King, Anthony v. Fed'l Bureau Prisons ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2431
ANTHONY KING,
Plaintiff-Appellant,
v.
FEDERAL BUREAU OF PRISONS
and CHARLES GILKEY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02-596-JPG—J. Phil Gilbert, Judge.
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ARGUED JUNE 15, 2005—DECIDED JULY 13, 2005
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Before POSNER, COFFEY, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Anthony King, an inmate at a
federal prison in Illinois, brought this suit for damages
against both the prison’s warden and the Bureau of Prisons,
claiming that they had violated his federal constitutional
rights by forbidding him to telephone his stockbroker and
to buy a book on computer programming. The district
judge, pursuant to 28 U.S.C. § 1915A(a), which requires
2 No. 03-2431
district judges to screen prisoner suits for merit as soon as
they are filed, dismissed the suit as frivolous. § 1915A(b).
The joinder of the Bureau of Prisons was indeed frivolous.
Although Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971), authorizes the filing of constitutional tort
suits against federal officers in much the same way that 42
U.S.C. § 1983 authorizes such suits against state officers, it
does not permit suit against the federal agency itself.
Correctional Services Corp. v. Malesko, 534 U.S. 61, 69-70
(2001); FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).
King, who is in prison because he was convicted in 1999
of selling a defaced firearm, 18 U.S.C. §§ 922(f), (k), and
possessing or using an explosive during the commission of a
felony, 18 U.S.C. § 844(h), and was sentenced to 130 months
in prison, is the lawful owner of some stocks that he wanted
to instruct his broker to sell if their prices fell below speci-
fied levels. The prison says he’s forbidden to telephone his
broker. A regulation of the Bureau of Prisons allows prison-
ers to submit a list of thirty telephone numbers that they
want to call; should the list include phone numbers of
people who aren’t members of the prisoner’s family, the
prison offers them an opportunity to have their numbers
removed from the list. 28 C.F.R. § 540.101(a)(2). The prison
may also remove a number from the list if it determines that
allowing the prisoner to call the number would endanger
the welfare of the prison or the public, and the regulation
specifies a procedure that the associate warden must follow
in order to do this. 28 C.F.R. § 540.101(a)(3). Apparently the
procedure was not followed in this case; King was allowed
to make one call to his stockbroker and then issued a
disciplinary citation for misusing his telephone privileges,
which has discouraged him from repeating the attempt.
The government argues that calling a stockbroker is
improper because a prisoner is not allowed to conduct a
No. 03-2431 3
business. Indeed he is not, 28 C.F.R. § 541.13, Table 3,
Offense No. 408, and this is a permissible restriction on
prisoners’ residual freedom. French v. Butterworth, 614 F.2d
23 (1st Cir. 1980); Garland v. Polley, 594 F.2d 1220 (8th Cir.
1979); Stringer v. De Robertis, 541 F. Supp. 605, 607 (N.D. Ill.
1982), aff’d without opinion, 738 F.2d 442 (7th Cir. 1984).
But it cannot justify the prison’s policy, for the prison denies
that it has tried to prevent King from communicating by
mail the same information that, communicated by tele-
phone, the prison calls the conduct of business.
Anyway, unless one is engaged in a financial business,
ordering one’s broker to sell stock (whether immediately or,
as here, contingent on a price change) is no more the
conduct of a business than asking a real estate broker to sell
one’s house is. Securities are owned by millions of people
who are not engaged in the securities business. The “no
business” regulation goes on to provide that “this [prohibi-
tion] does not, however, prohibit correspondence necessary
to enable an inmate to protect property and funds that were
legitimately the inmate’s at the time of commitment.” Thus
“an inmate may correspond about refinancing an existing
mortgage or sign insurance papers, but may not operate a
mortgage or insurance business while in the institution.” 28
C.F.R. § 540.14(d)(4). The references to “correspondence”
and “correspond” might be thought to exclude the use of
the phone, but such an inference would be inconsistent with
the phone regulation itself, which does not suggest that
telephone privileges can be withheld for reasons unrelated
to the welfare of the prison or the public. There could be
security or other concerns presented by the use of the tele-
phone that would justify requiring a prisoner to use the
mails instead, but the government has not as yet pointed to
any.
