March 31, 1994 [NOT FOR PUBLICATION]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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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.
Per Curiam. Weston Stow appeals the district
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
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
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)
(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.
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).
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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