In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-4112 & 10-1408
F RANK V AN DEN B OSCH,
Plaintiff-Appellant,
v.
R ICK R AEMISCH, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:09-cv-00062-bbc—Barbara B. Crabb, Judge.
D ENNIS E. JONES-E L,
Plaintiff-Appellant,
v.
W ILLIAM P OLLARD , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:07-cv-00504—William C. Griesbach, Judge.
A RGUED D ECEMBER 1, 2010—D ECIDED S EPTEMBER 15, 2011
2 Nos. 09-4112 & 10-1408
Before
B AUER and P OSNER, Circuit Judges, and
P ALLMEYER, District Judge.
P ALLMEYER, District Judge. These consolidated appeals
present constitutional challenges to regulations imposed
by the Wisconsin Department of Corrections (“DOC”) on
incoming prisoner mail. Frank Van den Bosch is the
publisher of The New Abolitionist, a newsletter about the
Wisconsin state prison system. After reviewing the
March 2007 edition of the newsletter, Wisconsin prison
officials concluded that its content posed an unacceptable
risk to inmate rehabilitation and prison security, and
therefore refused to distribute the issue to DOC inmates.
Van den Bosch challenged this decision in a lawsuit
against various prison officials pursuant to 42 U.S.C.
§ 1983. He alleged that the DOC’s ban on the March 2007
edition of the newsletter violated his First Amendment
rights and his Fourteenth Amendment right to due
process. The district concluded that the defendants were
entitled to qualified immunity and entered summary
judgment in their favor on that basis.
The second appellant, Dennis E. Jones-El, is a Wisconsin
state prisoner. Jones-El filed a First Amendment claim
against various DOC employees after they confiscated
medical records and legal documents regarding other
inmates, as well as copies of an article he published in the
May 2006 edition of The New Abolitionist. According to
Jones-El, the prison officials wrongly interfered with his
The Honorable Rebecca R. Pallmeyer, United States District
Court for the Northern District of Illinois, sitting by designation.
Nos. 09-4112 & 10-1408 3
incoming mail in violation of the First Amendment. The
prison officials moved for summary judgment, and the
district court dismissed Jones-El’s claims on their mer-
its. For the following reasons, we affirm the judgments of
the district courts in both actions.
I.
A. Van den Bosch
Frank Van den Bosch is a community organizer
and publisher of the now-defunct The New Abolitionist, a
newsletter affiliated with the Prisoners’ Action Coalition,
a not-for-profit organization in Wisconsin. 1 The news-
letter generally advocates for prison reform, but often
featured critical commentary about certain policies of
the DOC. Any publication sent to an inmate at the
DOC undergoes an individual review process by
defendant Dan Westfield, Security Chief of the DOC’s
Division of Adult Institutions. Under the Wisconsin
Administrative Code, the DOC may not deliver incoming
or outgoing mail if it is “ ‘injurious,’ meaning material
that: [p]oses a threat to the security, orderly operation,
discipline or safety of the institution,” or “[i]s inconsistent
with or poses a threat to the safety, treatment or rehabil-
itative goals of an inmate.” Wis. Admin. Code § DOC
309.04(4)(c)(8).
1
While this case was pending before this court, Van den Bosch
changed the newsletter’s name to Wisconsin Prison Watch.
4 Nos. 09-4112 & 10-1408
The March 2007 edition of The New Abolitionist con-
tained eleven articles on a variety of issues related to
Wisconsin prisons. Defendant Westfield concluded that
four of those articles were objectionable under the Code.
The first article, written by Van den Bosch, contained
a brief discussion of a class-action settlement agree-
ment involving the Wisconsin Secure Program Facility
(“WSPF”) and remarked:
We have had word that the DOC is looking for vol-
unteers to fill the Charlie unit cells at [the WSPF].
No school, no work, no cafeteria, less canteen, no
contact visits, no storage for property, tiny cells,
and the close proximity of the revolving door to
the dungeons, all sound enticing, don’t they? I’m
sure guys will be lining up for a vacation in SW Wis-
consin, even further away from their families. Don’t
fall into the trap!
In defendant Westfield’s view, Van den Bosch’s article
was harmful because it contained inaccurate informa-
tion about the availability of inmate jobs at WSPF,
and could also limit the DOC’s ability to maximize its
programming resources if it effectively discouraged
inmates from transferring to WSPF.
