John B. Vester v. W.P. Rogers, Warden, Powhatan Correctional Center & Allyn R. Sielaff, Director, Virginia Department of Corrections

795 F.2d 1179, 1986 U.S. App. LEXIS 27218

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 18, 1986
• Docket: 85-6639
• Status: Published

Opinions

K.K. HALL, Circuit Judge:

John B. Vester, an inmate in the Virginia penal system, appeals from an order of the district court granting summary judgment on behalf of officials of the Virginia Department of Corrections (the “Department”) in an action brought pursuant to 42 U.S.C. § 1983. Vester’s complaint alleged that the Department’s Guideline 851, which prohibits correspondence between inmates in different penal institutions without permission of the wardens involved, is an unconstitutional intrusion into an inmate’s first amendment rights. We affirm. Because the first amendment implications of restrictions on prisoner-to-prisoner correspondence have not been fully addressed in this Circuit, some additional explanation is required.

I.

Vester was committed to the Virginia Department of Corrections in July of 1984 and was initially sent to the Powhatan Receiving and Classification Center (“Receiving Center”). While at the Receiving Center, he became acquainted with another inmate, Gary Boggs, with whom he shared an interest in certain legal issues. In October, 1984, Vester was transferred to the Powhatan Correctional Center. Shortly thereafter, without seeking official permission, he wrote to Boggs. Upon delivery of the letter to the Receiving Center, institutional personnel returned it as unauthorized correspondence.

Vester then filed a grievance under the Department’s Inmate Grievance Procedure. At the Level I informal response stage, he was informed that correspondence between inmates at different institutions was subject to the restrictions contained in Guideline 851 (“DGL 851”). DGL 851 provides, in part, that “[cjorrespondence shall not be permitted with inmates serving sentences in other institutions under the authority of the Department of Corrections unless the Wardens/Superintendents of the involved institutions determine that such correspondence is in the best interest of both inmates and the institution.” Vester subsequently appealed his grievance to the Level I formal committee, which concluded that the issue should be reviewed by the Attorney General’s office.

Vester chose not to return his copy of the grievance to the Attorney General, thereby terminating the administrative procedure short of exhaustion. Instead, he and another inmate, Jonathan Tuller, brought an action pursuant to 42 U.S.C. § 1983 against W.P. Rogers, Warden of the Powhatan Correctional Center and Allyn R. Sielaff, Director of the Virginia Department of Corrections. The complaint alleged that DGL 851 was an overly broad intrusion into rights protected by the first and fourteenth amendments. Plaintiffs sought to have the regulation declared unconstitutional and to enjoin its enforcement. Vester and Tuller also requested both compensatory and punitive damages. Subsequently, Tuller voluntarily withdrew from the action.

The Department moved for summary judgment and the district court granted the motion. In doing so, the court first determined that DGL 851 was a reasonably drawn regulation intended to protect a legitimate state interest in prison security. Accordingly, the regulation was held to be a constitutional limitation on prisoner speech in conformity with the standard established by the United States Supreme Court in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).¹ The district court further held that Ves-ter’s failure to comply with the procedural requirements of the regulation precluded consideration of any claim that the regulation as applied to him was improper. This appeal followed.

II.

On appeal, Vester’s primary contention is that the district court misapplied the test of Procunier v. Martinez. He argues that the standard established in that decision is one of strict judicial scrutiny which requires proponents of a regulation limiting first amendment rights to defend against a charge of overbreadth by demonstrating that the regulation is the least intrusive alternative available. Vester argues that the district court’s failure to require the Department to prove that DGL 851 is preferable to other less expansive methods of protecting institutional security constitutes reversible error. In support of his position, Vester cites the recent decision of Safley v. Turner, 777 F.2d 1307 (8th Cir.1985), in which the Eighth Circuit Court of Appeals determined that a Missouri prison regulation substantially identical to DGL 851 was unconstitutional under the Procunier test.

We find that Vester’s argument falls prey to the same error as did the Eighth Circuit in Safley. By focusing excessively upon the Procunier test, Vester, like the Eighth Circuit, fails to recognize the impact of a continuing effort by the Supreme Court in cases such as Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), Jones v. North Carolina Prisoner’s Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), to articulate the standards by which penal officials may regulate their institutions.²

We must note initially that the Supreme Court has not dealt with the precise factual circumstance posed in this case. Nor have the first amendment implications of regulations limiting prisoner-to-prisoner correspondence been addressed by this Court. Procunier dealt with a California Department of Corrections rule restricting correspondence between inmates and non-prisoners. Indeed, the Court therein expressly based its ruling not on “prisoner rights” but on the fact that the challenged regulation caused a “consequential restriction on the first and fourteenth amendment rights of those who are not prisoners.” 416 U.S. at 409, 94 S.Ct. at 1809 (emphasis added).

