Mark Lane v. Josias Salazar, 911 F.3d 942

Background

Mark Lane, a federal inmate serving a 360-month sentence, was disciplined three times by the Bureau of Prisons (BOP) under Prohibited Acts Code 203 for written statements interpreted as threats of bodily harm.
Incidents: (1) 2008 letter asking “Are you willing to Bet a Guard’s Life?” attached to an administrative appeal; (2) 2009 outgoing letters stating he “may be forced to take a life” and describing stabbing-related violence while identifying an AUSA; (3) 2010 letter to Congress warning he “may be forced to protect myself and take a life.”
DHOs found each communication violated Code 203 and sanctioned Lane (lost good-time credits, segregation, loss of privileges).
Lane exhausted administrative remedies, filed three § 2241 habeas petitions in district court challenging Code 203 as overbroad/vague and arguing insufficient evidence; district court denied relief.
Ninth Circuit panel remanded to develop the record under Procunier v. Martinez to assess whether the regulation furthers legitimate penological interests and is no greater than necessary; district court supplemented the record and again denied relief.
On appeal, the Ninth Circuit affirmed: Code 203 (as construed to cover non-true threats) satisfies Procunier, is not a substantive rule requiring APA notice-and-comment, is not void for vagueness, and the record contains "some evidence" supporting the disciplinary findings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Code 203 (covering non-true threats) satisfies Procunier's two-part test for restricting outgoing prisoner mail	Lane: Code 203 is overbroad; it punishes protected expression and does not meet Procunier's requirements	BOP: Prohibiting threats of bodily harm furthers prison security, order, and rehabilitation and is generally necessary with a close fit	Held: Code 203 satisfies Procunier; threats of bodily harm implicate legitimate penological interests and the regulation is generally necessary
Whether the BOP’s construction of Code 203 to include non-true threats required APA notice-and-comment rulemaking	Lane: Broad new construction effects a substantive change and thus needed notice-and-comment	BOP: Interpretation is an interpretive construction of an existing regulation, not a new substantive rule	Held: The BOP’s interpretation is interpretive and did not require notice-and-comment under the APA
Whether Code 203 is void for vagueness	Lane: Including non-true threats makes the rule insufficiently specific, chill lawful speech, and permit arbitrary enforcement	BOP: The rule targets threats of bodily harm (or other offenses) and an ordinary person can understand the prohibition in the prison context	Held: Not unconstitutionally vague; ordinary common-sense notice suffices in the prison setting
Whether there was "some evidence" to support disciplinary findings under Hill	Lane: Statements were hyperbole, rhetorical, or misread; did not target "another" as required	BOP: Lane’s writings plainly suggested harming others (including a guard and an AUSA); DHOs reasonably found threats	Held: There was the requisite modicum of evidence to support the disciplinary decisions under Superintendent v. Hill

Key Cases Cited

Procunier v. Martinez, 416 U.S. 396 (prison mail censorship valid only if it furthers substantial government interest and is no greater than necessary)
Thornburgh v. Abbott, 490 U.S. 401 (clarifying Procunier and standard for reviewing prison regulations)
Overton v. Bazzetta, 539 U.S. 126 (courts owe substantial deference to prison administrators)
Superintendent v. Hill, 472 U.S. 445 (revocation of good-time credits requires only "some evidence")
Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199 (agency may interpret its regulations without notice-and-comment when not creating new substantive rules)
Old Person v. Brown, 312 F.3d 1036 (law-of-the-case binding on prior panel’s interpretation)
United States v. Velasquez, 772 F.2d 1348 (threats and bluffs that intimidate may be punished)