The other three articles that drew defendant West-
field’s attention were written by prison inmates. One
criticized the Wisconsin Parole Commission and Program
Review Committee (“PRC”) for making “totalitarian
decisions,” described the PRC as “abusers of prisoner[s]
and prisoners’ families,” and suggested that certain
programs were being denied “to prisoners for no
Nos. 09-4112 & 10-1408 5
legitimate reason at all.” Another article presented the
inmate writer’s concerns about the PRC’s parole
decisions and stated that the purpose of his article was
to “show the deceiving [and] manipulative tactics” and
“fabricated stories” that PRC used to keep individuals
incarcerated indefinitely. Finally, the fourth article
updated its readers on recent prisoner litigation in the
Seventh Circuit, suggested that prisoners erroneously
rely upon courts to seek social change, and urged readers
to “employ any and all means necessary,” including
mass protests in front of prisons, in order to “bring
some attention to this madness they call prison life.”
Defendant Westfield concluded not only that these
articles included false information, but that the authors’
inflammatory statements could potentially encourage
“distrust of staff, paranoia, and hopelessness among
inmates seeking release on discretionary parole . . . as well
as discouraging rehabilitation efforts by inmates, who
are wrongly under the impression that DOC is making
allegedly illegal efforts to keep them confined as long
as possible.” As a result, defendant Westfield banned
the entire March 2007 newsletter on April 11, 2007, and
sent an e-mail notice to all DOC Security Directors
throughout the state ordering the officials to enforce
the ban by notifying their respective mailrooms that
inmates should not receive the newsletter.2 Prisoners
who subscribed to the newsletter received a notice
2
Though the March 2007 newsletter was banned across
Wisconsin prisons, the record indicates that the newsletter
was inadvertently distributed to several prisoners.
6 Nos. 09-4112 & 10-1408
from defendant Westfield explaining that the newsletter
would not be delivered because it “pose[d] a threat to
the [s]ecurity, orderly operation, discipline or safety of
the institution.”
In April 2007, Van den Bosch received similar “non-
delivery” notices from the DOC stating that the
March 2007 edition of the newsletter was banned
because prison officials considered it a security
threat under Wis. Admin. Code § DOC 309.04(4)(c)(8).
In response, Van den Bosch filed suit against
Westfield and various other prison officials under 42
U.S.C. § 1983 in the Western District of Wisconsin in
February 2009. He alleged that defendants violated his
First Amendment rights by refusing to distribute the
newsletter to inmates, and his Fourteenth Amendment
right to due process by failing to give him proper notice
of that decision. The parties filed cross-motions for sum-
mary judgment and the district court granted defendants’
motion. The court found defendants were entitled to
qualified immunity on the First Amendment claim
because Van den Bosch failed to meet his burden of
showing it was “clearly established” in 2007 that pro-
hibiting distribution of his newsletter in prison violated
the First Amendment. The court, therefore, did not
reach the question of whether defendants’ conduct
violated Van den Bosch’s constitutional rights.
On appeal, Van den Bosch does not challenge the
district court’s ruling regarding his due process
claim, but contends that Judge Crabb’s prior ruling in
Johnson v. Raemisch, 557 F. Supp. 2d 964 (W.D. Wis. 2008)
Nos. 09-4112 & 10-1408 7
precludes the qualified immunity defense to his First
Amendment challenge. In Johnson, a Wisconsin prisoner
and subscriber to The New Abolitionist sued three DOC
officials for refusing to deliver his March 2007 issue of
the newsletter. As in this case, defendants submitted
an affidavit from Westfield asserting that the articles in
the newsletter contained false information about the
conditions of the Wisconsin Secure Program Facility,
encouraged distrust of prison staff, and were likely to
foster “ ‘hopelessness’ ” among inmates. Id. at 965. The
district court was not persuaded. Judge Crabb con-
cluded that the content of the newsletter was not threat-
ening and that the DOC’s justifications for censoring
the newsletter amounted to nothing more than “ ‘because
we said so.’ ” Id. The district court concluded that de-
fendants failed to show that their decision to ban
the newsletter was reasonably connected to a legitimate
penological interest under Turner v. Safley, 482 U.S. 78,
107 S. Ct. 2254 (1987), and ordered the DOC to deliver
a copy of the newsletter to Johnson immediately. 3
Johnson, 557 F. Supp. 2d at 965, 975. Plaintiff Van den
Bosch now relies upon Johnson to argue that the DOC’s
3
As of May 2008, the DOC began to allow prisoners to possess
the March 2007 issue. In her decision in Johnson, Judge Crabb
observed that “multiple Wisconsin prisoners received the
newsletter [at issue] without apparent consequence,” and
concluded that defendants were required to show that their
decision satisfied the Turner factors, but had not done so. 557
F. Supp. 2d at 975. Johnson was not appealed, and we express
no opinion about the merits of the decision.
8 Nos. 09-4112 & 10-1408
censorship of the March 2007 issue violated a clearly
established right of which the prison officials should
have known.
