[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10694 DECEMBER 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cv-00403-MMH-JRK
JOY PERRY,
d.b.a. Freedom Through Christ Prison Ministry,
d.b.a. Prison Pen Pals, and
WRITEAPRISONER.COM.INC.,
a Florida Corporation
llllllllllllllllllllllllllllllllllllllllPlaintiffs - Appellants,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
WARDEN, UNION CORRECTIONAL INSTITUTION,
WARDEN, FLORIDA STATE PRISON,
WARDEN, LOWELL CORRECTIONAL INSTITUTION,
llllllllllllllllllllllllllllllllllllllllDefendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 22, 2011)
Before MARCUS, WILSON, and COX, Circuit Judges.
WILSON, Circuit Judge:
This case concerns the constitutionality of the Florida Department of
Corrections’ (FDOC) Pen Pal Solicitation Rule. Joy Perry, who operates two pen
pal services, and WriteAPrisoner.com, Inc. (WAP), brought this civil rights action
pursuant to 42 U.S.C. § 1983 alleging that the Rule violates the First and
Fourteenth Amendments to the Constitution. Appellants seek to enjoin FDOC
officials from banning all pen pal–solicitation correspondence between the entities
that Appellants operate and Florida inmates. They argue that the Rule
substantially burdens their programs and deprives them of due process. We affirm
the district court because we find that the FDOC Rule is rationally related to a
legitimate penological interest and that the FDOC did not violate Appellants due
process rights.
I.
Perry operates two pen pal services: Freedom Through Christ Prison
Ministry and Prison Pen Pals. Appellant WriteAPrisoner.com, Inc. is also a pen
pal service. Each service solicits pen pals for prisoners and nonprisoners by
sending a list of inmates seeking pen pals to individuals or groups who also seek a
pen pal. The services will also send a list of nonprisoners to inmates seeking pen
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pals. Neither of Perry’s companies charges a fee for this service. WAP charges
$40 per year to permit inmates to place a pen pal advertisement on its website.
WAP also provides non–pen pal services to inmates such as access to educational
materials, a complimentary online resume posting service, and a program that
grants scholarships to children of inmates or victims of crimes.
In 2004 the FDOC adopted a rule that prohibits inmates from soliciting pen
pals, which states:
Inmates shall not use correspondence privileges to solicit or otherwise
commercially advertise for money, goods, or services. For the purposes
of this rule this includes advertising for pen-pals; inmates are not
prohibited from corresponding with pen pals, but shall not place ads
soliciting pen pals. Inmates who post ads or have ads posted with the
assistance of another person shall be subject to disciplinary action.
FLA. ADMIN. CODE ANN. r. 33-210.101 (9) (2004). The FDOC enacted this Rule
to prevent inmates from using pen pal–solicitation services to defraud people.
Although the FDOC does not cite any specific instances of fraud within Florida,
the district court found the testimony of a former FDOC employee and anecdotal
evidence from newspaper reports throughout the country persuasive evidence of
this fraudulent activity. The FDOC also discussed prison security as an
additional rationale behind the policy in the affidavit of James Upchurch, Chief of
Security Operations for the FDOC. Since the FDOC enacted the Rule, all of
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Appellants’ correspondence to inmates has been returned, including
correspondence regarding the non–pen pal oriented services that WAP offers.
Despite the Rule, the FDOC has permitted a pen pal service, Christian Pen
Pals, to continue to contact inmates. The FDOC permits Christian Pen Pals to
operate because Christian Pen Pals, unlike Appellants’s services, only provides
one-to-one matching between noninmates and inmates. Mr. Upchurch alleges
that this difference significantly decreases the likelihood of scams because an
inmate does not receive a list with numerous individuals’ names, addresses, and
contact information.
In their Second Amended Complaint, Appellants claimed violations of their
right to free speech, as protected by the First and Fourteenth Amendments, and
their right to due process under the Fifth and Fourteenth Amendments. The
district court granted the FDOC’s motion for summary judgment on all counts,
and Appellants timely filed their appeal.
