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Fourth Circuit Vacates Dismissal of Challenge to Virginia's Gift Publication Ban
On June 27, 2008, the Fourth Circuit Court of Appeals vacated a district court's dismissal of a prisoner's challenge to the ban on gift publications in a Virginia prison.
Robb M. Harksen, a Virginia prisoner, filed a pro se civil rights action under 42 U.S.C. § 1983, challenging a prison rule banning the receipt of gift publications. The district court, citing Zimmerman v. Simmons, 260 F.Supp.2d 1077 (D.Kan. 2003), upheld the ban and dismissed the suit. Harksen appealed.
The Fourth Circuit noted that Zimmerman had been reversed on appeal. See: Jackovich v. Simmons, 392 F.2d 420 (10th Cir. 2004). Both that decision and Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005), called the constitutionality of the ban into question. Therefore, the court vacated the summary dismissal and returned the case to the district court for further proceedings regarding the state's justification for the ban. See: Harksen v. Pease, 282 Fed.Appx. 292 (4th Cir. 2008).
Robb M. Harksen, a Virginia prisoner, filed a pro se civil rights action under 42 U.S.C. § 1983, challenging a prison rule banning the receipt of gift publications. The district court, citing Zimmerman v. Simmons, 260 F.Supp.2d 1077 (D.Kan. 2003), upheld the ban and dismissed the suit. Harksen appealed.
The Fourth Circuit noted that Zimmerman had been reversed on appeal. See: Jackovich v. Simmons, 392 F.2d 420 (10th Cir. 2004). Both that decision and Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005), called the constitutionality of the ban into question. Therefore, the court vacated the summary dismissal and returned the case to the district court for further proceedings regarding the state's justification for the ban. See: Harksen v. Pease, 282 Fed.Appx. 292 (4th Cir. 2008).
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Related legal case
Harksen v. Pease
| Year | 2008 |
|---|---|
| Cite | 282 Fed.Appx. 292 (4th Cir. 2008) |
| Level | Unpublished Court of Appeals |
ROBB M. HARKSEN, Plaintiff - Appellant, v. T. PEASE, Mailroom Officer; D. A. BRAXTON; S. SHORTRIDGE, Operations Officer; R. A. YOUNG, Regional Director; L. HUFFMAN, Regional Director; S. MULLINS, Treatment Program Supervisor; S. BUNCH, Mailroom Officer; J. ARMENTROUT, Assistant Warden Operations; G. DEEL; T. HALE, Corrections Officer; T. WOODS, Defendants - Appellees.
No. 05-6015
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
282 Fed. Appx. 292; 2008 U.S. App. LEXIS 13604
May 21, 2008, Submitted
June 27, 2008, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
OPINION
[*292] PER CURIAM:
Robb M. Harksen appeals the district court's orders dismissing without prejudice his action filed under 42 U.S.C. § 1983 (2000), and denying his Fed. R. Civ. P. 59(e) [*293] motion. Harksen asserted, inter alia, that he was denied free or gift publications in violation of the First Amendment. The district court held that the prison regulation banning receipt of free or gift publications was constitutional. However, the case on which the district court relied to reach that conclusion was reversed on appeal. See Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003) (applying four-part test in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and concluding that regulation banning receipt of gift publications was constitutional), rev'd sub nom. Jacklovich v. Simmons, 392 F.3d 420, 428-32 (10th Cir. 2004) (finding genuine issues of material fact existed regarding behavior management and [**2] security rationales proffered by defendants in support of policy denying access to publications and to remaining Turner factors); see also Prison Legal News v. Lehman, 397 F.3d 692, 698-701 (9th Cir. 2005) (applying Turner and holding that ban on nonsubscription bulk mail and catalogs requested by inmate was unconstitutional). Although we express no view on the merits, we conclude that it is appropriate to vacate the district court's summary dismissal of Harksen's First Amendment claims regarding receipt of free or gift publications. On remand the district court should consider the state's justification for its regulation and resolve any factual issues relevant to the merits of Harksen's claims.
With regard to Harksen's remaining claims, we have reviewed the record and find no reversible error. Accordingly, we affirm those claims for the reasons stated by the district court. Harksen v. Braxton, No. 7:04-cv-00243 (W.D. Va. Nov. 9, 2004; Dec. 10, 2004). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
No. 05-6015
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
282 Fed. Appx. 292; 2008 U.S. App. LEXIS 13604
May 21, 2008, Submitted
June 27, 2008, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
OPINION
[*292] PER CURIAM:
Robb M. Harksen appeals the district court's orders dismissing without prejudice his action filed under 42 U.S.C. § 1983 (2000), and denying his Fed. R. Civ. P. 59(e) [*293] motion. Harksen asserted, inter alia, that he was denied free or gift publications in violation of the First Amendment. The district court held that the prison regulation banning receipt of free or gift publications was constitutional. However, the case on which the district court relied to reach that conclusion was reversed on appeal. See Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003) (applying four-part test in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and concluding that regulation banning receipt of gift publications was constitutional), rev'd sub nom. Jacklovich v. Simmons, 392 F.3d 420, 428-32 (10th Cir. 2004) (finding genuine issues of material fact existed regarding behavior management and [**2] security rationales proffered by defendants in support of policy denying access to publications and to remaining Turner factors); see also Prison Legal News v. Lehman, 397 F.3d 692, 698-701 (9th Cir. 2005) (applying Turner and holding that ban on nonsubscription bulk mail and catalogs requested by inmate was unconstitutional). Although we express no view on the merits, we conclude that it is appropriate to vacate the district court's summary dismissal of Harksen's First Amendment claims regarding receipt of free or gift publications. On remand the district court should consider the state's justification for its regulation and resolve any factual issues relevant to the merits of Harksen's claims.
With regard to Harksen's remaining claims, we have reviewed the record and find no reversible error. Accordingly, we affirm those claims for the reasons stated by the district court. Harksen v. Braxton, No. 7:04-cv-00243 (W.D. Va. Nov. 9, 2004; Dec. 10, 2004). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED