*1 Stephen LEONARD, C. Plaintiff-

Appellant, NIX, Defendant-Appellee.

Crispus C.

No. 94-1364. Appeals,

United States Court

Eighth Circuit.

Submitted Oct. 1994. May

Decided 1995.

Rehearing Suggestion Rehearing July

En Banc Denied 1995.* *McMillian, Beam, Arnold, Sheppard rehearing and Morris en banc. Judges, grant suggestion Circuit would *2 IA, Ingram, City, argued,

Patrick E. Iowa appellant. for Hill, Moines, IA, appellee. for Des William FAGG, WOLLMAN, and Before HANSEN, Judges. Circuit HANSEN, Judge. Circuit Stephen appeals Leonard the district C. peti- § of his 28 U.S.C. court’s1 denial corpus. of habeas Leonard tion for a writ prison officials violated his asserts that Iowa rights by disciplining him First Amendment defamatory language. using abusive and no First Amendment The district court found violation, and we affirm.

I. Leonard, Stephen an inmate C. Petitioner (ISP), Penitentiary wrote at the Iowa State lawyer “jailhouse purportedly as two letters inmate, Daniel to a former communications” Berkenbile, residing in who was then “Flash” letter, dated In the first Davenport, Iowa. “jailhouse law- January and labeled legal mail” on the envel- yer communication 75), raved the most (App. at Leonard ope2 obscene, epithets against and racist vulgar, African-American, Nix, warden, Mr. example, prison staff. As an other wrote, “They really got p off Leonard —ed a N-. calling Nix] him [Warden for me it in this letter why putting I’m Ha. That’s then many (App. at so times.” fit did not Longstaff, 2. letter to Berkenbile United Leonard's E. 1. The Honorable Ronald established categories mail” of "confidential the by Judge District of the Southern District States 20.4(2), Depart- Iowa Admin.Code Iowa. governing pris- of Correction's ment courts, attorneys, etc. agencies, oner mail sent (Leon- capital six times in the warden and Leonard. wrote that word letters between previous attempt to form a a row. Leonard continued make abusive ard’s white su- (“F— premacist group” Nix “culture comments about and to Warden was opposed by litiga- ALL F— warden and THAT BLACK B-AND HIS resulted court.) BAND”); Furthermore, MERRY LITTLE comments tion federal ING *3 certainly justify prison disciplin- district court found that which would Iowa “both letters ary jailhouse lawyer against action Leonard for violation of sound some form of com- munication, spoken act prison rules if he had the same words which is an of misuse of the mail,” directly to the warden. Leonard also re- and “that administrators certainty legitimate in regulating his officials have a interest vealed (Id. jailhouse copy lawyer privileges.” of would read and his letter. Leonard’s use at 165.) letter, January second dated con- vulgarities. tained more of the same At the Supreme The Court of Iowa affirmed the letter, clearly referring this to the end of postconvic- district court’s dismissal of both staff, warden and Leonard states: actions, concluding tion that the letters “were gang “The chief n-and his BOY WHITE designed protest to be used as a vehicle to 56.) (App.