B. Jones-El
Dennis E. Jones-El, also known as Mustafa-El K.A. Ajala,
was formerly confined at the Green Bay Correctional
Institution (“GBCI”).4 He has been an active litigant in
prisoners’ rights cases, see Jones-El v. Berge, 374 F.3d
541 (7th Cir. 2004), and has previously written various
articles on prison conditions. In April 2006, following the
suicide of John Virgin, a fellow inmate and friend, Jones-
El wrote an article for the May 2006 edition of The
New Abolitionist entitled, “Who Says Wisconsin Doesn’t
Have the Death Penalty?” In the article, Jones-El detailed
the conditions of confinement at GBCI and suggested
that the DOC places Wisconsin inmates in segregation
for longer periods of time than inmates in other states
and for minor infractions. Jones-El characterized segrega-
tion as “psychological death row” because, he asserted,
a strong correlation exists between the growing number
of Wisconsin prisoners housed in segregation units and
the high incidence of suicide among inmates. At the
conclusion of the article, Jones-El asked: “Can anybody
out there hear me? [Wisconsin] definitely has a death
4
Jones-El is currently housed at the Wisconsin Secure Program
Facility (“WSPF”). All of the events surrounding his com-
plaint occurred while he was incarcerated at GBCI between
May 10, 2005, and February 9, 2007.
Nos. 09-4112 & 10-1408 9
penalty, because they are literally killing us in here!”
At some point soon thereafter, the DOC banned the
May 2006 issue of the newsletter on the ground that it
is “injurious” under the Wisconsin Administrative
Code. Jones-El claims he was aware of the ban within the
prison, but nevertheless sought to have his article pub-
lished in other news media outlets. He claims that he
therefore sent his original copy of the article to Diane
Block, a friend outside of prison, and asked her to send
back copies of his article to submit for publication. (We
are left to wonder why Jones-El asked that Ms. Block
return copies to him rather than simply asking her
to submit his article for publication directly.) Unsur-
prisingly, when Block attempted to send Jones-El his
original version of the article and other copies, prison
officials rejected the mail for delivery.
As previously noted, the DOC has promulgated
several regulations regarding the circumstances under
which a prison may refuse to deliver mail to an inmate. In
addition to the provisions described above, regulations
authorize the DOC to refuse to deliver mail to an inmate
if it “[i]s determined by the warden . . . to be inappro-
priate for distribution throughout the institution.” Wis.
Admin. Code § DOC 309.04(4)(c)(12). When a piece of
incoming mail is rejected, a written notice is sent to
the sender and the inmate to whom the mail was ad-
dressed, explaining why the letter was not delivered; an
inmate may then ultimately appeal the decision to the
warden. Wis. Admin. Code § DOC 309.04(4)(e)-(f). Block
attempted to send Jones-El multiple copies of his article
on four separate dates in 2006, and on each occasion,
10 Nos. 09-4112 & 10-1408
Kevin Postl, a GBCI Correctional Sergeant, rejected the
mail and sent Jones-El a “Notice of Non-Delivery of Mail.”
According to defendant Westfield’s affidavit, many
statements in Jones-El’s article “are problematic in a
prison environment because not only do they contain
several falsities, but they are also inflammatory and
encourage disrespect on the part of inmates for the
DOC’s rehabilitative programming and for the correc-
tional staff running the programs.”
From January 2006 to June 2006, DOC officials also
refused to deliver several pieces of “third-party” mail to
Jones-El, which DOC defines as mail sent to an inmate
from a third party (i.e., another inmate or an individual
outside of prison) concerning another inmate. The first
incident occurred on January 12, 2006, when a WSPF
inmate named Cedric Robinson attempted to send Jones-
El documents regarding Maurice Fort-Greer, another
WSPF inmate. Though delivery was initially denied,
prison officials later determined that the documents
were related to legal assistance Jones-El was providing
to Fort-Greer and should be delivered; on February 17,
2006, Sergeant Postl delivered the mail to Jones-El. On
various other occasions from May 2006 to July 2006,
however, prison officials refused to deliver other pieces
of mail to Jones-El that contained court documents
and medical records relating to Fort-Greer, and denied
mail from Block that contained court documents
regarding John Virgin, the former inmate who died.
Believing that defendants’ refusal to deliver copies of
his article and court documents regarding other inmates
Nos. 09-4112 & 10-1408 11
violated the First Amendment, Jones-El filed this § 1983
action against Sergeant Postl, as well as several other
DOC prison officials in the Eastern District of Wisconsin.
He alleged that defendants’ actions violated his rights
to free speech, to freedom of the press and to petition
the government.5 The parties filed cross-motions for
summary judgment, and the district court granted defen-
dants’ motion. On appeal, Jones-El argues that the
DOC’s censorship of his article and other mail was not
rationally related to any legitimate government interest
in prison security or rehabilitation.
II.