Yet even if the prison is acting arbitrarily, which so far as
appears it is, King has no constitutional claim unless the
4 No. 03-2431
prison’s action has deprived him of a constitutional right.
He argues that not letting him talk to his broker on the
phone infringes freedom of speech, but that is absurd; an
order to sell, like a threat intended to intimidate, Virginia v.
Black, 538 U.S. 343 (2003); United States v. Velasquez, 772 F.2d
1348, 1357-58 (7th Cir. 1985); United States v. Cassel, 408 F.3d
622, 633-34 (9th Cir. 2005), is not the kind of verbal act that
the First Amendment protects. See Ohralik v. Ohio State Bar
Ass’n, 436 U.S. 447, 455-56 (1978); National Organization for
Women v. Operation Rescue, 37 F.3d 646, 655-56 (D.C. Cir.
1994); United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir.
1990); cf. International Brotherhood of Electrical Workers,
Local 501 v. NLRB, 181 F.2d 34, 40 (2d Cir. 1950) (L. Hand, J.).
It has no connection to the marketplace of ideas and opin-
ions, whether political, scientific, aesthetic, or even commer-
cial.
King also argues, however, that by preventing prompt
communication with his broker the prison is depriving him
of his property. Suppose he learned that termites were
eating away at his house and that serious damage could be
avoided only if he were permitted to telephone an extermi-
nator, and the prison refused for no reason to allow him to
make the call. The reduction in the value of the house as a
result of the termite damage that the call would have pre-
vented would be a deprivation of property, Pro-Eco, Inc. v.
Board of Commissioners, 57 F.3d 505, 512-13 (7th Cir. 1995);
Soldal v. Cook County, 923 F.2d 1241, 1245-46 (7th Cir. 1991),
reversed on other grounds, 506 U.S. 56 (1992); Executive 100,
Inc. v. Martin County, 922 F.2d 1536, 1541 (11th Cir. 1991);
River Vale Township v. Town of Orangetown, 403 F.2d 684, 685
(2d Cir. 1968), and being arbitrary would be a denial of due
process of law.
The case at hand is not precisely analogous. King wanted
to be able to sell some of his stocks promptly if their price
No. 03-2431 5
fell, lest the price continue falling. But when one says that
the price of a stock is falling, what one really means is that
it has been falling and one expects it to continue doing so.
The expectation is speculative and often mistaken. If the
price of a stock fell 5 percent one day, and the market ex-
pected it to fall another 10 percent by the end of the week,
an effort to sell before the price dropped would probably be
futile—no one expecting the price to be 10 percent lower by
the end of the week would pay a higher price today.
Nevertheless, to deprive a person of the power to respond
to changing market conditions by selling his securities is felt
by most people as an impairment of their power to protect
such property. And of course there are other motives for
selling property besides concern about a deterioration in its
value; forbidding one to sell one’s property eliminates
liquidity, which is one of the most important sticks in the
bundle of rights that constitute ownership. And by doing so
it creates risk, which most investors don’t like. Stop-loss
orders are common enough, and clearly respond to a felt
need to be able to truncate the downside risk of owning
common stock.
This case is not as extreme as it would be if it were clear
that the prison forbids all communication between King and
his broker. Assuming the prison really is willing to allow
King to correspond by mail with his broker, the prison is
impairing King’s ability to protect his property by delaying
his transactions, but it is not destroying that ability. How
grave the impairment is we cannot say on this limited
record; it is conceivable, however, that forbidding King to
telephone his broker could be an actionable deprivation of
property, and his claim was therefore prematurely dis-
missed. We add that the impairment is not so grave that it
could not readily be justified by security or other concerns,
but, to repeat, these have not been argued.
6 No. 03-2431
There is a further wrinkle. Although both King and the
prison focus on telephone communication and the prison
claims that he’s free to use the mails to reach his broker, the
complaint alleges that the prison denies King’s “right to
contact his broker” (emphasis added), and interpreted liter-
ally this would include writing him. King argues moreover
that the prison is refusing to allow him to use the mail to
reach the broker, and as the argument is consistent with the
vague “contact” allegation it is proper to make in opposition
to the dismissal of the complaint. This is a matter to be
clarified on remand.
