[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 11, 2006
No. 05-14738 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00014-CV-J-16-TEM
PRISON LEGAL NEWS,
a not-for-profit, Washington charitable
corporation,
Plaintiff-Appellant,
versus
JAMES MCDONOUGH, in his official capacity as
Secretary, Florida Department of Corrections,
PAUL DECKER, in his official capacity as Warden
at Union Correctional Institution, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 11, 2006)
Before MARCUS, WILSON and COX, Circuit Judges.
PER CURIAM:
Prison Legal News (“PLN”) sued for declaratory and injunctive relief under
42 U.S.C. § 1983, alleging that the Secretary of the Florida Department of
Corrections James McDonough 1 and three prison wardens (collectively, “the
FDOC”) violated its First Amendment rights. PLN sought to enjoin the FDOC
from prohibiting Florida inmates from receiving its magazine and from penalizing
inmates whom PLN paid for writing articles for publication. PLN also sought a
declaratory judgment that Fla. Admin. Code Ann. r. 33-602.207 [“Rule 33-
602.207"], which prohibited inmates from receiving compensation for writing
articles for publication, was unconstitutional. The district court granted the
FDOC’s motion for judgment as a matter of law. We affirm.
I. Background
PLN is a not-for-profit charitable corporation that publishes a monthly
magazine containing articles about prison legal issues written mostly by prison
inmates. PLN pays its inmate writers for published articles pursuant to a written
agreement. The magazine also contains advertisements for three-way calling
services, pen pal services, offers to purchase prisoner artwork, and offers to
purchase unused stamps. It is circulated to prisoners, attorneys, judges, and other
1
Appellee James McDonough, in his official capacity as Secretary, Florida Department of
Corrections, was substituted for James V. Crosby, former Secretary of the Florida Department of
Corrections.
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professionals in all 50 states. Approximately 181 subscribers of PLN are Florida
prisoners. PLN sends subscription renewal notices to its Florida inmate
subscribers and allows for several methods of payment including postage stamps.
Only one Florida inmate, David Reutter, has been paid for submitting
articles to PLN. Several of his articles were published in issues from 2002 to 2005.
The FDOC disciplined him twice for receiving compensation for his submissions
in violation of Rule 33-602.207, which prohibits inmates from engaging in a
business or profession while incarcerated. This rule includes the submission of a
manuscript for publication if revenue is generated from the publication. After he
was disciplined, Reutter continued to submit articles to PLN for publication
without receiving compensation, which the FDOC permitted.
The FDOC’s Admissible Reading Material Rule, Fla. Admin. Code Ann. r.
33-501.401, provides for the screening and impoundment of all incoming mail. All
incoming mail is initially screened for material barred under the Rule. If the mail
room official determines that a publication contains barred material, and the
warden agrees, the prison impounds the publication. The prison then notifies the
prisoner and the publisher of the impoundment and posts a notice of impoundment
on the FDOC’s electronic bulletin board. Thereafter, all Florida prisons must
impound that publication. Next, the literature review committee reviews the
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publication and makes the final decision on admissibility. If the committee
overturns the impoundment, the publication is issued to the prisoners. Otherwise,
it remains impounded and no prisoner is allowed to receive it.
Over a two-year period, the FDOC changed its position several times as to
whether PLN’s magazine contained prohibited material. In early 2003, the FDOC
began impounding issues of PLN’s magazine because they contained ads for three-
way calling services, which are prohibited for Florida inmates because they pose a
threat to prison security. In November 2003, the FDOC reversed its decision and
allowed for delivery of eight issues that it had previously impounded. However, a
month later, in December 2003, the FDOC again decided to impound the magazine
for including three-way calling service ads due to ongoing security concerns. By
March 2004, the FDOC was satisfied that its telephone provider could properly
monitor prisoners’ calls and that the three-way calling service ads were no longer a
security concern. Therefore, the FDOC again approved delivery of the magazine.
