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Jacklovich v. Simmons, 10th Circuit Opinion Reversing Dismissal of PLN Suit, Kansas DOC Censorship, 2004

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392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

JOSEPH E. JACKLOVICH, SR.; PRISON LEGAL NEWS, INC.; KRIS
ZIMMERMAN, Plaintiffs-Appellants, v. CHARLES E. SIMMONS, Secretary of
Corrections for the State of Kansas; WILLIAM L. CUMMINGS, Secretary
Designate, Kansas Department of Corrections; LOUIS E. BRUCE, Warden of the
Hutchinson Correctional Facility; PATRICIA KEEN, OAIV Mail Room Supervisor
of the Hutchinson Correctional Facility, individually and in their official capacities,
Defendants-Appellees. AMERICAN CIVIL LIBERTIES UNION OF KANSAS AND
WESTERN MISSOURI, Amicus Curiae.
Nos. 03-3227, 03-3229, 03-3230
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
392 F.3d 420; 2004 U.S. App. LEXIS 26550
December 21, 2004, Filed

PRIOR HISTORY: [**1] APPEALS FROM THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS. (D.C. Nos. 01-CV-3017GTV;
02-CV-4054-GTV;
00-CV-3370-GTV).
Zimmerman v. Simmons, 260 F. Supp. 2d 1077, 2003
U.S. Dist. LEXIS 7564 (D. Kan., 2003)
DISPOSITION: REVERSED.
LexisNexis(R) Headnotes

COUNSEL: Bruce Plenk, (Max Kautsch with him on
the brief) Law Office of Bruce Plenk, Lawrence, Kansas,
for Plaintiffs-Appellants.
Timothy G. Madden, Senior Counsel to the Secretary,
Kansas Department of Corrections, Topeka, Kansas for
Defendants-Appellees.
J. Patrick Sullivan, Shook, Hardy & Bacon, L.L.P.,
Kansas City Missouri, filed an amicus brief for the
American Civil Liberties Union of Kansas and Western
Missouri, on behalf of Plaintiffs-Appellants.
JUDGES: Before KELLY, HENRY, and HARTZ,
Circuit Judges.
OPINIONBY: KELLY
OPINION: [*422] KELLY, Circuit Judge.
Plaintiffs-Appellants Prison Legal News ("PLN")
and Kansas Department of Corrections ("KDOC")
inmates Kris Zimmerman and Joseph E. Jacklovich,

appeal from the district court's summary judgment in
favor of Defendants-Appellees, KDOC corrections
officials. The KDOC has promulgated various
regulations and policies that (1) provide a $ 30 per month
limit on outgoing inmate funds for books, newspapers
and periodicals, subject to exceeding the limit once every
three months for a newspaper [**2] subscription, (2)
require that all inmate purchases of books, newspapers
and periodicals be made by special purchase order
through the institution, thereby prohibiting gift
subscriptions, and (3) provide that books, newspapers
and periodicals otherwise received be censored, with
notice only to the inmate, but not the sender. Claiming
the regulations and policies unconstitutional, the
Plaintiffs sought declaratory and injunctive relief, as well
as damages. I R. (03-3229) Doc. 33 at 2; I R. (03-3230)
Doc. 53 at 3-4; I R. (03-3227) Doc. 54 at 2. On crossmotions for summary judgment, the district court upheld
these regulations and policies against First and
Fourteenth Amendment challenges, concluding that they
are reasonably related to legitimate penological interests
and do not infringe PLN's due process rights. See
Zimmerman v. Simmons, 260 F. Supp. 2d 1077, 108485 (D. Kan. 2003). Our jurisdiction arises under 28
U.S.C. § 1291 and we reverse.
Background
Kansas Administrative Regulation §
44-12601(g)(1) provides that "all books, newspapers, and
periodicals shall be purchased through special purchase
orders." n1 I R. Doc. 32, Ex. 1. This [**3] regulation
essentially requires that all publications be purchased by
inmates through their facility bank accounts, thus
prohibiting the receipt of all gift publications. Inmates

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392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

are allowed only a facility bank account; all of an
inmate's funds must be deposited therein [*423] and
transactions involving any other financial account are
only permitted by written permission. n2 I R. Doc. 31 at
4-5, P 16; 1 R. Doc. 34 at 1, item 4. Any person can mail
a money order, certified check or cashier's check to an
inmate account. I R. (03-3229) Doc. 29, attach. 16 at 11.

n1 The mail regulation, Kan. Admin. Regs. §
44-12-601, has been amended subsequent to the
district court's order. It now provides:
§ 44-12-601 Mail.

(4) Inmates shall have the option
of having censored publications in
their entirety either mailed out of
the facility at their own expense or
discarded.
(5) Before transferring between
institutions or facilities, the inmate
shall arrange for a change of
address for newspapers and
periodicals.
Newspapers
and
periodicals shall not be forwarded
for more than 30 days after the
date of transfer.

...
(g) Publications.
(1) Inmates may receive books,
newspapers, and periodicals as
permitted
by
the
internal
management
policies
and
procedures of the department of
corrections.
All
books,
newspapers, and periodicals shall
be purchased through special
purchase orders. Only books,
newspapers,
and
periodicals
received directly from a publisher
or a vendor shall be accepted.
However, an inmate shall be
permitted to receive printed
material, including newspaper and
magazine clippings, if the material
is included as part of a first-class
letter that does not exceed one
ounce in total weight.
(2) The procedures for censorship
of mail listed in subsection (d) of
this regulation shall be used for
censorship of publications.
(3) No publication that meets
either of the following conditions
shall be allowed into the facility:
(A) Contains sexually explicit
material, as described in K.A.R.
44-12-313, or is otherwise illegal,
in whole or in part; or (B) meets,
in whole or in part, the test for
censorship of mail in subsection
(d) of this regulation.

