JOY PERRY, d.b.a. Freedom Through Christ Prison Ministry, d.b.a. Prison Pen Pals, and WRITEAPRISONER.COM.INC., a Florida Corporation v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, WARDEN, UNION CORRECTIONAL INSTITUTION, WARDEN, FLORIDA STATE PRISON, WARDEN, LOWELL CORRECTIONAL INSTITUTION
No. 11-10694
United States Court of Appeals, Eleventh Circuit
December 22, 2011
D.C. Docket No. 3:09-cv-00403-MMH-JRK
Appeal from the United States District Court for the Middle District of Florida
(December 22, 2011)
WILSON, Circuit Judge:
This case concerns the constitutionality of the Florida Department of Corrections’ (FDOC) Pen Pal Solicitation Rule. Joy Perry, who operates two pen pal services, and WriteAPrisoner.com, Inc. (WAP), brought this civil rights action pursuant to
I.
Perry operates two pen pal services: Freedom Through Christ Prison Ministry and Prison Pen Pals. Appellant WriteAPrisoner.com, Inc. is also a pen pal service. Each service solicits pen pals for prisoners and nonprisoners by sending a list of inmates seeking pen pals to individuals or groups who also seek a pen pal. The services will also send a list of nonprisoners to inmates seeking pen
In 2004 the FDOC adopted a rule that prohibits inmates from soliciting pen pals, which states:
Inmates shall not use correspondence privileges to solicit or otherwise commercially advertise for money, goods, or services. For the purposes of this rule this includes advertising for pen-pals; inmates are not prohibited from corresponding with pen pals, but shall not place ads soliciting pen pals. Inmates who post ads or have ads posted with the assistance of another person shall be subject to disciplinary action.
Despite the Rule, the FDOC has permitted a pen pal service, Christian Pen Pals, to continue to contact inmates. The FDOC permits Christian Pen Pals to operate because Christian Pen Pals, unlike Appellants‘s services, only provides one-to-one matching between noninmates and inmates. Mr. Upchurch alleges that this difference significantly decreases the likelihood of scams because an inmate does not receive a list with numerous individuals’ names, addresses, and contact information.
In their Second Amended Complaint, Appellants claimed violations of their right to free speech, as protected by the First and Fourteenth Amendments, and their right to due process under the Fifth and Fourteenth Amendments. The district court granted the FDOC‘s motion for summary judgment on all counts, and Appellants timely filed their appeal.
“We review de novo the district court‘s grant of summary judgment and use the same standard of review utilized by the district court.” Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). Summary judgment is proper only if there is no genuine dispute as to issues of material fact.
II.
As an initial matter, we address Perry‘s standing to bring her claims. The district court properly held that Perry has a legally protected interest in correspondence sent to an inmate. The Supreme Court held that both inmates and noninmates have a First Amendment interest in correspondence sent to one another. Procunier v. Martinez, 416 U.S. 396, 408–09, 94 S. Ct. 1800, 1809 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874 (1989). Furthermore, Thornburgh held that publishers have a First Amendment right to access prisoners, 490 U.S. at 408, 109 S. Ct. at 1879, and defined publications to include materials “addressed to a specific inmate [such] as advertising brochures,” id. at 404 n.4, 109 S. Ct. at 1877 (quoting
III.
Resolution of the First Amendment issue depends upon determining which
However, the cases that follow Martinez erode the high standard it set and, instead, show greater deference to prison administrators. Pell v. Procunier, decided a few months after Martinez, held that “a prison 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.” 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974). Thus, restrictions on journalists’ ability to interview inmates face-to-face furthered legitimate penological objectives because “security considerations are sufficiently paramount in the administration of the prison to justify the imposition of some restrictions on the entry of outsiders.” Id. at 827, 94 S. Ct. at 2806. In Jones v. North Carolina Prisoners’ Labor Union, Inc., the Court used the standard set forth in Pell and recognized
In Bell v. Wolfish, the Court synthesized its case law to develop four general principles: (1) prisoners do not forfeit all constitutional protections, (2) retention of certain constitutional rights does not mean that the rights “are not subject to restrictions and limitations,” (3) maintaining institutional security and order are “essential goals that may require limitation” of certain rights, and (4) prison administrators “should be accorded wide-ranging deference.” 441 U.S. 520, 545-47, 99 S. Ct. 1861, 1877–78 (1979). Using this guidance, the Court found that limiting the sources that could mail hardback books to prisoners to only publishers, bookstores, or book clubs was a “rational response” to a clear security problem, because hardback books could be used to smuggle contraband into the prison. Id. at 550–51, 99 S. Ct. at 1880.
In Turner v. Safley, the Supreme Court considered regulations on inmate-to-inmate correspondence and inmate marriages. 482 U.S. 78, 81, 107 S. Ct. 2254, 2257 (1987). After thoroughly discussing its precedent, the Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89, 107 S. Ct. at 2261. The Court also set out a series of factors gleaned
at 1881-82.
Although two standards exist to determine when a violation of the First Amendment occurs within the prison context, the Martinez standard was only applied once by the Supreme Court—in Martinez itself. Since Martinez, the Court has always applied a more rationally based scrutiny to decide whether the First Amendment is violated within the prison context. We recognized the evolution of the Martinez standard toward rational basis review in Lawson v. Singletary, 85 F.3d 502, 511 (11th Cir. 1996) (per curiam).
