In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1750
DAVID PAUL HAMMER,
Plaintiff-Appellant,
v.
JOHN D. ASHCROFT, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 01-558-C-T/G—John Daniel Tinder, Judge.
____________
ARGUED NOVEMBER 26, 2007—DECIDED JANUARY 15, 2008
____________
Before BAUER, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. David Hammer, a federal
prisoner on death row, sued various Bureau of Prisons
(“BOP”) officials alleging that they violated his First
Amendment and equal protection rights by implement-
ing and enforcing a policy that prevents him from giving
face-to-face interviews with the media and from talking
with the media about other inmates. The current defen-
dants—the former Attorney General of the United States,
John Ashcroft; a former BOP Director, Kathleen Hawk-
Sawyer; and former wardens of the federal prison in Terre
Haute, Indiana, Harley Lappin and Keith Olson—moved
for summary judgment, arguing that the challenged policy
is rationally related to legitimate penological interests.
2 No. 06-1750
The district court granted the defendants’ motion, and
Hammer appeals. Because we conclude that Hammer
raised a genuine issue of fact as to whether the defendants’
proffered justification for the policy banning face-to-face
interviews is pretextual, we reverse and remand.
I. Background
In July 1999 the BOP opened the Special Confinement
Unit (“SCU”) at the federal prison in Terre Haute, Indiana,
to house male inmates sentenced to death by the federal
courts. The SCU also houses inmates who are not under a
death sentence, but who are considered to be on “adminis-
trative detention status.” Hammer—who was under a
federal death sentence for killing his cellmate—was
among the first inmates transferred to the SCU.1
Between August and December 1999, Hammer gave
three face-to-face interviews with members of the media
in the SCU’s non-contact visiting area. No security prob-
lems arose as a result of these interviews. But in late
December 2000, Lappin ordered Hammer not to provide
information to members of the media about other inmates.
When Hammer asked Lappin for clarification, he stated
that Hammer was “prohibited from disclosing to a media
representative any information about another inmate
through any manner of communication (oral, written,
etc.).” Just over a month later, the BOP disciplined
1
Hammer’s death sentence has been vacated, see United States
v. Hammer, 404 F.Supp.2d 676 (M.D. Pa. 2005)—a decision
the government is challenging in the Third Circuit Court of
Appeals, see United States v. Hammer, No. 06-9001. Although
Hammer is no longer under a death sentence, Hammer’s coun-
sel informed us during oral argument—and the appellees do
not dispute—that he is still housed on death row at the SCU
and is still subject to the challenged policy.
No. 06-1750 3
Hammer for providing information about a fellow death
row inmate to a reporter. Lappin did not, however, gener-
ally prohibit Hammer from giving face-to-face interviews.
That situation changed a few months later. In March
2000, CBS aired a national broadcast of “60 Minutes”
featuring an interview with Timothy McVeigh. At that
time McVeigh was housed at the SCU awaiting execu-
tion for his role in the 1995 bombing of the Alfred P.
Murrah federal building in Oklahoma City. Following this
interview, U.S. Senator Byron Dorgan wrote to BOP
Director Hawk-Sawyer on March 14, 2000, criticizing
the BOP for allowing the McVeigh interview and de-
manding that the BOP prohibit similar interviews with
other death row inmates. The published account of this
criticism described Dorgan’s view of the value of such
interviews:
The American people have a right to expect that the
incarceration of a convicted killer will not only remove
him physically from society, but will also prevent
him from further intrusion in our lives through televi-
sion interviews and from using those forums to ad-
vance his agenda of violence.
Soon thereafter Lappin (then the SCU warden) denied
every media request for a face-to-face interview with
Hammer. When Hammer filed an administrative griev-
ance to protest these denials, Lappin informed him that
the procedures for granting interviews “have evolved” since
the SCU opened and that requests for in-person media
interviews are evaluated on “a case-by-case basis.”