gowill down in flames. Ha.” prison authority” and that the officials defamatory Because of the abusive and objective legitimate penological had a of language against used warden maintaining security and order within the purported “jailhouse lawyer staff in these they disciplinary institution when took action communications,” prison officials issued disci- “[djefamation upon the based letters because notices, citing violating plinary Leonard for very discipline prob- its nature causes prohibits rule that verbal abuse of (Id. 174.) ISP lems.” person. disciplinary The com- another ISP corpus peti- Leonard then filed this habeas guilty violating mittee found Leonard of ISP tion, punishment challenging the as an in- institutional rule number which states as fringement right on his First Amendment follows: (Leonard expression. firee also filed a claim Abuse: An inmate commits Yerbal verbal damages under 42 U.S.C. which subjects abuse when the inmate another stayed pending has been the outcome of this person defamatory language, to abusive or case.) magistrate judge The recommended remarks, gestures, writing orally, granted that the writ be on the basis that the disrespect and includes insolence or to an- disciplinary action violated Leonard’s First person. other rights. Amendment The district court re- 173.) violation, (App. at For this Leonard jected this recommendation and denied the of n writ, concluding penalties including days received loss of 90 fact-findings that the state credits, good days time of restriction to fairly supported by were the record consid- cell, days disciplinary his and 15 detention. appeals. ered as a whole. Leonard separate Leonard filed two actions for argument, week One before the warden relief, postconviction alleging state that ISP appeal moved to dismiss the as moot because rights by staff violated his First Amendment discharged Leonard had his sentence and disciplining him on the basis of the letters. custody. was released from We were recent- letter, respect With to the first the Iowa ly informed Leonard’s counsel that Leon- district court found as a fact custody ard has since been returned to the “intended to direct the comments Warden Department the Iowa Corrections on Nix, would, fact, and that the comments new sentence. (App. read Warden Nix.” Simi- fact-findings respect lar were made with II. findings the second were letter. These upon petition corpus based themselves in which A must the letters habeas custody. petitioner Leonard states he knows that will be be filed while the is in Cook, copied upon Maleng read and the attachments See (1989). 1923, 104 disagreement petitioner, If reveal the source of a Brown, Black v. custody, faces suffi from though released Cf. (release (7th Cir.1975) from did allegedly unlaw isolation from his repercussions cient damages moot. claim for cruel and unusu- case is not See not moot punishment, ful LaVallee, punishment). 88 al Leonard’s section 1983 ac- Carafas (a (1968) life, if gives this case for Leonard wins tion action, ... re the state becomes vulner- not be this habeas petitioner “should habeas damages as- section 1983 claim. consequences [an] able to his to bear the quired simply petition is therefore not moot. because Leonard’s sertedly unlawful conviction long that he has served so path has been custody Additionally, Leonard’s return to sentence”). consequences are Collateral dispenses doubt that remain with criminal conviction to stem from a presumed existence of collateral conse- York, v. New See after release. Sibron even *4 Upon his return to quences in this case. 1889, 1899, 40, 57, 20 88 S.Ct. 392 U.S. ISP, by is marked Leonard’s inmate status (1968) collat (only possibility of 917 L.Ed.2d violation, if he com- previous rules and mootness). to avoid consequence needed eral any faces more mits further infractions he illegal punishment does allegedly Where prior disci- treatment because of this severe in any consequences produce collateral not Accordingly, peti- plinary action. Leonard’s conviction, the underlying dependent of the moot, corpus is not tion for a writ of habeas by physical release. See mooted case will be on this deny the motion to dismiss and we Williams, 102 455 U.S. Lane v. ground. (1982) 1327-28, 1322, 71 L.Ed.2d 508 S.Ct. conse no collateral (parole violation has III. 800, McCarthy, F.2d 829 quences); Cox v. proceedings, presume In habeas we Cir.1987) (9th (objections penalty rath 803 of fact to be cor state court determinations enough to avoid moot not er than conviction are not rect unless the factual determinations ness). fairly by the record. See 28 supported challenge criminal Leonard does not 2254(d)(8) Mata, (1988); § Sumner v. U.S.C. legality rather the conviction but 539, 550, 764, 770, 66 101 S.Ct. 449 U.S. serving his sentence. discipline imposed while Nix, (1981); Blair-Bey 44 v. L.Ed.2d 722 asserts consequence, Leonard As a collateral (8th Cir.1995); 711, v. Bainter F.3d 713 rights damages claim separate civil that his Cir.1991). (8th 713, Trickey, F.2d 715-16 932 if 42 1983 will be foreclosed under U.S.C. find that the state court Leonard contends petition is denied. the habeas supported by the record ings are not of fact making punished for that he cannot be pre petition is a A successful habeas comments, demeaning, disre however hinges claim that requisite to a section 1983 prison officials derogatory, spectful, illegal. finding that the conviction was on a bearing to a third an address in a letter — U.S.-, 114 Humphrey, v. See Heck testimony In his prison. party outside 2364, Post- 129 S.Ct. court, Leonard re the Iowa district before dependent on the le claims release financial his absolutist peatedly that under testified stayed pending gality of conviction Amendment, “I can reading of the First conviction, or, as to section review 25, (App. anything I want.” write Heck, may not accrue until claims after 1983 mischaracterizes that Leonard We believe conclude; but neither proceedings habeas case, as found that the facts the facts in this by release. Prisoner mooted case fairly supported courts are the state underly challenging the damages claims not record, disciplinary action that the from survive release ing conviction likewise a First not amount to against him does taken Inspec Postal custody. Scher v. See Chief violation. Amendment (8th Cir.1992); tor, 682, Cotte F.2d 683 973 (11th argument that “Assuming the sake of Paul, Cir. F.2d 780 rall v. 755 like protects speech McGinnes, Amendment the First 1985); Winsett here, although we doubt such Cir.1980) denied, (3d (en banc), that at issue 449 cert. 1004 not still did prison officials proposition, the 822 66 L.Ed.2d 101 S.Ct. U.S. 374 (1989)). Outgoing personal 104 L.Ed.2d 459 rights under the Constitu [Leonard’s]

