Travis v. Norris , 805 F.2d 806 ( 1986 )

BOWMAN, Circuit Judge.

Vernon Travis and James Whittington appeal from the District Court’s order dismissing their complaints for failure to state a claim. They assert First Amendment claims and argue that the District Court erred in holding that the Arkansas Department of Correction may prohibit inmates from receiving a publication entitled Gorilla Law. We affirm.

Travis and Whittington are inmates at the Tucker Maximum Security Unit of the Arkansas Department of Correction. Both inmates brought actions under 42 U.S.C. § 1983 seeking damages and injunctive relief, contending that prison officials violated their constitutional rights by confiscating and labeling as contraband a publication entitled Gorilla Law. Defendants moved to dismiss the complaints for failure to state a claim. The District Court consolidated the cases and an evidentiary hearing was held before a magistrate.

At the hearing, Warden Norris testified that the publication had been determined to be contraband because it advocated violence and depicted prison life as a constant struggle between inmates and prison officials, thereby creating a serious security concern and inhibiting rehabilitation. The magistrate concluded that the publication did not create a sufficient security risk to warrant keeping it from the inmates, but that the detrimental impact Gorilla Law may have on the rehabilitation of inmates would justify banning the publication. The District Court adopted the magistrate’s report and recommendation and dismissed the complaints.

The Supreme Court has held that an “inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). Although this holding maintains the integrity of the First Amendment in the prison setting, it is flexible and permits ban of a publication in an institutional setting where the government can show one of several penological interests will be served. Thus, a state may restrict a prisoner’s right to read certain materials where “the state can show a countervailing interest warranting censorship.” Carpenter v. South Dakota, 536 F.2d 759, 761 (8th Cir.1976), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246 (1977). In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court list ed the following as interests warranting censorship: “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.” Id. at 412, 94 S.Ct. at 1811 (footnote omitted); see also Pell, 417 U.S. at 822-23, 94 S.Ct. at 2804-05.

Although prison officials have the burden of proving that censorship is necessary, the Court has not required

that prison administrators ... be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator’s duty.

Martinez, 416 U.S. at 414, 94 S.Ct. at 1811; see also Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir.1985) (in dealing with censorship of prisoner correspondence, “We should hesitate to substitute our judgment for that of the prison officials since they normally must be allowed an area of discretion within which to deal with institutional concerns.”) It is recognized that “Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements.” Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. Moreover, “They may not censor inmate publications that advocate the legitimate use of prison grievance procedures or that urge prisoners to contact public representatives about prison conditions.” Guajardo v. Estelle, 580 F.2d 748, 761 (5th Cir.1978).

We have carefully considered this body of law in our analysis of the present case. Having done so, we affirm the judgment below. Although Gorilla Law advocates the use of prisoner grievance procedures and urges inmates to exercise their rights, and in that sense is unobjectionable, the tone of the publication is relentlessly hostile to prison officials and to authority in general. It promotes the notion that prisoners are hapless victims of society, and speaks of their “motivation of burning revenge.” Gorilla Law at 1.

On the cover of Gorilla Law, an angry King-Kong size gorilla stands atop a crumbling building labeled “County Jail.” The bars in some of the windows are broken, suggesting that a jailbreak has occurred. Small airplanes labeled “Sheriff” buzz around the gorilla, who, undaunted, has grabbed one of the planes. He holds the plane in one hand, crushing and shaking it while a pop-eyed law enforcement officer sits helplessly in the cockpit. The pamphlet then opens with the following portrait of the prisoner as vengeful victim:

I owe a debt of gratitude to all the teachers who failed to teach me, the police and jail workers who beat and stompted [sic] me, the probation and parole officers who found excuses for not listening or lending support, the dump truck lawyers who never provided any semblance of representation, the district attorneys who built their careers on my back, the judges who expediently handed out justice for the sake of the noon recess. ...

Id. at i.

Gorilla Law warns that “the information contained in this book could be hazardous to your health and/or psychological well-being,” id. at 2, and feeds on feelings of self-pity by reminding the prisoner of “your miserable state of incarceration.” Id. at 4. The pamphlet encourages inmates to file multiple complaints with bar associations alleging attorney misbehavior, noting:

[T]he jacket that you help create for your favorite attorney will go a long way toward preventing him/her from getting a judicial appointment or an appointment to another governmental post. Nobody like[s] someone with a “dirty jacket”; after all its our jackets as ex-offenders which keeps us from getting good jobs! Right?

Id. at 21.

It also encourages inmates to file complaints alleging judicial misconduct: “you can take pleasure in knowing that the complaint you filed will add weight to the jacket of this Judge_” Id. at 22. The pamphlet urges prisoners to “use the powers of the state against itself,” id. at 7, and points out that filing small claims complaints in local courts is easy and “it only costs $2.00 for the filing fee ... or FREE if you file in forma pauperis.” Id. at 24. Urging the prisoner to file as many complaints as possible, the pamphlet asks, “Can you think of a better way to use your AM’s and PM’s while in the slammer?” Id. The pamphlet further suggests that inmates appeal traffic court convictions in order to become “expert on the subject” of appeals. Id. at 25. It urges the inmate “to turn your friends onto the game,” id., and asks the inmate to “Imagine the fun you can have just sitting in jail, organizing your tank, and getting everyone to file appeals.” Id.

Aside from openly inviting and encouraging prisoners to abuse the judicial process, Gorilla Law expresses attitudes that are diametrically opposed to the goal of rehabilitation, and we cannot say that Warden Norris’s concern as to the negative impact of this publication upon rehabilitative efforts was not well founded. The trial court heard the warden’s testimony and weighed it in light of its own review of

Gorilla Law. A trial court’s finding of fact may not be set aside on appeal unless it is détermined to be clearly erroneous.

Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). After reviewing the record, we are unable to conclude that the District Court’s finding regarding Gorilla Law’s probable adverse effect on inmate rehabilitation is clearly erroneous. The District Court’s judgment is therefore affirmed.¹

1 . The plaintiffs also allege that the District Court erred in finding that Gorilla Law should be considered general correspondence, rather than privileged legal mail. We need not decide this issue. An inmate’s privileged legal mail may be opened in the inmate’s presence to inspect for contraband. Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S.Ct. 2963, 2984-85, 41 L.Ed.2d 935 (1974); see also Jensen v. Klecker, 648 F.2d 1179, 1182-83 (8th Cir.1981). Both plaintiffs testified that the packages containing Gorilla Law were opened in their presence. Thus, whether Gorilla Law is considered legal mail or general correspondence, plaintiffs’ due process argument is without merit.