DAVID PAUL HAMMER,
Plaintiff-Appellant,
v.
JOHN D. ASHCROFT,
Attorney General of the United States, et al.,
Defendants-Appellees.
No. 01-2898
42 Fed. Appx. 861
July 24, 2002, * Submitted
* Appellees notified this court that they were never served
with process in the district court and would not be
participating in this appeal, which has been submitted
without a brief from them. After examining the appellant's
brief and the record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the
appellant's brief and the record. See Fed. R. App. P.34(a)(2).
July 25, 2002, Decided
NOTICE: RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Federal
death-row inmate David Paul Hammer brought this lawsuit under Bivens v. Six Unknown
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91
S. Ct. 1999 (1971), alleging that the defendants violated his First Amendment
rights by denying and restricting his access to the news media. The
defendants are Attorney General John D. Ashcroft, Warden Harley G. Lappin, and
Federal Bureau of Prisons Director Kathleen Hawk-Sawyer. The district court
screened the complaint under the Prison Litigation Reform Act, 28 U.S.C. § 1915A(b)(1), [*862]
and dismissed it for failure to
state a claim. Mr. Hammer appeals, and, for the reasons explained below,
we reverse and remand.
Mr. Hammer
is incarcerated in the Federal Death Row Unit at the United States Penitentiary
in Terre Haute, Indiana. In April 2001 Mr. Hammer filed this lawsuit, alleging
that since March 2000 the defendants have unconstitutionally infringed on his
right to freedom of speech by denying and restricting his access to the news
media based on the content of his message and his status as a federal death-row
inmate. In his complaint, Mr. Hammer alleged that between March 2000 and April
2001 a number of news organizations wished to conduct face-to-face or
video-conference interviews with him, but that Warden Lappin denied every one
of his requests to participate in the interviews. In addition, Mr. Hammer alleged
that the Warden Lappin unconstitutionally restricted his ability to communicate
with the media via telephone or mail correspondence.
According to Mr. Hammer, these restrictions limiting his access
to the media are part of the defendants' deliberate plan to deny him a public
forum and are in response to "public outcry" over a television
interview conducted in March 2000 of federal death-row inmate Timothy McVeigh. Mr. Hammer further
alleged that the reasons prison officials provided for restricting his speech
and denying his requests--namely, safety and privacy concerns--are not the real
reasons they are restricting his speech. He contended that the prison's
purported reasons are a "guise." He claimed that prison officials are
restricting his speech because he is a death-row inmate and they want to
prevent his views from being publicized. In particular, he alleged, they seek
to suppress his views about capital punishment and his experience on federal
death row. Mr. Hammer also alleged that before March 2000 he was allowed to
participate in a number of interviews without causing any disruptions or
prompting safety concerns.
In May 2001 the district court dismissed Mr. Hammer's complaint
under § 1915A for failure to state a claim. The district court concluded that
Mr. Hammer failed to state a claim because he had no constitutional right to
face-to-face interviews, and because the restrictions on his access to the
media served legitimate penological interests of safety, privacy, and
order.
We review de novo a district court's dismissal under § 1915A for
failure to state a claim. Wynn v.
Southward, 251 F.3d 588, 591 (7th Cir. 2001). We apply the same standard as for
dismissals under Rule 12(b)(6): we take all well-pleaded allegations in the
complaint as true and draw reasonable inferences in the plaintiff's favor. 251 F.3d at 592; Zimmerman v. Tribble, 226
F.3d 568, 571 (7th Cir. 2000). A complaint fails to state a claim only if
relief could not be granted under any set of facts consistent with the
allegations. Wynn, 251 F.3d at 592.
Inmates
retain First Amendment rights that are consistent with incarceration, and
prison restrictions limiting or interfering with those rights must reasonably
relate to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct.
2254 (1987); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999). While inmates' free-speech
rights include access to the media, inmates do not have a right to face-to-face
interviews so long as other avenues of communication are open to them, and
regulations denying face-to-face interviews are applied in a neutral, equal
manner without regard to content.
See Pell v. Procunier, 417 U.S. 817,
827-28, 41 L. Ed. 2d 495, 94 S. Ct. 2800, 71 Ohio Op. 2d 195 (1974). Prison
[*863] officials are given
deference in establishing regulations and in determining appropriate
restrictions, and we will not second-guess regulations or practices that serve
legitimate penological interests. Turner,
482 U.S. at 89.
The Supreme Court has delineated four factors for determining
whether a specific regulation or practice serves a legitimate penological
interest. Id. at 89-90. The primary
factor is whether a valid, rational connection exists between the restriction
and a legitimate interest. Id. A restriction on speech that fails to meet this
connection fails under Turner. See Shaw
v. Murphy, 532 U.S. 223, 229-30, 149 L. Ed. 2d 420, 121 S. Ct. 1475 (2001).
