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Outgoing Mail May Contain Slander
Aprisoner at the Iowa Men's Reformatory received a major disciplinary infraction for "verbal abuse" as a result of comments included in a letter he had written to his brother. The prisoner, Rick Bressman, wrote: "yeah, their (sic) real assholes, my counselor is a dick head, the officers working here are punks, the ladies in the mail room are bitches, now I hope they read this letter and get their kicks off of it."
The rule Bressman was infracted for states: "A resident commits verbal abuse when [he] subjects another person to abusive or defamatory language, in writing or orally, and includes insolence [or] disrespect to another person." Bressman pleaded guilty to the violation and remained silent at his hearing. He was found guilty of verbal abuse and spent two days in disciplinary solitary as a result. He then unsuccessfully appealed the decision arguing that the discipline violated his first amendment right to free speech. A civil rights suit was subsequently filed in federal court pursuant to 42 U.S.C. § 1983.
The court pointed out that: "It is well-established in the eighth circuit and elsewhere that prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. (Citation omitted.) It cannot be said with a straight face that a reasonable prison official would not have known that Bressman's rights were being violated." The judge said it is a violation of the first amendment to discipline a prisoner for comments that are not directed at particular members of the prison staff.
Prison officials argued that Bressman knew staff members would read his outgoing letter, which means that his comments were directed at those people. "To say that Bressman knew his letter could be read," the court said, "is not the same thing as saying that Bressman directed disrespectful comments to or subjected someone to disrespectful comments. A prisoner cannot be disciplined for comments made in outgoing mail just because the inmate is aware that the mail can be read."
The defendant prison officials were made to pay Bressman $80.00 a day for each day he was in segregation, along with attorney fees. The state sought to avoid liability by claiming qualified immunity. The court denied the claim,saying the law in this area is well established and the defendants should have known about it. See: Bressman v. Farrier , 825 F.Supp. 231 (ND Iowa 1993).
The rule Bressman was infracted for states: "A resident commits verbal abuse when [he] subjects another person to abusive or defamatory language, in writing or orally, and includes insolence [or] disrespect to another person." Bressman pleaded guilty to the violation and remained silent at his hearing. He was found guilty of verbal abuse and spent two days in disciplinary solitary as a result. He then unsuccessfully appealed the decision arguing that the discipline violated his first amendment right to free speech. A civil rights suit was subsequently filed in federal court pursuant to 42 U.S.C. § 1983.
The court pointed out that: "It is well-established in the eighth circuit and elsewhere that prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. (Citation omitted.) It cannot be said with a straight face that a reasonable prison official would not have known that Bressman's rights were being violated." The judge said it is a violation of the first amendment to discipline a prisoner for comments that are not directed at particular members of the prison staff.
Prison officials argued that Bressman knew staff members would read his outgoing letter, which means that his comments were directed at those people. "To say that Bressman knew his letter could be read," the court said, "is not the same thing as saying that Bressman directed disrespectful comments to or subjected someone to disrespectful comments. A prisoner cannot be disciplined for comments made in outgoing mail just because the inmate is aware that the mail can be read."
The defendant prison officials were made to pay Bressman $80.00 a day for each day he was in segregation, along with attorney fees. The state sought to avoid liability by claiming qualified immunity. The court denied the claim,saying the law in this area is well established and the defendants should have known about it. See: Bressman v. Farrier , 825 F.Supp. 231 (ND Iowa 1993).
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Related legal case
Bressman v. Farrier
| Year | 1993 |
|---|---|
| Cite | 825 F.Supp 231 (ND Iowa 1993) |
| Level | District Court |
| Conclusion | Bench Verdict |
| Damages | 160 |
| Injunction Status | N/A |
RICK DEAN BRESSMAN, Plaintiff, v. HAL FARRIER, et al., Defendants.
NO. C87-0123
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA, CEDAR RAPIDS DIVISION
825 F. Supp. 231; 1993 U.S. Dist. LEXIS 8672
February 10, 1993, Decided
PRIOR HISTORY: [**1] Adopting Magistrate's Document of May 12, 1992, Reported at: 1992 U.S. Dist. LEXIS 21519.