We review the district courts’ grant of summary judg-
ment de novo. Jackson v. Frank, 509 F.3d 389, 391 (7th Cir.
2007) (citation omitted). We construe all facts and draw
all reasonable inferences in favor of the nonmoving
party in determining whether the moving parties have
demonstrated that there is no genuine issue as to any
material fact and that they are entitled to judgment as
a matter of law. FED. R. C IV . P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986).
5
At the district court, Jones-El also raised a claim that defen-
dants’ acts were in retaliation for his past litigation against
Wisconsin prisons. On appeal, Jones-El states that his retalia-
tion claim “hinges on,” and should rise or fall with the
“free speech claim.” (Jones-El Br. 23.) We therefore decline
to address this claim separately.
12 Nos. 09-4112 & 10-1408
As a general rule, prisoners have a constitutionally-
protected interest in their incoming and outgoing mail
correspondence. See Frank, 509 F.3d at 391, Kaufman v.
McCaughtry, 419 F.3d 678, 685 (7th Cir. 2005) (citing Rowe
v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (citations omit-
ted)). Those outside of prison, too, have an interest in
corresponding with prison inmates. See Thornburgh v.
Abbott, 490 U.S. 401, 408, 109 S. Ct. 1874, 1879 (1989)
(reaffirming that “publishers who wish to communicate
with those who, through subscription, willingly seek
their point of view have a legitimate First Amendment
interest in access to prisoners.”). Prison officials may,
however, impose restrictions on prisoner correspondence
if those restrictions are “reasonably related to legitimate
penological interests.” Turner v. Safley, 482 U.S. 78, 89,
107 S. Ct. 2254, 2261 (1987), Thornburgh, 490 U.S. at 413,
109 S. Ct. at 1881 (adopting the Turner reasonableness
standard for regulations on incoming publications sent
to prisoners). Such legitimate penological interests
might include crime deterrence, prisoner rehabilitation,
and protecting the safety of prison guards and inmates.
See Singer v. Raemisch, 593 F.3d 529 (7th Cir. 2010) (af-
firming summary judgment in favor of prison officials
who restricted role-playing game that mimicked the
organization of gangs); May v. Libby, 256 Fed. Appx. 825
(7th Cir. 2007) (affirming grant of judgment as a matter
of law for prison officials who confiscated inmate’s
internal grievance form against the prison because it
was not unreasonable to perceive letter as a threat);
Kaufman, 419 F.3d at 685 (affirming district court’s dis-
missal of prison officials who refused to distribute pub-
lications deemed pornographic).
Nos. 09-4112 & 10-1408 13
In Turner, the Supreme Court specifically set forth four
factors that courts may weigh in assessing the validity of
a prison’s regulations: (1) whether there is a “valid,
rational connection between the prison regulation and
the legitimate governmental interest put forward to
justify it”; (2) whether the inmates have access to “alterna-
tive means” of exercising the restricted right; (3) the
“impact [an] accommodation of the asserted constitutional
right will have on guards and other inmates, and on the
allocation of prison resources generally”; and (4) whether
the regulation is an “exaggerated response to prison
concerns.” 6 Turner, 482 U.S. at 89-91, 107 S. Ct. at 2262.
While the burden of persuasion is on the prisoner to
disprove the validity of a regulation, Overton v. Bazzetta,
539 U.S. 126, 132, 123 S. Ct. 2162, 2168 (2003) (citations
omitted), defendants must still articulate their legitimate
governmental interest in the regulation. Turner, 482 U.S.
at 89, 107 S. Ct. at 2262. Courts are to accord “substan-
tial deference to the professional judgment of prison ad-
ministrators, who bear a significant responsibility for
defining the legitimate goals of a corrections system and
6
Though each of the factors is relevant in assessing the rea-
sonableness of a regulation, we have previously observed
that the first factor serves as a threshold, and the district court
need not “explicitly articulate its consideration of each one.”
Mays v. Springborn, 575 F.3d 643, 648 (7th Cir. 2009) (“Where . . .
there is only minimal evidence suggesting that the prison’s
regulation is irrational, running through each factor at length
is unnecessary.”).
14 Nos. 09-4112 & 10-1408
for determining the most appropriate means to accom-
plish them.” Overton, 539 U.S. at 132, 123 S. Ct. at 2167.
On appeal, both Van den Bosch and Jones-El mainly
challenge the DOC’s policy regarding incoming inmate
mail under the first Turner factor, and argue that sum-
mary judgment should have been granted in their favor
because there is no rational connection between the
DOC censorship of incoming prisoner mail and any
legitimate penological interest. Plaintiffs’ claims overlap
to some degree, but we address the alleged constitu-
tional violation for each plaintiff in turn.