“We review de novo the district court’s grant of summary judgment and use
the same standard of review utilized by the district court.” Miccosukee Tribe of
Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). Summary
judgment is proper only if there is no genuine dispute as to issues of material fact.
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FED. R. CIV. P. 56(c). We also review all evidence and inferences reasonably
drawn from the evidence in the light most favorable to the nonmoving party.
Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999).
II.
As an initial matter, we address Perry’s standing to bring her claims. The
district court properly held that Perry has a legally protected interest in
correspondence sent to an inmate. The Supreme Court held that both inmates and
noninmates have a First Amendment interest in correspondence sent to one
another. Procunier v. Martinez, 416 U.S. 396, 408–09, 94 S. Ct. 1800, 1809
(1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109
S. Ct. 1874 (1989). Furthermore, Thornburgh held that publishers have a First
Amendment right to access prisoners, 490 U.S. at 408, 109 S. Ct. at 1879, and
defined publications to include materials “addressed to a specific inmate [such] as
advertising brochures,” id. at 404 n.4, 109 S. Ct. at 1877 (quoting 28 C.F.R. §
540.70(a)). Because all of Appellants’ mail has been banned by the FDOC, their
interest as publishers in accessing prisoners has been harmed.
III.
Resolution of the First Amendment issue depends upon determining which
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standard to apply to speech in prisons. The Supreme Court, through a series of
cases, endorsed two possible standards for First Amendment cases involving the
free speech of prisoners and nonprisoners attempting to contact prisoners. The
first of these cases is Martinez, which held that censorship of prisoner mail is
justified if (1) the regulation furthers “an important or substantial governmental
interest unrelated to the suppression of expression,” and (2) “the limitation of
First Amendment freedoms [is] no greater than is necessary . . . to the protection
of the particular governmental interest.” 416 U.S. at 413, 94 S. Ct. at 1811.
However, the cases that follow Martinez erode the high standard it set and,
instead, show greater deference to prison administrators. Pell v. Procunier,
decided a few months after Martinez, held that “a prison inmate retains those First
Amendment rights that are not inconsistent with his status as a prisoner or with
the legitimate penological objectives of the corrections system.” 417 U.S. 817,
822, 94 S. Ct. 2800, 2804 (1974). Thus, restrictions on journalists’ ability to
interview inmates face-to-face furthered legitimate penological objectives
because “security considerations are sufficiently paramount in the administration
of the prison to justify the imposition of some restrictions on the entry of
outsiders.” Id. at 827, 94 S. Ct. at 2806. In Jones v. North Carolina Prisoners’
Labor Union, Inc., the Court used the standard set forth in Pell and recognized
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the “wide-ranging deference to be accorded the decisions of prison
administrators.” 433 U.S. 119, 126, 97 S. Ct. 2532, 2538 (1977).
In Bell v. Wolfish, the Court synthesized its case law to develop four
general principles: (1) prisoners do not forfeit all constitutional protections, (2)
retention of certain constitutional rights does not mean that the rights “are not
subject to restrictions and limitations,” (3) maintaining institutional security and
order are “essential goals that may require limitation” of certain rights, and (4)
prison administrators “should be accorded wide-ranging deference.” 441 U.S.
520, 545–47, 99 S. Ct. 1861, 1877–78 (1979). Using this guidance, the Court
found that limiting the sources that could mail hardback books to prisoners to
only publishers, bookstores, or book clubs was a “rational response” to a clear
security problem, because hardback books could be used to smuggle contraband
into the prison. Id. at 550–51, 99 S. Ct. at 1880.
In Turner v. Safley, the Supreme Court considered regulations on inmate-
to-inmate correspondence and inmate marriages. 482 U.S. 78, 81, 107 S. Ct.
2254, 2257 (1987). After thoroughly discussing its precedent, the Court held that
“when a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.”