The policy on face-to-face interviews evolved further
one month later. On April 12, 2001, Ashcroft and Hawk-
Sawyer gave a press conference during which they an-
nounced a change from the case-by-case policy to a blanket
policy preventing SCU inmates from having face-to-face
interviews with members of the media on any subject at
4 No. 06-1750
any time. The policy allows SCU inmates to speak to the
media only by telephone during their ordinary 15-minute
daily allotment of telephone time. In announcing this
policy, Ashcroft explained that it is designed to prevent
murderers from, in his view, altering our culture by
glamorizing violence:
I am aware that several media outlets have requested
access to interview inmate McVeigh. As an American
who cares about our culture, I want to restrict a mass
murderer’s access to the public podium. On an issue
of particular importance to me as Attorney General of
the United States, I do not want anyone to be able to
purchase access to the podium of America with the
blood of 168 innocent victims.
***
I’m concerned about irresponsible glamorization of
a culture of violence, and that concern has shaped our
approach to these issues profoundly.
Hawk-Sawyer announced that the 15-minute telephone
limitation “will become the policy for the [SCU] in gen-
eral.”
Three days after the press conference, Lappin signed
Institution Supplement 1480.05A (“the media policy”),
which states that “[t]o maintain safety, security and the
good order of the SCU, in-person interviews (including
video-recorded interviews) will not be permitted.” To
gain permission for a 15-minute telephone interview
under the new media policy, members of the press must
agree that they will not ask an SCU inmate any questions
about other federal or state prisoners. And members of
the press must agree not to publish any information that
an SCU inmate volunteers about other prisoners. All
parties agree that the media policy does not apply to
all SCU inmates—it applies only to those SCU inmates
who have been sentenced to the death penalty.
No. 06-1750 5
Hammer sued the defendants under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcot-
ics, 403 U.S. 388 (1971), alleging that the media policy’s
ban on in-person interviews and discussions about other
inmates violated his First Amendment and equal protec-
tion rights. The district court dismissed the complaint
under the Prison Litigation Reform Act, 28 U.S.C.
§ 1915A(b)(1), but we reversed, finding that Hammer’s
allegations—specifically, that the defendants imple-
mented the media policy to prevent death row inmates
from speaking publicly rather than to further security
concerns—stated a claim, see Hammer v. Ashcroft, et al.,
42 Fed. App’x 861, 863 (7th Cir. 2002).
After we remanded the case, Hammer moved three
times for the court to recruit counsel on his behalf. The
district court denied each motion. Hammer also filed three
requests for discovery, but instead of responding to those
requests, the defendants moved for summary judgment
a full month before the close of discovery. Only after
filing their summary judgment motion did the defendants
respond to Hammer’s discovery requests by objecting
to them all. Hammer filed a motion for a continuance
under Federal Rule of Civil Procedure 56(f), arguing that
he needed additional time to procure discovery from the
defendants. He also filed a brief opposing the motion
for summary judgment. The court entered an order
granting the continuance “to the extent that his filings
in this action . . . shall be deemed to have been timely
made,” but it denied Hammer any extension of time to
conduct further discovery.
In support of the defendants’ motion for summary
judgment, Lappin submitted a declaration purporting to
justify the SCU’s media policy. He explained that broad-
casting face-to-face interviews of inmates can create
“jailhouse celebrities,” giving them heightened status
among the inmates and leading to security breaches.
6 No. 06-1750
He also explained that it was necessary to restrict in-
mates from discussing other inmates with the media to
prevent privacy breaches or “real or imagined slights,
insults or provocations” that could inflame tensions in the
SCU. In his response, Hammer argued that Lappin’s
articulated security rationale for the ban on face-to-face
interviews was “a guise” to cover up “the real reason”
behind the ban—anger over the McVeigh interview and
the resulting outrage over death row inmates speaking
to a national audience. The court granted the defendants’
motion for summary judgment, stating that the media
policy is reasonably related to legitimate penological
interests.
