Rich v. Luther

OPINION and ORDER

DONALD RUSSELL, District Judge.

Vernon Rich, a prisoner confined in a North Carolina state prison, filed suit pur*482suant to 42 U.S.C. § 1983, in December 1975, on behalf of himself and other prisoners within that State’s prison system seeking to have certain orders issued by the State of North Carolina in accordance with state law, forbidding inmates from receiving books, magazines and newspapers not sent directly from the publisher, declared unconstitutional as being in violation of his First Amendment rights.1 Since the action was commenced before the 1976 Amendment, the resolution of the constitutional issue presented required the convening of a three-judge court. 28 U.S.C. § 2284.

The regulation challenged in this case is found in Title 5, N.C. Administrative Code, Chapter Subchapter 2D, [hereafter, 5 N.C. A.C. 2D]. Specifically, plaintiff challenges 5 N.C.A.C. 2D.0101(a), which in relevant part reads:

An inmate in medium, close, or maximum security may receive a reasonable number of books, newspapers, magazines, and other publications directly from the publisher. An inmate in minimum custody may receive publications from any source subject to the standard search for contraband. Inmates ordering publications must forward their payment for subscriptions or individual publications with their orders; inmates shall not receive publications of any kind on a trial basis with payment postponed. Additional publications may be donated to the unit or institution by community organizations or other interested persons in the community. The number of publications received by individual inmates, however, may be reasonably limited to prevent overcrowding and possible fire hazards. All material submitted for delivery is subject to a search for contraband.

Plaintiff Vernon Rich was sent two books, GREAT SHORT WORKS OF MARK TWAIN and DON JUAN: A YAQUI WAY OF KNOWLEDGE, from a woman in Durham, North Carolina. The books were returned to her by prison officials. It is the refusal by the prison officials, in accordance with the publisher only rule, as set forth in 2D 0101(a), to allow Rich to have the two books that plaintiff presently challenges as having been a denial of his First Amendment rights under the Constitution of the United States.2

The sole issue before this court is the applicability of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) to this case.3 The Supreme Court in Wolfish considered a constitutional challenge to a publisher only rule in operation in a correctional institution in New York City.4 The facility, in that case, was designed primarily to house pretrial detainees. The Supreme Court held that a publisher only rule does not violate the First Amendment rights of pretrial detainees. Id. at 550, 99 S.Ct. at 1880.

The essential distinguishing factor under consideration by this court is whether the holding in Wolfish with respect to the publisher only rule applies to persons convicted, sentenced and confined to a state prison as well as to prison detainees. We hold that it can and does.

Justice Rehnquist, writing for a plurality of the Court in Wolfish, observed that “maintaining institutional security and preserving order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of ... [convicted prisoners] .... ” Id. at 546, 99 S.Ct. at 1878.5 He went on to say:

*483“Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 547, 99 S.Ct. at 1878.6 We are convinced that the restrictions limiting receipt of books, magazines and newspapers from publishers only in a prison, which contains persons convicted of crimes, who do not possess the presumption of innocence that pretrial detainees do, is also a rational and reasonable response to security problems confronting state officials charged with the responsibility of managing the North Carolina prison system.

The Fourth Circuit recently considered a challenge to the publisher only rule in the Virginia prison system by one in a similar status to that of the plaintiff. Zaczek v. Hutto, 642 F.2d 74 (1981). It was recognized in that case that the constitutional validity of a publisher only regulation as declared in Wolfish applied to persons convicted and sentenced to prison as well as to pretrial detainees.

Earlier a federal district court in Arkansas had reached a like conclusion in a challenge by a convicted prisoner to a publisher only regulation of the prison system. Cotton v. Lockhart, 476 F.Supp. 956, 957 (D.Ark.1979), aff’d., 620 F.2d 670 (8th Cir. 1980). The rule, in that case, pertained to books, magazines and newspapers. That court, however, limited its opinion to the procurement of books only. Id. at 958, n.4. The court held that the rule did not violate the prisoner-plaintiff’s First Amendment rights, thereby sustaining the validity of the rule. The court said, “simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations.” Id. at 960.

The district court in Cotton, as characterized later by the Eighth Circuit on review, determined that “(1) the rule operates in a neutral fashion regulating source rather than content of expression; (2) receipt of soft cover as well as hard cover books poses a substantial security problem ... (4) inmates have access to reading materials through the prison library, ...” 620 F.2d at 672. These findings are equally operative in the instant case and assisted the court in arriving at its conclusion.

In the instant case, prison officials, through their affidavits and depositions, demonstrated to the satisfaction of the court that the publisher only rule, as it exists in North Carolina, was promulgated to further a function of security within the state’s prison system. Concern exists about the need to prevent the flow of drugs and weapons into prisons in North Carolina. The rule is, we believe, a rational response to a well recognized problem. It constitutes a valid state objective carried out in a not unconstitutionally restrictive manner. Therefore, we do not feel constrained in finding that the holding of the Supreme Court in Wolfish, with respect to the publisher only rule, is applicable to this case, where prison officials use the rule in dealing with persons convicted of crimes and sentenced to the North Carolina state prison system.

Accordingly the plaintiff is not entitled to the relief he seeks and the complaint is dismissed, and

IT IS SO ORDERED.

. This regulation shall hereinafter be referred to as the “publisher only rule.”

. It must be noted that Rich does not claim that he required these two books in furtherance of preparation for litigation, thereby invoking support from other provisions of the Constitution. His claim is grounded solely on an assertion of a right to receive the two books.

. [Hereinafter “ Wolfish ” ]. Wolfish was decided after this case was filed.

. The constitutional challenge to the publisher only rule in Wolfish was also under the First Amendment.

. See also, Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).

. Jones, 433 U.S. at 128, 97 S.Ct. at 2539; Procunier v. Martinez, 416 U.S. 396, 404-405, 94 S.Ct. 1800, 1807-1808, 40 L.Ed.2d 224 (1973).