Id. at 89, 107 S. Ct. at 2261. The Court also set out a series of factors gleaned
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from Pell, Jones, and Bell to help courts in determining the reasonableness of a
regulation: (1) whether there is “a valid, rational connection between the
regulation and the prison legitimate governmental interest;” (2) “whether there
are alternative means of exercising the right;” (3) “the impact accommodation of
the asserted constitutional right will have on guards and other inmates, and on the
allocation of prison resources;” and (4) “the existence of obvious, easy
alternatives[, which] may be evidence that the regulation is not reasonable, but is
an exaggerated response to prison concerns.” Id. at 89–90, 107 S. Ct. at 2262
(citations and internal quotation marks omitted). Using these factors, the Court
upheld the regulations on inmate-to-inmate correspondence but rejected the
regulation on inmate marriages. Id. at 81, 107 S. Ct. at 2257. Finally, the
Supreme Court limited Martinez to regulations involving only outgoing mail and
held that regulations affecting the sending of mail to prisoners be analyzed under
the standard established in Turner.1 Thornburgh, 490 U.S. at 413–14, 109 S. Ct.
1
The Court specifically stated:
[W]e acknowledge today that the logic of our analyses in Martinez and Turner requires
that Martinez be limited to regulations concerning outgoing correspondence. . . .
[O]utgoing correspondence was the central focus of our opinion in Martinez. The
implications of outgoing correspondence for prison security are of a categorically lesser
magnitude than the implications of incoming materials. Any attempt to justify a similar
categorical distinction between incoming correspondence from prisoners . . . and
incoming correspondence from nonprisoners would likely prove futile . . . . To the
extent that Martinez itself suggests such a distinction, we today overrule that case . . . .
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at 1881–82.
Although two standards exist to determine when a violation of the First
Amendment occurs within the prison context, the Martinez standard was only
applied once by the Supreme Court—in Martinez itself. Since Martinez, the
Court has always applied a more rationally based scrutiny to decide whether the
First Amendment is violated within the prison context. We recognized the
evolution of the Martinez standard toward rational basis review in Lawson v.
Singletary, 85 F.3d 502, 511 (11th Cir. 1996) (per curiam).
Perry and WAP argue that Martinez granted them a right to not only send
mail to inmates but also receive mail from inmates, but this reading of Martinez is
too broad. Thornburgh requires application of the Turner reasonableness
standard when the regulation at issue affects the sending of a publication to a
prisoner, and the FDOC Rule affects that type of correspondence. Thornburgh,
490 U.S. at 413, 109 S. Ct. at 1881 (“[W]e now hold that regulations affecting the
sending of a publication . . . to a prisoner must be analyzed under the Turner
reasonableness standard.” (internal quotation marks omitted)). Moreover, the
outgoing correspondence in this case is distinguishable from the correspondence
Thornburgh, 490 U.S. at 413–414, 109 S. Ct. at 1881–82.
9
in Martinez. The personal correspondence in Martinez “did not, by its very
nature, pose a serious threat to prison order and security.” Thornburgh, 490 U.S.
at 411, 109 S. Ct. at 1880. Here, Mr. Upchurch’s affidavit states that the
outgoing correspondence poses a direct threat to internal prison security because
pen pals might give money to prisoners who will then use it to bribe officials and
order hits on other inmates. Therefore Turner, not Martinez, is the appropriate
standard in this case.
Turner sets out a four-factor analysis to determine if a prison regulation
limiting the First Amendment is reasonably related to a legitimate penological
interest. The first factor requires a rational connection between the prison
regulation and the legitimate penological objective. Turner, 482 U.S. at 89, 107
S. Ct. at 2262. Appellants concede that protecting the public and ensuring
internal prison security are legitimate penological objectives. Instead, they argue
that the Rule does not rationally relate to the governmental interest because the
FDOC has not provided evidence to prove that its Rule will protect the public or
increase prison security. They rely on a Ninth Circuit case, California First
Amendment Coalition v. Woodford, to establish that prison administrators must
provide evidence that the asserted claims are true. 299 F.3d 868, 880 (9th Cir.
2002). Even if we were bound by this articulation, the FDOC meets this standard
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by offering expert testimony to establish that the Rule will help curb pen pal
scams. While “[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution,” the court is required to defer to the
prison administrator’s decisions and opinions. Turner, 482 U.S. at 84–85, 107 S.
