Stow v. Warden, NHSP

Opinion

USCA1 Opinion

March 31, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-1869

WESTON J. STOW,

                                 Plaintiff Appellant,

                                          v.

                           WARDEN, NH STATE PRISON, ET AL.,

                                Defendant, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                   [Hon. Joseph A. DiClerico, U.S. District Judge]

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                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ___________________

               Weston J. Stow on brief pro se.
               ______________
               Jeffrey  R. Howard,  Attorney  General, and  Christopher  P.
               __________________                           _______________
          Reid, Attorney, Civil Bureau, on brief for appellees.
          ____

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                                  __________________

Per  Curiam.     Weston Stow  appeals the  district
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            court's decision dismissing his action under 42 U.S.C.   1983

            against New Hampshire corrections officials.  We affirm.1

                      Stow  is  presently  in  prison  in  Massachusetts.

            Previously, he  had been  confined in  a New  Hampshire state

            prison.    While  in  prison  in  New  Hampshire,  Stow  sued

            corrections  officials in  state court,  alleging that  a new

            prison policy  permitting the removal and  destruction of all

            newsclippings   in  incoming   letters  violated   the  state

            constitution.  Under the policy, prison officials had removed

            and destroyed a newsclipping sent to Stow in a family letter,

            and Stow sought damages and an injunction against enforcement

            of the policy.   After  a hearing, the  state superior  court

            determined that  the no-newsclipping policy was  invalid, but

            denied Stow money damages.  

                      Soon after  bringing his  state suit, Stow  filed a

            section  1983  suit  in  the federal  district  court  in New

            Hampshire,  seeking  declaratory  and injunctive  relief  and

            damages.2    Stow  alleged   that  the  New  Hampshire  state

            prison's publishers only rule "as it appl[ies] to the receipt

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            1.  Because  the facts  and  legal arguments  are  adequately
            presented  in   the  briefs  and  record,   and  because  our
            decisional process would  not be aided  by oral argument,  we
            deny the defendants' request for oral argument.  See 1st Cir.
                                                             ___
            Loc. R. 34.1(a).

            2.  Stow's  federal complaint  named the  same defendants  as
            were  named in  the  state suit,  as  well as  an  additional
            defendant.

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of both hardcover and  softcover as well as  looseleaf papers

            from sources other than a publisher" was unconstitutional and

            that defendants  had illegally seized  his personal property.

            On three occasions, Stow said that he had not been allowed to

            keep specific  printed material contained in incoming letters

            or dropped off for him by visiting  family members.  One such

            occasion  involved  the same  incident  and  policy on  which

            Stow's state suit was  based.  In an amended  complaint, Stow

            further alleged  that the  rule prevented him  from receiving

            newspapers  and periodicals  from his  Massachusetts hometown

            which  he  could not  afford to  subscribe  to and  which the

            prison library did not have.     

                      In granting  judgment on  the pleadings,  the court

            determined  first that  Stow could  not litigate  his section

            1983  claim based  on the  no-newsclipping policy  in federal

            court.  Under  state law,  Stow would have  been barred  from

            litigating that claim since he could have presented it to the

            court in the  state action he brought, but  had not.  Because

            state  law  would not  have  permitted Stow  to  litigate his

            section 1983 claim  in state court, the court  concluded that

            Stow was  also barred from  litigating that claim  in federal

            court, citing  Migra v. Warren City School  District Board of
                           _____    _____________________________________

            Education, 465 U.S. 75  (1984).  In Migra, the  Supreme Court
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            held  that a  federal  court must  give  the same  preclusive

            effect to  a state court  judgment as  the law of  that state

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would give to that judgment, and it affirmed a district court

            decision dismissing  a section 1983 action  brought after the

            plaintiff had  successfully sued  in state court  under state

            law  on the same claim, because the plaintiff could have, but

            did not, present the section 1983 issue to the state court in

            the  state  action.   Id.  at 81,  83-85.   Under  Migra, the
                                  ___                          _____

            district court's ruling was clearly correct.  On appeal, Stow

            contends  that  the  court  gave  the  state  court  decision

            preclusive effect with respect  to his other claims as  well,

            but the court's decision belies that contention.

                      The  district  court  also  correctly  decided that

            Stow's claims for declaratory and injunctive relief regarding

            the publishers only rule were moot.  Plaintiff's own  filings

            establish that he is no longer confined in New Hampshire, but

            is  presently  housed  in  Massachusetts.   Accordingly,  the

            district  court  permissibly relied  on  the  fact of  Stow's

            transfer  out of New  Hampshire in  granting judgment  on the

            pleadings.     On   appeal,  Stow  says   that  Massachusetts

            corrections officials review his  case annually to  determine

            whether he  may be paroled, and that he will be returned to a

            New Hampshire prison to begin serving his sentence there once

            he is paroled.   He claims that his requests  for declaratory

            and injunctive relief are not moot because he may  be back in

            a New Hampshire prison soon.  We have no basis for evaluating

            the validity  of that claim  on the  present record.   In any

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event, his eventual parole in Massachusetts is a contingency,

            which itself  is subject  to other contingencies  (e.g., what

            the standards for  parole are in Massachusetts  and how close

            Stow  comes  to meeting  them).   Therefore,  his  claims for

            declaratory and injunctive  relief are moot.   Cf. Super Tire
                                                           ___ __________

            Engineering  Co.  v.  McCorkle,  416  U.S.  115,  123  (1974)
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            (declaratory  relief  was   warranted  where  the   allegedly

            injurious  governmental  action  did  not  rest  on  "distant

            contingencies"); see Johnson v. Moore, 948 F.2d 517, 520 (9th
                             ___ _______    _____

            Cir.  1991) (per  curiam)  (prisoner's claims  for injunctive

            relief  from publishers only rule were mooted by his transfer

            to a different facility).  Although Stow also argues that his

            case  comes  within the  capable  of  repetition yet  evading

            review exception to  the mootness doctrine, we  have no basis

            for evaluating that claim.  The record does not show (nor has

            Stow said) how  long his  sentence in New  Hampshire will  be

            once he returns.   Cf.  Super Tire,  supra, 416  U.S. at  126
                               ___  __________   _____

            (capable of repetition  yet evading review  exception applies

            where   the   potentially    recurring   situation   is    of

            "comparatively short duration").  