violate pose correspondence generally does not a Dailey, 991 F.2d tion.” Goff Cir.1993) (Iowa (8th disciplined security. inmate serious threat order violation). Abbott, 109 S.Ct. at 1880. a constitutional 490 U.S. verbal abuse —not — Paul, Minn., reason, outgo- prisoner’s personal City St. For this R.A.V. v. See 2538, 2544, -, -, it ing mail is unrestricted unless falls into U.S. (hate (1992) categories present a threat constitutes L.Ed.2d “ as, security, part any exposition of such but not limited ‘no order and essential ”) to, ongoing Hamp “escape plans, plans related to (quoting Chaplinsky v. New ideas’ shire, 568, 572, 766, 769, activity, criminal and threats of blackmail (1942)). at 1881 L.Ed. 1031 extortion.” Id. (citing 416 U.S. at “ brings incarceration ‘[L]awful 1811). necessary withdrawal or limitation about the case, disciplined for In this Leonard was many privileges rights, a retraction violating prison against written verbal rule underlying justified by our the considerations ” person. of another The Iowa courts abuse Procunier, 417 penal system.’ Pell v. U.S. found that the letters written 2800, 2804, against disciplinary action resulted (1974) Johnston, (quoting Price v. *5 genuine, personal outgoing mail him were not 266, 285, 92 L.Ed. 1356 in fact diatribes directed at and but were (1948)) (other omitted). “In the citation the warden and the staff as a toward corollary a of this First Amendment context protest. vehicle of must determine We those principle is that a inmate retains finding fairly sup- whether this of fact is rights that are not incon First Amendment ported the record. prisoner as a or with sistent with his status objectives legitimate penological of the the conspicuously We first note that Leonard system.” Id. Prison rules cen corrections jailhouse lawyer labeled the first letter as a soring prisoner’s personal outgoing mail a envelope, drawing communication on the im- justified only regulation practice are if the or something mediate attention to it as other question important govern in furthers personal than usual letter. Leonard’s the order, security, interest of or rehabili mental writing purported reason for to Berkenbile tation, prisoner’s limitation and the on the formal, detailed, was to send to Berkenbile a rights must no retained First Amendment be completed complaint with accom- and necessary gov greater protect than is to the motions, affidavits, in- panying and detailed ernmental interest. Procunier v. in structions Berkenbile to file federal 1800, 1811, seeking damages alleged depri- for the court L.Ed.2d Leonard’s) vation of Berkenbile’s consti- {not mean, course, This does not rights resulting from an earlier in- tutional required to show administrators be terception by the authorities of corre- certainty consequences that adverse with Leonard, spondence them. a self- between a flow from the failure to censor would jailhouse lawyer, permitted described was to in antici- particular letter. Some latitude legal assist other inmates with their matters. pating probable consequences of allow- the license, however, a law he had no Without ing in a environment certain for, complaints give legal right to draft discharge proper the of an is essential to to, nonprisoners. advice Prison authorities duty. But administrator’s “jailhouse right have a to ensure that inmate correspon- practice that restricts inmate them, lawyers” governing abide the rules necessary pro- to generally dence must be Leonard marked the unsealed en- when legitimate govern- tect one or more “jailhouse velope to as addressed Berkenbile mental interests identified above. communication,” inspec- lawyer invited an he operating (analysis limit to make sure he was within Id. at at 1811-12 tion Abbott, writ-writing activi- by Thornburgh governing the rules his outgoing mail v. ed 401, 411-13, 109 ties. carefully record, apparent considering in After prison rule violation is the the in- The cluding the structure of the letters the structure of the language vile letters them- selves, themselves, the context in which all of which we will not here were writ- ten, was, fact, testimony flouting and Leonard’s before repeat. Leonard during postconviction Iowa district court his system exploiting the First Amendment proceedings, relief we conclude that directing at and the state written verbal abuse fact-findings fairly supported by court’s through purported toward the warden these the record and that this is case where the lawyer jailhouse communications and then prisoner purposefully aimed his written com- claiming protection for his First Amendment ments not at envelope, the addressee on the is little doubt that misconduct. There directly but at the warden in the sure and spoken by directly if language, same knowledge certain that he would hit his tar- warden, justifiable would result get though through even he fired the camou- preserve discipline and disciplinary action to flage envelope of an addressed to the outside. There is also little doubt that Leon order. attempting not as a ard is to use this court Delo, Loggins This a-ease is not like right engage protecting his means of (8th Cir.1993), prisoner F.2d 364 where a ideas, interchange of is the the free conveyed personal to his brother in corre founding purpose of the First Amendment’s spondence personal feelings pris about a speech, guarantee of free see Connick derogatory on staff member which were Myers, 461 U.S. insulting, knowledge with the mere (1983), but as means might hoggins, letter be read. Unlike Leon special privilege ensuring for himself the merely ard not did know that the letter directly attacking the warden with written read, might he instead directed his defam conseq epithets disciplinary racial without atory expressly and abusive comments to the that there is a We are convinced uence.3 purpose making warden and staff *6 that can in fundamental distinction be drawn feelings known to them. For the same permissible prison the context between and reason, distinguishable this case is from constitutionally protected “unflattering” re 621, Moody, v. McNamara 606 F.2d 623-24 prison personal in marks about staff corre (5th Cir.1979) (holding prison censor cannot spondence recipient directed to a on the out girlfriend containing to his inmate’s letter Delo, 827, side, 832 see Smith v. 995 F.2d staff; disparaging prison no remarks (8th Cir.1993), impermissible written prison implicated), and Brooks v. rules were language abusive that is directed not to the (3d Cir.1987) Andolina, 1266, F.2d 1268 826 addressee but at and to the warden. The (holding discipline prison cannot an inmate type speech of hate Leonard at directed disrespect in a for remarks inmate made slight Warden Nix “is of such social value as complaining to NAACP about the con letter step a to truth that benefit that be guard). duct of a clearly outweighed by [it] derived from is the morality.” Chap social interest in order and We conclude that the officials 572, order, disciplined preserve a le linsky, 315 62 at 769. This Leonard to U.S. at S.Ct. Admittedly, especially gitimate penological in interest. is true the context. “ neatly epithets personal this not fit into one of the ‘Resort to abuse'is not case does any proper categories previously in of infor delineated the Su sense communication personal correspondence opinion safeguarded by preme mation or Court as the Consti- tution_Id. security. (quoting presents v. that a threat to order Cantwell Con necticut, Nevertheless, 900, ignore reality we cannot the 310 U.S. (1940)). 906, clearly making legiti- was not 84 L.Ed. 1213 Leonard 77.) letter, (App. the first communication had 3. Inthe first stated: After Leonard promised delayed, the been Leonard second you going copy I want to know that to really give court "[t]he I communication at issue that federal this letter also but don't f—. I say my withholding stand beside the 1st Amendment. I their a-es for mail” bum can will anything ing n- I want about this light (App. We to the fire. decline motherf— ing thing and he can’t do a f— about it. Ha. 376 Procunier v. 416 outgoing personal mail for Amendment.