Ct. at 2259. The FDOC stated through James Upchurch’s affidavit that when
inmates only receive pen pals through personal associates and not pen pal
companies (like Appellants’ companies), the possibility of the inmate defrauding
the pen pal is greatly reduced. Therefore, the FDOC has shown a rational
relationship between the legitimate penological interests of protecting the public
and ensuring internal prison security and the Rule prohibiting inmates from
soliciting for pen pals.
The second factor requires us to decide if there are alternative avenues for
exercising the right. Id. at 90, 107 S. Ct. at 2262. Appellants argue that there are
no alternative avenues to market any of their services because the FDOC banned
all of their correspondence. However, the FDOC stated that if WAP
differentiates its non–pen pal services from the pen pal services by indicating the
program on the return address, the FDOC will permit the non–pen pal service
mailings to reach inmates. Moreover, the Rule does not prohibit inmates from
corresponding with pen pals; rather, it only prohibits inmates from soliciting pen
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pals. The FDOC leaves open alternative means for inmates to correspond with
noninmates and for organizations to reach inmates through one-to-one pen pal
correspondence. Perry and WAP could offer one-to-one matching and the FDOC
presumably would permit such correspondence.
The next factor requires the court to evaluate the impact on guards,
inmates, and prison resources. Id. at 90, 107 S. Ct. at 2262. Appellants argue
that permitting their companies to advertise for inmates will not greatly affect the
FDOC resources or prison guards and will, instead, help inmates in their
rehabilitation by providing them contact with the outside world. The FDOC
counters by showing that accommodating Appellants’ bulk mailings would lead
to an increase of mail, and this increase would burden prison staff by requiring
them to comb through a significant portion of mail to catch any scams or
contraband. James Upchurch states in his affidavit that the FDOC currently
processes roughly 50,000 pieces of mail daily. Thus, a significant increase in
mail would require the FDOC to shift correctional staff to review the increased
volume of mail and to shift inspectors to investigate possible pen pal scams. This
burden would make it more difficult for the already overworked staff and
inspectors to accomplish their other responsibilities in ensuring a safe and secure
prison environment. Furthermore, inmates may still have pen pal relationships
12
and may still glean the positive influence from pen pals, provided they use a one-
to-one matching service. Thus, the FDOC has satisfied the third Turner factor.
Finally, the court must decide whether the rule is an exaggerated response
by looking at possible alternative means to prevent pen pal scams. Thornburgh,
490 U.S. at 418, 109 S. Ct. at 1884. Appellants argue that there are already
several Florida statutes and FDOC rules that can prohibit pen pal scams without
prohibiting the solicitation of pen pals because the rules and statutes set out how
an inmate may correspond with a noninmate. See, e.g., FLA. STAT. § 817.031
(providing venue of prosecution under FLA. STAT. § 817.03, which prohibits
making a false statement to obtain property or credit); FLA. ADMIN. CODE ANN. r.
33-210.101(5) (allowing all routine mail correspondence to be opened, examined,
and read to determine if the contents facilitate criminal activity). Appellants also
point to existing statutes and rules limiting the amount of money an inmate may
possess at any given time to address the FDOC’s argument that pen pal scams
will hurt internal security by increasing the amount of money in the prison. See,
e.g., FLA. STAT. § 944.516 (permitting the FDOC to establish a rule limiting the
amount in each inmate’s trust account); FLA. ADMIN. CODE ANN. r. 33-602.201
(prohibiting inmates from possessing checks, credit cards, debit cards, or other
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negotiables). However, the FDOC argues that these rules were insufficient to
protect the public and prohibit inmates from receiving contraband. Steve Arnold,
a former employee of the FDOC who worked in jails for fifteen years, stated in
his affidavit that during his six years as an inspector he uncovered approximately
one hundred pen pal scams. In addition, James Upchurch stated in his affidavit
that WAP had been used in Arkansas to defraud the public through a pen pal
scam. Although the FDOC did not need to narrowly tailor its Rule to only
prohibit inmates from soliciting for pen pals, the FDOC chose to use the least
exaggerated response possible. The choice to permit inmates to still have pen
pals shows that the FDOC rule is a well reasoned response to a significant
problem.
