Case 4:01-cv-40456-JEG-CFB Document 16 Filed 11/12/2003 Page 1 of 4

FILED 11/12/2003 2:08:17 PM, USDC, Southern District of Iowa

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

ARCHIE BEAR, ET AL., Plaintiffs,
vs. JOHN MATHES, ET AL.,
Defendants.

No. 4:01-cv-40456
ORDER REFERRING CASE TO MAGISTRATE JUDGE

The above-captioned case was consolidated with Overton v. Galloway, No. 4:01cv-40225. Because Overton v. Galloway is now closed, the Court severs Bear v. Mathes, No. 4:01-cv-40456, from Overton v. Galloway. Bear v. Mathes, No. 4:01-cv40456, will continue as a case on its own under the above caption.
Pursuant to 28 U.S.C. § 636(b)(1)(B),this case, Bear v. Mathes, No. 4:01-cv40456, is now referred to United States Magistrate Judge Celeste F. Bremer for further proceedings, including further review of the record and the pleadings, an evidentiary hearing, if necessary, hearing any oral arguments, and a submission of a report and recommendation regarding disposition of the case to the undersigned United States District Judge.
The parties are reminded that they may consent to Magistrate Judge Bremer trying the case and ordering entry of final judgment. Any appeal from the final judgment would

Case 4:01-cv-40456-JEG-CFB Document 16 Filed 11/12/2003 Page 2 of 4
then be directly to the United States Court of Appeals for the Eighth Circuit. If the parties desire to consent, the attorneys or parties (if pro se) should sign the form enclosed with this order and return it to the Clerk of this Court. The parties are, of course, free to withhold consent without any adverse substantive consequences.
IT IS SO ORDERED. Dated this 12th day of November, 2003.
2

Case 4:01-cv-40456-JEG-CFB Document 16 Filed 11/12/2003 Page 3 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

ARCHIE BEAR, ET AL., Plaintiffs,
vs. JOHN MATHES, ET AL.,
Defendants.

No. 4:01-cv-40456
CONSENT TO PROCEED BEFORE A UNITED STATES
MAGISTRATE JUDGE

In accordance with the provisions of 28 U.S.C. Section 636(c), the parties to the above-captioned civil proceeding hereby waive their right to proceed before a judge of the United States District Court and consent to have a United States Magistrate Judge conduct any and all further proceedings in the case, including but not limited to the trial of the case, and order the entry of judgment in the case.
The parties are aware and agree that in accordance with 28 U.S.C. §636(c)(3), any aggrieved party shall appeal from the judgment directly to the United States Court of Appeals for this circuit in the same manner as an appeal from any other judgment of the District Court.

__________________________________ _________________________________

Attorney for Plaintiff(s) or

Attorney for Defendant(s) or

Plaintiff (if pro se)

Defendant (if pro se)

Case 4:01-cv-40456-JEG-CFB Document 16 Filed 11/12/2003 Page 4 of 4
ORDER OF REFERENCE IT IS HEREBY ORDERED that the above-captioned matter be referred to United States Magistrate Judge Celeste F. Bremer for the conduct of all further proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c) and the foregoing consent of the parties. DATED this ______ day of __________________, 2003.
________________________________ JAMES E. GRITZNER, JUDGE UNITED STATES DISTRICT COURT

 
 Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

ARCHIE BEAR, et al.,

*

200~ APR 13 I.M 9' I 3
CLERK U,S. L[' >:, :JUf\T
SOUH:i:iilJ UiSlicr Dr lU*.I.

Plaintiffs,

*

No. 4:01-CV-40456

vs.

*

WALTER KAUTZKY, et a1.,

*

DEFENDANTS' APPENDIX

Defendants.

*

TABLE OF CONTENTS

1. Complaint.

1

2. Initial Review Order

6

3. Motion Requesting a Temporary

Restraining Order And/Or

Preliminary Injunction

10

4. Affidavit of Fred Scaletta

12

THOMAS J. MILLER Attorney General of Iowa

Copy mailed to:
Mr. Bruce Nestor 529 South 7th Street #636 Minneapolis, MN 55415 ATTORNEY FOR PLAINTIFF

Assistant Attorney General Special Litigation/Corrections Hoover State Office Building Des Moines, IA 50319 (515) 281-6162 FAX: (515) 281-4902
ATTORNEYS FOR DEFENDANTS

Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004 Page 2 of 9
PROOF OF SERVICE
The underslgned he~eby certifies that a true copy of the foregoing was
personally delivered
)<' mailed
sent via ~elefax
2

Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004 Page 3 of 9
J

FORM TO BE USED BY A PRISONER IN FILING A COMPl.AINT

UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. 51983

IN

THE UNITED SOUTHERN

;;;:=- STATES DISTRICT CO~'(C/tJ1'.Crr-i-'
DISTRICT OF IOWA
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(Enter above the FULL name and inmate number of the pLaintiff or plaintiffs in this action)
vs.
Jo--Ik c, KiW[LKi

COMPLAINT

(Enter above the FULL name of each defendant in this action)

(NOTE: If there ',is mare than ONE plaintiff, a separate sheet should be attached g~ving the information in ~arts I and II below for EACH plaint, by name.)

I. Previous Lawsuits:

A. Have you begun other lawsuits in state or federal court

dealing with the same facts involved in this action or

otherwise relating to your imprisonment? Yes (

) No (v

B. If your answer to A is ¥es, please answer the questions 1 thru 7 on next page. (If there is more than one lawsuil describe the additional lawsuits on another sheet of pape; using the same outline.)

