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October 3, 1985


The opinion of the court was delivered by: Bua, District Judge.


Plaintiff Frank Esposito is a federal inmate who, at the time relevant to this action, was confined at the Metropolitan Correctional Center in Chicago, Illinois ("MCC"). While at MCC, Esposito was defending himself against criminal charges then pending in Indiana. A co-defendant in the Indiana prosecution was incarcerated in the Indiana State Prison in Michigan City, Indiana ("ISP"). Esposito brings this civil rights action seeking damages against both federal and Indiana prison officials on allegations they interfered with his correspondence with his co-defendant in violation of his rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments. Before the Court are the motion for summary judgment of ISP Warden Jack R. Duckworth, the motion to dismiss or, in the alternative, for summary judgment of federal defendants Patrick Leddy, Sandra Stuby, Debra Kemp, and Dennis Luther, and Esposito's cross motion for partial summary judgment.

The critical facts in this case are not in dispute. In January and February 1984, Esposito's Indiana co-defendant Richard Kapachinski mailed several letters to Esposito at MCC. According to Esposito, the letters bore notations indicating they contained legal material for a co-defendant. Defendants Stuby and Kemp worked in the MCC mailroom. Although Esposito asserts both defendants handled his mail, only Stuby remembers receiving any letters from Kapachinski. Stuby returned the letters to Kapachinski pursuant to a Bureau of Prisons' Policy Statement conditioning the right of one inmate to correspond with another upon prior approval of the wardens of the two institutions where the inmate letter writer and recipient are confined. Under the regulation:

  An inmate may be permitted to correspond with an
  inmate confined in another penal or correctional
  institution, providing the other inmate is either a
  member of the immediate family, or is a party or a
  witness in a legal action in which both inmates are
  involved. The Warden may approve such correspondence
  in other exceptional circumstances, with particular
  regard to the security level of the institution, the
  nature of the relationship between the two inmates,
  and whether the inmate has other regular
  correspondence. The following additional limitations
    (a) Such correspondence may always be inspected and
  read by staff at the sending and receiving
  institutions (it may not be sealed by the inmate);
    (b) The Wardens of both institutions must approve
  of the correspondence.

28 C.F.R. § 540.16 (1985). After returning the letters, Stuby sent Esposito notice of her action with respect to the Kapachinski correspondence. Stuby also refused to mail a letter Esposito attempted to send to Kapachinski at ISP. According to Esposito, Stuby interfered with his mail on instructions from Leddy, Esposito's case manager at MCC.

On February 2, 1984, Esposito directed a written request to Stuby protesting the handling of the mail and asking Stuby to allow delivery of Kapachinski's letters. Stuby informed Esposito that he had to obtain approval through his case manager in order to correspond with an incarcerated co-defendant. On February 15, Esposito invoked the administrative remedy procedure to obtain permission to correspond with Kapachinski. In response to Esposito's administrative grievance request, Leddy contacted prosecuting authorities in Indiana and verified that Kapachinski was a co-defendant with Esposito. He thereupon authorized correspondence between Esposito and Kapachinski for legal purposes.

The resolution of his problem with federal authorities, however, did not end Esposito's difficulties in communicating with Kapachinski. Although federal officials had approved correspondence between Esposito and Kapachinski, officials at ISP had not. Several letters Esposito had sent Kapachinski were returned with an explanation that Indiana law requires the Indiana Department of Corrections to give prior authorization for correspondence between offenders incarcerated in Indiana correctional facilities and those incarcerated in other correctional facilities. See Ind.Code § 11-11-3-2(b)(1) (1983 Supp.). Kapachinski had not received the necessary permission to correspond with Esposito. Pursuing his right under Indiana law, Kapachinski invoked the administrative grievance procedure to request authorization to correspond with Esposito. Although Duckworth initially denied Kapachinski's request, his decision was overruled by the Director of Adult Institutions for the Indiana Department of Correction who granted permission to correspond on April 25, 1984.

Although the pro se complaint contains ten separate counts asserting in very general terms that defendants conspired to violate a wide array of Esposito's constitutional rights, the facts alleged in the pleadings and arguments advanced in his briefs focus on the contention that defendants violated Esposito's rights under the First, Fifth, and Fourteenth Amendments in the handling of his mail. In support of his claim, Esposito relies primarily on Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Although Martinez considered the constitutionality of California regulations restricting the personal correspondence of prison inmates, its precedential value and usefulness for analyzing the questions presented in this case are, as Esposito himself recognizes, somewhat limited. Martinez rests not on the rights of prisoners, but rather on the First Amendment rights of those free citizens who correspond with inmates. Id. at 409, 94 S.Ct. at 1809. By reviewing the constitutionality of the challenged regulations in terms of the rights of the nonprisoner correspondent, the Court explicitly left undecided the question whether and to what extent an individual's right to free speech survives conviction and incarceration. Id. at 408, 94 S.Ct. at 1809. As both correspondents in this case are prisoners, Martinez is inapplicable. More apposite are subsequent Supreme Court opinions which examined the First Amendment rights of prisoners.

The standard that governs this case was set out in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).

  We start with the familiar proposition that `[l]awful
  incarceration brings about the necessary withdrawal
  or limitation of many privileges and rights, a
  retraction justified by the considerations underlying
  our penal system.' In the First Amendment context a
  corollary of this principle is 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. Thus, challenges to prison
  restrictions that are asserted to inhibit First
  Amendment interests must be analyzed in terms of the
  legitimate policies and goals of the corrections
  system. . . .

Id. at 822, 94 S.Ct. at 2804 (citations omitted). Moreover, as Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) instructs, the courts must accord the professional and expert judgment of prison officials wide-ranging deference when determining whether their decision to restrict First Amendment rights is grounded upon legitimate correctional policies and goals. Such deference to the informed discretion of prison administrators is required in the absence of substantial evidence that they have unreasonably exaggerated their response to proper correctional concerns like security and order. Id. at 128, 97 S.Ct. at 2539.

Viewed in light of the standards set out in Pell and Jones, the restrictions imposed by the regulations at issue in this case do not violate Esposito's rights under the First Amendment. Courts have with near unanimity rejected constitutional challenges to the facial validity of prison regulations that restrict inmate correspondence by imposing a burden on the prisoner to obtain prior approval for any written communication with inmates in another institution. Watts v. Brewer, 588 F.2d 646 (8th Cir. 1978); Schlobohm v. U.S. Attorney General, 479 F. Supp. 401 (M.D.Pa. 1979); Fowler v. Graham, 478 F. Supp. 90 (D.S.C. 1979); Mitchell v. Carlson, 404 F. Supp. 1220 (D.Kan. 1975); Williams v. Ward, 404 F. Supp. 170 (S.D.N.Y. 1975); Lawrence v. Davis, 401 F. Supp. 1203 (W.D.Va. 1975). But see Safley v. Turner, 586 F. Supp. 589, 596 (W.D.Mo. 1984) (restrictions overbroad). Indeed, courts have specifically upheld against First Amendment scrutiny both the federal regulation that Esposito contests, Antonelli v. Stuby, 84 C 1344 (N.D.Ill. Dec. 21, 1984), and a state regulation that parallels the Indiana statute Duckworth relied upon in returning the mail Esposito sent Kapachinski. Peterson v. Davis, 415 F. Supp. 198 (E.D.Va. 1976). Those courts accept the need for prison officials to regulate mail between prisoners, citing legitimate concerns that prisoners could use such correspondence to plan escapes or other criminal activities, to subvert the daily operations of the prisons by coordinating disruptive activities, or to perpetuate gang influence by enlisting cohorts to continue threats against inmates whom prison officials ...

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