Thеse consolidated appeals present constitutional challenges to regulations imposed by the Wisconsin Department of Corrections (“DOC”) on incoming prisoner mail. Frank Van den Bosch is the publisher of The New Abolitionist, a newsletter about the Wisconsin state prison system. After reviewing the March 2007 edition of the newsletter, Wisconsin prison officials concluded that its content posed an unacceptable risk to inmate rehabilitation and prison security, and therefore refused to distribute the issue to DOC inmates. Van den Bosch challenged this decision in a lawsuit against various prison officials pursuant to 42 U.S.C. § 1983. He alleged that the DOC’s ban on the March 2007 edition of the newsletter violated his First Amendment rights and his Fourteenth Amendment right to due process. Thе district concluded that the defendants were entitled to qualified immunity and entered summary judgment in their favor on that basis.
The second appellant, Dennis E. JonesEl, is a Wisconsin state prisoner. JonesE1 filed a First Amendment claim against various DOC employees after they confiscated medical records and legal documents regarding other inmates, as well as copies of an article he published in the May 2006 edition of The New Abolitionist. According to Jones-El, the prison officials wrongly interfered with his incoming mail in violation of the First Amendment. The prison officials moved for summary judgment, and the district court dismissed Jones-El’s claims on their merits. For the following reasons, we affirm the judgments of the district courts in both actions.
I.
A. Van den Bosch
Frank Van den Bosch is a community organizer and publisher of the now-defunct The New Abolitionist, a newsletter affiliated with the Prisoners’ Action Coalition, a not-for-profit organization in Wisconsin. 1 The newsletter generally advocates for prison reform, but often featured critical commentary about certain policies of the DOC. Any publication sent to an inmate at the DOC undergoes an individual review process by defendant Dan Westfield, Security Chief of the DOC’s Division of Adult Institutions. Under the Wisconsin Administrative Code, the DOC may not deliver incoming or outgoing mail if it is “ ‘injurious,’ meaning material that: [pjoses a threat to the security, orderly operation, discipline or safety of the institution,” or “[i]s inconsistent with or poses a threat to the safety, treatment or rehabilitative goals of an inmate.” Wis. Admin. Code § DOC 309.04(4)(c)(8).
The March 2007 edition of The New Abolitionist contained elevеn articles on a variety of issues related to Wisconsin prisons. Defendant Westfield concluded that four of those articles were objectionable under the Code. The first article, written by Van den Bosch, contained a brief discussion of a class-action settlement agreement involving the Wisconsin Secure Program Facility (“WSPF”) and remarked:
We have had word that the DOC is looking for volunteers to fill the Charlie unit cells at [the WSPF], No school, no work, no cafeteria, less canteen, no contact visits, no storage for property, tiny cells, and the close proximity of the revolving door to the dungeons, all sound enticing, don’t they? I’m sure guys willbe lining up for a vacation in SW Wisconsin, even further away from their families. Don’t fall into the trap!
In defendant Westfield’s view, Van den Bosch’s article was harmful because it contained inaccurate information about the availability of inmate jobs at WSPF, and could also limit the DOC’s ability to maximize its programming resources if it effectively discouraged inmates from transferring to WSPF.
The other three articles that drew defendant Westfield’s attention were written by prison inmates. One criticized the Wisconsin Parole Commission and Program Review Committee (“PRC”) for making “totalitarian decisions,” described the PRC as “abusers of prisoners] and prisoners’ families,” and suggested that certain programs were being denied “to prisoners for no legitimate reason at all.” Another article presented the inmate writer’s concerns about the PRC’s parole deсisions and stated that the purpose of his article was to “show the deceiving [and] manipulative tactics” and “fabricated stories” that PRC used to keep individuals incarcerated indefinitely. Finally, the fourth article updated its readers on recent prisoner litigation in the Seventh Circuit, suggested that prisoners erroneously rely upon courts to seek social change, and urged readers to “employ any and all means necessary,” including mass protests in front of prisons, in order to “bring some attention to this madness they call prison life.”