Kan. Admin. Regs. § 44-12-601 (July 2, 2004);
see also Kan. Admin. Regs. § 44-12-601(q) (Feb.
15, 2002) in I R. (03-3229) Doc. 32, Ex. 1. We
cite to the current version where comparable
provisions exist. [**4]

n2 Defendants claim Kan. Admin. Regs. §
44-5-103 as authority for this policy. See I R.
Doc. 32, Ex. 8 (Kan. Admin. Regs. § 44-5-103
as amended to May 1, 1984). This regulation was
revoked March 22, 2002. The parties agree that
this is the current policy. Inmates are barred from
establishing a checking or savings account
outside the facility bank account without
approval. Kan. Admin. Regs. § 44-12-210.
Inmates also are barred entering into contracts
and incurring financial obligations without
approval. Kan. Admin. Regs. § 44-12-209.
The regulation barring subscriptions to publications
had an effective date of April 17, 1998, but it was not
enforced initially; a May 3, 1999, memo gave notice that
the policy would be enforced on June 23, 2000, allowing
a one-year grandfathering period for inmates to receive
newspaper and magazine subscriptions not purchased
through a facility bank account. I R. (03-3229) Doc. 29,
attach. 10; I R. (03-3230) Doc. 62 at PP 9-11, Doc. 53 at
5-6. Another one-year grandfathering period was allowed
for Level II and III inmates until March 2, 2002, for one
gift [**5] publication of the inmate's choice and for only
one year, regardless of the amount of time remaining on
the subscription. I R. (03-3229) Doc. 29, attach. 8.
In addition to the ban on publications not purchased
through facility bank accounts, KDOC Internal
Management Policy and Procedure ("IMPP") 11-101
limits the amount of an inmate's outgoing funds to $
30.00 per month. Inmates assigned to Intake Level and

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392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

Level I may not use outgoing funds to purchase books, or
newspaper or magazine subscriptions. n3 Although
inmates at Level I may have a hot pot, fan, alarm clock,
blow dryer, extension cord, curling iron, lamp, ice chest
and all consumable post-intake property, they may not
have books, magazines or newspapers. I R. (03-3227)
Doc. 54, Ex. [*424] 24, attach. A to IMPP 11-101.
Inmates assigned to Level II and III may purchase books,
or newspaper or magazine subscriptions subject to the $
30.00 limit. That limit may be exceeded once every three
months for the purchase of one newspaper subscription.

warden
designee; and,

or

(1) As possible,
approval for such
payments shall be
payable to the
vendor or service
provider only.
e. Purchases of
approved handicraft
materials/supplies.

n3 IMPP 11-101 (01-07-02) provides in
pertinent part:

C. Upon recommendation of the
unit team and approval of the
warden or designee, offenders
assigned to private industry
(minimum wage) or those who
receive government benefits may
be authorized, on an individual
basis, to send out funds in excess
of the $ 30.00 per pay period limit.

VI. Limitation on Use of
Incoming and Outgoing Funds
A. For inmates assigned to Intake
Level, outgoing funds shall be
limited to fees for legal services,
and for inmates on Level I, no
outgoing funds may be used to
purchase books, or, newspaper or
magazine subscriptions.

D. Inmates on Incentive Level II
or Incentive Level III are
authorized to maintain one (1)
newspaper subscription, and may
exceed the $ 30.00 limit for
outgoing funds in order to do so.

B. Except as provided below, there
shall be a $ 30.00 limit on
outgoing funds.
1. Inmates may exceed the $
30.00 limit, if necessary, for the
purchase of a primary religious
text if the cost of the text is greater
than that amount.

1. The expense for the newspaper
subscription shall be included in
the $ 30.00 limit.
2. Such an exception shall be
allowed no more than one (1) time
per every three (3)-month period.

2. The $ 30.00 limit shall not
apply to payments to the
following:

I R. (03-3227) Doc. 54, Ex. 24.
a. The court for
verified restitution
and/or court costs;
b. Verified fees
payable
to
an
attorney for legal
services;
c. Verified child
support payments;
d. Specialized fees,
expenses
as
authorized by the

[**6]
Former Kan. Admin. Regs. § 44-12-601(l) (Feb. 15,
2002) provided that "except for material ordered through
approved special purchase orders, incoming bulk-rate
mail shall not be delivered." The current regulation is
more specific: "Incoming mail addressed solely to a
specific inmate and not otherwise subject to censorship
shall be delivered regardless of whether the mail is sent
free of charge or at a reduced rate." Kan. Admin. Regs. §
44-12-601(b)(7) (July 2, 2004). In answers to
interrogatories, the Defendants stated that inmates may
receive free publications, provided that the publications
are truly free and do not require the inmate to take
affirmative action to cancel a trial subscription. I R. (03-

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392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

