United States Court of Appeals
For the Eighth Circuit
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No. 16-3682
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Cheryl Simpson
lllllllllllllllllllll Plaintiff - Appellant
v.
County of Cape Girardeau, Missouri
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: September 20, 2017
Filed: January 2, 2018
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Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Cheryl Simpson brought a 42 U.S.C. § 1983 claim against the County of Cape
Girardeau, Missouri (“Cape Girardeau”), alleging that the Cape Girardeau County
Jail’s postcard-only incoming-mail policy for non-privileged mail violated her First
and Fourteenth Amendment rights by impermissibly restricting her ability to
communicate with her son, Trey Simpson, who was then an inmate. At trial, Ms.
Simpson attempted to introduce incoming-mail policies from other institutions that
permit inmates to receive multi-page letters in envelopes as evidence that Cape
Girardeau’s postcard-only policy was unreasonable. The district court1 excluded those
policies as irrelevant and held that the postcard-only policy did not violate Ms.
Simpson’s constitutional rights. We affirm, holding that the district court’s exclusion
of the other institutions’ mail policies was harmless error and the postcard-only
incoming-mail policy is constitutional.
I. Background
When Trey Simpson was first imprisoned at Cape Girardeau County Jail, the
jail had no restrictions on the length or number of letters that inmates received. Ms.
Simpson wrote Trey several lengthy letters a week that included family photos,
drawings by his nephew, and various pieces of personal information. On January 1,
2014, during Trey’s imprisonment, Cape Girardeau implemented a new incoming-
mail policy requiring non-privileged mail to be sent on postcards:
All non-privileged correspondence entering the Jail Facility must be
post cards [sic]
a) All postcards must be standard white postcards, no index cards
or photographs.
b) Postcards must be no larger then [sic] 5” X 7”.
c) Postcards will have their stamps removed and discarded prior
to delivery to the inmate.
d) Postcards must be addressed with the return address
clearly readable.
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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e) There will be no limit on how many postcards inmates can
receive but inmates will be limited to ten postcards in their cell at
any one time.
f) Unacceptable postcards will be returned to sender
1) Defaced or altered postcards are unacceptable
2) No plastic/wrappings on postcards.
3) No labels or stickers will be accepted
4) No postcards with watermarks or stains
5) No postcards with bio-hazards, including lipsticks
or perfumes
6) No postcards depicting nudity, weapons,
alcohol or gang references.
R. at 61.
Cape Girardeau’s reasons for imposing the postcard-only policy were to reduce
the risk of contraband entering the jail and to reduce the time that officers spent
searching the mail. The other means of communication available to inmates at the
time included fifteen-minute visits on Saturdays and collect phone calls that prisoners
could place, costing $9.99 for ten minutes. After the new policy was implemented,
Ms. Simpson could not fit as much writing on a single postcard as she could in a
letter, so she wrote multiple postcards and numbered them so that Trey could read
them in order. Ms. Simpson claims the postcards were confusing because they did
not always arrive at the same time or in order and if there were more than ten
postcards, Trey could not keep them all in his possession at once. Ms. Simpson also
testified that limiting her writing to postcards changed the nature of her
communications with her son because anyone would be able to read what she wrote,
including postal employees.
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Ms. Simpson filed suit against Cape Girardeau under § 1983, and on November
6, 2015, the parties appeared for a bench trial. The district court found that the four
factors in Turner v. Safley, 482 U.S. 78, 89-91 (1987), applied to determine whether
the postcard-only policy is constitutional. The court held that the first factor favored
Cape Girardeau because safety and efficiency are legitimate penological concerns and
scanning postcards is more efficient than opening envelopes and scanning multi-page
letters. The court additionally found that the policy minimizes the possibility that
contraband will be introduced into the jail. The court then determined that the second
factor was neutral because though there were alternative ways to communicate with
inmates, they are more expensive and less private.
