Seace v. NH DOC et al. CV-99-296-B 10/22/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Russell C . Seace, Jr.
v. Civil No. 99-296-B Opinion No. 2001DNH196 New Hampshire Department of Corrections, et al.
MEMORANDUM AND ORDER
Russell C . Seace, Jr. has brought this action against the
New Hampshire Department of Corrections and various prison
officials1 pursuant to 42 U.S.C. § 1983, seeking damages and
injunctive relief for alleged violations of his First and
Fourteenth Amendment rights that occurred during his
incarceration at the prison’s Lakes Region facility. Seace
claims that by enforcing a prison regulation that prohibits
prisoners from possessing certain written materials, the
1 The defendants are the New Hampshire Department of Corrections; John L. Sanfilippo, Warden of the Lakes Region Facility; Robert M. Clough, a unit manager; Lieutenant Steven A. Commeau, a corrections officer; Sergeant Marilyn Whitten, a corrections officer; Wayne Brock, chairperson of the Literary Review Committee; and certain unidentified members of the prison’s Special Emergency Response Team (SERT). defendants interfered with both his right to freely exercise his
religion and his right to free speech. He challenges the
constitutionality of this prison regulation both on its face and
as it was applied to him. Furthermore, Seace claims that the
defendants violated his Fourteenth Amendment right to equal
protection of the law when they discriminated against him because
of his religious views and membership in the Church of Jesus
Christ Christian (CJCC). 2
The defendants have moved for summary judgment. For the
following reasons, I grant their motion.
FACTS3
A. Policy and Procedure Directive 5.26
The New Hampshire Department of Corrections maintains and
2 On May 1 0 , 2000, I approved Magistrate Judge Muirhead’s Report and Recommendation, Doc. N o . 1 1 , which dismissed several of Seace’s claims including: (1) his claim pursuant to the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb; (2) his claim that his First Amendment rights were violated when the defendants confiscated his swastika necklace and a graduation plaque; and (3) his claim that his Fourteenth Amendment due process rights were violated when the defendants reviewed his mail and literature. 3 I construe the evidence in the light most favorable to Seace, the non-moving party. See Oliver v . Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
-2- enforces a policy regarding inmate mail, which, among other
things, establishes a procedure for mail security screening
whereby all incoming and outgoing mail is subject to being opened
and read. This policy, known as Policy and Procedure Directive
5.26 (PPD 5.26), provides that inmate incoming and outgoing mail
that meets certain criteria will be forwarded to the prison’s
Investigations Unit for review. Among the materials forwarded to
the Investigations Unit are those that contain “[d]escriptions or
depictions that encourage activities which may lead to the use of
physical violence or group disruption”; “[m]aterials that
encourage or instruct in the commission of criminal activities or
violation of rules of conduct for prisoners”; and “[c]ontents
that would, if transmitted, create a clear and present danger of
violence and physical harm to persons or property, or severe
psychiatric or emotional disturbance to a resident.” PPD 5.26 §§
IV(B)(2)(h),(i),(m). If mail falls into any of the above
categories, the Investigations Unit forwards it to the Literary
Review Committee (LRC).
The LRC reviews mail, and any other confiscated literary
material forwarded to i t , in order to determine whether PPD 5.26
prohibits its possession by inmates. The LRC is composed of
-3- three members, including chairperson Wayne Brock. The members
review each piece of mail or confiscated literature independently
and then vote on whether to allow the inmate to receive the
material. If a majority of the LRC decides that the materials
violate PPD 5.26, the LRC gives the inmate a written notice
explaining why his mail, or other confiscated literature, has
been rejected. The actual item is then returned to the mail room
with a rejection notice. An inmate has ten days to appeal an LRC
decision to the Warden or Superintendent. If an LRC decision is
affirmed on appeal, or if the inmate does not appeal, the inmate
has ten days to return the materials to the sender. Otherwise,
the materials are discarded.
PPD 5.26 prohibits the LRC from creating blanket
restrictions on a particular type of mail. For example, the
directive states, “[t]here shall not be an excluded list of
publications: each issue of a subscription is to be reviewed
separately.” PPD 5.26 § IV (C)(6). It further directs that if
material violates no section of the policy, it “may not be
rejected solely because its content is religious, philosophical,
political, social, sexual, unpopular or repugnant.” Thus, the
LRC does not have unfettered discretion to approve or withhold
-4- inmate mail and literature.
B. Plaintiff’s Claims
Seace is currently serving a three-and-a-half to seven year
sentence for burglary. From August 1 1 , 1998 to October 1 5 , 1999,
Seace served a portion of his sentence in the prison’s Lakes
Region facility. He is currently a member of the Church of Jesus
Christ Christian, a white-supremacist church closely affiliated
with the Aryan Nations.4 Seace believes Caucasians are superior
to all other races, and believes in “peaceful” racism and
segregation. At one point, Seace also was a member of the World
Church of the Creator.
1. Facts Relevant to Free Exercise and Free Speech Claims
While incarcerated at the Lakes Region Facility, Seace
either possessed or received in the mail various materials that
were potentially prohibited by PPD 5.26, and therefore warranted
review by the LRC. On February 6, 1999, SERT officers conducted
a general security search of Seace’s dormitory unit to uncover
4 For information pertaining to the CJCC’s history and teachings, as well as a description of some of its literature, see Nichols v . Nix, 810 F. Supp. 1448, 1451-53 (S.D. Iowa 1993), aff’d, 16 F.3d 1288 (8th Cir. 1994). See also Stefanow v . McFadden, 103 F.3d 1466, 1469-71 (9th Cir. 1996) (describing contents of book, Christianities Ancient Enemy, authored by CJCC pastor, Gordon “Jack” Mohr).
-5- contraband. Twenty-four inmates lived in the unit and each had a
footlocker in which to keep personal belongings. When they
searched Seace’s footlocker, the officers confiscated white-
supremacist literature that they believed might violate PPD 5.26
and gave it to Sergeant Whitten, a corrections officer. The
materials consisted of several issues of “Calling Our Nation,”
published by the Aryan Nations; several issues of a periodical
called “The Struggle,” published by the World Church of the
Creator; a copy of the Klansman’s Handbook; a book entitled Your
Heritage; and a few pieces of personal correspondence, including
a letter from the prison ministry director at the CJCC.
After the search of Seace’s dormitory unit, Seace met with
Lieutenant Commeau to discuss the confiscated literature.
Commeau told Seace that the materials could incite violence among
the inmates. During the meeting, Whitten entered the office and
presented Commeau with Seace’s literature. Commeau and Clough,
the unit manager, decided, and Seace consented, to send the
materials to the LRC.
The LRC individually reviewed each of the seized items and
decided not to return them to Seace, concluding that they
violated PPD 5.26. With respect to each item, the LRC concluded
-6- that it posed a risk to the maintenance of good order and
security at the prison either because: (1) it was material which
encourages activities which may lead to the use of physical
violence or group disruption; or (2) it was material which
encourages or instructs in the commission of criminal activities
or rules of conduct for prisoners; or (3) it was material which
if transmitted, creates a clear and present danger of violence
and physical harm to persons, property or serious psychiatric or
emotional disturbance to a resident.
The LRC later determined that other materials, including a
copy of The White Man’s Bible and an October 1999 issue of “The
Struggle” which had been mailed to Seace from outside the prison,
also violated PPD 5.26. Before making this determination, the
LRC reviewed each questioned item individually and determined
that it violated one or more of the criteria identified in PPD
5.26.
2. Facts Relevant to Equal Protection Claim
On February 6, 1999, after the general search of the
dormitory unit in which Seace lived, the inmates were taken to
the gymnasium where they were all strip-searched. After noticing
that Seace wore a swastika necklace, one of the SERT officers
-7- began questioning him in a harassing manner concerning his
religious beliefs. The officer took Seace’s necklace and placed
him in a holding cell until he could talk with Commeau.
Seace asserts that Commeau repeatedly harassed him by
labeling him a member of the “Aryan Brotherhood,” and by denying
him a copy of the prison’s Policy and Procedure Directive
regarding discrimination. Seace also claims that Clough, the
unit manager, failed to act when he was notified of Commeau’s
discriminatory treatment of Seace. Seace also alleges that
Whitten made him “feel like I was being attacked because of my
religious beliefs” because Whitten voiced her opinion, telling
him that she didn’t approve of white-supremacy. Furthermore, he
claims that she violated his religious beliefs at one point by
housing him in a dorm with African-American inmates. Finally,
Seace asserts that the refusal of the prison to use his design
for his unit’s plaque is further proof of discrimination.