COUNSEL: For Plaintiff: Philip Mears, 209 East Washington, Iowa City, IA 52240.
For Defendants: William Hill, Assistant Attorney General, Second Floor, Hoover State Office Building, Des Moines, IA 50319.
JUDGES: O'Brien
OPINIONBY: DONALD E. O'BRIEN
OPINION:
[*232] ORDER
This matter comes before the Court on the defendants objections to the Report and Recommendation of Chief United States Magistrate Judge John A. Jarvey. The Court held a telephonic hearing on the objections on Monday, January 25, 1993. For the reasons stated herein, the objections are overruled.
I. FACTS
The facts of this case are outlined in full in the Report and Recommendation (R&R) of Chief United States Magistrate Judge John A. Jarvey and are adopted in full by this Court. R&R at 1-3. In summary, plaintiff was an inmate at the Iowa Men's Reformatory (IMR) in June of 1985. On June 22, 1985, plaintiff received a "major" disciplinary report for a violation of Rule 26 (verbal abuse) of the disciplinary rules governing inmates at IMR for comments included in a letter plaintiff wrote to his brother. Specifically, Bressman wrote, "yeah, their (sic) real assholes, my counselor is a dick head, the officers working here are punks, the ladies in the mail [**2] room are bitches, now I hope they all read this letter and get their kicks off of it." Rule 26 reads:
Verbal Abuse: A resident commits verbal abuse when the resident subjects another person to abusive or defamatory language, remarks, or gestures, in writing or orally, and includes insolence disrespect [sic] to another person.
Plaintiff pleaded guilty to the disciplinary violation and remained silent at his hearing. Plaintiff was found guilty of violating IMR Rule 26 (verbal abuse), and spent two days in disciplinary solitary confinement as a result. Plaintiff appealed the decision arguing that the discipline violated his First Amendment right of free speech, but was unsuccessful. This federal court action followed.
The matter was referred to Judge Jarvey for a Report and Recommendation, which was filed and is at issue herein. Judge Jarvey found that the disciplinary action violated plaintiff's First Amendment right of free speech. Judge Jarvey also found that the preponderance of the evidence standard probably was required as the standard of proof in a prison disciplinary hearing but left the question open for another day. Judge Jarvey recommended that judgment in the [**3] amount of $ 80.00 ($ 40 per day for two days of solitary confinement) be entered in favor of the plaintiff and against defendants Grossheim, Sissel, Gunther, Manternach, and Brimeyer. Judge Jarvey also recommended judgment be entered against plaintiff and in favor of defendants Farrier, Auger, and Butcher.
II. DISCUSSION.
This Court must conduct a de novo review of the objections to Judge Jarvey's R&R. 28 U.S.C. ç 636(b)(1)(B). The defendants object to Judge Jarvey's R&R on three grounds. First, defendants object to Judge Jarvey's finding that they violated plaintiff's First Amendment right to free speech. Second, defendants object to Judge Jarvey's discussion of the standard of proof. Third, and finally, defendants object on the ground that Judge Jarvey failed to consider and make findings on the issue of qualified immunity. The first objection is the most serious and the Court will address it last. The second [*233] objection is meritless because Judge Jarvey's R&R specifically withholds ruling on the standard of proof question. R&R at 12.
The third objection is correct, for what it's worth; Judge Jarvey did not discuss qualified immunity. [**4] It appears to this Court that the issue was not really presented to him. Defendants raised the issue in their answer n1 but did not pursue it further. Defendants did not move for summary judgment on the issue nor brief the issue of qualified immunity in their post-trial brief. Further, it does not appear from the transcript that any evidence concerning qualified immunity was presented to Judge Jarvey. Judge Jarvey is not psychic. If defendants really wanted a ruling on the issue of qualified immunity, it was their obligation to make the issue known to Judge Jarvey.
n1 The answer was a stock or form answer just like the stock answer filed in every other prisoner case. The Court is not denigrating the use of forms, but only makes this observation because it helps explain why qualified immunity was not a major issue in Judge Jarvey's R&R.