Defendant Westfield concluded not only that these articles included false information, but that the authors’ inflammatory statements could potentially encourage “distrust of staff, paranoia, аnd hopelessness among inmates seeking release on discretionary parole ... as well as discouraging rehabilitation efforts by inmates, who are wrongly under the impression that DOC is making allegedly illegal efforts to keep them confined as long as possible.” As a result, defendant West-field banned the entire March 2007 newsletter on April 11, 2007, and sent an e-mail notice to all DOC Security Directors throughout the state ordering the officials to enforce the ban by notifying their respective mailrooms that inmates should not receive the newsletter. 2 Prisoners who subscribed to the newsletter received a notice from defendant Westfield explaining that the newsletter would not be delivered because it “pose[d] a threat to the [s]eсurity, orderly operation, discipline or safety of the institution.”
In April 2007, Van den Bosch received similar “non-delivery” notices from the DOC stating that the March 2007 edition of the newsletter was banned because prison officials considered it a security threat under Wis. Admin. Code § DOC 309.04(4)(c)(8). In response, Van den Bosch filed suit against Westfield and various other prison officials under 42 U.S.C. § 1983 in the Western District of Wisconsin in February 2009. He alleged that defendants violated his First Amendment rights by refusing to distribute the newsletter to inmates, and his Fourteenth Amendment right to due process by failing to give him proper notice of that decision. The parties filed cross-motions for summary judgment and the district court granted defendants’ motion. The court found defendants were entitled to qualified immunity on the First Amendment claim because Van den Bosch failed to meet his burden of showing it was “clearly established” in 2007 that prohibiting distribution of his newsletter in prison violated the First Amendment. The court, therefore, did not reach the question of whether de
On appeal, Van den Bosch does not challenge the district court’s ruling regarding his due process claim, but contends that Judge Crabb’s prior ruling in
Johnson v. Raemisch, 557
F.Supp.2d 964 (W.D.Wis.2008) precludes the qualified immunity defense to his First Amendment challenge. In
Johnson,
a Wisconsin prisoner and subscriber to
The New Abolitionist
sued three DOC officials for refusing to deliver his March 2007 issue of the newsletter. As in this case, defendants submitted an affidavit from Westfield asserting that the articles in the newsletter contained false information about the conditions of the Wisconsin Secure Program Facility, encouraged distrust of prison staff, and were likely to foster “ ‘hopelessness’ ” among inmates.
Id.
at 965. The district court was not persuaded. Judge Crabb concluded that the content of the newsletter was not threatening and that the DOC’s justifications for censoring the newsletter amounted to nothing more than “ ‘because we said so.’ ”
Id.
The district court concluded that defendants failed to show that their decision to ban the newsletter was reasonably connected to a legitimate penological interest under
Turner v. Safley,
B. Jones-El
Dennis E. Jones-El, also known as Mustafa-El K.A. Ajala, was formerly confined at the Green Bay Correctional Institution (“GBCI”).
4
He has been an active litigant in prisoners’ rights cases,
see Jones-El v. Berge,
As previously noted, the DOC has promulgated several regulations regarding the circumstances under which a prison may refuse to deliver mail to an inmate. In addition to the provisions described above, regulations authorize the DOC to refuse to deliver mail to an inmate if it “[i]s determined by the warden ... to be inappropriate for distribution throughout the institution.” Wis. Admin. Code § DOC 309.04(4)(c)(12). When a piece of incoming mail is rejected, a written notice is sent to the sender and the inmate to whom the mail was addressed, explaining why the letter was not delivered; an inmate may then ultimately appeal the decision to the warden. Wis. Admin. Code § DOC 309.04(4)(e)-(f). Block attempted to send Jones-El multiple copies of his article on four separate dates in 2006, and on each occasion, Kevin Postl, a GBCI Correctional Sergeant, rejected the mail and sent Jones-El a “Notice of Non-Delivery of Mail.” According to defendant West-field’s affidavit, many statements in JonesEl’s article “are problematic in a prison environment because not only do they contain several falsities, but they are also inflammatory and encourage disrespect on the part of inmates for the DOC’s rehabilitative programming and for the correctional staff running the programs.”