Relevant to this factor is whether the restriction on speech is applied in a
neutral manner without regard to content and is applied equally among inmates. Turner,
482 U.S. at 90; Rowe, 196 F.3d at 782; Abu-Jamal v. Price, 154 F.3d 128, 134
(3d Cir. 1998). The other factors relevant in determining a restriction's
reasonableness include whether the inmate has alternative means of exercising
the right; the impact accommodation of
the asserted right would have on guards, other inmates, and prison resources;
and the absence of a reasonable alternative to the regulation or practice. Turner, 482 U.S. at 90.
Given these
standards, Mr. Hammer's complaint stated a claim. In regard to whether the
restrictions on his speech have a valid, rational connection to a legitimate
interest, Mr. Hammer specifically alleged that the defendants are restricting
his speech based on his status as a death-row inmate and to suppress his views,
and, despite their assertions to the contrary, not to serve legitimate
interests. In addition, he alleged that the prison is not applying the
restrictions in a neutral fashion, but is instead using the guise of
unspecified security concerns to restrict his speech based on status and
content. In regard to whether alternative avenues are open to him, Mr. Hammer
alleged that the prison not only restricts his access to face-to-face
interviews, but also unconstitutionally restricts his access via telephone and
mail correspondence. He also alleged that the prison is already equipped for
video-conferencing and that this would provide a readily available alternative to
face-to-face interviews. In regard to the impact that accommodating his rights
would have on the prison, Mr Hammer alleged that prior to March 2000 he
participated in a number of interviews and that these interviews did not create
any disruptions or security concerns. Finally, Mr. Hammer also alleged that the
prison's practice of ordering him, under threat of reprimand, not to mention
any other inmate in any type of communication with the media does not conform
to the Bureau of Prison's own regulations. n1 These allegations state a
claim. See Turner, 482 U.S. at 89-90; Abu-Jamal,
154 F.3d at 134 (prison's restrictions directed at content of inmate's writings
and in response to public pressure not valid under Turner); see also Antonelli v. Sheahan, 81 F.3d 1422, 1432
(7th Cir. 1995) (inmate's [*864] allegations stated a first amendment claim,
and "at this early stage in the litigation, we cannot determine, of
course, whether the defendants may be able to justify" their conduct); Shimer
v. Washington, 100 F.3d 506, 510 (7th Cir. 1996) ("The prison
administration must proffer some evidence to support its restriction. ").
Rather than
taking the allegations in Mr. Hammer's complaint as true, the district court
erroneously relied on materials outside the complaint in order to conclude that
it failed to state a claim. See
Covington v. Illinois Sec. Serv., Inc., 269 F.3d 863, 864-65 (7th Cir.
2001) (motion to dismiss under Rule 12(b)(6) erroneously granted by relying on
attached EEOC letter rather than complaint); Jacobs v. City of Chicago, 215
F.3d 758, 766 (7th Cir. 2000). Mr. Hammer had attached several
administrative-review documents to his complaint to show that he had exhausted
his administrative remedies. 42 U.S.C.
§ 1997e(a); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002). The district
court focused on two documents that were responses from Warden Lappin denying
two of Mr. Hammer's requests for interviews on the basis of safety and privacy
concerns. Instead of accepting Mr. Hammer's allegations that these explanations
were a "guise" and not the reasons his speech is being restricted,
the district court accepted Warden Lappin's explanations as true: "Warden
Lappin's response shows that he considered the very, unique environment of the
death row unit . . . It is clear that Lappin's decision and the supporting
regulations are reasonably related to legitimate penological interests." At this early pleading stage, the
district court erred by relying on those documents rather than on Mr. Hammer's
complaint. Covington, 269 F.3d at 865; Wynn,
251 F.3d at 593-94; Jacobs, 215 F.3d at 766.
To be
clear, we express no opinion about the merits of Mr. Hammer's claim, whether
the prison's restrictions were justified, or the constitutionality of any
regulations. But Mr. Hammer has properly stated a claim and his complaint
should not have been dismissed.
Accordingly, we REVERSE and REMAND to the district court for further
proceedings.
FOOTNOTE:
n1 On this point, Mr. Hammer alleged that
the restrictions the prison placed on him were broader than those provided for
in the regulations. Mr. Hammer alleged that in ordering him not to mention any
other inmate in his communications with
the media, Warden Lappin maintained that the restriction was Warranted by
Bureau of Prisons Regulation 28 C.F.R. § 540.61(d). The district court also
relied on this regulation to conclude that the restrictions placed on Mr.
Hammer's speech were warranted. On appeal, Mr. Hammer correctly points out that
§ 540.61(d) states that, "the news media may not obtain and use personal
information from one inmate about another inmate who refuses to be
interviewed;" whereas, he alleged that he was ordered not to mention any
other inmate under any circumstances, regardless of whether or not the inmate
refused to be interviewed.