II. Analysis
On appeal Hammer argues that the SCU’s media
policy preventing death row inmates from giving face-to-
face interviews with the media violates his equal pro-
tection, First Amendment, and procedural due process
rights. Specifically, he argues that the media policy treats
death row inmates differently from all other federal
inmates based on an untested assumption that giving
death row inmates access to the media poses a categori-
cally heightened security risk. Hammer also asserts that
he submitted evidence sufficient to show that the media
policy was passed for the impermissible reason of pre-
venting death row inmates from speaking publicly, and not
to further security interests. He also argues that the
manner in which the BOP adopted the media policy
deprived him of due process. Finally, Hammer chal-
lenges the district court’s denial of his three motions for
counsel and his Rule 56(f) motion for a continuance.
No. 06-1750 7
A. Constitutional Claims
We review de novo the district court’s grant of sum-
mary judgment for the defendants on Hammer’s constitu-
tional challenges to the media policy. See Steen v. Myers,
486 F.3d 1017, 1021 (7th Cir. 2007). Inmates retain
constitutional rights that are consistent with incarcera-
tion; those rights include access to the media. See Turner
v. Safley, 482 U.S. 78, 84 (1987); Pell v. Procunier, 417
U.S. 817, 827-28 (1974). But recognizing the deference
owed to the administrative judgment of prison officials,
the Supreme Court has held that a prison regulation
infringing on an inmate’s constitutional rights is valid if
“it is reasonably related to legitimate penological inter-
ests.” Turner, 482 U.S. at 89. Accordingly, a prison regula-
tion that restricts an inmate’s access to the media will
be upheld if there is a “valid, rational connection between
the prison regulation and the legitimate governmental
interest put forward to justify it.” Id. (quotation marks
omitted). Other relevant factors include whether the
regulation leaves open alternative means of exercising
the right; the impact accommodation would have on
other inmates, guards, and prison resources; and whether
there are obvious, easy alternatives to the restriction.
Id. at 89-90; see also Lindell v. Frank, 377 F.3d 655, 657
(7th Cir. 2004).
Hammer argues that we should apply strict scrutiny
to his equal protection claim, rather than the Turner
analysis, because he maintains that Turner applies only
to policies that affect all inmates within a prison equally
or that apply temporarily to individual inmates in re-
sponse to a disciplinary infraction. Hammer argues
that strict scrutiny should apply here because the media
policy arbitrarily deprives death row inmates of First
Amendment freedoms that other federal prisoners
enjoy—namely, face-to-face media access. But the Su-
8 No. 06-1750
preme Court has held that the Turner analysis “applies
to all circumstances in which the needs of prison admin-
istration implicate constitutional rights.” Washington v.
Harper, 494 U.S. 210, 224 (1990); see also Russell v.
Richards, 384 F.3d 444, 447 (7th Cir. 2004). Post-Turner,
the Supreme Court applies strict scrutiny only to prison
regulations involving suspect classifications such as race.
See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005).
Federal inmates on death row are not a suspect class. Cf.
Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir. 1990).
Accordingly, courts have declined to apply heightened
scrutiny in cases involving equal protection challenges
to prison regulations that implicate First Amendment
rights, see, e.g., Williams v. Lane, 851 F.2d 867, 881 (7th
Cir. 1988); Taylor v. Johnson, 257 F.3d 470, 474 (5th Cir.
2001); Morrison v. Garraghty, 239 F.3d 648, 654-55 (4th
Cir. 2001), even where the regulations distinguish
among groups of inmates within a prison, see DeHart v.
Horn, 227 F.3d 47, 61 (3d Cir. 2000); Benjamin v.
Coughlin, 905 F.2d 571, 575 (2d Cir. 1990). Thus we
view Hammer’s equal protection and First Amendment
claims through the Turner lens.