A. Van den Bosch’s Claims
Van den Bosch contends that he was entitled to
summary judgment on his First Amendment claim
because defendants’ censorship of his newsletter was not
rationally related to security concerns, but rather moti-
vated by a desire to suppress any speech critical of the
prison administration and the conditions of confinement
within Wisconsin prisons. The district court did not
reach the merits of Van den Bosch’s First Amendment
claim, and instead concluded that defendants are en-
titled to qualified immunity because of the uncertainty
among district courts about the right to distribute (and
receive) The New Abolitionist,7 and the dearth of controlling
7
Compare Johnson v. Raemisch, 557 F. Supp. 2d 964 (W. D.
Wis. 2008) (holding that prison officials violated prisoner’s
(continued...)
Nos. 09-4112 & 10-1408 15
authority addressing the censorship of incoming prison
newsletters.8
The doctrine of qualified immunity insulates public
officials from liability if “their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson
v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738 (1982)). When evaluating a qualified im-
munity claim, court must therefore ask whether the “the
facts that a plaintiff has alleged . . . make out a violation
of a constitutional right,” and if so, “whether the right at
issue was clearly established at the time of defendant’s
alleged misconduct.” Pearson, 555 U.S. at 232, 129 S. Ct. at
816 (citations omitted). The Supreme Court has made
7
(...continued)
First Amendment rights by refusing to deliver March 2007
issue of The New Abolitionist) with West v. Endicott, No. 06-C-763,
2008 WL 906225 (E. D. Wis. March 31, 2008) (holding that
prison officials had not violated prisoner’s First Amendment
rights by refusing to deliver September 2005 issue of The
New Abolitionist).
8
This circuit has not had a recent occasion to address the
propriety of barring prisoners from possessing reading
materials whose contents do not include gang-related symbols,
see, e.g., Koutnik v. Brown, 456 F.3d 777 (7th Cir. 2006), racist
literature, see, e.g., Lindell v. McCaughtry, 115 Fed. Appx. 872
(7th Cir. 2004), or pornography, see, e.g., Kaufman, 419 F.3d at
685, but nevertheless purportedly violate internal prison
regulations governing incoming inmate mail.
16 Nos. 09-4112 & 10-1408
clear that courts are free “to exercise their sound discre-
tion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first.” Id. at 236,
129 S. Ct. at 818. In this case, we need only reach the
question of whether the relevant facts “make out a consti-
tutional violation at all.” Id. We hold they do not.9
The district court began its analysis by properly noting
that even though Van den Bosch is not incarcerated, the
“reasonableness” standard announced in Turner must
still apply because his claim involves the maintenance
of institutional security within a prison setting. The
Supreme Court recognized in Thornburgh v. Abbott that
“publishers who wish to communicate with those who,
through subscription, willingly seek their point of view
9
Because we hold that the prison’s refusal to dispute the
March 2007 edition of the newsletter was a reasonable
restriction of Van den Bosch’s rights under Turner, we need not
address qualified immunity. We also note that defendant
Westfield is the only individual who allegedly had any
personal involvement in the decision to censor Van den Bosch’s
newsletter. An individual must be found to have personally
caused or participated in the alleged constitutional depriva-
tion in order to be held liable under § 1983. See Brooks v. Ross,
578 F.3d 574, 580 (7th Cir. 2009). Because Van den Bosch’s
complaint only identifies defendant Westfield as having
personally banned the newsletter, Van den Bosch’s claims
against DOC Secretary Rick Raemisch, Michael Thurmer, Don
Strahota, John Dahlke, William Pollard, Kevin Postl, Richard
Schneiter, Gary Boughton, Judith Huibregtse and Peter
Ericksen must be dismissed.
Nos. 09-4112 & 10-1408 17
have a legitimate First Amendment interest in access to
prisoners.” Thornburgh, 490 U.S. at 408, 109 S. Ct. at 1879.
At the same time, however, we understand the “delicate
balance that prison administrators must strike between
the order and security of the internal prison environ-
ment and the legitimate demands of those on the ‘out-
side’ who seek to enter that environment.” Id. at 407, 109
S. Ct. at 1878.
The parties’ dispute focuses on the first Turner factor.
We appointed amicus curiae counsel to assist Van den
Bosch in his appeal. Amicus counsel argues that while
the DOC may have legitimate penological interests in
prison security and rehabilitation, the four articles in
the March 2007 issue of The New Abolitionist fell short of
the kind of incitement to violence that courts have previ-
ously identified as warranting censorship. Defendants
reject this assertion and argue that the DOC had valid
reasons for determining that the newsletter was “in-
jurious” under the Wisconsin Administrative Code.