Perry and WAP argue that Martinez granted them a right to not only send mail to inmates but also receive mail from inmates, but this reading of Martinez is too broad. Thornburgh requires application of the Turner reasonableness standard when the regulation at issue affects the sending of a publication to a prisoner, and the FDOC Rule affects that type of correspondence. Thornburgh, 490 U.S. at 413, 109 S. Ct. at 1881 (“[W]e now hold that regulations affecting the sending of a publication ... to a prisoner must be analyzed under the Turner reasonableness standard.” (internal quotation marks omitted)). Moreover, the outgoing correspondence in this case is distinguishable from the correspondence
Turner sets out a four-factor analysis to determine if a prison regulation limiting the First Amendment is reasonably related to a legitimate penological interest. The first factor requires a rational connection between the prison regulation and the legitimate penological objective. Turner, 482 U.S. at 89, 107 S. Ct. at 2262. Appellants concede that protecting the public and ensuring internal prison security are legitimate penological objectives. Instead, they argue that the Rule does not rationally relate to the governmental interest because the FDOC has not provided evidence to prove that its Rule will protect the public or increase prison security. They rely on a Ninth Circuit case, California First Amendment Coalition v. Woodford, 299 F.3d 868, 880 (9th Cir. 2002), to establish that prison administrators must provide evidence that the asserted claims are true. Even if we were bound by this articulation, the FDOC meets this standard
The second factor requires us to decide if there are alternative avenues for exercising the right. Id. at 90, 107 S. Ct. at 2262. Appellants argue that there are no alternative avenues to market any of their services because the FDOC banned all of their correspondence. However, the FDOC stated that if WAP differentiates its non-pen pal services from the pen pal services by indicating the program on the return address, the FDOC will permit the non-pen pal service mailings to reach inmates. Moreover, the Rule does not prohibit inmates from corresponding with pen pals; rather, it only prohibits inmates from soliciting pen
The next factor requires the court to evaluate the impact on guards, inmates, and prison resources. Id. at 90, 107 S. Ct. at 2262. Appellants argue that permitting their companies to advertise for inmates will not greatly affect the FDOC resources or prison guards and will, instead, help inmates in their rehabilitation by providing them contact with the outside world. The FDOC counters by showing that accommodating Appellants’ bulk mailings would lead to an increase of mail, and this increase would burden prison staff by requiring them to comb through a significant portion of mail to catch any scams or contraband. James Upchurch states in his affidavit that the FDOC currently processes roughly 50,000 pieces of mail daily. Thus, a significant increase in mail would require the FDOC to shift correctional staff to review the increased volume of mail and to shift inspectors to investigate possible pen pal scams. This burden would make it more difficult for the already overworked staff and inspectors to accomplish their other responsibilities in ensuring a safe and secure prison environment. Furthermore, inmates may still have pen pal relationships
Finally, the court must decide whether the rule is an exaggerated response by looking at possible alternative means to prevent pen pal scams. Thornburgh, 490 U.S. at 418, 109 S. Ct. at 1884. Appellants argue that there are already several Florida statutes and FDOC rules that can prohibit pen pal scams without prohibiting the solicitation of pen pals because the rules and statutes set out how an inmate may correspond with a noninmate. See, e.g.,
Applying the Turner factors to this case, it is clear that all four factors weigh in favor of the FDOC; therefore, the district court‘s granting of summary judgment for the FDOC was proper.
IV.
Martinez states that both prisoners and their correspondents have a liberty interest in uncensored communication by letter; therefore, any decision to censor or withhold delivery of letters must be accompanied by procedural safeguards.
Appellants do have a liberty interest in accessing inmates. The Supreme Court has advised that “[i]n a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad.” Bd. of Regents v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 2707 (1972). Moreover, Thornburgh explained that publishers (including advertisers) have a First Amendment right to access inmates. 490 U.S. at 408, 109 S. Ct. at 1879. Thus, Appellants’ First Amendment right to access inmates give them a liberty interest in seeing that their advertisements reach the inmates.
Like the First Amendment analysis above, we must first determine which standard to apply. Both the district court and the FDOC failed to properly read Thornburgh‘s limitation of Martinez. Martinez was only limited as to the proper standard to use when analyzing a First Amendment claim within the prison context. Thornburgh did not discuss the standard for procedural due process,
Martinez created a three-part test to decide whether there are proper procedural safeguards for correspondence of a personal nature.2 Here, Appellants’ only send bulk correspondence to advertise their services to inmates. Thus, while Martinez may still control for due process claims where a prison limits personal correspondence, it is not necessary to require such a high standard for mass mailings.
Since mass mailings require a lower standard for due process guidelines, we evaluate what process is due under the test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). To evaluate a due process claim we analyze three factors:
Id. at 335, 96 S. Ct. at 903 (citation omitted). Appellants do not have a compelling private interest in ensuring that their advertisements reach the inmates. As we have discussed above, the FDOC‘s interest in protecting the public and maintaining prison security is important.
Finally, we acknowledge that the risk of an erroneous deprivation of Appellants’ private interest is high because the FDOC‘s enforcement of its Rule deprives WAP of the ability to send inmates advertisements concerning non-pen pal services. However, WAP can separate and distinguish its mail to inmates to eliminate any such concerns. Also, like Christian Pen Pals, Appellants are free to correspond with FDOC officials to challenge the denial of their advertisements. Any additional procedures would put an extra burden on the FDOC without necessarily adding any extra protections for Appellants. Therefore, the FDOC ensured that Appellants were afforded constitutionally required due process.
We affirm the district court order granting summary judgment in favor of the Florida Department of Corrections.
Notes
[W]e acknowledge today that the logic of our analyses in Martinez and Turner requires that Martinez be limited to regulations concerning outgoing correspondence. . . . [O]utgoing correspondence was the central focus of our opinion in Martinez. The implications of outgoing correspondence for prison security are of a categorically lesser magnitude than the implications of incoming materials. Any attempt to justify a similar categorical distinction between incoming correspondence from prisoners ... and incoming correspondence from nonprisoners would likely prove futile . . . . To the extent that Martinez itself suggests such a distinction, we today overrule that case . . . .