John P. McNamara v. J. C. Moody, Etc.

606 F.2d 621, 1979 U.S. App. LEXIS 10449

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 15, 1979
• Docket: 77-2466
• Status: Published

Opinions

GODBOLD, Circuit Judge:

Appellee is a prisoner in the Glades Correctional Institution at Belle Glade, Florida. He brought suit against two officials of that institution alleging that they had wrongfully prevented him from mailing certain letters. The district court found that appellant Moody, assistant superintendent of Glades, had violated McNamara’s constitutional rights by refusing to mail a letter to his girlfriend.¹ This two-page letter dealt in large part with McNamara’s discontent with the prison mail censorship system, but it also charged that the mail censoring officer, while reading mail, engaged in masturbation and “had sex” with a cat. Moody found the part of the letter referring to the mail censoring officer to be “in poor taste” and returned it to McNamara with a warning that any fúture attempts to send similar letters would lead to disciplinary action.² The district court granted the prisoner injunctive relief, nominal damages against appellant individually, and attorney’s fees.

The law in this area has been well settled since the Supreme Court’s decision in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). There the Court recognized that letters between inmates and individuals on the outside involve the First Amendment rights of the outside correspondents as well as those of the prisoners.³ These rights are equally implicated regardless of whether the outsider is the sender or recipient. 416 U.S. at 408-09, 94 S.Ct. at 1808, 1809, 40 L.Ed.2d at 237. The Court therefore set forth a rule that strictly limits prison censorship of such correspondence:

[CJensorship of prisoner mail is justified if the following criteria are met. 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. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad.

416 U.S. at 413-14, 94 S.Ct. at 1811, 40 L.Ed.2d at 240.

Appellant maltes three attempts at identifying the required “substantial governmental interest.” The first is his contention that to allow letters like this would result in “a total breakdown in prison security and discipline.” This is similar to the contentions made by prison officials in Martinez and found unpersuasive by the Supreme Court. There it was claimed that mail containing “disrespectful comments” or “derogatory remarks”, or statements that “magnify grievances” or “unduly complain” could be censored “as a precaution against flash riots and in the furtherance of inmate rehabilitation.” 416 U.S. at 415-16, 94 S.Ct. at 1812, 40 L.Ed.2d at 241. The Court found this an inadequate justification, since the officials did not give any indication of what causal relationships there could be between such mail and these results. No one wants to be the target of insulting remarks like those in McNamara’s letter. But coarse and offensive remarks are not inherently breaches of discipline and security, nor is there any showing that they will necessarily lead to the breaking down of security or discipline. As we have recognized, “Martinez . . . emphatically states that mere complaints and disrespectful comments cannot be grounds for refusing to send or deliver a letter.” Guajardo v. Estelle, 580 F.2d 748, 757 (CA5, 1978). Censorship for violation of prison disciplinary rules is properly limited to communications that relate to more concrete violations such as “escape plans, plans for disruption of the prison system or work routine, or plans for the importation of contraband.” Id.; ⁴ see Martinez, 416 U.S. at 413, 94 S.Ct. at 1811, 40 L.Ed.2d at 240. Appellant argues that if insults such as this were made orally to prison guards, face to face, they would be punishable as breaches of discipline. This may be so; we need not decide it. These remarks were in writing and were directed to the inmate’s girlfriend, not the prison staff.

Appellant contends that the letter “could also be considered obscene.” Vulgar it is; obscene it is not. The Supreme Court, faced with a similar situation in Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971),⁵ reminded that:

Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone

403 U.S. at 20, 91 S.Ct. at 1785, 29 L.Ed.2d at 291. Judged by this standard, the inmate’s letter in this case is not obscene. We have held that there may be some prison censorship of sexually explicit materials that fall short of obscenity. Guajardo, 580 F.2d at 757. But under Martinez there must still be some connection to a governmental interest. In Guajardo that interest was the prohibition of materials that might exacerbate a prison problem of sexual attacks. Id. at 762. No such interest is implicated by the mailing of non-erotic vulgarities from a prisoner to a person on the outside.

Finally, appellant argues that the letter was libelous. Even if it is libelous, Martinez indicates that letters may not be suppressed simply because they are “defamatory”. 416 U.S. at 415-16, 94 S.Ct. at 1812, 40 L.Ed.2d at 224. Here again there must be some relation to a substantial governmental interest, and the appellant has advanced no such interest here. If the warden’s purpose is to prevent strongly worded and exaggerated criticism of prison officials from reaching the public, this is precisely the sort of purpose ruled impermissible by Martinez.

The district court awarded nominal damages of one dollar against appellant individually. All the court said in support of the award is that despite lack of actual damages, “nominal damages may be presumed when constitutionally protected rights are violated,” citing Sexton v. Gibbs, 327 F.Supp. 134, 142 (N.D.Tex.1970), aff’d 446 F.2d 904 (CA5, 1971), cert. denied, 404 U.S. 1062, 92 S.Ct. 733, 30 L.Ed.2d 751 (1972). Appellant contends that he is immune from an award of damages because of his good faith. Although the district court did not address this issue in its order, we find no error with the award of damages.