3229) Doc. 32, Ex. 3 at 9. As we understand it, "gift
subscriptions" are subscriptions that are paid for by
anyone other than the vendor. Id. at 10. To be "truly
free," it must not be possible for an inmate to pay for it. I
R. (03-3230) Doc. 53, Ex. 20 at P 5. Kan. Admin. Regs.
§ 44-12-209 provides that an inmate may not enter into a
contract or incur a financial obligation absent approval.
According to regulation, publications received not in
conformity with these policies [**7] are censored. Kan.
Admin. Regs. § 44-12-601(g)(2) & former Kan. Admin.
Regs. § 44-12-601(q)(2) (Feb. 15, 2002). Inmates are
notified in writing and given the reason for the
censorship, and are given the name and address of the
sender if known; it is up to the inmate to contact the
sender if he so desires. Kan. Admin. Regs. § 44-12601(d)(2). n4 The author (sender) of the censored item is
given a reasonable opportunity to protest the censorship
decision to a different prison official. Kan. Admin. Regs.
§ 44-12-601(d)(2)(C) & (D).

n4 Kan. Admin. Regs. § 44-12-601(g)(2)
invokes the procedures for censorship of mail for
censorship of publications. Those procedures
provide:
(d) Censorship
procedures.

grounds

and

...
(2) If any communication to or
from an inmate is censored, all of
the following requirements shall
be met:
(A) Each inmate shall be given
written notice of the censorship
and the reason for the censorship,
without disclosing the censored
material.
(B) Each inmate shall be given the
name and address of the sender of
incoming mail, if known, or the
addressee of outgoing mail and the
date the item was received in the
mail room. It shall be the
responsibility of the inmate to
contact the sender of censored
incoming mail or the addressee of
censored outgoing mail, if the
inmate so desires.

(C) The author or the addressee of
the censored correspondence shall
be given a reasonable opportunity
to protest that decision.
(D) All protests shall be referred
to a prison official other than the
person who originally disapproved
the correspondence.
Kan. Admin. Regs. § 44-12-601(d)(2); see also
former Kan. Admin. Regs. § 44-12-601(k)(1)-(4)
(Feb. 15, 2002).
[**8]
While acknowledging the mail review process
contained in the regulation, an affidavit from Defendant
Bruce, the Warden of the Hutchinson Correctional
Facility, suggests a different procedure. Seizures of
materials sent to Plaintiff Zimmerman were treated "as a
property issue alone with the inmate's option within 10
days of notification being whether to send out the
material to a designated address or that it be destroyed." I
R. (03-3230) Doc. 53, Ex. 19 at P 12. According to the
Warden, the procedure in the censorship regulation was
not followed because the seizure was not [*425]
content-based and, if the regulation was followed, the
material would have to be held for 45 days during the
appeals process, rather than 10 days, causing serious
storage and fire concerns. Id.
Plaintiff KDOC inmates proceed under 42 U.S.C. §
1983, alleging that Defendant corrections officials have
deprived them of their First Amendment rights by
refusing to deliver to them numerous publications
(including more than one newspaper and several
magazines) not purchased with a special purchase order,
including gift subscriptions. Included among those
publications is Prison Legal News, paid [**9] for by
friends and family outside of the prison. Plaintiffs claim
their rights are further infringed by the limits on the
amount of money that may be spent each month on
publications, as well as by the limit of one newspaper
subscription. n5

n5 Plaintiff Jacklovich also claimed that the
Defendants conspired to violate his constitutional
rights and violated his due process rights when he
complained about the seizure of publications. The
district court determined that the conspiracy
claim could not proceed absent a violation of a
constitutional right, and that the due process
claim lacked any evidentiary basis. Zimmerman,
260 F. Supp. 2d at 1085. Given the district court's

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392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

rationale on the conspiracy claim, we remand for
reconsideration in light of our disposition. The
due process claim has not been raised on appeal
and therefore is deemed abandoned.
Plaintiff Prison Legal News, Inc. is a non-profit
publisher of Prison Legal News, a monthly magazine that
focuses on prison issues. Although friends [**10] and
family of KDOC inmates have paid for subscriptions to
Prison Legal News for certain inmates, corrections
officials have refused to deliver the publications. In
addition, corrections officials do not notify PLN when a
publication is not delivered. PLN contends that the
refusal to allow inmates to receive publications unless
purchased from a facility bank account, the $ 30.00 limit,
the limit on the number of subscriptions, and the
complete ban on publications for Level I inmates violates
its First Amendment right to communicate with inmates.
I R. Doc. 1 at 7; Doc. 33 at 5. PLN also complains that
the prison policies deprive it of due process because it is
never notified of non-delivery, given a reason for the
non-delivery, and/or given an opportunity to contest it. I
R. Doc. 1 at 8.
Defendants advance two rationales for the policies-security and behavior management. First, they contend
that the ban on gift publications allows the facility to
monitor and regulate all inmate financial transactions,
and control the property entering the facility. This
monitoring allows them to be better able to detect
financial transactions that violate prison rules and
regulations or state law, [**11] such as theft, drug
dealing, debt adjustment, as well as entering into
contracts without authorization and obtaining property
by false pretenses. In particular, Defendants seek to
prevent the practice of strong-arming, where one inmate
coerces another to arrange for a gift subscription to be
purchased by someone on the outside. Second,
Defendants submit that the policies provide incentives
for good behavior and better citizenship by inmates,
including paying restitution, child support, court filing
fees and other outstanding financial obligations.
Discussion
On cross-motions for summary judgment, our
review of the summary judgment record is de novo and
we must view the inferences to be drawn from affidavits,
attached exhibits and depositions in the light most
favorable to the party that did not prevail, here the
Plaintiffs. See United States v. Diebold, Inc., 369 U.S.
654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). [*426]
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 as to any material fact and that