Relying almost exclusively on the affidavit of defendant
Westfield, defendants contend that the newsletter “went
beyond mere criticism,” had the potential to endanger
prison guards by encouraging violent self-help remedies,
and would likely undermine prisoners’ incentives to
work toward rehabilitative goals. For instance, according
to defendant Westfield, the article describing the Wis-
consin Parole Commission and Program Review Commit-
tee as “clueless” and “totalitarian” had the potential to
“encourage disrespect on the part of inmates,” and the
article that claimed the PRC used “manipulative tactics”
and “fabricated stories” may cause security issues by
18 Nos. 09-4112 & 10-1408
“encourag[ing] distrust of staff and unrest among inmates”
if they were led to believe they will never be eligible
for parole.
On recent occasions we have examined efforts by
prisons to restrict inmates’ incoming mail, most
frequently in the context of restrictions on gang-related
or other violent materials. In Singer v. Raemisch, 593 F.3d
529 (7th Cir. 2010), an inmate brought suit after prison
officials confiscated publications related to the role-
playing game Dungeons and Dragons. The prison deter-
mined that the game posed a threat to prison security
through its promotion of violence and “escapist behav-
ior,” and we agreed that the prison’s policy regarding
the game was reasonably related to valid penological
interests in maintaining institutional security. Id. at 537-
38. Similarly, in Mays v. Springborn, 575 F.3d 643 (7th Cir.
2009), we affirmed a district court’s grant of summary
judgment for prison officials who removed pages from
an issue of Vibe magazine containing alleged gang signs.
Id. at 646, 649. We have also previously upheld a
prison’s decision to ban incoming commercial photo-
graphs, even when seemingly benign. See Frank, 509 F.3d
at 391-92 (affirming summary judgment for prison
officials who refused to deliver mail-ordered com-
mercial photographs of celebrities due to burden on
prison staff in evaluating each photograph for forbidden
content).
Van den Bosch has not presented any evidence to rebut
defendants’ contention that the March 2007 issue of the
newsletter contains misleading information, encourages
distrust of prison staff, and could potentially undermine
Nos. 09-4112 & 10-1408 19
the prison’s rehabilitative initiatives. Amicus counsel
urges that the prison officials’ justifications for censoring
the newsletter are neither neutral nor rationally related
to security, and suggests that the pretextual nature of
the DOC’s justifications for confiscating the newsletter
is underscored by the fact that none of the purported
security threats have ever materialized (even though
some inmates inadvertently received the newsletter and
it was eventually made available to all inmates in
May 2008). We find this argument unpersuasive. The
essential question is not whether the threats were eventu-
ally carried out, but whether plaintiff has shown that it
was not reasonable for defendants to perceive the news-
letter as a potential threat to rehabilitation and security.
See Libby, 256 Fed. Appx. at 829.
Amicus counsel insists that even if the DOC censored
the newsletter due to its potential to compromise institu-
tional security or prisoner rehabilitation, the prison offi-
cials’ decision was an “exaggerated response” to those
concerns. Counsel cites our decision in Lindell v.
McCaughtry, 115 Fed. Appx. 872 (7th Cir. 2004) (unpub-
lished order), where a Wisconsin inmate sued after
prison officials seized and “lost” his copy of Pagan
Revival, an avowedly racist magazine promoting white
supremacy. In that case, we upheld the prison’s ban
on publications that advocated violence and presented a
security threat. Presumably, amicus counsel presents
the content of the magazine involved in Lindell as the type
of inflammatory material that is properly banned—as
opposed to the content of The New Abolitionist, which
counsel characterizes as encouraging political, not
20 Nos. 09-4112 & 10-1408
violent, action by inmates and their family members.
We are satisfied that the underlying current of concern
running through both this case and Lindell is the same:
prisons maintain broad discretion in prohibiting material
in prison that potentially endangers institutional security.
See Thornburgh, 490 U.S. at 413, 109 S. Ct. at 1881. The
question of whether censorship is an appropriate
measure to protect security and encourage rehabilita-
tion—or, to the contrary, is an “exaggerated response” to
institutional concerns—requires a context-specific deter-
mination that cannot be resolved by simply evaluating
the level of explicit violence within a given publication.
In this case, the Westfield affidavit, though arguably
vague in certain respects, does identify several passages
in the March 2007 newsletter that may reasonably en-
courage distrust of prison staff and threaten prison secu-
rity. Plaintiff’s disagreement with defendant Westfield’s
assessment is insufficient to establish that confiscation of
the newsletter was not reasonably related to legitimate
penological interests.
B. Jones-El’s Claims
Jones-El argues that the district court erred in granting
summary judgment for defendants because the prison
officials’ refusal to deliver copies of his article in The
New Abolitionist and court documents related to other
inmates cannot not pass muster under the first prong of
Turner. The district court indeed afforded the prison
officials significant deference, and found that defendants’
decision to refuse delivery of Jones-El’s mail did not
Nos. 09-4112 & 10-1408 21
violate his First Amendment rights because it was rea-
sonably related to the prison’s interest in maintaining
prison discipline and security. We agree with the
district court.