The Supreme Court has recognized that while 42 U.S.C. § 1983 exposes state and local officials to individual liability for damages under some circumstances, Congress did not intend by enacting that section to strip such officials of immunity afforded them at common law. Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24, 30 (1978). Some officials, such as judges, prosecutors, and legislators, are absolutely immune. Id. Most other officials have a qualified immunity for acts performed with a good faith belief, based on reasonable grounds, of their legality. Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90, 103 (1974). This immunity varies according to the scope of the official’s discretion and responsibility.⁶ Id. Procunier v. Navarette, supra, establishes that it is this qualified immunity, as developed in Scheuer v. Rhodes and Wood v. Strickland, 420 U.S. 308, 95 5. Ct. 992,43 L.Ed.2d 214 (1975), that applies to state prison officials. 434 U.S. at 561-62, 98 S.Ct. at 859-860, 55 L.Ed.2d at 30-31.

We recently discussed the application of this test to prison officials:

Wood v. Strickland clarified the Scheuer defense by establishing a dual test for measuring the existence of qualified immunity which requires both an objective and a subjective measurement of official conduct. Under the objective test of Wood, an official, even if he is acting in the sincere subjective belief that he is doing right, loses his cloak of qualified immunity if his actions contravene “settled, indisputable law.” Thus, an official is liable under section 1983 “if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights” of the person affected. The fulcrum of this objective first half of Wood is the existence, at the time of the official’s action, of clearly established judicial decisions that make his action unconstitutional. An official is not “charged with predicting the future course of constitutional law.” Navarette brought the objective part of the Wood formulation forward without alteration

Bogard v. Cook, 586 F.2d 399, 411 (CA5, 1978) (citations omitted).⁷

Under these principles, the evidence before the trial judge justified an award of damages against appellant. He made the decision not to allow the letter to be mailed and signed the note to the prisoner telling him that it was “in poor taste.” For the reasons discussed above, suppression of the letter is clearly proscribed by the First Amendment. While the law on this subject was uncertain before Martinez,⁸ that opinion brought clarity to the area. McNamara’s letter was written over a year and a half after Martinez was decided. Under Bogará, Navarette, and Wood, the award of nominal damages must be affirmed.⁹

Finally, the district court awarded costs and attorney’s fees against appellant, both individually and in his official capacity. In an action brought under 42 U.S.C. § 1983, attorney’s fees may be awarded to the prevailing party under the Attorneys’ Fees Awards Act of 1976, P.L. 94-559, 90 Stat. 2641, 42 U.S.C. § 1988. We have held that the award provisions are applicable to all cases that were pending, as was this one, at the time of enactment. Rainey v. Jackson State College, 551 F.2d 672, 675 (CA5, 1977). Awards against an individual in his official capacity may be made; they are treated as awards against the state. Hutto v. Finney, 437 U.S. 678, 689, 98 S.Ct. 2565, 2573, 57 L.Ed.2d 522, 539-40 (1978). There is no Eleventh Amendment bar to such awards, and they need not be based on bad faith.

A more difficult question is whether it was also proper to award attorneys’ fees against appellant in his individual capacity. At first glance an affirmative answer seems dictated by the statutory language. Appellee prevailed over appellant in his individual capacity as well as in his official capacity, by virtue of the award of nominal damages that we affirm. Such an award may be the basis of an attorney’s fee award under § 1988. See Perez v. University of Puerto Rico, 600 F.2d 1 (CA1, 1979). However, the legislative history of the Act casts some doubt on this conclusion. The Senate Report recommending passage of the Act stated:

[Defendants in these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys’ fees, like other items of costs, will be collected either directly from the official, in his official capacity ⁷ from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).

S.Rept. 94-1011 at 5, 5 U.S.Code Cong. & Admin.News 1976, p. 5908, at 5913 (1976) (footnote omitted). This passage appears to evince a congressional purpose not to subject state and local officials to liability for attorney’s fees unless they act in bad faith according to the American common law standard mentioned in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). However, the Supreme Court in Wood redefined bad faith to include both subjective and objective indicia. As Justice Powell noted, the majority opinion in Wood “explicitly equated” disregard of settled law with actual malice. 420 U.S. at 328, 95 S.Ct. at 1004, 43 L.Ed.2d at 229. The district court’s finding that Moody was guilty of objective bad faith therefore, under Wood, satisfies the congressional requirement that an official be guilty of bad faith if attorney’s fees are to be awarded against him in his individual capacity.

Moreover, even assuming that the Alyeska standard requires subjective bad faith,¹⁰ to apply such a standard would lead to an anomalous result. Prevailing plaintiffs who are awarded only money damages against state officials (based on conduct found in bad faith under the objective part of the Wood test) would receive no áttorney’s fees under the Act. Were we to-read the Senate Report as mandating such a result we would be creating a significant gap in § 1988’s coverage without any basis in the statutory language.

The Supreme Court has suggested a reading of the Senate Report passage that gives it effect without creating such a broad exception to the coverage of § 1988. In Hutto v. Finney, supra, the Court, in discussing the passage, indicated that the Alyeska standard would be applied to officials “in injunctive suits.” 437 U.S. at 699, 98 S.Ct. at 2578, 57 L.Ed.2d at 540. This interpretation, combined with the Wood test for immunity from damages, provides a reasonable accommodation of the conflicting interests involved. It also conforms with the natural reading of § 1988, that wherever an individual damage claim can be sustained an individual attorney’s fee award may be made. Since we find that Moody’s conduct is not immune from damages under Wood, we affirm the district court’s attorney’s fee award.

AFFIRMED.

1 . The letter was addressed to “Mrs. John P. McNamara,” but both parties refer to the intended recipient as appellee’s “girlfriend.”

The other letter involved in the case was one written to a member of Congress. It was rejected because it was not written on prison stationery. The district court found no constitutional infirmity in the prison stationery rule, and appellee does not press the point now.

2 . The portion of McNamara’s letter found to be offensive reads as follows:

I wish I could write w/o some perverted dung-hole reading my words, but such is not the case. It is really a shame that there are those who have such a blah! life that they must masturbate themselves while they read other people’s mail. I don’t think the guy is married; however, one of the freeman told me the other day that he has a cat and that he is suspected of having relations of some sort with his cat. If the shoe fits him, watch him blush the next time we see him. I’ll point him out to you and you can laugh at him. “Look, honey. There goes that pervert who has sex with a cat and masturbates while reading other people’s mail.” This is what I think of him. These are my thoughts, and I am entitled to them.

The full text of Moody’s note to McNamara was as follows:

I find your letter in poor taste and absolutely unacceptable for mailing from this institution.

In the future you will refrain from derrogatory [sic] remarks about the mail room officers and their business. They have a job to do and I intend that they do it. There is not any intent on their part to harrass you or anyone else. I assure you that my patience is running very short with your juvenile antics. The next time you write a letter such as the one attached, you may be sure that you will meet with the disciplinary team.

3 . The Court based the Martinez holding squarely on the First Amendment rights of the outside correspondents, thus avoiding the somewhat more difficult question of the scope of prisoners’ First Amendment rights. The exigencies of prison administration justify some more stringent restrictions on prisoners’ speech and association than would be permissible on the outside. Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). The only aspect of Jones concerning communications between prisoners and those on the outside was its allowance of a prison rule against bulk mailings of literature for redistribution in the prison. In approving such a rule the Court stressed that it had no effect on communication between outside individuals and individual inmates. 433 U.S. at 128, 97 S.Ct. at 2539, 53 L.Ed.2d at 640.

4 . In Guajardo we rejected the contention that a rule providing for censorship of letters concerning plans for the violation of prison rules was overly vague. In so doing we relied upon our conclusion that, in light of Martinez, the regulation could not have been meant to apply to mere disrespect.

5 . In that case the appellant had been prosecuted for publicly wearing a jacket with the words “Fuck the Draft” written on it. 403 U.S. at 16, 91 S.Ct. at 1780, 29 L.Ed.2d at 289.

6 . Thus the district court was justified in imposing liability on appellant Moody, who made the decision to suppress the letter, while not imposing liability on defendant Fluharty, the mail censoring officer, who merely referred the matter to Moody.

7 . Bogard then goes on to state that:

Under that second branch of the official immunity doctrine, an official forfeits his immunity, if whatever the objective state of the law at the time of his conduct, his subjective intent was to harm the plaintiff. Id. This point does not concern us, since there is no showing here of appellant’s subjective intent.

8 . Before Martinez “the tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect" constitutional rights led the federal courts to adopt a variety of widely inconsistent approaches to the problem [of prisoner mail].” Martinez, 416 U.S. at 406, 94 S.Ct. at 1808, 40 L.Ed.2d at 236. In Procunier v. Navarette, supra, the Court relied on this fact in holding that in the period 1971-1972 (before Martinez) there were no “clearly established” rights with respect to prisoner correspondence and that therefore officials could not be liable under Wood for infringing such rights. 434 U.S. at 562-65, 98 S.Ct. at 860-861, 55 L.Ed.2d at 31-33.

9 . Our conclusion is not altered by the district court’s statement in another part of its order that “[p]laintiff has made no showing that the withholding of plaintiffs letter was done willfully, with reckless disregard for plaintiffs rights.” This observation was made with regard to an unrelated issue, the court’s refusal (not challenged here) to award punitive damages. Thus it was not made in conjunction with a consideration of the “objective” part of the Wood v. Strickland test. Even if we were to consider this a relevant finding of fact, we are not bound by it, since our review of this case (submitted on stipulations and documents without oral testimony) is not limited to the usual clearly erroneous standard. Nash v. Estelle, 597 F.2d 513, 518 (CA5, 1979) (en banc); Caradelis v. Refinería Panama, S.A., 384 F.2d 589, 593 (CA5, 1967).

7 Proof that an official had acted in bad faith could also render him liable for fees in his individual capacity, under the traditional bad faith standard recognized by the Supreme Court in Alyeska, .

10 . We find no authority indicating whether an Alyeska bad faith award may be made in the absence of subjective bad faith. Because we decide this case on other grounds, we need not reach this issue.