Turning then to the first prong of the Turner analysis
and Hammer’s First Amendment claim, we ask whether
a valid, rational connection exists between the media
ban on face-to-face interviews and the cited security
interest. See Turner, 482 U.S. at 89. No such connec-
tion exists if the purpose of the policy is to suppress the
content of the restricted message. See id. at 90. And the
penological interest that the prison officials invoke in
court to justify the restriction must have actually moti-
vated them at the time they enacted or enforced the
restriction; the invoked interests fail under Turner if
they are a pretext for an illegitimate, content-specific
motivation. See Salahuddin v. Goord, 467 F.3d 263, 276-77
(2d Cir. 2006) (holding that prison officials must show
No. 06-1750 9
that they “actually had, not just could have had, a legiti-
mate reason for burdening protected activity” to survive
summary judgment); Abu-Jamal v. Price, 154 F.3d 128,
134 (3d Cir. 1998) (noting that a prison rule is “not
content neutral as required by Turner” if it is enforced
at least in part due to public pressure rather than
security concerns); Quinn v. Nix, 983 F.2d 115, 118 (8th
Cir. 1993) (stating that “[p]rison officials are not entitled
to the deference described in Turner . . . if their actions
are not actually motivated by legitimate penological
interests at the time they act.”); Walker v. Sumner, 917
F.2d 382, 386-87 (9th Cir. 1990) (holding that where a
prisoner alleges that a policy is enforced for a “dubious
purpose” officials must demonstrate that the asserted
penological interests “are the actual bases for their poli-
cies”); Baraldini v. Thornburgh, 884 F.2d 615, 620 (D.C.
Cir. 1989) (noting that “[a] reviewing court must always
be careful to make certain that prison administrators
are not pretextually using alleged concerns in order to
punish an inmate for his or her political or other views.”).
Here, Hammer submitted evidence suggesting that the
driving force behind the ban on face-to-face interviews
was not a security concern, but rather outrage over
McVeigh’s message and a desire to prevent other death
row inmates from expressing their views about them-
selves or their fates and thereby influencing “our culture.”
For example, without any concerns about security
breaches Lappin allowed Hammer face-to-face media
interviews until the McVeigh interview aired; after that
(and after a senator’s written protest to the BOP about
such broadcasts) Lappin denied all media requests for face-
to-face interviews with Hammer. Most significantly, in
unveiling the blanket restriction on face-to-face interviews
with death row inmates, Ashcroft—with Hawk-Sawyer at
his side—explained that he wanted to deny such inmates
a platform from which they could spread their “irresponsi-
10 No. 06-1750
ble glamorization of a culture of violence.” This is evidence
from which a jury could conclude that when Aschroft’s
subordinate Lappin implemented the restriction at the
SCU just three days later, the defendants desired to
control a disfavored message rather than to secure the
SCU.
The defendants argue that this evidence amounts to
nothing more than “a coincidence of timing.” But the
evidence is more than just timing. Ashcroft explained
that his distaste for the content of interviews given by
death row inmates was the reason for the policy. That
is direct evidence of the actual motivation, and it creates
a genuine issue of material fact as to whether Lappin
was motivated by a desire to prohibit a disagreeable
viewpoint or to advance prison security.
The defendants also argue that we must defer to
Lappin’s judgment that the challenged policy is needed to
combat the problem of jailhouse celebrities. But in re-
viewing a grant of summary judgment we must be careful
to distinguish between matters of prison administra-
tion—on which we give substantial deference to prison
officials’ professional judgment—and matters of disputed
fact on issues like motivation—on which we draw infer-
ences in favor of the non-moving party. See Beard v.
Banks, 126 S.Ct. 2572, 2578 (2006). If an inmate sub-
mits evidence showing that the penological interests
invoked by prison authorities are pretextual, the policy
is not neutral and fails under Turner. See Abu-Jamal,
154 F.3d at 134. Hammer submitted evidence from
which a reasonable jury could conclude that the media
policy was implemented and is now enforced not be-
cause of safety concerns, but rather in response to
public pressure to prevent death row inmates from
voicing their views publicly. Accordingly, summary judg-
ment is inappropriate on Hammer’s First Amendment
challenge to the ban on face-to-face interviews based
No. 06-1750 11
on the first Turner factor. See Salahuddin, 467 F.3d at
276-77.
