance from
                      jailhouse lawyers. According to the court, a
                      prison system may experiment with prison
                      libraries, jailhouse lawyers, private lawyers on
                      contract with the prison, or some combination of
                      these and other devices, as long as there is no
                      actual harm to the constitutional access rights
                      of particular inmates to the courts. (Iowa State
                      Penitentiary)

U.S. Appeals Court    Dewitt v. Wall, 41 Fed.Appx. 481 (1st Cir. 2002).
                      A state prisoner brought a [section] 1983 action
  VISITS              against prison officials, challenging a prison
                      policy that prohibits former correctional
                      employees from visiting prisoners. The district
                      court granted summary judgment to the defendants
                      and the appeals court affirmed. The appeals court
                      held that the policy was rationally connected to
                      legitimate concerns about prison security. (Adult
                      Correctional Institution, Rhode Island)

U.S. Appeals Court    Duamutef v. Hollins, 297 F.3d 108 (2nd Cir.
                      2002). A prison inmate brought a pro se [section]
  CENSORSHIP          1983 action against prison officials alleging
                      arbitrary censorship of his mail. The district
                      court denied summary judgment for the officials
                      and they appealed. The appeals court reversed and
                      remanded, finding that prison officials had acted
                      in pursuit of legitimate penological interests by
                      imposing a temporary mail watch on the inmate.
                      The mail watch was imposed after the inmate
                      received a book with the phrase "Blood in the
                      Streets" in its title. Even though the book was a
                      "harmless economics book" the appeals court held
                      that the title could easily arouse concern in the
                      prison officials, and they could base a security
                      decision on the title alone. The court noted that
                      the inmate had an extensive disciplinary history
                      involving prohibited organizational activities,
                      and the officials' actions were limited. (Oneida
                      Correctional Facility, New York)

U.S. District Court   Farid v. Goord, 200 F.Supp.2d 220 (W.D.N.Y.
                      2002). An inmate brought a [section] 1983 action
  RETALIATION         against correctional officers and prison
                      officials, alleging free speech and procedural
  CRITICISM           due process violations under the First and
                      Fourteenth Amendments. The district court granted
                      summary judgment, in part, for the defendants.
                      The court held that the inmate, who had
                      circulated a petition, engaged in protected
                      conduct even though the prison had a grievance
                      process that could have been used. The petition
                      concerned allegations that an officer failed to
                      allow inmates adequate time to finish their
                      breakfast. The court noted that no regulation
                      barring petitions was in effect at the time. The
                      court denied summary judgment on the issue of
                      whether the inmate's right to petition the
                      government and right to free speech were violated
                      by officers when they determined, independent of
                      the facility's media review committee, that a
                      copy of the petition the inmate had sent to the
                      prison superintendent was unauthorized, and that
                      two satirical articles written by the prisoner,
                      one of which was published by local news media,
                      were detrimental to the order of the facility.
                      The court denied qualified immunity to officers
                      on the inmate's retaliation claim, finding that
                      the inmate's right not to suffer retaliation for
                      engaging in protected First Amendment activities
                      was clearly established at the time of the
                      alleged retaliation. The inmate alleged that the
                      officers retaliated with searches of his cell and
                      work area, and with disciplinary charges for
                      authoring and possessing certain articles.
                      (Attica Correctional Facility, New York)

U.S. District Court   Marria v. Broaddus, 200 F.Supp.2d 280 (S.D.N.Y.
                      2002). A state prisoner brought a [section] 1983
  ASSEMBLY            action against prison officials alleging
                      violation of the First Amendment, the Religious
  RELIGION            Land Use and Institutionalized Persons Act
                      (RLUIPA), and the Due Process Clause. The
  RELIGIOUS           prisoner challenged the confiscation of certain
  LITERATURE          religious materials. The district court denied
                      summary judgment on the First Amendment and
                      RLUIPA claims, but granted qualified immunity to
                      the defendants on the due process claims. The
                      court found genuine issues of material fact,
                      precluding summary judgment, on the
                      permissibility of the prison's ban on materials
                      and assembly, whether the inmate had an
                      alternative means of exercising his First
                      Amendment rights, and whether accommodating the
                      inmate's religious beliefs would have a
                      deleterious impact on the administration of the
                      prison. The prisoner was a member of the Nation
                      of Gods and Earths ("Nation"), also referred to
                      as the Fiver Percenters, Five Percent, and the
                      Five Percent Nation. The defendants told the
                      court that it "deems incarcerated Five Percenters
                      an organized threat to the safety, order and
                      security" of their prison facilities, noting that
                      some other corrections agencies classify the Five
                      Percenters as a gang.