Next the court held that the third factor favored Cape Girardeau because the
policy saves time by allowing officers to check the mail faster and in turn use that
time on other issues related to security. Finally, the court found that the fourth factor
favored Cape Girardeau because returning to the previous mail policy that required
the staff to open envelopes individually and to inspect the contents and scan multi-
page letters would have more than a de minimis cost. Ms. Simpson attempted to
introduce evidence of incoming-mail policies from several other jails and prisons,
including the Federal Bureau of Prisons, to show there were alternative policies that
would have no more than a de minimis cost to implement. The district court excluded
these policies as irrelevant. Based on these findings, the court held that the postcard-
only policy did not violate Ms. Simpson’s constitutional rights.
II. Excluded Policies
The first issue on appeal is whether the district court committed reversible error
when it excluded as irrelevant evidence of incoming-mail policies from other
institutions. We review evidentiary rulings for abuse of discretion and give
“deference to the district judge who saw and heard the evidence.” United States v.
Johnson, 860 F.3d 1133, 1139 (8th Cir. 2017) (internal quotation marks omitted). A
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court abuses its discretion when “a relevant factor that should have been given
significant weight is not considered; when an irrelevant or improper factor is
considered and given significant weight; and when all proper factors, and no
improper ones, are considered, but the court, in weighing those factors, commits a
clear error of judgment.” Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 893 (8th
Cir. 2013) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).
We will only reverse an improper evidentiary ruling if it affected a party’s substantial
rights or more than slightly influenced the verdict. Johnson, 860 F.3d at 1139.
Further, “[w]e will not reverse a harmless error.” Id.
Ms. Simpson argues that the district court committed reversible error because
the Supreme Court has held that the policies of other correctional institutions are
relevant in deciding whether a jail’s policy violates a constitutional right and
excluding the other institutions’ incoming-mail policies prevented her from
presenting relevant, substantive evidence showing that the postcard-only policy was
unconstitutional. Cape Girardeau argues that the court did not abuse its discretion
because: Ms. Simpson did not make an appropriate offer of proof to preserve the issue
on appeal; she did not show how the policies were relevant or how their exclusion
would be prejudicial; and considering the other prisons’ policies would be a waste of
time under Federal Rule of Evidence 403.
Assuming that the district court abused its discretion when it excluded the other
institutions’ policies, we only reverse the district court if the exclusion of the policies
affected Ms. Simpson’s substantial rights or if the ruling “had more than a slight
influence on the verdict.” Johnson, 860 F.3d at 1139 (internal quotation marks
omitted). Here, though the district court excluded the policies from other institutions,
it still considered Cape Girardeau’s previous incoming-mail policy as an alternative
policy. Cape Girardeau’s previous policy does not meaningfully differ from the other
institutions’ incoming-mail policies. Cape Girardeau’s previous policy and the other
institutions’ policies did not contain postcard-only restrictions, and all called for mail
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inspections before the mail was delivered to the inmates. Because these policies are
materially indistinguishable, the other institutions’ policies would not have made a
difference in the district court’s analysis. Additionally, Ms. Simpson was able to
adequately present evidence on the fourth Turner factor by presenting Cape
Girardeau’s previous policy as an alternative to the postcard-only policy. Therefore,
Ms. Simpson’s substantial rights were not affected, and the exclusion of the policies
did not have an impact on the district court’s decision. We hold that the exclusion,
if error, was harmless.
III. Constitutionality of Postcard-Only Policy
The second issue on appeal is whether Cape Girardeau’s postcard-only policy
is constitutional under Turner. We review the application of the Turner factors de
novo. Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir. 1990).
In Turner, the Supreme Court held that a prison regulation or action that
restricts a prisoner’s constitutional rights “is valid if it is reasonably related to
legitimate penological interests.”2 482 U.S. at 89. Turner established “four factors
that courts should consider in making that determination”: (1) “whether there is a
‘valid rational connection’ between the prison regulation and the government interest
justifying it”; (2) “whether there is an alternative means available to the prison
inmates to exercise the right”; (3) “whether an accommodation would have ‘a
significant “ripple effect”’ on the guards, other inmates, and prison resources”; and
(4) “whether there is an alternative that fully accommodates the prisoner ‘at de
2
In Thornburgh v. Abbott, the Supreme Court found that the Turner analysis
applies to restrictions on the rights of inmates and outsiders, and “any attempt to
forge separate standards for cases implicating the rights of outsiders is out of step”
with the supporting cases the Court expressly relied on in Turner. Thornburgh, 490
U.S. 401, 410 n.9 (1989). Thus, the Turner factors apply even though Ms. Simpson,
not Trey, brought the instant claim.