the moving party is entitled to judgment [**12] as a
matter of law." Fed. R. Civ. P. 56(c).
Resolution of the inmates' claims requires balancing
between the constitutional rights retained by inmates and
those who send them publications against the deference
owed to prison authorities when it comes to prison
administration. Turner v. Safley, 482 U.S. 78, 84-85, 96
L. Ed. 2d 64, 107 S. Ct. 2254 (1987). Inmates have a
First Amendment right to receive information while in
prison to the extent the right is not inconsistent with
prisoner status or the legitimate penological objectives of
the prison. Pell v. Procunier, 417 U.S. 817, 822, 41 L.
Ed. 2d 495, 94 S. Ct. 2800 (1974); Clement v. Cal. Dep't
of Corr., 364 F.3d 1148, 1151 (9th Cir. 2004). In
weighing the First Amendment interests against the
deference
afforded
corrections
officials,
the
reasonableness of the regulations and policies matters.
Thornburgh v. Abbott, 490 U.S. 401, 414, 104 L. Ed. 2d
459, 109 S. Ct. 1874 (1989). Although the Court has
continually recognized (1) the difficulty of running a
prison, (2) the separation of powers concerns when a
federal court assumes a function (prison administration)
entrusted to [**13]
the legislative and executive
branches, and (3) the need for federal courts to accord
deference to state prison authorities, Turner, 482 U.S. at
84-85, those factors do not mean that every prison
regulation is insulated from review no matter what the
facts may be. As the Court stated in Procunier v.
Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800
(1974), overruled on other grounds by Thornburgh v.
Abbott, 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874
(1989):

But a policy of judicial restraint cannot
encompass any failure to take cognizance
of valid constitutional claims whether
arising in a federal or state institution.
When a prison regulation or practice
offends a fundamental constitutional
guarantee, federal courts will discharge
their duty to protect constitutional rights.

Procunier, 416 U.S. at 405-06.
The Court has determined that "when a prison
regulation impinges on inmates' constitutional rights, the
regulation is valid if it is reasonably related to legitimate
penological interests." Turner, 482 U.S. at 89. The fourfactor test supplied by the Court requires a look at (1)
whether a valid and [**14] rational connection exists
between the regulation and the asserted legitimate
governmental interest, (2) whether alternative means of
exercising the constitutional right remain available to

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392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

inmates, (3) any effect accommodating the right would
have on guards and inmates, and (4) the absence of ready
alternatives. Id. at 89-90.
A. Restricting Publications
The district court approved the $ 30 monthly limit
on publications, the ban on gift publications, and the ban
on Level I inmates obtaining publications altogether.
Zimmerman, 260 F. Supp. 2d at 1083. Indeed,
Defendants argue that a key justification for the ban on
gift publications is to enforce the $ 30 monthly limit.
Concerning the first factor, the district court held that the
regulations and policies were rationally related to
legitimate governmental interests. Id. The district court
determined that the regulations and policies promote
internal security, act as a deterrent on future crimes or
rules violations, assist in [*427] inmate rehabilitation,
and are content neutral. Id. The district court concluded
that it need not consider the three remaining Turner
factors. It then stated [**15] without analysis that after
reviewing the evidence and the arguments, none of the
three factors weighed in the Plaintiffs' favor. Id. at 108485. With regard to PLN's due process claims based upon
lack of notice of non-delivery, the district court held that
notification to the inmate alone satisfied PLN's due
process rights. Id. at 1086. The district court concluded
that because the ban on delivery of gift publications was
not based upon content, but applied to all gift
publications and to Level I inmates, it was a purely
procedural decision not requiring notice to the publisher.
Id.
The district court erred in not considering the
remaining three Turner factors in the context of summary
judgment. Zimmerman, 260 F. Supp. 2d at 1084-85.
With regard to the district court's conclusion that it was
unnecessary, we disagree. The district court first cited
Morrison v. Hall, 261 F.3d 896, 901, 904 (9th Cir. 2001),
in support of its position, but that case is readily
distinguishable-the court held the first factor dispositive
only if no rational relationship exists between the
regulation and a legitimate state interest. [**16] No
rational relationship existed between a prison regulation
banning incoming mail based upon postage rate (the
regulation banned bulk, third and fourth class mail) and
legitimate penological objectives. Id. at 904. Thus, there
was theoretically no need to consider the remaining
factors.
The district court also relied upon Scott v.
Mississippi Dep't of Corr., 961 F.2d 77 (5th Cir. 1992),
stating that a "district court did not err in failing to
articulate a consideration of each of these factors." Id. at
81. In Scott, the district court held that a prison
regulation requiring short hair was reasonably related to
legitimate penological objectives without addressing the

