William White v. Todd Sloop ( 2019 )


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  •                         NONPRECEDENTIAL DISPOSITION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 June 20, 2019*
    Decided June 20, 2019
    Before
    MICHAEL S. KANNE, Circuit Judge
    AMY C. BARRETT, Circuit Judge
    MICHAEL B. BRENNAN, Circuit Judge
    No. 18‐3720
    WILLIAM A. WHITE,                               Appeal from the United States District
    Plaintiff‐Appellant,                       Court for the Southern District of Illinois.
    v.                                        No. 3:17‐cv‐01059‐JPG‐DGW
    TODD SLOOP & WILLIAM TRUE,                      J. Phil Gilbert,
    Defendants‐Appellees.                       Judge.
    ORDER
    William White, an inmate at the federal prison in Marion, Illinois, sued two
    prison officials under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
    
    403 U.S. 388
     (1971), for confiscating some of his mail because it contained white
    supremacist ideology. The district court concluded that White could not pursue a First
    Amendment claim in a Bivens action and granted the defendants’ motion to dismiss.
    Because White asserts no plausible claim for relief, we affirm the judgment.
    * We have agreed to decide this case without oral argument because the briefs
    and record adequately present the facts and legal arguments, and oral argument would
    not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
    No. 18‐3720                                                                              Page 2
    We review de novo the district court’s grant of the motion to dismiss, drawing
    reasonable inferences in White’s favor, and may affirm on any ground supported by the
    record. See Regains v. City of Chicago, 
    918 F.3d 529
    , 533 (7th Cir. 2019).
    White received through the prison mail two White Voice newsletters and a book
    entitled Talmud Unmasked. Todd Sloop, then‐acting warden, screened the newsletters
    and noticed that one contained a photograph depicting violence and another featured
    an advertisement entitled “What is a Skinhead?” with several images of swastikas.
    Later, William True, the warden, reviewed the book and concluded that it “advocated
    violence and murder.” (Indeed, a summary attached to White’s complaint describes the
    book as “hateful literature” that “exposes” Judaism to be a “doctrine of hate.”) The two
    officials rejected the publications, finding that they “pose[d] a threat to security, good
    order, or discipline of the institution.” See 
    28 C.F.R. § 540.71
    (b). White challenged those
    decisions through the prison’s internal grievance procedure, but to no avail.
    White then brought this suit for declaratory and injunctive relief and damages,
    alleging that the prison’s mail‐screening policy is unconstitutional as a general matter
    and as applied to him. At screening, see 28 U.S.C. § 1915A, the district court eliminated
    many of White’s claims, including a claim for injunctive and declaratory relief against
    the director of the Bureau of Prisons, in his official capacity, for “maintaining policies
    that resulted in publications being withheld.” However, the court allowed White to
    proceed on his First Amendment claims under Bivens against Sloop and True.
    The defendants moved to dismiss the complaint for failure to state a claim. A
    magistrate judge recommended that the district court grant the motion, and the district
    court adopted that recommendation. The court concluded that the Supreme Court’s
    holding in Ziglar v. Abbasi, 
    137 S. Ct. 1843
     (2017), in which courts were strongly
    cautioned against creating new Bivens claims, disfavored recognizing a First
    Amendment claim here.
    On appeal, White argues that First Amendment violations are actionable under
    Bivens because this court has recognized similar claims in cases preceding Abbasi.
    See, e.g., King v. Fed. Bureau of Prisons, 
    415 F.3d 634
    , 638 (7th Cir. 2005). But, since Abbasi,
    the Bivens framework has narrowed substantially to limit lawsuits against federal
    agents; this court’s “past pronouncements are thus not controlling.” See Vanderklok v.
    United States, 
    868 F.3d 189
    , 199 (3d Cir. 2017) (declining to recognize First Amendment
    Bivens claim, even though the court presumed the claim existed pre‐Abbasi).
    No. 18‐3720                                                                           Page 3
    Because the Supreme Court has not yet recognized a Bivens claim for First
    Amendment violations, see Reichle v. Howards, 
    566 U.S. 658
    , 663 n.4 (2012), it is unclear
    whether that claim is cognizable, see Abbasi, 137 S. Ct. at 1857–58. But we need not
    decide this issue here. Even if a Bivens action exists, White’s complaint does not state a
    plausible claim for relief. The complaint contained numerous attachments, including
    some of the banned material. These are part of the complaint and appropriate to
    consider in deciding a motion to dismiss. See FED. R. CIV. P. 10(c); Bogie v. Rosenberg,
    
    705 F.3d 603
    , 609 (7th Cir. 2013). They demonstrate that White had no hope of proving
    that the prison improperly withheld his publications.
    The First Amendment right to free speech also includes the right to read. Miller
    v. Downey, 
    915 F.3d 460
    , 463 (7th Cir. 2019). But a prisoner does not have unfettered
    access to reading materials; prisons have “great latitude” to restrict that right so long as
    the limitations reasonably relate to legitimate penological interests. Mays v. Springborn,
    