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minimis cost to valid penological interests.’” Murphy v. Mo. Dep’t of Corr., 372 F.3d
979, 982-83 (8th Cir. 2004) (quoting Turner, 482 U.S. 89-90).
Ms. Simpson argues that the first factor favors her because Cape Girardeau is
attempting to suppress expression, so the policy is not neutral. She further argues that
the third and fourth factors weigh in her favor because Cape Girardeau has not
presented sufficient evidence showing that the postcard-only policy significantly
improved safety or efficiency; therefore, there would be no ripple effect if Cape
Girardeau returned to a letter mail policy, and there are alternative mail policies that
would have a de minimis cost to implement.
Cape Girardeau argues that the policy is neutral and rationally related to the
jail’s legitimate penological interests in limiting the amount of contraband entering
the jail and in maintaining an efficiently run institution. Cape Girardeau then argues
that the second factor weighs in its favor because Ms. Simpson can still send as many
postcards as she wants, she can visit her son in person on Saturdays, and she can talk
to her son on the phone. Cape Girardeau finally argues that the third and fourth
factors weigh in its favor because the postcard-only policy saved the jail significant
time and resources that are now allocated to the officers’ other security duties and
returning to a letter mail policy would have more than a de minimis cost.
A. Valid Rational Connection
The first Turner factor requires that Cape Girardeau’s interests reflect
legitimate, neutral governmental objectives, and “there must be a valid, rational
connection between the prison regulation and the legitimate governmental interest put
forward to justify it.” Turner, 482 U.S. at 89-90 (internal quotation marks omitted).
“[A] regulation cannot be sustained where the logical connection between the
regulation and the asserted goal is so remote as to render the policy arbitrary or
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irrational.” Id. Should we find a valid rational connection, we balance the remaining
three factors. See id.
We have recognized institutional security as the most compelling government
interest in a prison setting. Murphy, 372 F.3d at 983. Institutional efficiency is also
a legitimate penological objective. See Barney v. Pulsipher, 143 F.3d 1299, 1313
n.17 (10th Cir. 1998). Lieutenant Todd Stevens of the Cape Girardeau County
Sheriff’s Office proposed the postcard-only policy and stated at trial that the purpose
of the policy is to improve the security and efficiency of the jail. Ms. Simpson did
not controvert this testimony. Thus, Cape Girardeau’s stated objectives justifying the
regulation appear rationally connected to legitimate governmental interests. See
Murphy, 372 F.3d at 983; Barney, 143 F.3d at 1313 n.17.
The Supreme Court has stated that it is “important to inquire whether prison
regulations restricting inmates’ First Amendment rights operated in a neutral fashion,
without regard to the content of the expression.” Turner, 482 U.S. at 90. In
Thornburgh, the Supreme Court found that when “prison administrators draw
distinctions between publications solely on the basis of their potential implications
for prison security, the regulations are ‘neutral’ in the technical sense in which” that
term was meant and used in Turner. 490 U.S. at 415-16. The policy at issue in
Thornburgh stated that it was distinguishing between publications based on prison
security, not content, so the Supreme Court found the prison’s distinctions
permissible. Id.; see also Human Rights Def. Ctr. v. Bezotte, No. 11-CV-13460, 2017
WL 1250683, at *7 (E.D. Mich. Mar. 31, 2017) (finding that the postcard-only policy
was neutral because it applied to all persons). Similarly, Cape Girardeau
implemented the postcard-only policy based on jail security and efficiency, not based
on the content of the mail itself, and the policy applied to all non-legal, incoming
mail. Therefore, we find that the postcard-only policy is neutral.