From January 2006 to June 2006, DOC officials also refused to deliver several pieces of “third-party” mail to Jones-El, which DOC defines as mail sent to an inmate from a third party (i.e., another inmate or an individual outside of prison) concerning another inmate. The first incident occurred on January 12, 2006, when a WSPF inmate named Cedric Robinson attempted to send Jones-El documents regarding Maurice Fort-Greer, another WSPF inmate. Though delivery was initially denied, prison officials later determined that the documents were related to legal assistance Jones-El was providing to Fort-Greer and should be delivered; on February 17, 2006, Sergeant Postl delivered the mail to Jones-El. On variоus other occasions from May 2006 to July 2006, however, prison officials refused to deliver other pieces of mail to Jones-El that contained court documents and medical records relating to Fort-Greer, and denied mail from Block that contained court documents regarding John Virgin, the former inmate who died.
Believing that defendants’ refusal to deliver copies of his article and court documents regarding other inmates violated the First Amendment, Jones-El filed this § 1983 action against Sergeant Postl, as well as several other DOC prison officials in the Eastern District of Wisconsin. He alleged that defendants’ actions violated his rights to free speech, to freedom of the press and to petition the government.
5
The parties filed cross-motions for summary judgment, and the district court granted defendants’ motion. On appeal, Jones-El argues that the DOC’s censor
II.
We review the district courts’ grant of summary judgment
de novo. Jackson v. Frank,
As a general rule, prisoners have a constitutionally-protected interest in their incoming and outgoing mail correspondence.
See Frank,
In
Turner,
the Supreme Court specifically set forth four factors that courts may weigh in assessing the validity of a prison’s regulations: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) whether the inmates have access to “alternative means” of exercising the restricted right; (3) thе “impact [an] accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether the regulation is an “exaggerated response to prison concerns.”
6
Turner,
On appeal, both Van den Bosch and Jones-El mainly challenge the DOC’s policy regarding incoming inmate mail under the first Turner factor, and argue that summary judgment should have been granted in their favor because there is no rational connection between the DOC censorship of incoming prisoner mail and any legitimate penological interest. Plaintiffs’ claims overlap to some degree, but we address the alleged constitutional violation for each plaintiff in turn.
A. Van den Bosch’s Claims
Van den Bosch contends that he was entitled to summary judgment on his First Amendment claim because defendants’ censorship of his newsletter was not rationally related to security concerns, but rather motivated by a desire to suppress any speech critical of the prison administration and the conditions of confinement within Wisconsin prisons. The district court did not reach the merits of Van den Bosch’s First Amendment claim, and instead concluded that defendants are entitled to qualified immunity because of the uncertainty among district courts about the right to distribute (and receive) The New Abolitionist,' 7 and the dearth of controlling authority addressing the censorship of incoming prison newsletters. 8
The doctrine of qualified immunity insulates public officials from liability if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan,
The district court began its analysis by properly noting that even though Van den Bosch is not incarcerated, the “reasonableness” standard announced in
Turner
must still apply because his claim involves the maintenance of institutional security within a prison setting. The Supreme Court recognized in
Thornburgh v. Abbott
that “publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners.”
Thornburgh,
The parties’ dispute focuses on the first Turner factor. We appointed amicus curiae counsel to assist Van den Bosch in his appeal. Amicus counsel argues that while the DOC may have legitimate penological interests in prison security and rehabilitation, the four articles in the March 2007 issue of The New Abolitionist fell short of the kind of incitement to violence that courts have previously identified as warranting censorship. Defendаnts reject this assertion and argue that the DOC had valid reasons for determining that the newsletter was “injurious” under the Wisconsin Administrative Code. Relying almost exclusively on the affidavit of defendant Westfield, defendants contend that the newsletter “went beyond mere criticism,” had the potential to endanger prison guards by encouraging violent self-help remedies, and would likely undermine prisoners’ incentives to work toward rehabilitative goals. For instance, according to defendant Westfield, the article describing the Wisconsin Parole Commission and Program Review Committee as “clueless” and “totalitarian” had the potential to “encourage disrespect on the part of inmates,” and the article that claimed the PRC used “manipulativе tactics” and “fabricated stories” may cause security issues by “encouraging] distrust of staff and unrest among inmates” if they were led to believe they will never be eligible for parole.
