Yoder v. Palmeri

EICH, C.J.

Charles Yoder, an inmate at the Waupun Correctional Institution, appeals from a summary judgment dismissing his action against a corrections official, Captain Leonard Palmeri.

Yoder sued Palmeri under the federal civil rights act, 42 U.S.C., sec. 1983, seeking both injunctive relief and money damages based on his claim that Palmeri had violated his right to due process of law when he intercepted a letter Yoder had written to an inmate in another institution without giving adequate reasons for doing so.1 The trial court rejected the claim, as do we.

*759The facts are not in dispute. In July, 1991, Yoder wrote to Wayne Taylor, an inmate at another Wisconsin corrections facility, the Wisconsin Resource Center (WRC). Palmeri, the "project captain" at WRC, was responsible for investigating matters that were considered to pose risks to security and order at WRC, and one of his duties was to review inmate-to-inmate correspondence received at the institution.

Yoder's letter to Taylor read in part as follows:

1 am trying to catch on the news what exactly happened down in the "Ville[."] In the paper today, there was an article about Stateville2 being locked up due to a major disturbance — one prisoner killed, numerous Officer! ]s injured, and the violence still goes on. Wisconsin sure could use a dose of that type shit.

Reading the letter, Palmeri determined that it could be considered as "promoting] rioting and physical injury of inmates and correctional staff' in violation of the Wisconsin Administrative Code and various state statutes and decided to confiscate it under the authority of Wis. Adm. Code sec. DOC 309.05(6). The rule, among other things, authorizes interception of inmate-to-inmate mail that "[c]oncerns activity that, if completed, would violate the laws of Wisconsin or the United States-"

The rule also states that whenever such mail is intercepted, the sender and the intended recipient "shall receive a notice stating why the letter was not delivered_" Wis. Adm. Code sec. DOC 309.05(6)(e)2. Following the procedures set forth in the rule, Palmeri *760prepared a "Notice of Non-Delivery of Mail" stating that the letter would not be delivered because it "concerned 'an activity which, if completed, would violate the laws of Wisconsin, the United States or the Administrative Rules of the Division of Corrections.'" Yoder filed this action upon receiving the notice.

He argues that he has a constitutionally protected liberty interest — arising either under the first amendment to the United States Constitution or under state law — in being notified of "full and explicit reasons" for interception of his letter; and he contends that the notice provided by Palmeri under Wis. Adm. Code sec. DOC 309.05(6)(e)2 was inadequate to provide him with the process that was his due. Yoder states the argument quite broadly, never indicating what additional information he believes should have been provided in the written notification, other than to state that "[t]here are many thousands of . . . [l]aws" and he should not be forced to "venture a guess as to which [one] his letter may be violative of."

A constitutionally protected liberty interest may arise from the constitution itself or from provisions of state law. And to the extent that Yoder relies on either source, we reject his argument that either the regulations authorizing interception of inmate-to-inmate mail, or the manner in which those regulations were applied by Palmeri in this case, invade any constitutionally protected interest that he might have.

It is well established that the first amendment rights of prison inmates are subject to such limitation and regulation as may be reasonably related to legitimate concerns with the order and security of the prison environment. Thornburgh v. Abbott, 490 U.S. 401 *761(1989); Turner v. Safley, 482 U.S. 78 (1987). Thus, it is permissible for prison authorities to provide that all incoming mail may be inspected for contraband and read to detect possible threats to prison security. In Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir. 1986), for example, the court rejected an inmate's challenge to Illinois regulations allowing inspection of all inmate-to-inmate mail, stating that such a practice could not form "the basis of a valid constitutional challenge; this court ha[ving] already determined that provisions of this type do not impermissibly intrude on first amendment rights." In Thornburgh, the Supreme Court explained why this is so:

[PJrison officials may well conclude that certain proposed interactions, though seemingly innocuous to lay [persons], have potentially significant implications for the order and security of the prison. Acknowledging the expertise of these officials and that the judiciary is "ill equipped" to deal with the difficult and delicate problems of prison management, this Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world. 490 U.S. at 407-08.

Turner, the leading case on inmate mail, upheld Missouri regulations permitting corrections officials to bar any correspondence between inmates unless it concerned legal matters or was sent to an inmate who was a member of the sender's immediate family. The Supreme Court rejected a "strict scrutiny" standard for such regulations, holding that even though they might impinge on inmates' constitutional rights, they are valid if they are "reasonably related to legitimate peno-logical interests." Turner, 482 U.S. at 89. The Court *762listed four factors to be considered in determining reasonableness: whether there is a " 'valid, rational connection' between the regulation and the legitimate governmental interest put forward to justify it"; whether "there are alternative means of exercising the right that remain open to . . . inmates"; the effect accommodation of the asserted right would have on prison personnel, other inmates and the allocation of prison resources; and the availability of ready alternatives to the restriction. Id. at 89-90 (citations omitted).