Applying the Turner factors to this case, it is clear that all four factors
weigh in favor of the FDOC; therefore, the district court’s granting of summary
judgment for the FDOC was proper.
IV.
Martinez states that both prisoners and their correspondents have a liberty
interest in uncensored communication by letter; therefore, any decision to censor
or withhold delivery of letters must be accompanied by procedural safeguards.
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Martinez, 416 U.S. at 417–18, 94 S. Ct. at 1814. The FDOC argues that
Thornburgh limited Martinez’s application to only outgoing mail for both the
standard of scrutiny to evaluate a First Amendment violation and the procedural
due process requirements. The district court doubted Appellants’ liberty interest
but declined to decide the issue because it found that Appellants failed the
requirements stated in Martinez.
Appellants do have a liberty interest in accessing inmates. The Supreme
Court has advised that “[i]n a Constitution for a free people, there can be no doubt
that the meaning of ‘liberty’ must be broad.” Bd. of Regents v. Roth, 408 U.S.
564, 572, 92 S. Ct. 2701, 2707 (1972). Moreover, Thornburgh explained that
publishers (including advertisers) have a First Amendment right to access
inmates. 490 U.S. at 408, 109 S. Ct. at 1879. Thus, Appellants’ First
Amendment right to access inmates give them a liberty interest in seeing that
their advertisements reach the inmates.
Like the First Amendment analysis above, we must first determine which
standard to apply. Both the district court and the FDOC failed to properly read
Thornburgh’s limitation of Martinez. Martinez was only limited as to the proper
standard to use when analyzing a First Amendment claim within the prison
context. Thornburgh did not discuss the standard for procedural due process,
15
except to thoroughly lay out the safeguards created by the particular regulations
in question and declare that the regulations properly “provide[d] procedural
safeguards for both the recipient and the sender.” 490 U.S. at 406, 109 S. Ct. at
1878. As such, procedural safeguards must exist to ensure that Appellants can
appeal any decision by the FDOC to block their advertisements.
Martinez created a three-part test to decide whether there are proper
procedural safeguards for correspondence of a personal nature.2 Here,
Appellants’ only send bulk correspondence to advertise their services to inmates.
Thus, while Martinez may still control for due process claims where a prison
limits personal correspondence, it is not necessary to require such a high standard
for mass mailings.
Since mass mailings require a lower standard for due process guidelines,
we evaluate what process is due under the test set forth in Mathews v. Eldridge,
424 U.S. 319, 96 S. Ct. 893 (1976). To evaluate a due process claim we analyze
three factors:
2
Those safeguards are: (1) the inmate must receive notice of the rejection of a letter
written by or addressed to him; (2) the author of the letter be given “reasonable opportunity to
protest that decision,” and (3) “complaints be referred to a prison official other than the person
who originally disapproved the correspondence.” Martinez, 416 U.S. at 418–419, 94 S. Ct. at
1814.
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First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Id. at 335, 96 S. Ct. at 903 (citation omitted). Appellants do not have a
compelling private interest in ensuring that their advertisements reach the
inmates. As we have discussed above, the FDOC’s interest in protecting the
public and maintaining prison security is important.
Finally, we acknowledge that the risk of an erroneous deprivation of
Appellants’ private interest is high because the FDOC’s enforcement of its Rule
deprives WAP of the ability to send inmates advertisements concerning non–pen
pal services. However, WAP can separate and distinguish its mail to inmates to
eliminate any such concerns. Also, like Christian Pen Pals, Appellants are free to
correspond with FDOC officials to challenge the denial of their advertisements.
Any additional procedures would put an extra burden on the FDOC without
necessarily adding any extra protections for Appellants. Therefore, the FDOC
ensured that Appellants were afforded constitutionally required due process.
We affirm the district court order granting summary judgment in favor of
the Florida Department of Corrections.
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AFFIRMED.
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