remaining Turner factors. The court of appeals prefaced
its discussion with the observation that a court is not
required to "weigh evenly, or even consider," the
remaining factors. Id. We think that the analysis used by
the court of appeals belies its statement-the court
considered the remaining factors before declaring that
summary judgment was appropriate. Id. at 81-82. Even
when a court finds the first factor weighs in favor of
finding [**17] the regulation constitutional, it should
still consider all four factors. See Beerheide v. Suthers,
286 F.3d 1179, 1185-87 (10th Cir. 2002) (rejecting a
prison policy against providing Kosher diets after
consideration of all four factors, even though it found the
first factor weighed in favor of finding the policy
constitutional).
The district court then "reviewed the evidence and
the arguments with respect to these final three factors
and concluded that none of the factors weigh in
Plaintiffs' favor." Zimmerman, 260 F. Supp. 2d at 108485. It is not clear what standard the district court used;
our de novo review of the record persuades us that there
are genuine issues of material fact on these factors, as
well as the first factor, in the context of the challenges
made in this case.
1. Resolving This Case as a Matter of Law on the Basis
of Similar Cases
Defendants have brought to our attention Rice v.
Kansas, 278 Kan. 309, 95 P.3d 994 (Kan. 2004), as
supplemental authority, which affirmed a state trial court
judgment upholding the ban on gift subscriptions and the
spending limitations on publications. The Kansas
Supreme Court [**18] reversed the Kansas Court of
Appeals. Rice v. Kansas, 31 Kan. App. 2d 964, 76 P.3d
1048, 1054 (Kan. Ct. App. 2003) (holding that the ban
on gift subscriptions was not rationally related [*428] to
the legitimate penological interests of security and
inmate rehabilitation), rev'd 278 Kan. 309, 95 P.3d 994
(Kan. 2004). Rice did not consider the lack of publisher
notification when a subscription is rejected. Equally
important, Rice involved a trial to the court complete
with testimony of witnesses and exhibits, not summary
judgment. It did not include the expert testimony in this
case. The Kansas Supreme Court reviewed the factual
findings of the state trial court for support by substantial
competent evidence and then whether findings supported
the legal conclusions. Rice, 95 P.3d at 1002. On
summary judgment, we must view the evidence and
inferences therefrom in the light most favorable to the
party that did not prevail-we may not resolve credibility
disputes. Rice does not control the outcome of this case.
Plaintiffs urge us to follow Crofton v. Roe, 170 F.3d
957 (9th Cir. 1999), where the panel affirmed an
injunction [**19]
prohibiting enforcement of a

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392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

regulation that banned gift subscriptions, and only
allowed publications ordered by an inmate through his
facility bank account. The court rejected the strongarming rationale offered by the warden as unsupported
by any evidence. Crofton, 170 F.3d at 960. The court
also recognized that the warden's argument was undercut
by allowing friends and family to send money to
inmates, but not constitutionally protected publications.
Id. Crofton is distinguishable because it addressed only
the strong-arming rationale, not the behavior
management rationale. The district court in this case also
distinguished Crofton on the basis that uncontroverted
evidence of an incident of strong-arming had been
offered, as well as the difficulty of tracing the source of
gift subscriptions. Zimmerman, 260 F. Supp. 2d at 1084.
As we discuss below, the Plaintiffs raised serious
questions about the admissibility of the materials in this
record to establish the incident, and it is doubtful that
those materials on their face are sufficient to justify the
policy. Moreover, concerning the difficulty of
identifying who paid for a subscription, the [**20]
evidence in the record is not adequately developed and
does not address reasonable alternatives where the
Defendants would be assisted in such identification by
the donor.
2. Genuine Issues of Material Fact-Turner Factors
We briefly review some of the evidence which
precludes summary judgment on the $ 30 monthly limit
on publications, the ban on gift publications, and the ban
on Level I inmates obtaining publications. Plaintiff's
expert, Patrick McManus, a former Secretary of the
Kansas Department of Corrections with an extensive
background in corrections, was of the opinion that the
policies limiting access to publications serve no
legitimate penological purpose (and may undermine
rehabilitation), result in greater work for prison staff, are
unique among jurisdictions and are unsupported by any
empirical data. I R. (03-3229) Doc. 29, Ex. 15; Doc. 39,
attach. 15A; see also Clement v. Cal. Dep't of Corr., 220
F. Supp. 2d 1098, 1110 (N.D. Cal. 2002) (discussing
rehabilitative benefits associated with inmate reading and
contact with the outside world), aff'd 364 F.3d 1148 (9th
Cir. 2004); Knecht v. Collins, 903 F. Supp. 1193, 1200
(S.D. Ohio 1995) [**21] (same). Defendants sought to
minimize the import of this opinion, claiming that the
expert actually supports the use of incentives. I R. (033229) Doc. 36 at 5, P D; Doc. 37, Ex. 3 at 81. Even
given the deference paid to corrections officials in these
matters, we are reluctant to conclude that as a matter of
law the expert's opinions require [*429] summary
judgment for either party. n6 To be sure, the expert was
vigorously cross-examined, and a trier of fact is free to
evaluate the proper weight to be given expert's

testimony. But that is not the function of summary
judgment.