On recent occasions we have examined efforts by prisons to restrict inmates’ incoming mail, most frequently in the context of restrictions on gang-related or other violent materials. In
Singer v. Raemisch,
Van den Bosch has not presented any evidence to rebut defendants’ contention that the March 2007 issue of the newsletter contains misleading information, encourages distrust of prison staff, and could potеntially undermine the prison’s rehabilitative initiatives. Amicus counsel urges that the prison officials’ justifications for censoring the newsletter are neither neutral nor rationally related to security, and suggests that the pretextual nature of the DOC’s justifications for confiscating the newsletter is underscored by the fact that none of the purported security threats have ever materialized (even though some inmates inadvertently received the newsletter and it was eventually made available to all inmates in May 2008). We find this argument unpersuasive. The essential question is not whether the threats were eventually carried out, but whether plaintiff has shown that it was not reasonable for defendants to perceive the newsletter as a potential threat to rehabilitation and security.
See Libby,
Amicus counsel insists that even if the DOC censored the newsletter due to its potential to compromise institutional security or prisoner rehabilitation, the prison officials’ decision was an “exaggerated response” to those concerns. Counsel cites our decision in
Lindell v. McCaughtry,
B. Jones-El’s Claims
Jones-El argues that the district court erred in granting summary judgment for defendants because the prison officials’ refusal to deliver copies of his
As in Van den Bosch’s case, defendants here offer the affidavit of defendant West-field to support their contention that refusing to deliver copies of Jones-El’s article was reasonably related to legitimate penological interests. Defendant Westfield pointed to several statements in JonesEl’s article that he urged contained false information, encouraged disrespect for prison officials, and were fundamentally at odds with the rehabilitative goals of prison in that they suggest that inmates are in segregation through no fault of their own but are instead victims of an unjust penal system. “There is no question that the rehabilitation of inmates is a legitimate interest of penal institutions,”
Koutnik,
Jones-El’s article frequently draws upon DOC statistics about inmate suicide to support his argument that the segregated confinement units in Wisconsin prisons operate as a de facto death penalty system through their torturous conditions. He suggests, further, that Wisconsin inmates are placed in segregation for minor offenses and for longer periods of time than inmates in other states. Though he does not expressly encourage his fellow prisoners to use violence, he does explicitly state that Wisconsin prison officials “are literally killing” prisoners in segregation by creating conditions in which the inmates have no choice but to commit suicide. It is not unreasonable for officials to legitimately conclude that such a statement — whether deliberate hyperbole or intended to be taken literally — runs afoul of a prison’s practical need to discourage misinformation that may needlessly encourage unrest.
Jones-El notes that he only requested copies of his article to send to other publications. Again, however, рrison officials could have legitimate concerns that once such copies entered the prison system, such material might be “expected to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct.”
Thornburgh,
Amicus counsel argues that defendant Westfield’s assertions about JonesEl’s article are too speculative to deserve consideration and that many of the criticisms about the prison system presented in Jones-El’s article were previously published by other articles in other magazines that were allegedly allowed in the prison “without incident.” As noted previously, however, prison officials are permitted to take preventative measures before violence ensues and not wait for injury to occur. In the words of the
Thornburgh
Court, it is “rational” for prison officials to “exclude materials that, although not necessarily
Regarding Jones-El’s challenge to defendants’ restriction of “third-party” mail, amicus counsel appears to assert that the regulation is unconstitutional not merely as applied to Jones-El, but also on its face. Amicus contends that the policy cannot withstand scrutiny under
Turner
because it extends to all incoming mail that concerns another inmate, regardless of the context. In response, defendants observe that while prisoners do not enjoy unfettered access to documents pertaining to other fellow prisoners, inmates may indeed correspond directly with each other (and even provide legal assistance to one another), and are merely prohibited from corresponding through an intermediate third party. Defendants have offered several justifications for such a restriction, but the primary concern is prisoner safety. Defendants submit that inmates may attempt to gather information about other inmates’ crimes — particularly those inmates who have been convicted of sex-related crimes — and the distribution of such information may threaten the security and operation of the entire prison system. Moreover, the information contained in other court documents, such as criminal complaints, may identify victims or gang affiliations, the disclosure of which could place inmates at risk for physical harm. Such safety concerns are legitimate and neutral.