Summary judgment on the First Amendment claim
was also inappropriate as to two other Turner factors
because Hammer has cast doubt on whether the media
policy leaves open sufficient alternate routes of access to
the media and whether there are reasonable alterna-
tives to the ban on face-to-face interviews. See Turner,
482 U.S. at 90. For example, Lappin’s justification for
the ban on face-to-face interviews is that the broadcast of
inmate interviews creates the risk of jailhouse celebrity.
The government has not explained why, then, the prison
needs to ban face-to-face interviews that are not recorded
or broadcast. Moreover, there is a question of material
fact whether the ban on discussing other inmates with the
media allows Hammer an alternate route for discussing his
criminal case. Hammer’s goal is to discuss his crim-
inal case (which involves inmate witnesses) with mem-
bers of the press to highlight his disagreement with the
prosecution. But he is subject to discipline if he engages
in those discussions. Thus there is a question of material
fact as to whether the policy leaves open any meaningful
way for Hammer to access the media to discuss his
case. Cf. Pell, 417 U.S. at 827-28.
Turning to Hammer’s equal protection claim, we note
that the district court gave this claim short shrift, stating
only that the media policy applies equally to all inmates
housed in the SCU. But this ignores Hammer’s evidence
that the media policy applies only to SCU inmates
under a death sentence, a fact that the defendants do
not dispute on appeal. And Hammer’s evidence of pre-
text also casts doubt on whether the defendants had a
valid interest in treating death row inmates differently
from all other federal inmates. The equal protection clause
prohibits the government from making distinctions
among groups of speakers based on the content of their
12 No. 06-1750
speech. See, e.g., Police Dep’t of Chi. v. Mosley, 408 U.S. 92,
96 (1972). Here, Ashcroft said that his concern about the
“glamorization of violence” in American culture shaped
the BOP’s approach to the SCU-specific ban on death
row inmates giving face-to-face interviews. A reasonable
jury could thus conclude that death row inmates are
treated differently not because they are disproportion-
ately likely to become jailhouse celebrities or inflame
tensions with other inmates, but because the policy
makers believed that death row inmates are dispropor-
tionately likely to promote a “glamorization of violence.”
Accordingly, the defendants are not entitled to summary
judgment on Hammer’s equal protection claim.
The district court did not address what Hammer now
argues is a claim that the defendants violated his due
process rights by adopting the media policy without
offering him notice or the opportunity to comment. But
the court did not address this claim because Hammer did
not make it; nothing in his complaint or opposition to
summary judgment would have put the defendants or
the court on notice that he objected to the process through
which the policy was adopted. Because Hammer’s pur-
ported due process claim is outside the scope of the
court’s grant of summary judgment for the defendants,
we need not address it here.
We note that it can be an easy thing for an inmate to
allege that prison officials are lying about the rationale
behind a prison restriction; it is only because Hammer
has backed up his allegations with admissible evidence
from which a reasonable jury could infer that an illegiti-
mate reason lies behind the interview ban that his
First Amendment and equal protection claims survive
summary judgment.
No. 06-1750 13
B. Personal Involvement
The district court granted summary judgment for
Ashcroft and Hawk-Sawyer because, in its view, they
had no personal involvement in the events underlying
the allegations. A supervisory defendant is personally
involved in and liable for a constitutional violation if he
“create[s] a custom or policy fostering the violation or
allow[s] the custom or policy to continue after learning of
it.” Thomas v. Ashcroft, 470 F.3d 491, 496-97 (2d Cir.
2006). Ashcroft’s and Hawk-Sawyer’s participation in the
press conference in which they called for the BOP ban on
face-to-face interviews raises a triable issue of whether
they fostered the ban for the purpose of suppressing
expression. See Whitford v. Boglino, 63 F.3d 527, 531 (7th
Cir. 1995). Thus summary judgment on the basis of their
non-involvement was unwarranted.