    575 F.3d 643
    , 649 (7th Cir. 2009); see Turner v. Safley, 
    482 U.S. 78
    , 89 (1987). To assess
    whether a restriction is permissible, we consider: (1) whether the policy has a “valid,
    rational connection” to a legitimate penological interest; (2) whether alternative means
    to exercise the right are available to prisoners; (3) the impact on guards, inmates, and
    prison resources if the facility were to accommodate the asserted right; and (4) whether
    “ready alternatives” to the regulation exist. Turner, 
    482 U.S. at
    89–91.
    White challenges the defendants’ confiscation of his publications under BOP
    Program Statement 5266.11, which allows a warden to reject a publication if “it is
    determined detrimental to the security, good order, or discipline of the institution.”
    
    28 C.F.R. § 540.71
    (b). But it “takes no imaginative dive” to identify the link between the
    Bureau’s legitimate penological interest of maintaining institutional safety and limiting
    White’s access to white nationalist materials, as he identifies them. See Munson v. Gaetz,
    
    673 F.3d 630
    , 635 (7th Cir. 2012).
    White’s publications featured the ideology of skinheads, a white supremacist
    group that “embrace[s] violence and the threat of violence as a method of advancing
    their views.” United States v. Showalter, 
    933 F.2d 573
    , 575 (7th Cir. 1991) (quoting district
    court’s characterization). One White Voice newsletter, for instance, featured a “What is a
    Skinhead?” advertisement adorned with swastikas. See Koutnik v. Brown, 
    456 F.3d 777
    ,
    783 (7th Cir. 2006) (allowing confiscation of art with swastika because it is a symbol of
    white supremacist groups). Violent groups, like the skinheads, “serve to undermine
    prison security,” see Singer v. Raemisch, 
    593 F.3d 529
    , 535 (7th Cir. 2010), and it is
    No. 18‐3720                                                                            Page 4
    well‐recognized that maintaining security is a valid penological goal. See Pell
    v. Procunier, 
    417 U.S. 817
    , 827 (1974). Thus, limiting White’s access to those publications
    was certainly related to the institution’s legitimate safety and security interests.
    The remaining Turner factors also weigh in favor of the defendants. White can
    exercise his First Amendment right by ordering publications without violent content,
    and he has identified no “obvious, easy alternatives” to confiscating the objectionable
    material that would not jeopardize the prison’s security interest. See Turner, 
    482 U.S. at 90
    . Because the prison’s mail‐screening policy, as applied to White, was reasonably
    related to legitimate penological interests, dismissal was proper. Cf. Thornburgh v.
    Abbott, 
    490 U.S. 401
    , 416–18 (1989) (affirming constitutionality of 
    28 C.F.R. § 540.71
    (b)).
    White raises two other arguments on appeal, but neither is persuasive. First, he
    contends that, even if a Bivens claim is unavailable, he also asserted a claim for
    injunctive and declaratory relief against the defendants—what he calls a “Marbury
    claim.” That claim was originally against the BOP Director in his official capacity—
    making it a lawsuit “against the federal agency itself.” King, 
    415 F.3d at 636
    . At
    screening, the district court determined that sovereign immunity barred the claim.
    Because White did not seek money damages, however, his claim against the BOP
    director was not barred and should not have been dismissed on that ground. See Bowen
    v. Massachusetts, 
    487 U.S. 879
    , 893 (1988) (allowing suit for declaratory or injunctive
    relief against federal agency). But the error was harmless. White failed to state a First
    Amendment claim against Sloop and True, assuming one is cognizable, so he also could
    not have stated a claim against the BOP for maintaining the policy at issue.
    Second, White argues that the district court applied the wrong standard of
    review to the magistrate judge’s report and recommendation. Because White raised
    several objections to the magistrate judge’s report, the district court reviewed it de
    novo. See FED. R. CIV. P. 72(b)(3). But White correctly notes that the portions of the
    report to which he did not object should have been reviewed for clear error. See Johnson
    v. Zema Sys. Corp., 
    170 F.3d 734
    , 739 (7th Cir. 1999). Although a delineation from the
    district court between objected‐to and unobjected‐to portions of the report would have
    been preferable, we see no error. The court dismissed the complaint based solely on the
    conclusion that Abbasi precludes Bivens actions for First Amendment claims. De novo
    review was appropriate because two of White’s three objections—that the magistrate
    judge erred in finding that alternative remedies were available, and should have
    considered pre‐Abbasi cases recognizing First Amendment Bivens claims—concern that
    same issue. (The third is irrelevant in light of the rationale for dismissal.) In any case, as
    No. 18‐3720                                                                     Page 5
    the objecting party, White could not have been harmed by the district court’s
    application of a less deferential standard of review.
    AFFIRMED