STANDARD OF REVIEW
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
-8- together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] ... may reasonably be
resolved in favor of either party.” Anderson v . Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). A material fact is one that
affects the outcome of the suit. See id. at 248.
In ruling on a motion for summary judgment, the court must
construe the evidence in the light most favorable to the
non-movant. See Oliver, 846 F.2d at 105. The party moving for
summary judgment, however, “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] ... which it believes
demonstrate[s] the absence of a genuine issue of material fact.”
Celotex Corp. v . Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has properly supported its motion, the burden shifts
to the nonmoving party to “produce evidence on which a reasonable
finder of fact, under the appropriate proof burden, could base a
verdict for i t ; if that party cannot produce such evidence, the
motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb
-9- Co., 95 F.3d 8 6 , 94 (1st Cir. 1996) (citing Celotex, 477 U.S. at
323). I apply this standard in resolving the defendants’ motion
for summary judgment.
DISCUSSION
As noted, Seace claims that the defendants violated both his
right to free speech and his right to freely exercise his
religious views5 when they denied him access to his white-
supremacist literature. In addition, Seace claims that the
defendants denied him his Fourteenth Amendment right to equal
protection of the laws when they discriminated against him
because of his religious beliefs. The defendants move for
summary judgment as to all claims. I address each claim below.
A. First Amendment Claims
The Supreme Court has developed a standard by which to judge
a prisoner’s claim that the enforcement of a prison policy
violates a fundamental constitutional right. The Court
5 Whether the CJCC is a religion has been a subject of debate. See, e.g., Nichols, 810 F. Supp. at 1451 n.7 (citing Murphy v . Missouri Dep’t of Corrections, 814 F.2d 1252, 1255-56 (8th Cir. 1987); McCabe v . Arave, 827 F.2d 634, 637 n.2 (9th Cir. 1987); Wiggins v . Sargent, 753 F.2d 663, 666-67 (8th Cir. 1985)). Here, for purposes of ruling on defendants’ summary judgment motion, I assume that the CJCC is a religion.
-10- recognizes that prisoners do not surrender all constitutional
rights upon incarceration, and has stated that “federal courts
must take cognizance of the valid constitutional claims of prison
inmates.” Turner v . Safley, 482 U.S. 7 8 , 84 (1987). The Court
has also emphasized, however, “the increasingly urgent problems
of prison administration and reform.” Id. (internal quotation
marks and citation omitted). To reconcile these competing
concerns, the Court has decided that when a prison regulation
that burdens a fundamental right is called into question, the
proper inquiry is whether that regulation “is reasonably related
to legitimate penological objectives, or whether it represents an
exaggerated response to those concerns.” Id. at 87 (internal
quotation marks omitted).
The Court explained that four factors are relevant to
determining the reasonableness of a prison regulation. First,
the court considers whether a valid and rational connection
exists between the prison regulation and a legitimate
governmental interest. Id. at 8 9 . Second, the court considers
whether alternative means of exercising the burdened right remain
open to the affected inmates. Id. at 9 0 . Third, the court
considers how accommodation of the constitutional right would
-11- impact prison guards and other inmates, and whether it would
affect the general allocation of prison resources. Id. Finally,
the Court explained that the absence of ready alternatives
supports the conclusion that the regulation is reasonable,
whereas the existence of obvious, easy alternatives could suggest
that the regulation is not reasonable, and instead an exaggerated
response to prison concerns. Id.
The Supreme Court and several circuit courts have squarely
addressed prison regulations nearly identical to PPD 5.26,
applied the Turner analysis, and held that they are reasonably
related to legitimate penological objectives. See generally
Thornburgh v . Abbott, 490 U.S. 401 (1989); Chriceol v . Phillips,
169 F.3d 313 (5th Cir. 1999); Stefanow v . McFadden, 103 F.3d 1466
(9th Cir. 1996). In Thornburgh, the Court reviewed Federal
Bureau of Prisons regulations that authorized wardens to reject
incoming publications that were determined to be detrimental to
the institution’s security or that might promote criminal
activity. 490 U.S. at 404. The regulations expressly prohibited
prison officials from rejecting publications based solely upon
their religious, philosophical, political, social or sexual
content, and from establishing an excluded list of publications,
-12- instead requiring that each issue of a subscription be reviewed
separately. Id. at 405. The Court concluded that the
regulations were reasonably related to security interests,
explaining that certain publications can lead directly to
violence in prisons, or could exacerbate tensions and lead
indirectly to disorder. Id. at 416. The Court stressed that the
individualized review of publications was an important factor in
reaching its conclusion, explaining that this portion of the
regulations distinguished them from unconstitutional censorship.