mate use 1800, 1811,40 Rather, U.S. L.Ed.2d Leonard correspondence. private Delo, 364, (1974); Loggins 224 v. 999 F.2d defamatory comments directed abusive (8th Cir.1993); Andolina, Brooks v. 826 367 discipline good order destructive (3rd 1266, Cir.1987); F.2d 1268 McNamara by using purported and and staff the warden (5th 621, Cir.1979), Moody, v. 624 jailhouse lawyer mail as his illegitimate denied, 929, 100 S.Ct. 65 cert. delivery. that when We conclude method (1980). 1124 L.Ed.2d sending legitimate personal prisoner is not defamatory outgoing comments that correspondence, put letters in the normal hope they would at the warden and staff mail channels the eventu- are directed ally reach addressee Daniel Berkenbile. Be- jailhouse lawyer through guise of a com- cause there is no indication Berkenbile subject prisoner to properly munication person is a not a real or that the letters were preserve prison’s penological discipline to only eyes pris- otherwise intended for the order, and that Leonard’s disci- interest officials, legitimate on the letters constituted pline does not violate the First Amendment. outgoing correspondence entitled to First protection. Thornburgh v. Ab- Amendment IV. 411-12, bott; 490 U.S. possibility Because of the of section 1983 (1989); Martinez, 1880-81, 104 L.Ed.2d 459 damages, now in and because Leonard is 413-14, 1811-12; U.S. S.Ct. custody again, petition is not this habeas 367-68; Loggins, 999 F.2d at Turner cf. were im- moot. Because Leonard’s letters 89-93, Safley, 482 U.S. jailhouse lawyer proper communications and (1987) (discussing defamatory comments were directed to- applied prisoner standards to be corre- officials, they fairly cases, cannot ward spondence specific without reference purely outgoing personal mail); Delo, characterized as outgoing abusive Smith (8th Cir.1993) (same), correspondence holdings of Mar- within F.2d 829-30 cert. — denied, Therefore, -, tinez and Abbott. officials U.S. did not violate Leonard’s First Amendment by disciplining in' rights him for abuse verbal only if Prisoner can be limited prison regulations. Accordingly,