To the extent, therefore, that the Procu-nier test is relevant to regulations affecting only prisoners, the process of applying the standard is subject to the well-established policy of judicial deference to the reasonable decisions of prison administrators. The Court in Procunier noted that the task of maintaining an orderly prison was “Herculean” and required a specialized expertise which courts were ill-equipped to supply. 416 U.S. at 404-05, 94 S.Ct. at 1807. Deference gave way to strict scrutiny in Procunier not because a prisoner’s first amendment rights were affected but because prison officials extended a rule outside their area of responsibility.

This distinction between deference and strict scrutiny was further illustrated in Pell v. Procunier. The Court upheld a California regulation that absolutely prohibited “press and other media interviews with specific inmates.” 417 U.S. at 819, 94 S.Ct. at 2802. Unlike Procunier v. Martinez, the rule at issue in Pell limited only the first amendment rights of prisoners.³ In that context the Court held that “in the absence of substantial evidence in the ■record to indicate that officials have exaggerated their response ... courts should usually defer to their expert judgment in such matters.” 417 U.S. at 827, 94 S.Ct. at 2806.

The Supreme Court retained its analytical focus on the absence of exaggerated response in Jones v. North Carolina Prisoner’s Labor Union, Inc., where the Court upheld certain regulations which limited prisoner speech with regard to the operation of a prisoner union. The district court had originally found the regulations defective because no evidence had been presented to show that the union had been utilized to disrupt the institution. In reversing, the Supreme Court stated that “[t]he District Court ... got off on the wrong foot in this case by not giving appropriate deference to the decisions of prison administrators____” 433 U.S. at 125, 97 S.Ct at 2537.

The Court in Jones noted that state correctional officials had testified with regard to the potential dangers connected with an unregulated prisoner labor union. The Court then held that

Without a showing that these beliefs were unreasonable, it was error for the District Court to conclude that appellants needed to show more. In particular, the burden was not on appellants to show affirmatively that the Union would be “detrimental to proper penological objectives” or would constitute a “present danger to security and order.” ... Rather, “[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Pell v. Procunier, 417 U.S., at 827, 94 S.Ct., at 2805. The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations in situations such as this.

433 U.S. at 127-28, 97 S.Ct. at 2538-39.

The Pell-Jones rationale was reaffirmed in Bell v. Wolfish, where the Court sustained a variety of regulations and internal practices utilized in a federally-operated custodial facility in New York. Again the Court found no evidence of an “exaggerated response” by prison officials. With regard to those rules that directly affected inmate first amendment rights the Court found them acceptable as long as they were reasonable and operated “in a neutral fashion without regard to the content of the expression.” 441 U.S. at 551, 99 S.Ct. at 1880-81, (quoting Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972)).

III.

Although “a prisoner does not shed his first amendment rights at the prison portals,” Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir.1971), it is equally true that “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.” Price v. Johnson, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). The question of whether a challenged regulation falls within the range of constitutionally permissible limitations turns in large measure upon the level of appropriate judicial scrutiny. Assuming, arguendo, that a regulation restricting communication between two prisoners must satisfy the Procunier formulation of embodying a substantial state interest while imposing no greater restriction than necessary, the ultimate burdens of production and persuasion with regard to the rule’s validity remain linked to the degree of deference accorded the rulemaker.

We conclude that a two-part synthesis has emerged from the Procunier, Pell, Jones and Bell decisions. If a penal regulation either intrudes upon the first amendment rights of non-prisoners or constitutes a total denial of an inmate’s right to free speech, including any possible alternative means of exercising that right, then the state must satisfy the Procunier strict scrutiny requirement. The burden of demonstrating both the substantial state interest and the absence of a less restrictive alternative rests upon the proponent of the rule. If, however, the rule operates only as a limitation on a prisoner’s first amendment rights, then the judicial deference normally accorded prison officials will in most instances defeat a claim of over-breadth. The court’s inquiry is directed not toward whether the state has demonstrated an absence of less restrictive alternatives but whether the inmate challenging the regulation has shown by substantial evidence that the state has exaggerated its response to an institutional problem.⁴

Applying this rationale to the facts of the present case we find no substantive constitutional defect in DGL 851. The rule imposes certain limitations on one manner in which an inmate may exercise his first amendment rights. It does not, however, operate as an absolute denial of free speech. Nor does it affect the rights of nonprisoners. It must, therefore, be construed as a “time, place and manner” regulation of the type sustained in Pell.5

As a limitation on speech rather than a total denial of that first amendment right, the rule must be upheld if it is rationally related to the legitimate penological objectives of the penal institution. We conclude that DGL 851 is such a reasonable response to valid concerns relating to institutional security. The Department has articulated its need to impose a limit on the flow of information between inmates as a means of reducing institutional tensions and impeding the exchange of communication relating to unlawful activity. We have no reason to believe that this position is not an accurate depiction of the requirements of penal administration.

