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Fourth Circuit Remands Gift Publication Challenge
The U.S. Court of Appeals for the Fourth Circuit has reversed a grant of summary judgment in a lawsuit challenging a gift publication ban at a Virginia prison.
The district court had granted summary judgment for prison officials on the prisoner’s challenge to the free or gift publication ban based on Zimmerman v. Simmons, 260 F.Supp.2d 1077 (D. Kan. 2003), a decision that was reversed on appeal by Jacklovich v. Simmons, 392 F.3d 420, 428-32 (10th Cir. 2004).
Expressing no view on the ultimate merits of the prisoner’s claims, the court reversed and remanded for further proceedings in light of Jacklovich and Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005). See: Harksen v. Pease, 282 Fed. Appx. 292 (4th Cir. 2008).
The case was dismissed without prejudice on remand because the plaintiff did not respond to the district court’s inquiry of whether he was interested in pursuing the case. See Harksen v. Pease, USDC, W.D. Va., No. 7:04-cv-00243 (2008).
The district court had granted summary judgment for prison officials on the prisoner’s challenge to the free or gift publication ban based on Zimmerman v. Simmons, 260 F.Supp.2d 1077 (D. Kan. 2003), a decision that was reversed on appeal by Jacklovich v. Simmons, 392 F.3d 420, 428-32 (10th Cir. 2004).
Expressing no view on the ultimate merits of the prisoner’s claims, the court reversed and remanded for further proceedings in light of Jacklovich and Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005). See: Harksen v. Pease, 282 Fed. Appx. 292 (4th Cir. 2008).
The case was dismissed without prejudice on remand because the plaintiff did not respond to the district court’s inquiry of whether he was interested in pursuing the case. See Harksen v. Pease, USDC, W.D. Va., No. 7:04-cv-00243 (2008).
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Related legal case
Harksen v. Pease
| Year | 2008 |
|---|---|
| Cite | 282 Fed. Appx. 292 (4th Cir. 2008) |
| Level | Unpublished Court of Appeals |
282 Fed. Appx. 292, *; 2008 U.S. App. LEXIS 13604, **
ROBB M. HARKSEN, Plaintiff - Appellant, v. T. PEASE, Mailroom Officer; D. A. BRAXTON; S. SHORTRIDGE, Operations Officer; R. A. YOUNG, Regional Director; L. HUFFMAN, Regional Director; S. MULLINS, Treatment Program Supervisor; S. BUNCH, Mailroom Officer; J. ARMENTROUT, Assistant Warden Operations; G. DEEL; T. HALE, Corrections Officer; T. WOODS, Defendants - Appellees.
No. 05-6015
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
282 Fed. Appx. 292; 2008 U.S. App. LEXIS 13604
May 21, 2008, Submitted
June 27, 2008, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CA-04-243).
Harksen v. Braxton, 2004 U.S. Dist. LEXIS 31078 (W.D. Va., Nov. 9, 2004)
DISPOSITION: AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
COUNSEL: Robb M. Harksen, Appellant, Pro se.
JUDGES: Before WILKINSON and MICHAEL, Circuit Judges, and WILKINS, Senior Circuit Judge.
OPINION
[*292] PER CURIAM:
Robb M. Harksen appeals the district court's orders dismissing without prejudice his action filed under 42 U.S.C. § 1983 (2000), and denying his Fed. R. Civ. P. 59(e) [*293] motion. Harksen asserted, inter alia, that he was denied free or gift publications in violation of the First Amendment. The district court held that the prison regulation banning receipt of free or gift publications was constitutional. However, the case on which the district court relied to reach that conclusion was reversed on appeal. See Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003) (applying four-part test in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and concluding that regulation banning receipt of gift publications was constitutional), rev'd sub nom. Jacklovich v. Simmons, 392 F.3d 420, 428-32 (10th Cir. 2004) (finding genuine issues of material fact existed regarding behavior management and [**2] security rationales proffered by defendants in support of policy denying access to publications and to remaining Turner factors); see also Prison Legal News v. Lehman, 397 F.3d 692, 698-701 (9th Cir. 2005) (applying Turner and holding that ban on nonsubscription bulk mail and catalogs requested by inmate was unconstitutional). Although we express no view on the merits, we conclude that it is appropriate to vacate the district court's summary dismissal of Harksen's First Amendment claims regarding receipt of free or gift publications. On remand the district court should consider the state's justification for its regulation and resolve any factual issues relevant to the merits of Harksen's claims.
With regard to Harksen's remaining claims, we have reviewed the record and find no reversible error. Accordingly, we affirm those claims for the reasons stated by the district court. Harksen v. Braxton, No. 7:04-cv-00243 (W.D. Va. Nov. 9, 2004; Dec. 10, 2004). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
ROBB M. HARKSEN, Plaintiff - Appellant, v. T. PEASE, Mailroom Officer; D. A. BRAXTON; S. SHORTRIDGE, Operations Officer; R. A. YOUNG, Regional Director; L. HUFFMAN, Regional Director; S. MULLINS, Treatment Program Supervisor; S. BUNCH, Mailroom Officer; J. ARMENTROUT, Assistant Warden Operations; G. DEEL; T. HALE, Corrections Officer; T. WOODS, Defendants - Appellees.
No. 05-6015
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
282 Fed. Appx. 292; 2008 U.S. App. LEXIS 13604
May 21, 2008, Submitted
June 27, 2008, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CA-04-243).
Harksen v. Braxton, 2004 U.S. Dist. LEXIS 31078 (W.D. Va., Nov. 9, 2004)
DISPOSITION: AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
COUNSEL: Robb M. Harksen, Appellant, Pro se.
JUDGES: Before WILKINSON and MICHAEL, Circuit Judges, and WILKINS, Senior Circuit Judge.
OPINION
[*292] PER CURIAM:
Robb M. Harksen appeals the district court's orders dismissing without prejudice his action filed under 42 U.S.C. § 1983 (2000), and denying his Fed. R. Civ. P. 59(e) [*293] motion. Harksen asserted, inter alia, that he was denied free or gift publications in violation of the First Amendment. The district court held that the prison regulation banning receipt of free or gift publications was constitutional. However, the case on which the district court relied to reach that conclusion was reversed on appeal. See Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003) (applying four-part test in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and concluding that regulation banning receipt of gift publications was constitutional), rev'd sub nom. Jacklovich v. Simmons, 392 F.3d 420, 428-32 (10th Cir. 2004) (finding genuine issues of material fact existed regarding behavior management and [**2] security rationales proffered by defendants in support of policy denying access to publications and to remaining Turner factors); see also Prison Legal News v. Lehman, 397 F.3d 692, 698-701 (9th Cir. 2005) (applying Turner and holding that ban on nonsubscription bulk mail and catalogs requested by inmate was unconstitutional). Although we express no view on the merits, we conclude that it is appropriate to vacate the district court's summary dismissal of Harksen's First Amendment claims regarding receipt of free or gift publications. On remand the district court should consider the state's justification for its regulation and resolve any factual issues relevant to the merits of Harksen's claims.
With regard to Harksen's remaining claims, we have reviewed the record and find no reversible error. Accordingly, we affirm those claims for the reasons stated by the district court. Harksen v. Braxton, No. 7:04-cv-00243 (W.D. Va. Nov. 9, 2004; Dec. 10, 2004). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED