NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 27, 2011*
Decided August 3, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐3677
JEFFREY S. AKRIGHT, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 09‐cv‐648‐bbc
RANDALL HEPP and APRIL FUMOY, Barbara B. Crabb,
Defendants‐Appellees. Judge.
O R D E R
Jeffrey Akright suspected officials at Jackson Correctional Institution in Wisconsin of
illegally overpricing canteen items by more than 10% above cost and wanted prison canteen
records to prove it. Because Wisconsin’s open‐records law prohibits him, as a prisoner, from
requesting records that do not refer to him, see WIS. STAT. § 19.32(3), he asked his
grandmother to get them for him. Prison officials gave her a current canteen price list, a list
of average costs, purchase invoices, and copies of canteen policies, but warned her not to
share them with an inmate. When she mailed them to Akright anyway, April Fumoy, the
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐3677 Page 2
mailroom supervisor at Jackson, confiscated the package and notified Akright that he
couldn’t have it because it contained records produced from an open‐records request,
contraband under the prison’s rules. Akright was put in disciplinary segregation for
attempting to possess contraband, and defendant Randall Hepp, the warden, affirmed the
disciplinary action.
Akright has now sued Hepp and Fumoy under
42 U.S.C. § 1983, maintaining that
this contraband policy violates his rights under the First Amendment. The district court
granted summary judgment to the officials, concluding that the policy is reasonably related
to legitimate penological interests that the prison identified during the litigation. Akright
challenges the propriety of relying on interests that a prison identifies only after the onset of
litigation, but because our en banc decision in Hammer v. Ashcroft,
570 F.3d 798 (7th Cir.
2009), forecloses that argument, we affirm.
In moving for summary judgment, Hepp and Fumoy argued that they were justified
in confiscating Akright’s mail for two reasons. First, Akright was trying to circumvent the
open‐records law, which is designed, they argued, both to reduce the volume of
burdensome record requests from prisoners and to prevent inmates from seeking
information that might reveal the prison’s security operations. Second, they asserted that
giving prisoners access to records containing vendor account information could facilitate
fraud and smuggling: inmates might use vendor accounts to fraudulently charge the
prison’s account or bring into prison contraband using counterfeit vendor packaging.
The district court concluded that banning inmate access to the canteen records is
reasonably related to a legitimate penological interest. Although the court was skeptical that
concerns of fraud and smuggling justified the policy, it determined that forbidding inmates
from obtaining prison records through relatives prevented prisoners from circumventing
the open‐records law, which in turn helped to limit the burden of frivolous prisoner
requests and preserve oversight of the information distributed to inmates.
Akright limits his appeal to a single contention: the district court erroneously
allowed Hepp and Fumoy to justify their actions using “post‐hoc explanations” advanced
during the litigation. He doesn’t dispute that their concerns about security and undue
burden are legitimate; instead he argues that they needed to proffer those reasons back
when they adopted the policy in order to rely on them now.
Akright’s argument is at odds with Hammer,
570 F.3d at 803. Citing public statements
that prison officials made when they banned face‐to‐face inmate interviews with the media,
the inmate in Hammer argued that the ban was impermissibly intended to silence disfavored
viewpoints rather than enhance security, as the officials asserted during litigation.
Id. at 801‐
No. 10‐3677 Page 3
02. We upheld the ban, seeing no reason “why one bad motive would spoil a rule that is
adequately supported by good reasons,” like prison security.
Id. at 803. The inquiry is an
objective one rather than based on the motive for enacting the policy.
Id. Because Akright
does not contest that the prison’s security and undue‐burden rationales can justify banning
the records, Hammer forecloses Akright’s argument that the real reason for the contraband
policy is an impermissible one. Actually, Akright’s case is substantially weaker than the
case in Hammer. Unlike the prisoner in Hammer, Akright presents no evidence that the
rationale for the records ban that the defendants have advanced here is different from the
original motive for enacting the ban. Although Akright attacks Hammer as wrongly decided,
he does not present a compelling reason to revisit that decision. As he makes no other
arguments on appeal, the district court’s judgment must stand.
AFFIRMED.