On appeal, Vester does not dispute that the institutional concerns which gave rise to DGL 851 are genuine. Rather, he argues that less restrictive means of protecting those concerns, such as letter-by-letter censorship or a rule limiting only those prisoners specifically identified as security threats, would equally serve the institution’s goal. As we have stated, however, the availability of alternatives is not relevant if a penal regulation only limits rather than denies a constitutional right. Vester’s burden was to overcome the presumption of constitutionality to which a reasonable penal regulation is entitled by demonstrating an exaggerated response on behalf of the promulgators of the rule. We find that Vester has not met this burden. We hold, therefore, that DGL 851 is a constitutionally valid effort by Virginia penal officials to insure the orderly operation of that state’s prisons.

We emphasize that our decision today addresses only the substantive validity of DGL 851. We agree with the district court that Vester’s failure to comply with the administrative requirements of the rule precludes any consideration of whether there is any constitutional defect in the procedural operation of the rule.

IV.

For the foregoing reasons, we conclude that the district court properly granted summary judgment in favor of the defendants below. The district court’s order is, therefore, affirmed.

AFFIRMED.

1 . The Court stated the Procunier test as follows:

First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail

censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.

416 U.S. at 413, 94 S.Ct. at 1811.

2 . In reaching the merits of Vester’s appeal, we reject as meritless the Department’s contention that his failure to seek permission to correspond renders his claim hypothetical and conjectural. The Department’s reliance on our opinion in Doe v. Duling, 782 F.2d 1202 (4th Cir.1986), is substantially misplaced. In Doe, we concluded that no genuine case or controversy existed where two individuals who had sought to challenge a Virginia statute prohibiting fornication and cohabitation had neither been charged under the statute nor could show any real or immediate threat of prosecution. In the present case, however, Vester can show not only a likelihood that DGL 851 will be applied to him but that it has actually been used to restrict his conduct. Doe is, therefore, factually inapposite.

3 . The Court held that a journalist’s first and fourteenth amendment rights were not abridged by a penal regulation limiting media access to sources of information to the same level available to the general public. 417 U.S. at 834-35, 94 S.Ct. at 2810-11.

4 . Although we articulate this position for the first time today, we note that it is consistent with our earlier decisions on prison regulation. Cf. Pittman v. Hutto, 594 F.2d 407 (4th Cir. 1979), in which this Court sustained limitations imposed upon a prisoner-operated publication based upon the reasonable conclusion of prison officials that the full exercise of the first amendment rights possessed a likelihood of prison disruption with Barrett v. Commonwealth of Virginia, 689 F.2d 498 (4th Cir.1982), in which we subjected a Virginia statute that absolutely prohibited legal name changes by inmates to the stricter scrutiny of Procunier.

To the extent that there is any contrary language in the unpublished decision of Parker v. McKenzie, 577 F.2d 736 (4th Cir.1978), cited in appellant’s brief, we do not find it controlling. Parker dealt with a challenge to the methods employed by West Virginia prison officials to regulate inmate correspondence. The complaint in that case alleged, inter alia, that proper notice and an opportunity to appeal were not provided. The question was therefore one of procedural rather than substantive due process. The discussion in Parker with regard to the underlying constitutionality of the prison regulation in that case must be seen, therefore, as dicta. The usually diminished precedential value of such dicta is further reduced when it is taken from an unpublished decision, a practice not favored by our own local procedure. See Fourth Circuit Internal Operating Procedures— 36.5.

5 . Appellant seeks to distinguish Pell from the present case in the same manner as did the Eighth Circuit in Safley. He contends that unlike Pell's "time, place and manner” regulation, DGL 851 is an absolute limitation on free speech. We find appellant’s argument unpersuasive.

DGL 851 addresses correspondence, not communication. Even if the regulation totally prohibited correspondence between inmates of different institutions, which it clearly does not, communication would be possible through non-prisoner intermediaries such as family, friends, clergy, etc. The Court in Pell found this mechanism an adequate alternative form of communication. We fail to see, therefore, why DGL 851 is any less a "time, place or manner” regulation than was the rule at issue in Pell.