Before addressing Hammer’s procedural challenges to
the district court’s decision, we note two issues that the
district court may address on remand. Hammer has
sued the defendants in their individual and official capaci-
ties for damages, and for injunctive and declaratory re-
lief. The defendants may be entitled to qualified immunity
from damages, but given the unresolved issues of fact,
we leave that determination to the district court in the
first instance. Hammer’s claim for injunctive relief
against the defendants in their individual capacities
is now moot because none of the defendants currently
hold the positions in which they were sued. But pursuant
to Federal Rule of Appellate Procedure 43(c)(2) and
Federal Rule of Civil Procedure 25(d), the district court
should substitute the current officeholders for the official-
capacity claims and consider which of them are proper
defendants for injunctive relief under Ex Parte Young,
209 U.S. 123, 157 (1908) (requiring a “special relation”
between the public official sued and the challenged rule).
14 No. 06-1750
C. Denial of Motions for Counsel and for a Con-
tinuance
Hammer also argues that the district court erroneously
denied his three motions to recruit counsel and his
Rule 56(f) motion for a continuance. We review the dis-
trict court’s rulings on these motions for abuse of dis-
cretion. See Johnson v. Doughty, 433 F.3d 1001, 1006 (7th
Cir. 2006); Davis v. G.N. Mort. Co., 396 F.3d 869, 885
(7th Cir. 2005). In resolving a motion for the recruitment
of counsel, the district court must consider both the
complexity of the case and the pro se plaintiff ’s ability to
litigate it himself. Pruitt v. Mote, 503 F.3d 647, 654-55
(7th Cir. 2007). The court must analyze the plaintiff ’s
capabilities in light of the challenges specific to his case,
including “the tasks that normally attend litigation:
evidence gathering, preparing and responding to motions
and other court filings, and trial.” Id. at 655. In reviewing
a court’s decision to deny a motion for counsel, we
must ensure that the court meaningfully engaged in
the correct analysis, and did not render a decision arbi-
trarily. Id. at 658, 660.
Here, the district court’s three orders denying Hammer’s
requests for counsel do not demonstrate that the court
meaningfully considered the complexity of Hammer’s
claims. Its first order is silent regarding the difficulty of
his case. The second two orders state that Hammer “has
demonstrated familiarity with his claims and the ability
to present them, because the issues presented by his
claims are not complex, and because this does not
appear to be a case in which the presence of counsel
would make a difference in the outcome.” But this is
nothing more than a restatement of the applicable legal
standard, without any reasoning showing that the
court actually considered the standard in light of the
particulars of Hammer’s case. See id. at 660.
No. 06-1750 15
But we will reverse the district court’s decision to deny
counsel only on a showing of prejudice, see id. at 659,
which leads us to Hammer’s Rule 56(f) motion for a
continuance. Hammer asked for more time to conduct
discovery because the defendants moved for summary
judgment before the close of discovery and then objected
to all of his discovery requests. Because Hammer filed
his opposition to summary judgment before the court
ruled on his motion, it concluded that he did not need
further time for discovery. But the fact that Hammer
filed his response before waiting to see if the court
would grant the continuance shows only that he made
the best of what he had, not that he had a fair oppor-
tunity to avail himself of discovery. And nothing in the
court’s order denying the continuance suggests that it
considered the impact that the defendants’ premature
summary judgment motion had on Hammer’s ability to
obtain the discovery necessary to defend against the
motion.
The appellees now defend the district court’s denial of
the continuance on the ground that Hammer did not
specify what documents he needed time to procure. But
that is precisely the kind of failure that could have
been cured had the court granted his motion for counsel.
The appellees cannot have it both ways—they cannot
argue that Hammer has the ability to litigate his own
claims and then fault him when he fails to do so with the
sophistication of an attorney. We thus conclude that
the denial of counsel prejudiced Hammer, and, especially
in light of Hammer’s pro se status, that the court abused
its discretion in denying his Rule 56(f) motion for a
continuance.
For the reasons set forth above, the district court’s
decision is REVERSED and REMANDED for further pro-
ceedings.
16 No. 06-1750
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-15-08