                      The court held that an expert report submitted by
                      the prisoners was admissible, while the expert
                      report submitted by prison officials was not
                      admissible. The officials' report had been
                      prepared by an expert with 40 years experience in
                      criminal justice, but the court found it to be
                      "misleading" and "based on unreliable
                      methodology." The court discounted the expert's
                      conclusions which were, according to the court,
                      based on statistics from a questionnaire he sent
                      to prison officials, in which he asked for help
                      in defending the lawsuit. The court agreed with
                      the plaintiffs' characterization of the expert's
                      report as being "subjective and biased, and the
                      results therefore do not bear the indicia of
                      trustworthiness required to admit a survey into
                      evidence." The court concluded that "because the
                      Camp Report is misleading, unhelpful to the trier
                      of fact, and founded on biased and therefore
                      unreliable evidence, Camp's testimony is
                      inadmissible." (Green Haven Correctional
                      Facility, New York)


U.S. Appeals Court    Sorrels v. McKee, 290 F.3d 965 (9th Cir. 2002). A
                      state prisoner brought a [section] 1983 action
  PUBLICATIONS        against prison officials, alleging that
                      enforcement of a prison policy that prohibits a
                      prisoner from receiving publications as a gift
                      violated his First Amendment and due process
                      rights. The district court granted summary
                      judgment for the prison officials and the appeals
                      court affirmed. The appeals court held that the
                      officials were entitled to qualified immunity
                      because the unconstitutionality of the ban on
                      gift publications had not been established at the
                      time of their actions. In an earlier decision
                      (Crofton v. Roe, 170 F.3d 957), the appeals court
                      had found the policy unconstitutional and the
                      state corrections department subsequently changed
                      the policy. (Airway Heights Corrections Center,
                      Washington)

U.S. Appeals Court    Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir.
                      2002). A pretrial detainee brought a civil rights
  TELEPHONE           action against a federal prosecutor and jail
                      officials alleging that his constitutional rights
                      were violated during his detention in a state-
                      operated jail, as the result of restrictions
                      placed upon his telephone access. The district
                      court entered summary judgment in favor of the
                      defendants and the detainee appealed. The appeals
                      court affirmed, finding that a state law that
                      allowed prisoners reasonable access to the
                      telephone did not give the pretrial detainee a
                      liberty interest in telephone usage. The appeals
                      court held that telephone restrictions did not
                      violate the detainee's due process rights nor the
                      First Amendment, and that the detainee could not
                      maintain a Sixth Amendment claim based on the
                      telephone restrictions. The court noted that the
                      restrictions, which limited the detainee's
                      telephone access to calls to his attorney only,
                      were reasonably related to the legitimate
                      government interest of ensuring the safety of
                      police officers when they were executing arrests,
                      and preventing the detainee from helping his
                      co-conspirators elude arrest. The court noted
                      that the detainee was allowed to receive visitors
                      and could send and receive mail, but allowing the
                      detainee phone access would have required jail
                      staff to monitor his calls, and there was no
                      obvious, easy alternative to the restriction.
                      (Alaska Cook Inlet Pretrial Facility)

U.S. Appeals Court    Wolf v. Ashcroft, 297 F.3d 305 (3rd Cir. 2002).
                      Federal prisoners brought a class action
  MOVIES              challenging a prison policy that prevented
                      prisoners from viewing movies with a rating of
  CENSORSHIP          "restricted" or higher. The district court
                      entered judgment on the pleadings in favor of the
                      government. The appeals court reversed and
                      remanded. The appeals court held that the
                      district court did not conduct a "proper,
                      thorough analysis" under Turner v. Safley because
                      it did not articulate a relevant penological
                      interest or the prohibition's relationship to it,
                      and considered only the first prong of Turner.
                      The appeals court held that the district court
                      should not have relied on "common sense" in
                      determining whether the first prong was
                      satisfied, noting that whether the requisite
                      connection may be found solely on the basis of
                      common sense depends on the nature of the right,
                      the nature of the interest asserted, the nature
                      of the prohibition, and the obviousness of the
                      connection to the interest. The district court
                      had concluded that the policy was neutral and was
                      reasonably and rationally related to a legitimate
                      penological interest. (Federal Bureau of Prisons)