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Cape Girardeau must also demonstrate a logical connection between its goals
and the regulation. Turner, 482 U.S. at 89-90. If there is no logical connection, then
the regulation is arbitrary and unreasonable and cannot be sustained. Id. Though it
may bolster the rationale for a postcard-only policy, Cape Girardeau need not present
evidence of previous incidents stemming from the receipt by inmates of letter
mail—“prison officials may also seek to prevent harm that has yet to occur.”
Murchison v. Rogers, 779 F.3d 882, 890 (8th Cir. 2015). Moreover, Turner does not
require “actual proof that a legitimate interest will be furthered by the challenged
policy. The connection between the two need only be objectively rational.” Herlein
v. Higgins, 172 F.3d 1089, 1091 (8th Cir. 1999).
There is a common sense connection between the goal of reducing contraband
in the jail and Cape Girardeau’s postcard-only incoming mail policy. See, e.g., Prison
Legal News v. Chapman, 44 F. Supp. 3d 1289, 1299 (M.D. Ga. 2014). Ms. Simpson
argues that there is no valid rational connection between jail security and a postcard-
only policy because there have been no previous incidents of contraband getting into
the jail under Cape Girardeau’s previous incoming-mail policy. However, that is not
the test. Cape Girardeau may seek to prevent harm that has yet to occur and, as a
result, is not required to provide evidence of previous incidents of contraband
reaching inmates through the mail in order to adopt a postcard-only incoming mail
regulation. See Murchison, 779 F.3d at 890. Cape Girardeau does not even have to
show that its interests will actually be furthered by the policy, only that there is a
rational relationship between the policy and the objectives. See Herlein, 172 F.3d at
1091. It is reasonable to believe that contraband could be smuggled into the jail via
mail. Furthermore, it is a rational concept that limiting non-privileged mail to
postcards could reduce the risk of contraband being introduced into the jail through
the mail. Accordingly, we find that Cape Girardeau’s postcard-only policy is
rationally connected to the legitimate penological objective of jail safety.
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There is also a common-sense connection between a postcard-only policy and
promoting efficiency. See Prison Legal News v. Columbia Cnty., 942 F. Supp. 2d
1068, 1084 (D. Or. 2013). Ms. Simpson argues that Cape Girardeau has not
presented evidence that the postcard-only policy has made the jail more efficient.
Again, Cape Girardeau does not have to show that efficiency was or will actually be
furthered. Herlein, 172 F.3d at 1091. It only needs to show that rationally the policy
could lead to more efficiency. Id. Removing the need to open envelopes and shuffle
through pages of letters could reasonably allow officers to spend less time and energy
checking the mail for contraband. See, e.g., Chapman, 44 F. Supp. 3d at 1299.
Therefore, we find that Cape Girardeau’s policy is rationally related to the legitimate
penological interest of an efficiently run institution. Because the postcard-only policy
is neutral and rationally related to both security and efficiency, the first Turner factor
weighs in favor of Cape Girardeau.
B. Alternative Means to Exercise the Right
The second Turner factor asks “whether there are alternative means of
exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90. If
other avenues are available for the inmate to exercise 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.” Id. (alteration in
the original) (internal citations omitted). “Alternatives to the type or amount of
speech at issue ‘need not be ideal . . . they need only be available.’” Holloway v.
Magness, 666 F.3d 1076, 1080 (8th Cir. 2012) (alteration in the original) (quoting
Overton v. Bazzetta, 539 U.S. 126, 135 (2003)).
In Ortiz v. Fort Dodge Correctional Facility, a prisoner was not permitted to
write or receive letters written in Spanish from family members who lived in the
United States. 368 F.3d 1024, 1025-26 (8th Cir. 2004). The inmate filed suit,
claiming that the policy violated his First Amendment rights. Id. at 1026. We held
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that phone calls and the ability to receive visitors in person were adequate alternatives
to writing and receiving letters from his family members. Id. at 1027. Like in Ortiz,
Ms. Simpson’s ability to communicate with her son has not been completely
foreclosed. She may still send Trey as many postcards as she likes. She may also
receive collect calls from Trey and visit him on Saturdays. As we have previously
held, the alternatives to letter writing need not be ideal, they need only be available,
see Holloway, 666 F.3d at 1080, and alternative means of communication are
available to Ms. Simpson. Accordingly, we find that the second Turner factor weighs
in favor of Cape Girardeau.