violation “reasonably legiti is related to judgment we affirm the of the district court. Safley, penological mate interests.” *7 89, rule, at 107 S.Ct. at 2261. Under this WOLLMAN, Judge, dissenting. Circuit subject correspondence inmate to be' legiti limited in furtherance of the Although agree I that this case is not prison security. mate in order and interest moot, I would hold that district court the Martinez, 416 at 94 at 1811. U.S. S.Ct. judge’s adopted magistrate should have the However, outgoing usually inmate mail does thoughtful recommendation. prison “pose not a serious threat to order Abbott, security,” at 490 U.S. 109 I S.Ct. at and is therefore unrestricted unless, escape plans, ongoing it relates to correspon- outgoing prisoner This is an blackmail, extortion, activity, criminal id. case, only dence remarkable for the hateful- 412, 109 1881; Martinez, at at S.Ct. employed, of the ness invective illegal at 1811. No such at inmate, knowledge in the full that his letters here; instead, activity is the court involved prison to a friend the read outside would be on the restricts Leonard’s letters basis authorities, by prison wrote comments about very its nature creat Leonard’s invective prison speculated officials the im- security. prison order and ed a threat to pact might his insults have on the officials responsible reading outgoing inmate mail. spoken to This would be true had Leonard criticizing officials, outgoing correspondence inflammatory Such prisop because such insulting prison produces an immedi- prison authorities has been held .a inside Dailey, order. protection physical within the First ate threat to come the Goff

S77 (8th Cir.1993), findings of the Iowa courts in effect cert. de are 1439 F.2d 991 — Rather, -, nied, accepted by Leonard. Leonard ar 126 U.S. gues legal prece is a mail case. that under well-established But this dent, strictly key as the fact the courts is not regulated is not as found Outgoing mail enough support the good the reason conclusion that his communication for in-prison reasonably prison were “directed toward” offi expected be comments it “cannot cials, community Loggins, at 367. inside as defined danger to the present Abbott, 411-12, The Iowa tribunals’ conclusions that the de 490 U.S. at prison.” the Martinez, rogatory comments were directed toward (citing 416 U.S. at at 1881 S.Ct. 1813). hinged on holding A that Leon officials the fact that Leon at likely ard was his letters would be itself violated the verr ard’s mailed invective knew.it decision, carefully intercepted. App. at ignores the nuanced Committee abuse rule bal 137; decision, 161; App. at has erected to District Court Supreme the Court structure decision, Supreme App. Court at 173-74. As discipline of inmates whose allow for the shows, the fact that a never intend the discussion above comments were confrontational community, prisoner at knows authorities will read his mail the while ed to leave support not conclusion that mail protecting inmates who use does the time the same legitimately views addressed outside the is express perhaps mail to identical those views can directed toward officials. prison walls where outside security. Andoli prison order and not harm hope that Nix is too One would Warden na, (applying structure F.2d at 1268 busy important with work to bother to screen 88-91, Safley, at erected U.S. outgoing prisoner correspondence. Those 2261-63, perform duty prison staff members who this 1811-12, 412-14, citing presumably inured to the hate-filled dia- McNamara, 624, to effect 606 F.2d at Stephen tribes of the Leonards of the world were oral rather that if identical statement undoubtedly correspon- and thus treat such allowed); mailed, punishment would be than dence with the disdain it deserves. Abbott, 109 S.Ct. at see U.S. respectfully I dissent.- (further articulating Safley/Martinez 1880-82 rationale). intended his comments to That Leonard authori

come to the attention distinguish this case from does not those

ties pro was held correspondence in which the LENHARDT, succes Elizabeth J. lawful their mail can All know tected. inmates Representative and Personal sor indeed, officials; by prison in all the read deceased, Lenhardt, III, Estate of Peter cases, acknowledged the inmate similar Appellant, interception and possibility of tweaked .v clearly expressed official reader or otherwise TECHNOLOGY, OF BASIC INSTITUTE hope that his mail would be read *8 Defendant, INC., corporation, officials, Loggins, 999 F.2d at 365 plainly in (acknowledging possibility Zoeller, individual, Appellee. A. James reader); tending to tweak the official McNa 94-3149. No. mara, (showing n. 2 certain 606 F.2d at 623 Appeals, United States Court of read). knowledge the invective would be Eighth Circuit. Nevertheless, post-Mar and all other these uniformly pro point on tinez decisions have April 1995. Submitted rights of inmates outgoing mail tected May 1995. Decided who,- Leonard, trying legit like were reach Rehearing Rehearing Suggestion for correspondents. imate July En Bane Denied 1995. II evidentiary sup- disagree that fair

I also ease, in this for the factual

port is the issue