                      Finally,   the  district   court  found   that  New

            Hampshire's  publishers only  rule was valid  as a  matter of

            law.   We affirm its  decision on the basis  of the qualified

            immunity defense asserted by  defendants on appeal, which, in

            this case, may be resolved as a question of law.   See Febus-
                                                               ___ ______

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Rodriguez  v. Betancourt-Lebron,  14  F.3d 87,  90 (1st  Cir.
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            1994)  (qualified immunity is  a question of  law where there

            are no  disputed fact issues).   Although defendants  did not

            argue  their  qualified  immunity  below,  we  may  affirm  a

            judgment on "any independently  sufficient ground."  Horta v.
                                                                 _____

            Sullivan, 4 F.3d 2, 9 (1st Cir. 1993).  
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                      Here,  Stow's  only  remaining  claim  is  one  for

            damages allegedly suffered by defendants'  application of the

            state prison's publishers  only rule.   But he  may only  sue

            defendants  for damages  if  their conduct  violated "clearly

            established . . . constitutional rights of which a reasonable

            person would have known."  Febus-Rodriguez, supra, 14 F.3d at
                                       _______________  _____

            91.    The  question  for  us,  therefore,  is  not   whether

            defendants' conduct was "clearly constitutional,  but whether

            it [was]  clearly unconstitutional."   Knox v.  McGinnis, 998
                                                   ____     ________

            F.2d 1405, 1409 (7th Cir. 1993).  

                      The   publishers  only  rule   challenged  by  Stow

            permitted  prisoners to receive published materials only from

            publishers.    Stow  argued  on  appeal  that  the  rule  was

            unconstitutional  because  it  did not  permit  prisoners  to

            obtain  materials  from  visitors  or  to  seek  case-by-case

            exceptions  to  the rule's  outright  prohibition  of printed

            materials  from  nonpublisher  sources.    Moreover,  in  his

            complaint, he  had alleged a complete  deprivation of certain

            materials which he  could not afford  to buy from  publishers

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and which were not available in the prison library.  Although

            this court has sustained a publishers only rule which covered

            both  hardbound and softbound materials as a matter of law in

            part  on the  ground that the  rule permitted  exceptions for

            certain printed  materials brought by visitors,  see Kines v.
                                                             ___ _____

            Day, 754 F.2d 28  (1st Cir. 1985), there is nothing  in Kines
            ___                                                     _____

            which  suggested that a rule  without such an exception would

            be  per se unlawful.   Moreover, in Ward  v. Washtenaw County
                ___ __                          ____     ________________

            Sheriff's Department, 881 F.2d 325 (6th Cir. 1989), the Sixth
            ____________________

            Circuit  sustained a  publishers only  rule which  applied to

            both  hardcover   and   softcover  publications   and   which

            specifically forbade inmates from receiving publications from

            visitors.  There is authority that suggests a publishers only

            rule would not be unconstitutional merely because it prevents

            an inmate  from receiving the particular  materials he seeks,

            as  long  as  inmates  have  access  to  a  "broad  range  of

            publications."  See Bell v. Wolfish, 441 U.S. 520, 552 (1979)
                            ___ ____    _______

            ("where 'other  avenues' remain available for  the receipt of

            materials by inmates, the  loss of 'cost advantages  does not

            fundamentally  implicate free  speech values'")  (emphasis in
                                     ____  ______

            original; citation omitted); Hurd  v. Williams, 755 F.2d 306,
                                         ____     ________

            308 (3d  Cir. 1985) (rejecting an argument  that the prison's

            publishers only rule fell "inequitably" on the poor where the

            plaintiff  had not disputed that he had access to a library);

            compare  Thornburgh  v.  Abbott,  490 U.S.  401,  418  (1989)
            _______  __________      ______

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(sustaining regulations impinging  on First Amendment  rights

            where  the   regulations   permitted  "a   broad   range   of

            publications  to  be  sent,  received,  and  read"  and  thus

            afforded inmates sufficient  alternative means of  exercising

            those rights).   Thus,  we cannot  say that,  when defendants

            applied  their publishers  only  rule to  Stow, the  rule was

            "clearly unconstitutional" because it did not provide for the

            exceptions  suggested by Stow  or because Stow  was unable to

            afford to buy particular materials not otherwise available in

            the prison library.  Accordingly, defendants are protected by

            qualified immunity, and Stow's claim for compensatory damages

            was  properly dismissed.  See Johnson, supra, 948 F.2d at 520
                                      ___ _______  _____

            (inmate's claim for damages was held preempted by defendants'

            qualified  immunity where  circuit  law had  not yet  clearly

            established  that  a  publishers  only   rule  covering  both

            hardcover and softcover materials was unconstitutional).

                      Affirmed.
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