See Turner,
Amicus counsel asserts that defendant Westfield’s affidavit is nevertheless too conclusory to justify censorship of all third-party mail, but the case counsel cites,
Jackson v. Pollard,
Amicus counsel insists that the DOC should permit exceptions to the rule regarding third-party mail specifically for legal mail relating to litigation against DOC, and could easily apply a narrower censorship policy by prohibiting inmates from receiving only those third-party legal materials that pose a genuine threat to security. While the DOC’s asserted penological objectives — maintaining prison security, order and rehabilitation — might very well be achieved with a narrower policy, the absence of an ideal policy does not render the policy that officials have adopted unconstitutional. Determining which materials constitute a “genuine threat to security” would present no easier a task for courts currently faced with
Nor are we persuaded that the DOC’s ban on third-party mail is unconstitutional as applied to Jones-El. Amicus counsel argues that the DOC’s policy has interfered with Jones-El’s specific efforts to raise awareness about prison conditions and assist other inmates in civil rights litigation. The DOC’s prohibition on third-party mail may well make it more difficult for multiple inmates to work collaboratively, but the policy has not in fact prevented Jones-El from providing legal assistance to other prisoners. Officials did refuse to deliver several pieces of mail containing court files and medical records regarding another inmates when sent by third parties, but Jones-El points to no instance in which he was denied access to legal mail concerning an individual inmate when sent by the inmate himself. JonesEl has in fact assisted inmates in at least two other prisoner-rights cases.
See Fort-Greer v. Daley,
III.
For the foregoing reasons, the judgments of the district courts are affirmed.
Notes
. While this case was pending before this court, Van den Bosch changed the newsletter's name to Wisconsin Prison Watch.
. Though the March 2007 newsletter was banned across Wisconsin prisons, the record indicates that the newsletter was inadvertently distributed to several prisoners.
. As of May 2008, the DOC began to allow prisoners to possess the March 2007 issue. In her decision in Johnson, Judge Crabb observed that "multiple Wisconsin prisoners received the newsletter [at issue] without apparent consequence,” and concluded that defendants were required to show that their decision satisfied the
Turner
factors, but had not done so.
. Jones-El is currently housed at the Wisconsin Secure Program Facility ("WSPF”). All of the events surrounding his complaint occurred while he was incarcerated at GBCI between May 10, 2005, and February 9, 2007.
. At the district court, Jones-El also raised a claim that defendants' acts were in retaliation for his past litigation against Wisconsin prisons. On appeal, Jones-El states that his retaliation claim "hinges on,” and should rise or fall with the "free speech claim.” (JonesEl Br. 23.) We therefore decline to address this claim separately.
. Though each of the factors is relevant in assessing the reasonableness of a regulation, we have previously observed that the first factor serves as a threshold, and the district court need not "explicitly articulate its consideration of each one.”
Mays v. Springbom,
.
Compare Johnson v. Raemisch,
. This circuit has not had a recent occasion to address the propriety of barring prisoners from possessing reading materials whose contents do not include gang-related symbols,
see, e.g., Koutnik v. Brown,
. Because we hold that the prison’s rеfusal to dispute the March 2007 edition of the newsletter was a reasonable restriction of Van den Bosch’s rights under
Turner,
we need not address qualified immunity. We also note that defendant Westfield is the only individual who allegedly had any personal involvement in the decision to censor Van den Bosch’s newsletter. An individual must be found to have personally caused or participated in the alleged constitutional deprivation in order to be held liable under § 1983.
See Brooks v. Ross,