n6 Plaintiffs suggest that the $ 30 limit on
publications cannot be justified as a means of
behavior management because it is not
graduated-Level I inmates can make no
purchases, and Level II and III inmates are
limited to the same $ 30 amount regardless of
difference in status attained. They also contend
that the $ 30 limit was set in 1996; and it unduly
restricts inmate access to constitutionally
protected materials if the ban on gift publications
stands. Because we are remanding on related
issues, the district court should consider these
arguments in light of the evidence. The summary
judgment record does not warrant judgment for
either party at this point.
[**22]
Beginning with the behavior management rationale,
Defendants correctly point out that the plurality in
McKune v. Lile, 536 U.S. 24, 39, 153 L. Ed. 2d 47, 122
S. Ct. 2017 (2002), stated that "An essential tool of
prison administration . . . is the authority to offer inmates
various incentives to behave." The plurality was
addressing whether a demotion (for non-participation in
a sexual abuse treatment program) from Level III to
Level I, with its attendant loss of privileges (loss of
publications was not mentioned), could constitute
compulsion for Fifth Amendment purposes. This
statement does not equate with an endorsement of every
aspect of the privilege and incentive system; review
under the Turner factors is still appropriate. See Wares v.
Simmons, 392 F.3d 1141, 2004 U.S. App. LEXIS
25811, No. 04-3150, slip op. at 4-5 (10th Cir. Dec. 14,
2004) (distinguishing McKune as applicable to prison
restrictions challenged under the Fifth Amendment and
then addressing Turner factors).
There are two aspects of the behavior management
rationale that are unsupported and should be explored on
remand. First, the Level I complete ban on publications
(other than a primary religious text) for inmates
promoted from Intake [**23] status to Level I for the
minimum 120 days appears to be a function of status, not
behavior. II R. (03-3230) Doc. 67, attach. 6 (IMPP 11101, III(B)(2) (05/07/2001)). We fail to see how a fourmonth complete denial of access to constitutionally
protected materials (regardless of behavior) furthers
behavior management or rehabilitation.
Second, regarding the $ 30 monthly limitation on
expenditures, though subject to various exceptions, the
evidence in the record simply does not make an adequate

Page 8
392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

link between the limitation on expenditures and
increased payment of restitution, child support or court
filing fees by inmates. Stated another way, if inmates are
required to meet such obligations before discretionary
expenditures, the $ 30 limitation would not appear to be
a factor. See I R. (03-3229) Doc. 32, Ex. 3 at 10.
Moreover, the amount of the limitation in relation to the
limitations on canteen expenditures ($ 180 for Level III
inmates) is not apparent in light of the claimed
rehabilitation or restitution interest. See Id. To be sure,
limits on the number of subscriptions due to space
limitations, safety concerns or processing constraints
might be appropriate, but that is not [**24] how the
regulations have been defended and such concerns may
be handled through more precise regulation. See Crofton,
170 F.3d at 960.
Concerning the security rationale, a consistent theme
of the Defendants pleadings is that any property in a
correctional facility can become a medium of exchange
so all property should be treated alike; regardless of its
expressive content. Most property is treated alike,
however, the Defendants have submitted evidence of a
policy [*430] that allows free and religious n7
publications by subscription, and a primary religious
text. I R. (03-3229) Doc. 29, Ex. 16 at 10-11. The district
court determined that the extent of such a policy was
controverted, but viewing the evidence in the light most
favorable to the Plaintiffs, assumed that it did not exist.
Zimmerman, 260 F. Supp. 2d at 1081 n.1. Such a policy
cuts both ways; for our purposes, it suggests
inconsistency (perhaps content-based) and on remand the
nature and extent of such a policy should be determined
as a factual matter.

n7 Perhaps this possible inconsistency
concerning religious publications is motivated by
the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § § 2000cc to
2000cc-5. We have yet to pass on the
constitutionality of RLUIPA. See Hammons v.
Saffle, 348 F.3d 1250, 1258 n.3 (10th Cir. 2003).
[**25]
Though stated many ways, the prevention of strongarming is the central concern of the security rationale.
Defendants rely heavily on one example involving a
Level I inmate who has been transferred to another state.
In an affidavit, a corrections manager reported on a
grievance he received from the inmate:
Inmate Lynn through grievances contends
that he conspired with others to have
magazine subscriptions paid for by his

family members but sent to another
inmate by the publisher. Additionally, he
contends that money was also sent to the
same inmate who was to in turn deliver
the magazines and items purchased from
the canteen to inmate Lynn. Subsequently,
inmate Lynn complained that he was
double crossed by the other inmate and
that he did not receive the publications
and that the other inmate [spent the]
money for the other inmate's own benefit.
Inmate Lynn in his grievances threatened
the other inmate.
I R. (03-3229) Doc. 32, Ex. 2. Plaintiffs rightly point out
that much of this is hearsay, and of questionable veracity
given the author of the grievance. They contend that
none of it has been substantiated. One vehicle can only
carry so much baggage, and we think [**26] that were
this reduced to admissible evidence in a trial, it is subject
to interpretation. Viewing it in the light most favorable to
the Plaintiffs, it points out that there is no limitation on
outside funds that may be deposited into an inmate's
facility account. As we learned at oral argument, the
maximum expenditure for inmate purchases is $ 180 per
month for Level III inmates and $ 110 for Level II
inmates, but expenditures for purchases from other than
the facility canteen are limited to $ 30 per month. I R.
(03-3229) Doc. 10 at 3, P 8; Doc. 32, Ex. 3 at 11. The $
30 limit includes publications and magazine
subscriptions, with an exception for a newspaper
subscription. Plaintiff's expert indicated that it was far
more likely that strong-arming would occur with items
purchased from the canteen such as goods or
consumables, as opposed to magazine subscriptions. I R.
(03-3229) Doc. 29, attach. 15 at 89-90. Indeed, the
prison policy would seem to permit acquisition of large
items (televisions) without such restrictions, provided
that an inmate had the funds in his account, and
notwithstanding that there has been dealing and trading
in such items. I R. (03-3229) Doc. 29, attach. 16 [**27]
at 48, 186.
Defendants suggest that permitting unlimited funds
to be sent to an inmate's account from the outside, but
not permitting subscriptions, is entirely rational. They
rely upon an affidavit from a prison intelligence and
investigation official who states:
I have contacted magazine publishers
in an attempt to find out who has paid for
a subscription for magazines being
[*431] sent to an inmate, but have been
told by the publisher that the information
is not available. In contrast, I found that
useful investigative information can be