In March 2005, the FDOC amended the Admissible Reading Material Rule
to state that publications will not be rejected for containing ads for prohibited
products or services, as long as those ads are “merely incidental to, rather than
being the focus of, the publication.” Fla. Admin. Code. Ann. r. 33-501.401. The
Rule now delineates that a publication may not be prohibited because it contains
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advertisements for three-way calling services, for pen-pal services, for the purchase
of products with postage stamps, and for conducting a business while incarcerated.
Id. Since this amendment, the FDOC has not impounded issues of PLN based
solely on the advertisement content areas.
PLN filed a § 1983 suit, alleging violations of its First Amendment rights.
After a three-day bench trial, the court entered judgment as a matter of law in favor
of the FDOC. PLN now appeals. The Southern Poverty Law Center, the Southern
Center for Human Rights, and the Society of Professional Journalists filed an amici
curiae brief on behalf of PLN.
II. Standard of Review
On appeal from a district court order after a bench trial, we review the
district court’s conclusions of law de novo and its findings of fact for clear error.
HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir. 2005). A
finding of fact is clearly erroneous “when although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer City,
470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985) (quotation
omitted).
III. Discussion
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PLN raises two issues on appeal: (1) whether the FDOC’s prohibition
against inmates receiving compensation for their writing violates PLN’s First
Amendment rights as a publisher; and (2) whether the district court erred in
denying PLN’s request for a permanent injunction prohibiting the FDOC from
impounding PLN’s publications based on their advertising content.
A. The FDOC’s Prohibition on Inmate Compensation
PLN argues that the district court erred in ruling that Rule 33-602.207 of the
Florida Administrative Code, which prohibits prisoners from receiving
compensation for writing for publication, does not infringe on PLN’s First
Amendment rights as a publisher. It argues that the rule is an improper “financial
disincentive” to inmates’ expressive activity and that it has been injured because
Reutter has less incentive and ability to write for PLN now that he is not
compensated.
However, PLN has failed to show that it suffered a sufficient constitutional
injury to justify relief under section 1983. PLN presented no evidence to show that
the rule had any impact on its ability to publish the magazine. See The Pitt News
v. Fisher, 215 F.3d 354, 366 (3d Cir. 2000) (denying injunctive relief because the
newspaper merely showed that the challenged rule negatively impacted its
profitability, but failed to show how the rule infringed on its First Amendment
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right) cert. denied, 531 U.S. 1113, 121 S. Ct. 857, 148 L. Ed. 2d 771 (2001) . Its
argument that the rule improperly dissuades inmates from expressing the truth
about prison conditions is belied by the fact that Reutter continued to write for
publication, despite not having the incentive of compensation. PLN has continued
to publish on its traditional monthly schedule and Reutter has continued to submit
numerous quality articles for publication, despite not having the incentive of
compensation. Even taking the evidence in the light most favorable to PLN, there
is simply no evidence that the Rule has had any impact at all on PLN’s ability to
publish its magazine and distribute the publication to inmates nationwide.
Moreover, to the extent that Rule 33-602.207 infringes on the First
Amendment rights of inmates, the FDOC has a legitimate penological interest in
preventing inmates from receiving compensation from outside business activities.
In Turner v. Safley, 482 U.S. 78, 89, 91 107 S. Ct. 2254, 2261, 2263, 96 L. Ed. 2d
64 (1987), the Supreme Court stated that a prison’s restriction on First Amendment
rights is permissible if it is “reasonably related” to legitimate penological interests
and is not an “exaggerated response” to such objectives. The Supreme Court
reasoned that, although imprisonment does not automatically deprive a prisoner of
First Amendment protections, the Constitution sometimes permits greater
restriction on First Amendment rights in the prison context than it would allow
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elsewhere. Id. at 84-85, 107 S. Ct. at 2259-60. To determine whether a prison
restriction on First Amendment rights is reasonable, the Court set out four relevant
factors: (1) whether there is a valid rational connection between the prison
regulation and the legitimate governmental interest offered to justify the
regulation; (2) whether alternative means exist to exercise the right; (3) what effect
there will be on guards, inmates, and prison resources if the right is
accommodated; and (4) whether the regulation is an exaggerated response to prison
concerns because ready alternatives exists at a de minimis cost. Id. at 89-91, 107
S. Ct. at 2262. In Turner, the Court upheld a Missouri prison rule barring some
inmate-to-inmate correspondence, ruling that it was reasonably related to
legitimate security interests and did not unconstitutionally abridge the prisoners’
First Amendment rights. Id. at 91, 107 S. Ct. at 2262-63. However, the Court
struck down a prison rule prohibiting inmates from marrying unless there are
compelling reasons to do so because it constituted an exaggerated response to
rehabilitation and security concerns. Id.
