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UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
NATHANIEL ALLEN LINDELL,
Plaintiff-Appellant,
v. JOHN DOE, et al.,
Defendants-Appellees.
No. 01-2527
March 19, 2002 *, Submitted
January 3, 2003, 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LIMIT CITATION TO UNPUBLISHED OPINIONS.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.
ORDER
After
Nathaniel Lindell, an inmate in Wisconsin's prison system, failed to receive an
issue of his prepaid subscription to Pagan Revival magazine, he sued various
[*640] prison officials under 42 U.S.C. § 1983. The district court dismissed
Lindell's complaint during initial screening under 28 U.S.C. § 1915A(b)(1).
Lindell appeals, and although we affirm the district court's order in most
respects, we vacate and remand a small part for further proceedings.
Lindell is
currently incarcerated at the Supermax Correctional Facility in Boscobel,
Wisconsin; the events relevant to this lawsuit occurred during his confinement
at the Waupun Correctional Institution. Lindell subscribed to Pagan Revival, a
magazine that he says expresses "Euro-centric" religious,
philosophical, and political views and "discusses the struggles, thoughts
and goals of the Euro-pagan community." Lindell never received issue # 45
despite having paid for it, and when he learned that the magazine had been
mailed to him, he filed a complaint within the prison. In response to his
complaint, he was told that the issue arrived on or about October 27, 2000, was
originally sent to the security office for review, but subsequently had been
lost. Noting that inmate subscriptions to Pagan Revival cost $8, the prison
reimbursed Lindell $2 for the cost of the lost issue.
Lindell
then filed suit in federal court seeking damages against the following prison
officials: J.C. Smits, a corrections officer working in the mailroom; Linda
Alsum-O'Donovan, a complaint examiner; John Ray, a complaint examiner; Marc W.
Clements, the security director; Cindy O'Donnell, a final decisionmaker on complaint
recommendations; and John Doe, an unidentified member of the security office.
Lindell alleged that his copy of issue # 45 was not lost; rather, Doe
personally seized or directed another to seize the issue in order to deprive
him of it. Lindell explained that he had encountered problems in the past
obtaining the magazine, was never informed that security seized the magazine
for review, and suffered harassment in the past for his Paganism. Lindell also
alleged that the remaining defendants failed to investigate his claims, reveal
Doe's identity, or
tell him why the issue had been seized. Based on this alleged conduct, Lindell
claimed that the defendants violated his First, Fourth, and Fourteenth
Amendment rights.
Along with his complaint, Lindell sought leave to proceed in
forma pauperis. Accordingly, the district court screened the complaint, see 28
U.S.C. § 1915A(b)(1), and dismissed all of the claims as frivolous or for
failure to state a claim on which relief may be granted. We review the dismissal de novo and will
affirm only if no set of facts supports the plaintiff's claims. See Wynn v. Southward, 251 F.3d 588, 591-92 (7th
Cir. 2001).
At the outset, we note that Lindell did not allege that any
defendant other than Doe was personally involved in violating his
constitutional rights, and therefore he failed to state a claim against any
named defendant. See Zimmerman v.
Tribble, 226 F.3d 568, 574 (7th Cir. 2000). That leaves only Doe, and all but
one of Lindell's claims against Doe were properly dismissed.
Lindell
contends that the initial seizure of his magazine violated the Fourth Amendment and that its retention deprived
him of due process. Prisons may screen
incoming publications, Thornburgh v. Abbott, 490 U.S. 401, 412-19, 104
L. Ed. 2d 459, 109 S. Ct. 1874 (1989), and prisoners have no expectation of privacy with respect
to their property under the Fourth Amendment, Hudson v. Palmer, 468 U.S.
517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Sparks v. Stutler, 71 F.3d
259, 260 (7th Cir. 1996). Prisoners
do retain a right against intentional, unauthorized deprivations [*641] of
their property, Hudson, 468 U.S. at 530; Stewart v. McGinnis, 5 F.3d 1031, 1036
(7th Cir. 1993), but there is no constitutional violation when prisoners have
an adequate post-deprivation remedy, Hudson, 468 U.S. at 536; Stewart, 5 F.3d
at 1036. Lindell acknowledges that pursuant to the prison's complaint
procedures he was reimbursed for the
cost of the magazine. This was an adequate post-deprivation remedy. See Stewart, 5 F.3d at 1036.
Lindell
also claims that the seizure of the magazine violated his First Amendment right
to the free exercise of religion. Prisoners do retain a right to the free exercise of religion, and
restrictions on that right must be based on legitimate penological
interests. O'Lone v. Estate of Shabazz,
482 U.S. 342, 348, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987); Sasnett v.
Litscher, 197 F.3d 290, 292 (7th Cir. 1999). Lindell, however, did not even
allege that his failure to receive the magazine interfered with his exercise of
religion, or that the magazine had anything at all to do with his religious
practices. Therefore, he failed to state a claim on this ground.
But
Lindell's First Amendment claim that Doe intentionally deprived him of the
magazine in violation of his right to freedom of speech does state a claim. Prisoners
retain a First Amendment right to receive outside publications, and prison
officials can restrict this right only if the restrictions are reasonably
related to a legitimate penological interest. Thornburgh, 490 U.S. at 414-15. The district court dismissed this
claim for failure to state a claim "because [Lindell] has not alleged
facts sufficient to suggest that the loss of his magazine was
intentional." In addition, the district court relied on documents from the
prison grievance process that Lindell attached to his complaint to show that he
exhausted his administrative remedies. Even though Lindell specifically alleged
that the factual scenario recounted by prison officials in their response to
his grievances is false, the district court accepted it as true. Accordingly,
the district court concluded that Lindell "has alleged no facts suggesting
why this court should not believe respondents' conclusion during the processing
of petitioner's internal complaint that the magazine was lost," and that
it is "unlikely that respondent Doe exists."
The district court erred by dismissing Lindell's claim for not alleging sufficient facts showing that the deprivation was intentional, see Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002), and by taking as true the defendants' representations during the complaint process simply because the court found them more probable, see Alston v. DeBruyn, 13 F.3d 1036, 1039 (7th Cir. 1994) ("An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely."). During the screening process under § 1915A, the district court should have looked at the complaint only, assuming as true the facts alleged and drawing inferences in Lindell's favor.
Along with
specifically alleging a deprivation of his First Amendment rights, Lindell
alleged facts that, if true, would support his claim. Lindell alleged that Doe disliked the views expressed in
Pagan Revival as well as his Pagan beliefs and therefore intentionally deprived
Lindell of the magazine and lied about it being lost. He specifically alleged that Doe
seized the magazine "based on the content of the speech" and "based
on [Lindell's] Pagan-Odinist religious beliefs." These allegations, if
true, support the theory that Doe intentionally seized the magazine because he
disliked its content. This is enough to [*642]survive this stage of the
litigation. Whether or not Lindell can prove his claim--that he was deprived of
his magazine by intentional, not negligent, conduct--is a matter about which we
express no opinion. We say only that the dismissal of this claim, at the
screening stage of the proceedings, was premature.
Accordingly, we VACATE and
REMAND Lindell's freedom-of-speech claim against "Doe," and the
judgment dismissing the complaint in all other respects is AFFIRMED.
* 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).
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