Page 9
392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

gathered through investigations pertaining
to the purchase of money orders.
I R. (03-3229) Doc. 32, Ex. 6 at 3. While this may be
true in the abstract, neither affidavit applies this rationale
to the primary example relied upon by Defendants. It
does seem odd that a money order, certified check or
cashier's check will be accepted without the donor's
name if strong-arming is a problem. See I R. (03-3229)
Doc. 29, attach. 16 at 11. Although Defendants need only
prove a rational connection between the policy
prohibiting gift publications and the risk, findings by the
district court will better allow for consideration of this
rationale. The [**28] state courts that have reviewed the
strong-arming rationale have found it "weak" and "not a
well-supported argument," insufficient to withstand the
Turner factors independently. Rice, 278 Kan. 309, 95
P.3d 994, 1006 (Kan. 2004).
3. The Remaining Turner Factors
a. Alternative Means to Exercise the Right
There are also factual disputes concerning the
remaining three Turner factors that will require the
taking of evidence. Concerning the inmates' other
alternative means to exercise their First Amendment
rights, we agree that the ability to listen to the radio or
watch television is not an adequate substitute for reading
newspapers and magazines. Morrison v. Hall, 261 F.3d
896, 904 (9th Cir. 2001); Mann v. Smith, 796 F.2d 79, 83
(5th Cir. 1986). The issue here is whether the regulations
and policies here still "permit a broad range of
publications to be sent, received, and read." Thornburgh,
490 U.S. at 418. The cost of subscriptions-many exceed
$ 30 per year-may foreclose inmate access absent a
family member or friend purchasing it. I R. (03-3229)
Doc. 29, Ex. 16 at 74-76. Defendants contend [**29]
that it is not onerous to require family members and
friends to send money to the inmate whereupon the
inmate can purchase a subscription. Aplee. Br. at 26
("This is the same procedure that is used if a friend or
family member wishes to purchase a television or any
other item for an inmate."). This does not address the $
30 limitation on subscriptions, and it is unclear from
where this amount originates.
Defendants submitted an affidavit by a deputy
warden concerning measures taken to increase library
access by inmates; however, the efficacy of those
measures was controverted. Compare I R. (03-3229)
Doc. 37, Ex. 1 with Doc. 29, Ex. 16 at 42-47, 49-50, 7374. Plaintiffs provided evidence of limited times and
limited selections, as well as missing pages and titles.
Certainly a reasonable inference from this record is that
Prison Legal News is not available. I R. (03-3229) Doc.

29, attach. 15 (inmate affidavits concerning non-receipt
of PLN).
b. Effect of Accommodation
Defendants argue that accommodating gift
subscriptions would interfere with their efforts at
behavior modification because inmates might still violate
rules yet receive publications. They also maintain [**30]
that having all transactions occur through facility bank
accounts deters strong-arming. In this regard, they assert
that an inmate that is the victim of strong-arming
(involving cash sent to a perpetrator's facility bank
account) will more likely report it to authorities because
the perpetrator will not know if corrections officials
acted based upon a tip or upon a routine review of
facility bank accounts. Finally, they [*432] argue that
ordering publications directly from the vendor reduces
processing and disposition costs because eligibility for
the publication is already determined. Regardless, it
appears that all incoming mail is opened. I R. (03-3229)
Doc. 29, attach. 16 at 11.
Plaintiffs contend that the strong-arming rationale
vis-a-vis constitutionally protected publications pales in
comparison to that in connection with items from the
canteen or items from the outside like radios or
televisions. I R. (03-3229) Doc. 29 at 17, attach. 13 at
90; attach 16 at 186. They also point out that the
institution currently receives free publications,
authorized publications subject to the $ 30 limitation, and
gift subscriptions to inmates that are not delivered. I R.
(03-3229) Doc. 29 at 17. [**31] They contend that
merely delivering the gift subscriptions would have
minimal effect. Likewise, they contend that the current $
30 limitation could be raised with minimal effect. The
current policy represents a change from the unrestricted
policy in effect before; on remand there ought to be an
evidentiary basis for the claims made by either party.
Also relevant, other institutions apparently permit
receipt of gift publications, including the Federal Bureau
of Prisons, Washington and Alabama. See 28 C.F.R. §
540.70 ("The Bureau of Prisons permits an inmate to
subscribe to or receive publications without prior
approval, and has established procedures to determine if
an incoming publication is detrimental to the security,
discipline, or good order of the institution or if it might
facilitate criminal activity."); Sorrels v. McKee, 290 F.3d
965, 968 n.2 (9th Cir. 2002) (Washington); I R. (033229) Doc. 29, attach.13 (Alabama). Though certainly
not dispositive, these policies may be considered. See
Martinez, 416 U.S. at 414 n.14.
c. Absence of Ready Alternatives