Even if the Court considers qualified immunity, notwithstanding defendants failure to present the issue, the argument is flawed. The law regarding outgoing prisoner mail was established [**5] in 1974 in Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974), and has not changed much in the nineteen (19) years since. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 413, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989) (Procunier v. Martinez still the correct standard in cases involving outgoing inmate mail). The United States Court of Appeals for the Eighth Circuit has been applying Procunier v. Martinez since 1974, see Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 210-11 (8th Cir. 1974), and the first cases involving an Iowa correctional facility were decided in 1978. See Watts v. Brewer, 588 F.2d 646, 649 (8th Cir. 1978); Wycoff v. Brewer, 572 F.2d 1260, 1263 (8th Cir. 1978). It is well-established in the Eighth Circuit and elsewhere that prison officials "may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements." Travis v. Norris, 805 F.2d 806, 808 (8th Cir. 1986) (quoting Procunier v. Martinez); see also Brooks v. Andolina, 826 F.2d 1266, 1267-69 (3d Cir. 1987). [**6] It cannot be said with a straight face that a reasonable prison official would not have known that Bressman's rights were being violated. See Loggins v. Delo, No. 90-2874, slip op. at 4 (8th Cir., Dec. 6, 1991); n2 McNamara v. Moody, 606 F.2d 621, 625-26 (5th Cir. 1979).
n2 The Court recognizes that Loggins v. Delo is an unpublished opinion technically not appropriate for citation as precedent. Nevertheless, the opinion reveals how future panels of the Eighth Circuit likely will resolve the very question posed by plaintiff.
That brings the Court to the bottom-line question: Does disciplining a prisoner for abusive comments about prison staff in a letter to a family member violate the prisoner's First Amendment right to free speech? Judge Jarvey found that a violation of the prisoner's First Amendment right occurs when the prisoner is disciplined for comments that are not directed at particular members of the prison staff. Defendants object to this finding on two grounds. First, [**7] defendants object to Judge Jarvey's factual finding that plaintiff's comments were not directed at a staff member. Second, defendants contend that intent or direction is not necessary to save such discipline from constitutional invalidity.
With regard to the factual question, defendants' bottom-line position is that there is no doubt that Bressman had knowledge that the individuals about whom he made the comments could read his letter which means that he directed his comments toward those people. The Court has examined that transcript and is persuaded that Judge Jarvey correctly found that Bressman did not direct his comments toward any particular staff member. Bressman merely put the letter to his brother in the ordinary mail channels without doing anything more to cause the subjects of his disrespectful commentary to read the commentary. To say that Bressman knew his letter could be read is not the same as saying that Bressman directed disrespectful comments to or subjected someone to disrespectful comments. A prisoner cannot be disciplined for comments made in [*234] outgoing mail just because the inmate is aware that the mail can be read. McNamara v. Moody, 606 F.2d 621 (5th Cir. 1979). [**8]
Defendants also contend that there is no legal requirement that disrespectful or abusive comments be made directly to an individual for those comments to be a valid subject of discipline. Reysack v. State, 440 N.W.2d 392, 393-94 (Iowa 1989). Reysack does not stand for the defendants' proposition that it does not matter whether or not an inmate's comments are directed toward the object of the abuse. Reysack turned on the fact that the comments were oral, directed to someone else within the prison, and were disrespectful to whomever the comments were directed. Reysack, 440 N.W.2d at 394 (emphasis added). The security concerns implicated in Reysack are obvious, and properly the subject of the verbal abuse rule. Reysack does not apply to Bressman's situation. Here, Bressman's comments were in writing, directed to his brother outside the prison, and were not disrespectful to his brother. The risk of a security breach or a breakdown of discipline is virtually nonexistent.
The Court has considered the defendants' objections with care but finds that Judge Jarvey reached the right result for the right reasons. [**9] Accordingly, IT IS ORDERED that defendants' objections to the Report and Recommendation of Chief United States Magistrate Judge John A. Jarvey are overruled. The Report and Recommendation is adopted.
Dated this 10th day of February, 1993.
Donald E. O'Brien, Judge
UNITED STATES DISTRICT COURT
NO. C87-0123
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA, CEDAR RAPIDS DIVISION
825 F. Supp. 231; 1993 U.S. Dist. LEXIS 8672
February 10, 1993, Decided
PRIOR HISTORY: [**1] Adopting Magistrate's Document of May 12, 1992, Reported at: 1992 U.S. Dist. LEXIS 21519.