As in Van den Bosch’s case, defendants here offer the
affidavit of defendant Westfield to support their conten-
tion that refusing to deliver copies of Jones-El’s article
was reasonably related to legitimate penological inter-
ests. Defendant Westfield pointed to several statements
in Jones-El’s article that he urged contained false informa-
tion, encouraged disrespect for prison officials, and were
fundamentally at odds with the rehabilitative goals of
prison in that they suggest that inmates are in segrega-
tion through no fault of their own but are instead
victims of an unjust penal system. “There is no question
that the rehabilitation of inmates is a legitimate interest
of penal institutions,” Koutnik, 456 F.3d at 784, and the
challenge in cases such as this one is in evaluating
whether the prison’s enforcement of its restrictions was
“no greater an infringement upon [Jones-El’s rights] . . .
than was necessary to protect the [prison’s] interest.”
Id. (quoting Rios v. Lane, 812 F.2d 1032, 1037 (7th Cir. 1987)).
Jones-El’s article frequently draws upon DOC statistics
about inmate suicide to support his argument that the
segregated confinement units in Wisconsin prisons
operate as a de facto death penalty system through
their torturous conditions. He suggests, further, that
Wisconsin inmates are placed in segregation for minor
offenses and for longer periods of time than inmates in
other states. Though he does not expressly encourage his
22 Nos. 09-4112 & 10-1408
fellow prisoners to use violence, he does explicitly state
that Wisconsin prison officials “are literally killing”
prisoners in segregation by creating conditions in
which the inmates have no choice but to commit sui-
cide. It is not unreasonable for officials to legitimately
conclude that such a statement—whether deliberate
hyperbole or intended to be taken literally—runs afoul
of a prison’s practical need to discourage misinforma-
tion that may needlessly encourage unrest.
Jones-El notes that he only requested copies of his
article to send to other publications. Again, however,
prison officials could have legitimate concerns that once
such copies entered the prison system, such material
might be “expected to circulate among prisoners, with
the concomitant potential for coordinated disruptive
conduct.” Thornburgh, 490 U.S. at 412-13, 109 S. Ct. at
1881 (“The problem is not . . . in the individual reading
the materials in most cases. The problem is in the
material getting into the prison.”) Jones-El himself
appears to have envisioned such a result: he argued
before the district court that he intended that the
article serve as encouragement for his fellow inmates
to join him in petitioning the Wisconsin legislature
for prison reform.
Amicus counsel argues that defendant Westfield’s
assertions about Jones-El’s article are too speculative to
deserve consideration and that many of the criticisms
about the prison system presented in Jones-El’s article
were previously published by other articles in other
magazines that were allegedly allowed in the prison
Nos. 09-4112 & 10-1408 23
“without incident.” As noted previously, however,
prison officials are permitted to take preventative
measures before violence ensues and not wait for injury
to occur. In the words of the Thornburgh Court, it is
“rational” for prison officials to “exclude materials that,
although not necessarily ‘likely’ to lead to violence, are
determined by the warden to create an intolerable risk
of disorder under the conditions of a particular prison at
a particular time.” 490 U.S. at 417, 109 S. Ct. at 1883.
Regarding Jones-El’s challenge to defendants’ restric-
tion of “third-party” mail, amicus counsel appears to
assert that the regulation is unconstitutional not merely
as applied to Jones-El, but also on its face. Amicus con-
tends that the policy cannot withstand scrutiny under
Turner because it extends to all incoming mail that con-
cerns another inmate, regardless of the context. In re-
sponse, defendants observe that while prisoners do not
enjoy unfettered access to documents pertaining to
other fellow prisoners, inmates may indeed correspond
directly with each other (and even provide legal
assistance to one another), and are merely prohibited
from corresponding through an intermediate third
party. Defendants have offered several justifications
for such a restriction, but the primary concern is
prisoner safety. Defendants submit that inmates may
attempt to gather information about other inmates’
crimes—particularly those inmates who have been con-
victed of sex-related crimes—and the distribution of
such information may threaten the security and opera-
tion of the entire prison system. Moreover, the infor-
mation contained in other court documents, such as
24 Nos. 09-4112 & 10-1408
criminal complaints, may identify victims or gang af-
filiations, the disclosure of which could place inmates
at risk for physical harm. Such safety concerns are legiti-
mate and neutral. See Turner, 482 U.S. at 92, 107 S. Ct.
at 2263 (concluding that where correspondence rights
of prisoners can be “exercised only at the cost of signifi-
cantly less liberty and safety for everyone else, guards
and other prisoners alike[,] . . . the choice made by cor-
rections officials [to censor mail] . . . should not be
lightly set aside by the courts.”).