Here, the district court found that the FDOC has legitimate penological
interests in preventing inmates from receiving compensation for writing for
publication: that the FDOC would become entangled in inmate business activities;
that such business activities would perpetuate fraud, extortion, and disputes among
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inmates and the public; that there would be increased administrative costs
associated with increased business activity; and that the FDOC would be unable to
effectively control the inmates’ interactions. The court was “not willing to
override these legitimate penological concerns.” We agree and affirm the decision
of the district court.
As noted by the Turner Court, “courts are ill equipped to deal with the
increasingly urgent problems of prison administration and reform,” and therefore,
we must “accord deference to the appropriate prison authorities” to manage the
prisons. Turner, 482 U.S. at 84-85, 107 S. Ct. at 2259; see also Overton v.
Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003) (ruling that
courts owe “substantial deference to the professional judgment of prison
administrators”). Thus, because PLN did not present sufficient evidence of a
constitutional injury to justify relief, and because the FDOC rule was reasonably
related to legitimate penological concerns, the FDOC was free to invoke the rule
preventing inmates from receiving compensation from outside business activities
in this situation.
B. Impoundment of PLN’s Magazine
Next, PLN argues that the district court erred in denying its request for a
permanent injunction prohibiting the FDOC from impounding its publication based
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on its advertising content. PLN does not challenge FDOC’s rules and procedures
for impounding and reviewing publications on their face. Rather, PLN argues that
FDOC’s practice of impounding publications based on advertising content violated
its First Amendment rights and that an injunction is required to prevent further
censorship.
We find that this argument is moot because of the 2005 amendment to the
Admissible Reading Material Rule. We agree with the district court’s finding that,
although the FDOC previously wavered on its decision to impound the magazine,
it presented sufficient evidence to show that it has “no intent to ban PLN based
solely on the advertising content at issue in this case” in the future. The FDOC
demonstrated that its current impoundment rule does allow for distribution of PLN
in its current format and that the magazine will not be rejected based on its
advertising content. The FDOC officially revised its impoundment rule and has
not refused to deliver issues of the magazine since this amendment. See Tawwab v.
Metz, 554 F.2d 22, 24 (2d Cir. 1977) (per curiam) (ruling that a claim for
injunctive relief is moot when a change in official policy rectifies the alleged
injustice); see also, United States v. Concentrated Phosphate Export Ass’n, 393
U.S. 199, 203, 89 S. Ct. 361, 364, 21 L. Ed. 2d 344 (1968) (ruling that an
injunction should not issue when “the likelihood of further violations is sufficiently
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remote to make injunctive relief unnecessary”).
We have no expectation that FDOC will resume the practice of impounding
publications based on incidental advertisements. As to the current rule, we offer
no opinion on its constitutionality.
IV. Conclusion
We find that PLN failed to show it suffered sufficient constitutional injury
because of Rule 33-602.207 to justify relief under section 1983 and we find that
the Rule is reasonably related to legitimate penological concerns. Further, PLN’s
petition to enjoin FDOC from impounding publications based on advertising
content is mooted by the FDOC’s amendment to its policies and procedures.
Therefore, we affirm the decision of the district court.
AFFIRMED.
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