COUNSEL: For Plaintiff: Philip Mears, 209 East Washington, Iowa City, IA 52240.
For Defendants: William Hill, Assistant Attorney General, Second Floor, Hoover State Office Building, Des Moines, IA 50319.
JUDGES: O'Brien
OPINIONBY: DONALD E. O'BRIEN
OPINION:
[*232] ORDER
This matter comes before the Court on the defendants objections to the Report and Recommendation of Chief United States Magistrate Judge John A. Jarvey. The Court held a telephonic hearing on the objections on Monday, January 25, 1993. For the reasons stated herein, the objections are overruled.
I. FACTS
The facts of this case are outlined in full in the Report and Recommendation (R&R) of Chief United States Magistrate Judge John A. Jarvey and are adopted in full by this Court. R&R at 1-3. In summary, plaintiff was an inmate at the Iowa Men's Reformatory (IMR) in June of 1985. On June 22, 1985, plaintiff received a "major" disciplinary report for a violation of Rule 26 (verbal abuse) of the disciplinary rules governing inmates at IMR for comments included in a letter plaintiff wrote to his brother. Specifically, Bressman wrote, "yeah, their (sic) real assholes, my counselor is a dick head, the officers working here are punks, the ladies in the mail [**2] room are bitches, now I hope they all read this letter and get their kicks off of it." Rule 26 reads:
Verbal Abuse: A resident commits verbal abuse when the resident subjects another person to abusive or defamatory language, remarks, or gestures, in writing or orally, and includes insolence disrespect [sic] to another person.
Plaintiff pleaded guilty to the disciplinary violation and remained silent at his hearing. Plaintiff was found guilty of violating IMR Rule 26 (verbal abuse), and spent two days in disciplinary solitary confinement as a result. Plaintiff appealed the decision arguing that the discipline violated his First Amendment right of free speech, but was unsuccessful. This federal court action followed.
The matter was referred to Judge Jarvey for a Report and Recommendation, which was filed and is at issue herein. Judge Jarvey found that the disciplinary action violated plaintiff's First Amendment right of free speech. Judge Jarvey also found that the preponderance of the evidence standard probably was required as the standard of proof in a prison disciplinary hearing but left the question open for another day. Judge Jarvey recommended that judgment in the [**3] amount of $ 80.00 ($ 40 per day for two days of solitary confinement) be entered in favor of the plaintiff and against defendants Grossheim, Sissel, Gunther, Manternach, and Brimeyer. Judge Jarvey also recommended judgment be entered against plaintiff and in favor of defendants Farrier, Auger, and Butcher.
II. DISCUSSION.
This Court must conduct a de novo review of the objections to Judge Jarvey's R&R. 28 U.S.C. ç 636(b)(1)(B). The defendants object to Judge Jarvey's R&R on three grounds. First, defendants object to Judge Jarvey's finding that they violated plaintiff's First Amendment right to free speech. Second, defendants object to Judge Jarvey's discussion of the standard of proof. Third, and finally, defendants object on the ground that Judge Jarvey failed to consider and make findings on the issue of qualified immunity. The first objection is the most serious and the Court will address it last. The second [*233] objection is meritless because Judge Jarvey's R&R specifically withholds ruling on the standard of proof question. R&R at 12.
The third objection is correct, for what it's worth; Judge Jarvey did not discuss qualified immunity. [**4] It appears to this Court that the issue was not really presented to him. Defendants raised the issue in their answer n1 but did not pursue it further. Defendants did not move for summary judgment on the issue nor brief the issue of qualified immunity in their post-trial brief. Further, it does not appear from the transcript that any evidence concerning qualified immunity was presented to Judge Jarvey. Judge Jarvey is not psychic. If defendants really wanted a ruling on the issue of qualified immunity, it was their obligation to make the issue known to Judge Jarvey.
n1 The answer was a stock or form answer just like the stock answer filed in every other prisoner case. The Court is not denigrating the use of forms, but only makes this observation because it helps explain why qualified immunity was not a major issue in Judge Jarvey's R&R.