Applying those considerations to the Missouri rules — which, we note, are considerably more restrictive than those in Wis. Adm. Code sec. DOC 309.05(6) — the Court concluded:

The prohibition on correspondence is reasonably related to valid corrections goals. The rule is content neutral, it logically advances the goals of institutional security and safety... and it is not an exaggerated response to those objectives. On that basis, we conclude that [it] does not unconstitutionally abridge the First Amendment rights of prison inmates. Turner, 482 U.S. at 93.

We reach a similar conclusion here. The Wisconsin rules are, as the trial court determined, reasonably and rationally related to the state's interest in fostering order and security in its prisons — including the safety of prison workers and inmates alike — and Yoder has not suggested any "ready alternatives" to the provisions he challenges. In addition, inmates have alternative means of communicating with each other, as with others — as long as the communications do not *763concern activities which, if completed, would violate state or federal law or other provisions of the code.3

We conclude, therefore, that the inspection and withholding of Yoder's letter to Taylor, and the regulations permitting such actions, meet the tests stated in Thornburgh, Turner, and other applicable cases. Yoder has not established that the constitution provides him with a protected interest that has been abridged or invaded by the government.

We reach a similar result with respect to Yoder's claim that Wisconsin law independently creates such an interest. In order for a state law or regulation to be considered as creating a constitutionally protected liberty interest, the state must employ "language of an unmistakably mandatory character, requiring that certain procedures 'shall,' 'will,' or 'must' be employed . . . and that [the challenged action] will not occur absent specific substantive predicates." Colon v. Schneider, 899 F.2d 660, 667 (7th Cir. 1990) (quoting Hewitt v. Helms, 459 U.S. 460, 471-72 (1983)) (citations omitted).

Stated simply, "a State creates a protected liberty interest by placing substantive limitations on official discretion." . . . Our past decisions suggest ... that the most common manner in which a State creates a liberty interest is by establishing "substantive predicates" to govern official *764decisionmaking, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met....
. . . For example, the failure of a Connecticut statute governing commutation of sentences to provide "particularized standards or criteria [to] guide the State's decisionmakers," defeated an inmate's claim that the State had created a liberty interest. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462 (1989) (citations omitted).

Thus, where the state regulations do not contain "specific directives to the decisionmaker that if the regulation's substantive predicates are present, a particular outcome must follow," but rather leave the decision to the officer's discretion, no liberty interest is created. Id. at 463.

Yoder focuses on the word "shall" in Wis. Adm. Code sec. DOC 309.05(6)(e)2 — "the sender [and recipient] shall receive a notice stating why the letter was not delivered" — claiming that it creates a protected liberty interest on the part of an inmate whose letter to another inmate is intercepted because it is considered to concern an activity which, if completed, would violate state or federal law. It is not enough, says Yoder, to frame the notice as Palmeri did here. He claims that he has an interest in being advised of the specific and particular laws or regulations implicated by the contents of the letter.

Not only does the argument run contrary to the cases just discussed, but Yoder has confused procedure with substance. The notification requirement is procedural only, and it is well established that state-created procedures governing the exercise of governmental *765power cannot themselves be considered a liberty interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539-41 (1985) (rejecting the plurality's suggestion to the contrary in Arnett v. Kennedy, 416 U.S. 134 (1974), with respect to property interests); Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (liberty interests do not arise from state-created procedural devices); Shango v. Jurich, 681 F.2d 1091, 1100 (7th Cir. 1982) (argument that procedures established in prison regulations can themselves be considered a liberty interest held "analytically indefensible").

Because Yoder has not established that he has a constitutionally protected interest at stake in these proceedings, the trial court properly granted summary judgment dismissing his action.

By the Court. — Judgment affirmed.

Yoder does not claim that he was disciplined or punished for attempting to send the letter, nor has he alleged that he *759requested review of Palmeri's decision or sought review of the decision through the inmate complaint system.

"Stateville" is a maximum-security prison in Illinois.

Under other provisions of Wis. Adm. Code sec. DOC 309.05(6), inmate mail will not be delivered if it threatens criminal activity or physical harm to any person, threatens blackmail or extortion, concerns plans to escape or the sending of contraband in or out of the prison, is obscene or in code, or contains information creating a clear danger of harm to any person.