Amicus counsel asserts that defendant Westfield’s
affidavit is nevertheless too conclusory to justify censor-
ship of all third-party mail, but the case counsel cites,
Jackson v. Pollard, 208 Fed. Appx. 457 (7th Cir. 2006), is
readily distinguishable. In Jackson, a prisoner filed a
§ 1983 suit after prison officials refused to deliver certain
materials, including the hard copy of an e-mail message
responding to the prisoner’s personal online pen pal
request. Id. at 459. The DOC argued that prohibiting
inmates from receiving e-mail responses to their personal
websites protects the public, but we found a genuine
dispute of fact on the issue of whether the challenged
regulation advanced such a goal. We noted that the prison
did not ban delivery of handwritten responses to in-
mates’ online communications, and that prison officials
had not explained how delivery of printed e-mail
messages created greater danger than did delivery of
those handwritten materials. No such inconsistency is
presented here, where defendants have categorically
banned the receipt of “third-party” mail that concerns
Nos. 09-4112 & 10-1408 25
another inmate, regardless of the technological device
used to send such information.
Amicus counsel insists that the DOC should permit
exceptions to the rule regarding third-party mail specifi-
cally for legal mail relating to litigation against DOC,
and could easily apply a narrower censorship policy by
prohibiting inmates from receiving only those third-
party legal materials that pose a genuine threat to secu-
rity. While the DOC’s asserted penological objec-
tives—maintaining prison security, order and rehabilita-
tion—might very well be achieved with a narrower
policy, the absence of an ideal policy does not render
the policy that officials have adopted unconstitutional.
Determining which materials constitute a “genuine
threat to security” would present no easier a task for
courts currently faced with evaluating the reasonableness
of a given regulation, and such a determination is, at
bottom, a decision prison administrators are uniquely
situated to make. As the Court observed in Turner: “Sub-
jecting the day-to-day judgments of prison officials to an
inflexible strict scrutiny analysis would seriously hamper
their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison
administration.” Turner, 482 U.S. at 89, 107 S. Ct. at 2262.
The court is satisfied that DOC’s current regulation
regarding third-party mail is not “an exaggerated response
to prison concerns” and Jones-El has not established an
“obvious, easy alternative” to the regulation regarding
third-party mail. Id. at 90, 107 S. Ct. at 2262.
Nor are we persuaded that the DOC’s ban on third-
party mail is unconstitutional as applied to Jones-El.
26 Nos. 09-4112 & 10-1408
Amicus counsel argues that the DOC’s policy has inter-
fered with Jones-El’s specific efforts to raise awareness
about prison conditions and assist other inmates in civil
rights litigation. The DOC’s prohibition on third-party
mail may well make it more difficult for multiple
inmates to work collaboratively, but the policy has
not in fact prevented Jones-El from providing legal assis-
tance to other prisoners. Officials did refuse to
deliver several pieces of mail containing court files and
medical records regarding another inmates when sent by
third parties, but Jones-El points to no instance in which
he was denied access to legal mail concerning an indi-
vidual inmate when sent by the inmate himself. Jones-
El has in fact assisted inmates in at least two other
prisoner-rights cases. See Fort-Greer v. Daley, 228 Fed.
Appx. 602 (7th Cir. 2007) (Wisconsin inmate brought § 1983
action claiming two prison physicians denied him ade-
quate medical care); Jones-El v. Berge, No. 00-C-421-C, 2003
WL 23109724 (W.D. Wis. Nov. 26, 2003) (ordering DOC
to implement air condition system for cooling inmate
cells), aff ‘d, 374 F.3d 541 (7th Cir. 2004). Thus, even under
the second Turner factor, “other avenues” remain
available for inmates such as Jones-El seeking to
provide and receive legal assistance from one another,
because they may still correspond directly as long as
a third party is not involved. Turner, 482 U.S. at 90, 107
S. Ct. at 2262 (“Where ‘other avenues’ remain available
for the exercise of the asserted right . . ., courts should
be particularly conscious of the ‘measure of judicial
deference owed to corrections officials . . . in gauging the
validity of the regulation.’ ”) (quoting Jones v. North
Nos. 09-4112 & 10-1408 27
Carolina Prisoners’ Union, 433 U.S. 119, 131, 97 S. Ct. 2532,
2540 (1977); Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct.
2800, 2806 (1974); see also Overton, 539 U.S. at 135, 123
S. Ct. at 2169 (“Alternatives . . . need not be ideal . . .; they
need only be available.”). The district court did not err
in finding that the DOC’s policy restricting prisoners’
access to third-party mail did not violate Jones-El’s
First Amendment rights.
III.
For the foregoing reasons, the judgments of the dis-
trict courts are affirmed.
9-15-11