Even if the Court considers qualified immunity, notwithstanding defendants failure to present the issue, the argument is flawed. The law regarding outgoing prisoner mail was established [**5] in 1974 in Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974), and has not changed much in the nineteen (19) years since. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 413, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989) (Procunier v. Martinez still the correct standard in cases involving outgoing inmate mail). The United States Court of Appeals for the Eighth Circuit has been applying Procunier v. Martinez since 1974, see Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 210-11 (8th Cir. 1974), and the first cases involving an Iowa correctional facility were decided in 1978. See Watts v. Brewer, 588 F.2d 646, 649 (8th Cir. 1978); Wycoff v. Brewer, 572 F.2d 1260, 1263 (8th Cir. 1978). It is well-established in the Eighth Circuit and elsewhere that prison officials "may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements." Travis v. Norris, 805 F.2d 806, 808 (8th Cir. 1986) (quoting Procunier v. Martinez); see also Brooks v. Andolina, 826 F.2d 1266, 1267-69 (3d Cir. 1987). [**6] It cannot be said with a straight face that a reasonable prison official would not have known that Bressman's rights were being violated. See Loggins v. Delo, No. 90-2874, slip op. at 4 (8th Cir., Dec. 6, 1991); n2 McNamara v. Moody, 606 F.2d 621, 625-26 (5th Cir. 1979).
n2 The Court recognizes that Loggins v. Delo is an unpublished opinion technically not appropriate for citation as precedent. Nevertheless, the opinion reveals how future panels of the Eighth Circuit likely will resolve the very question posed by plaintiff.
That brings the Court to the bottom-line question: Does disciplining a prisoner for abusive comments about prison staff in a letter to a family member violate the prisoner's First Amendment right to free speech? Judge Jarvey found that a violation of the prisoner's First Amendment right occurs when the prisoner is disciplined for comments that are not directed at particular members of the prison staff. Defendants object to this finding on two grounds. First, [**7] defendants object to Judge Jarvey's factual finding that plaintiff's comments were not directed at a staff member. Second, defendants contend that intent or direction is not necessary to save such discipline from constitutional invalidity.
With regard to the factual question, defendants' bottom-line position is that there is no doubt that Bressman had knowledge that the individuals about whom he made the comments could read his letter which means that he directed his comments toward those people. The Court has examined that transcript and is persuaded that Judge Jarvey correctly found that Bressman did not direct his comments toward any particular staff member. Bressman merely put the letter to his brother in the ordinary mail channels without doing anything more to cause the subjects of his disrespectful commentary to read the commentary. To say that Bressman knew his letter could be read is not the same as saying that Bressman directed disrespectful comments to or subjected someone to disrespectful comments. A prisoner cannot be disciplined for comments made in [*234] outgoing mail just because the inmate is aware that the mail can be read. McNamara v. Moody, 606 F.2d 621 (5th Cir. 1979). [**8]
Defendants also contend that there is no legal requirement that disrespectful or abusive comments be made directly to an individual for those comments to be a valid subject of discipline. Reysack v. State, 440 N.W.2d 392, 393-94 (Iowa 1989). Reysack does not stand for the defendants' proposition that it does not matter whether or not an inmate's comments are directed toward the object of the abuse. Reysack turned on the fact that the comments were oral, directed to someone else within the prison, and were disrespectful to whomever the comments were directed. Reysack, 440 N.W.2d at 394 (emphasis added). The security concerns implicated in Reysack are obvious, and properly the subject of the verbal abuse rule. Reysack does not apply to Bressman's situation. Here, Bressman's comments were in writing, directed to his brother outside the prison, and were not disrespectful to his brother. The risk of a security breach or a breakdown of discipline is virtually nonexistent.
The Court has considered the defendants' objections with care but finds that Judge Jarvey reached the right result for the right reasons. [**9] Accordingly, IT IS ORDERED that defendants' objections to the Report and Recommendation of Chief United States Magistrate Judge John A. Jarvey are overruled. The Report and Recommendation is adopted.
Dated this 10th day of February, 1993.
Donald E. O'Brien, Judge
UNITED STATES DISTRICT COURT