Page 10
392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

The final factor to be considered is the absence of
[**32] ready alternatives. Ready alternatives may
suggest an exaggerated response to a problem.
Defendants maintain that only by allowing purchases
through the facility banking system may they adequately
prevent strong-arming and circumvention of property
restrictions attendant to the behavior modification
program. Plaintiffs contend that a special purchase order
("SPO") could be developed for subscriptions whereby
the donor would state the cost of the publication, the
source and manner of payment, and any other necessary
information. Aplt. Br. at 10.
The Kansas Supreme Court appears to have rejected
this alternative as a matter of law concluding that every
SPO would require burdensome independent verification
by the prison. Rice, 95 P.3d at 1012. It appears that the
cash received by inmates through their facility accounts
would implicate the same concerns on a larger scale. Be
that as it may, the evidentiary basis in our summary
judgment record indicates that KDOC maintains a
database allowing it to check every publication entering
the facility. I R. Doc. 53, Ex. 20 at PP 3-4 (affidavit of
Defendant Patricia Keen, Mailroom Supervisor). If the
publication is unsupported [**33] by an SPO, the inmate
is advised through a form that he has 10 days to indicate
whether the item is to be destroyed or forwarded at his
expense. Id. at P 4. As the record in Mr. Zimmerman's
case makes clear, a facility already expends significant
time and effort determining whether publications are
truly "free." On remand, the district court should
consider ready alternatives.
B. Notification Provisions
As noted, the current censorship policies give notice
to an inmate that a publication [*433] will not be
delivered, but they do not provide any notice to the
sender. The district court acknowledged that minimum
procedural safeguards must accompany any decision to
withhold delivery or censor incoming prison mail.
Zimmerman, 260 F. Supp. 2d at 1086. It then concluded,
however, that since the decision to withhold delivery was
not content based, but applied to Level I inmates and
recipients of gift subscriptions, notification of the inmate
was sufficient to protect PLN's due process rights.
In Procunier v. Martinez, 416 U.S. at 418, the Court
recognized that both inmates and correspondents have a
qualified liberty interest in uncensored communications
[**34] that are protected by the First Amendment. The
Court required "minimum procedural safeguards" and
affirmed a district court requirement "that an inmate be
notified of the rejection of a letter written by or
addressed to him, that the author of the letter be given a
reasonable opportunity to protest that decision, and that
complaints be referred to a prison official other than the

person who originally disapproved the correspondence."
Id.
Thornburgh v. Abbott, 490 U.S. 401, 413-14, 104 L.
Ed. 2d 459, 109 S. Ct. 1874, overruled Martinez in part
and imposed the Turner reasonableness standard on
regulations concerning all correspondence. However,
nothing suggests that the qualified liberty interest
recognized in Martinez was overruled. Indeed,
Thornburgh involved a challenge to the Bureau of
Prisons censorship and the court commented that "the
regulations provide procedural safeguards for both the
recipient and the sender." 490 U.S. at 406. The Court
cited the regulation requiring the Bureau of Prisons to
provide a copy of the rejection letter notifying the inmate
to the publisher, 28 C.F.R. § 540.71(e). Thornburgh, 490
U.S. at 406. [**35] Were there any doubt, the Court
stated that "there is no question that publishers who wish
to communicate with those who, through subscription,
willingly seek their point of view have a legitimate First
Amendment interest in access to prisoners." Id. at 408.
Other courts have recognized that both inmates and
publishers have a right to procedural due process when
publications are rejected. See Prison Legal News v.
Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001);
Montcalm Publ'g Co. v. Beck, 80 F.3d 105, 109 (4th Cir.
1996). In Montcalm, the Fourth Circuit considered the
lack of notice afforded the publisher of a disapproved
magazine sent to an inmate. The court held "that
publishers are entitled to notice and an opportunity to be
heard when their publications are disapproved for receipt
by inmate-subscribers." 80 F.3d at 106. We agree.
Defendants suggest that its lack of notification is
reasonable, arguing that the cost to the state outweighs
any interest the publisher may have. Defendants argue
that publishers would have no interest in pursuing
administrative appeals based on an inmate's Level I
status, particularly [**36] where an inmate had not
contacted the publisher pursuant to the notification given
the inmate. Aplee. Br. at 29. The record suggests that the
more common reason for rejection would be the lack of
an SPO associated with the publication.
Defendants cite to no evidence concerning cost to
the state. We agree with the Fourth Circuit that the
publisher's rights must not be dependent on notifying the
inmate (who in all likelihood will never see the
publication). Montcalm, 80 F.3d at 109. Given the
Defendants' approach, the publisher may never know (or
know well after the fact) that the publication has been
rejected by the facility. Defendants presuppose that any
challenge will be meritless; [*434] the record contains
one failure to deliver where the inmate was able to prove
that he attempted to pay for a subscription, and thus was
allowed to have it. I R. (03-3230) Doc. 53, Ex. 15. We

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392 F.3d 420, *; 2004 U.S. App. LEXIS 26550, **

further agree that providing adequate individualized
notice to the publisher would appear to impose a minimal
burden. Id.; see also I R. (03-3230) Doc. 53 at 6 P 5
(form has been developed to notify inmates of seizure of
materials). On remand, the district court may fashion an

[**37] appropriate procedure. The district court may
consider any changed circumstances in imposing a
remedy.
REVERSED.



 

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