The refusal to allow King to obtain a book on computer
programming presents a substantial First Amendment issue.
Freedom of speech is not merely freedom to speak; it is also
freedom to read. Stanley v. Georgia, 394 U.S. 557, 564 (1969);
Lamont v. Postmaster General, 381 U.S. 301, 306-07 (1965);
Conant v. Walters, 309 F.3d 629, 643 (9th Cir. 2002). Forbid a
person to read and you shut him out of the marketplace of
ideas and opinions that it is the purpose of the free-speech
clause to protect. Not that there aren’t valid penological
reasons for limiting prison inmates’ access to certain types of
book. Bahrampour v. Lampert, 356 F.3d 969, 973-74 (9th Cir.
2004); Duamutef v. Hollins, 297 F.3d 108, 113 (2d Cir. 2002);
Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999); Chriceol v.
Phillips, 169 F.3d 313, 315-16 (5th Cir. 1999). A prison need
not allow prisoners to buy books detailing famous prison
escapes, Wolf v. Ashcroft, 297 F.3d 305, 309 (3d Cir. 2002);
Amatel v. Reno, 156 F.3d 192, 207 (D.C. Cir. 1998) (dissenting
opinion), or even, we suppose, books on how to make your-
self as strong as Mike Tyson through exercise. Cf. Zimmer
Amendment, Pub. L. No. 107-77, § 611, 115 Stat. 748,
800 (2001), Cal. Penal Code § 5010(b), (c)(1) (2004);
Miss. Code Ann. § 47-5-124(3) (1994); Ohio Rev. Code Ann.
§ 341.41(B)(1) (1998); Wash. Rev. Code § 72.09.500 (1995);
No. 03-2431 7
Michael Dobie, “Sports in Prison,” Newsday (New York), July
11, 2004, p. A4; Dan Morain, “More Inmate Privileges Fall in
Get-Tough Drive,” Los Angeles Times, Feb. 9, 1998, p. A1.
Were King in prison for computer hacking or other compu-
ter-related crimes, the prison could, in the interest of rehab-
ilitation (i.e., preventing recidivism), McKune v. Lile, 536 U.S.
24, 34-35 (2002); O’Lone v. Estate of Shabazz, 482 U.S. 342, 348
(1987), forbid him to buy a book that would enable him to
increase his ability as a hacker when he’s released. Cf. Banks
v. Beard, 399 F.3d 134, 140 (3d Cir. 2005); United States v.
Scott, 316 F.3d 733, 736-37 (7th Cir. 2003). But he claims to
want the book precisely for purposes of rehabilitation—to
equip him to work as a programmer when he is released.
That is a proper goal; whether it is his actual goal the record
does not enable us to determine.
The only reason the prison has given for not wanting King
to have the book he ordered, which teaches C++, a standard
language in which computer programs are written, is that
he might write programs with it that would disrupt the
prison’s computer system. However, computers that
prisoners are permitted to use are not connected to the
prison network, or any other network. The prison’s lawyer
speculates that King might write a program that contained
a computer virus, put it on a diskette, and then break into a
room in which there is a computer used by prison em-
ployees and connected to the prison network, insert the
diskette, and infect the network. This seems far-fetched but
in any event, as an argument found only in the govern-
ment’s brief, does not defeat King’s claim. He has made a
prima facie claim of infringement of his freedom of speech,
and the government must present some evidence to show
that the restriction is justified by the need to protect the
prison’s computer system. Lindell v. Frank, 377 F.3d 655, 658
(7th Cir. 2004); Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th
8 No. 03-2431
Cir. 1996); Ramirez v. Pugh, 379 F.3d 122, 128 (3d Cir. 2004);
cf. Shimer v. Washington, 100 F.3d 506, 509-10 (7th Cir. 1996).
The suit, in short, was terminated prematurely as to
the warden (and therefore, contrary to the district judge,
does not count as King’s third strike), although properly
dismissed as to the Bureau of Prisons.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-13-05