C. Significant Ripple Effect
The third Turner factor considers what impact the “accommodation of the
asserted constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally.” Turner, 482 U.S. at 90. We give particular
deference “to the informed discretion of corrections officials” if the “accommodation
of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on
prison staff.” Id.
Accommodating Ms. Simpson’s demands would cause a significant
reallocation of Cape Girardeau’s financial resources and would interfere with its
ability to maintain institutional security and efficiency; therefore, we are particularly
deferential to Cape Girardeau’s regulatory judgments. See Overton, 539 U.S. at 135.
Prison officials testified at trial that though there were no written records of the time
saved sorting the mail, the process had become more efficient and officers were able
to allocate the time saved to other security concerns. Requiring Cape Girardeau to
abandon the postcard-only policy would force the jail to dedicate more time and
resources to searching the mail, which would detract from the officers’ other duties
related to security and inmate welfare. Furthermore, returning to a letter mail policy
would increase the risk that contraband would reach the inmates, creating a greater
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threat to institutional security. The threatened impact to Cape Girardeau’s
institutional efficiency and security is sufficient to convince us that returning to a
letter mail policy would have a significant ripple effect on the inmates and jail staff.
Therefore, we find that the third Turner factor weighs in favor of Cape Girardeau.
D. Alternative Policies
The final Turner factor asks whether there are any ready alternatives to the
policy. Turner, 482 U.S. at 90-91. “The absence of ready alternatives is evidence of
the reasonableness of a prison regulation”; however, “the existence of obvious, easy
alternatives may be evidence that the regulation is not reasonable, but is an
‘exaggerated response’ to prison concerns.” Id. The policy does not have to be the
least restrictive alternative, “but if an inmate claimant can point to an alternative that
fully accommodates the prisoner’s rights at de minimis cost to valid penological
interests, a court may consider that as evidence that the regulation does not satisfy the
reasonable relationship standard.” Id.
Cape Girardeau’s previous mail policy and the other incoming-mail policies
show that there are alternatives to the postcard-only policy. The question, then, is
whether the cost of returning to a letter mail policy would have a greater than de
minimis cost to the jail. See id. We think that it would as far as institutional security
is concerned. We reemphasize that “institutional security is ‘the most compelling
legitimate government interest in a prison setting.’” Murphy, 372 F.3d at 983
(quoting Goff v. Graves, 362 F.3d 543, 549 (8th Cir. 2004)). Thus we are highly
deferential “to the judgment and expertise of prison officials.” Id.
As we concluded earlier, there is a common sense connection between
restricting letter mail and limiting the amount of contraband that enters a jail. Cape
Girardeau does not need to wait until contraband enters the jail through non-
privileged letter mail to restrict it. See Murchison, 779 F.3d at 890. Furthermore, we
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do not need actual proof that institutional security will be advanced by the policy, as
Ms. Simpson argues. See Herlein, 172 F.3d at 1091. The risk of contraband entering
the facility alone is more than a de minimis cost, and returning to a letter mail policy
would force Cape Girardeau to incur that cost. Cape Girardeau must be able to
protect inmates and staff from the security threats of contraband in the jail. As the jail
officials are better positioned to understand the institutional security needs of Cape
Girardeau County Jail, we defer to their judgment. Accordingly, we find that
returning to a letter mail policy would have more than a de minimis cost to
institutional security.
Because all three of the balancing Turner factors favor Cape Girardeau, we
hold that Cape Girardeau’s postcard-only incoming-mail policy is constitutional. We
note, however, that our holding in this case is narrow, as a Turner analysis is a fact-
intensive inquiry requiring careful examination of the policies and institutions at issue
in each case.
IV. Conclusion
For the foregoing reasons, we affirm the district court on both issues.
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