Id. at 415-16 & n.14; cf. Williams v . Brimeyer, 116 F.3d 351,
353-54 (8th Cir. 1997) (holding blanket ban on CJCC materials
unconstitutional). Finally, the Court considered the regulations
in light of each of the four factors set forth in Turner, and
determined that the regulations were consistent with each factor.
See Thornburgh, 490 U.S. at 417-18.
PPD 5.26 is indistinguishable from the regulations
considered in Thornburgh. PPD 5.26 requires that each piece of
literature or mail be considered individually before a prisoner
is denied access to it. The stated purpose of PPD 5.26 is to
prevent violence and the commission of criminal activity.
Furthermore, PPD 5.26 explicitly states that if material violates
-13- no section of the policy, it “may not be rejected solely because
its content is religious, philosophical, political, social,
sexual, unpopular or repugnant.” This policy directive on its
face is reasonably related to the legitimate penological
interests of the New Hampshire Department of Corrections.
Therefore, PPD 5.26 does not on its face violate Seace’s free
speech and free exercise rights.
I also reject Seace’s claim that the defendants
unconstitutionally applied PPD 5.26 to categorically ban CJCC
material. Defendants deny that they imposed a categorical ban on
all racist materials and Seace has produced no admissible
evidence to support his bald assertion to the contrary.
Finally, Seace has failed to produce any specific letter or
publication which he claims the prison improperly excluded under
PPD 5.26. As a result, I am in no position to second-guess the
LRC’s application of PPD 5.26 to any specific letter or
publication. Accordingly, Seace has failed to demonstrate that
he has a viable free speech or free exercise claim.
B. Equal Protection Claim
Seace alleges that Commeau, Clough, Whitten, and an unnamed
SERT officer discriminated against him because of his religious
-14- beliefs. To prevail on his claim, Seace must show that he was
treated differently from similarly situated inmates because of
his religious views. See Rubinovitz v . Rogato, 60 F.3d 906, 910
(1st Cir. 1995).
Seace claims that a SERT officer noticed his swastika
necklace, began to ask him harassing questions about his
religious views, then took his necklace and placed him in a
holding cell. Second, he alleges that Commeau harassed him by
calling him a member of the “Aryan Brotherhood” and a ”gang
member,” and by denying him a copy of the prison policy and
procedures regarding discrimination, even though he could pay for
the associated photo-copying costs. Third, Seace claims that
Clough, the unit manager, failed to act when he was notified of
Commeau’s discriminatory treatment of Seace. Finally, he
complains that Whitten made him feel “attacked” because she
voiced her disapproval of his white-supremacist views.
These assertions fail to establish an Equal Protection
violation. First, isolated instances of name-calling and verbal
harassment, by themselves, will not support an equal protection
claim. See DeWalt v . Carter, 224 F.3d 607, 612 (7th Cir. 1999).
Thus, even if prison officials called Seace a member of the Aryan
-15- Brotherhood and a gang member and told him that they disagreed
with his religious views, their verbal statements would not
amount to an equal protection violation. Second, Seace neither
alleges in his complaint, nor offers evidence to suggest, that
defendants treated him differently from other similarly situated
inmates when they briefly placed him in a holding cell, denied
him access to the prison’s discrimination policy, and housed him
with inmates of different races. Accordingly, I grant the
defendants’ motion for summary judgment as to Seace’s equal
protection claims.
CONCLUSION
For the foregoing reasons, I grant the defendants’ motion
for summary judgment (Doc. N o . 2 4 ) . The Clerk is directed to
close the case.
SO ORDERED.
Paul Barbadoro Chief Judge October 2 2 , 2001
cc: Russell C . Seace, Jr., pro se Andrew B . Livernois, Esq.
-16-