Pleading#.~I..,.._" 1

Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004 Page 4 of 9

1. Parties to this previous lawsuit
J/A , P l a i n t i f f s 7
J / k D e ! e n d a n t s I

2. Court (if federal court, name the district; if state 9ourt, name the county)
N/A
3. Docket NUmber___}~Jy/~Jtw-_______________________________
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4. Name of judge to~/;r case was assigned____________

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5. Disposition, if known (for example, Was the case dismissed? was.~/;i?pealed? Is i t still pe' na.~' ng.?)

i
6. Approximate date of filing lawsuit 7. Approximate date of disposition

JiA:-
I tJLA

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II. l?lace of Present Confinement )i)uUOy Sk-tz- l:>-U\.i ~;'Q£t

A. Is the:ye a. prisoner grievance procedure in, t:ris institutj Yes [..; 1 No [ 1

B. Did you present the facts relating to your c9ffiplaint in t
state prisoner grievance procedure? Yes [v1 No [ 1

c. If your answer is YES I

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_1<'s. 1. What steps did yo;, take?

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E. If there is no, prison grievance proce lure in the instituti, did you complain to prison authorities? Yes [ 1 No [

-2-

JJ/A-

2

Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

Page 5 of 9"1ECEIVED
Ni'7 - ,3 ;1~01
l'm:~OE:n OFJiJSTICE F IL'E!flREcTfOI\J~ nE:: HOlliE:', 1018/>;' '-
01 JIJL 27 Pt1 [1: 1,0

ARCHIE BEAR,

*

WILLIAM STRINGER, and

*

MICHAEL McBRIDE,

*

*

PlaintiffS,

*

*

vs,

*

INITIAL REVIEW ORDERS

*

WALTER KAUTZKY, and

*

JOHN MATHES,

*

*

Defendants.

*

The court has before it for initial review a pro se

complaint submitted by inmates of the Iowa State Penitentiary.

The complaint is signed only by plaintiff Bear. The court

directs inmates Stringer and McBride to submit a signed copy of

the signature page of the complaint if they wish to be plaintiffs

in the lawsuit. The court conditionally treats all three inmates

as plaintiffs in the lawsuit. If inmate Stringer or inmate

McBride do not intend to be plaintiffs in this lawsuit they must

promptly inform the court of their intention.

The complaint is brought under 42 U.S.C. § 1983 and

jurisdiction is predicated on 28 U.S.C. § 1343. Plaintiffs seek

injunctive and declaratory relief and damages. Plaintiffs also

seek a temporary restraining order. Plaintiffs have paid the

$150.00 filing fee.

"To state a claim under § 1983, a plaintiff must allege

the violation of a right secured by the Constitution and laws of

~g#-*-

COPIES TO COUNSEL, ..

~.',' ': r,; ~t.! :.: l

rhe:,

b
r

!

6

Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004 Page 6 of 9
the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). A pro se complaint in a proceeding in forma pauperis must be construed liberally. See Haines y. Kerner, 404 U.S. 519, 520 (1972) (per curiam). However, it can be dismissed on initial review if the claim is malicious or frivolous, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e). A claim is "frivolous" if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiffs assert that on June 22, 2001, Warden Mathes notified plaintiffs that all jailhouse lawyering would be eliminated on July 27, 2001. The wardens were instructed to tell inmates to use Peter Hanson, the contract attorney, for legal advice. Plaintiff allege defendants' actions violate plaintiffs' First Amendment and Sixth Amendment rights. Plaintiffs' complaint does not appear to be frivolous.
Plaintiffs ask the court to issue a temporary restraining order preventing defendants from instituting the new policy and preventing defendants from disciplining plaintiffs for receiving jailhouse lawyer assistance on their pending challenges to criminal convictions.
2
7

Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004 Page 7 of 9

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Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004 Page 8 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

ARCHIE BEAR, et al., Plaintiffs,
vs. WALTER KAUTZKY, et al. ,
Defendants.

*

*

No. 4:01-CV-40456

*

*

AFFIDAVIT OF

FRED SCALETTA

*

State of Iowa:

ss.

County of Polk:

I, Fred Scaletta, being duly sworn on oath, state as

follows:

1. I am employed as the Executive Officer III for the

Iowa Department of Corrections.

2. As an Executive Officer III, I have access to the

records of all inmates within the Iowa Department of Corrections.

3. The records of the Iowa Department of Corrections

establish that inmate Archie Bear (#0045540) currently

incarcerated at the Anamosa State Penitentiary (~ASPH) in

Anamosa, Iowa, and has been so since November 1, 2001.

4. Bear had been at the Iowa State Penitentiary (~ISPH)

in Fort Madison, Iowa from March 14, 2000 until November 1, 2001.

FRED SCALETTA

Case 4:01-cv-40456-JEG-CFB Document 24 Filed 04/13/2004 Page 9 of 9
Subscribed and sworn to before me on this/~Jh day of
April, 2004.

Copy mailed to:
Mr. Bruce Nestor 529 South 7th Street #636 Minneapolis, MN 55415 ATTORNEY FOR PLAINTIFF

K!\THLEEN A. PITTS
COMMISSION NO. 169300 MY COMMISSION EXPIRES
d-O()S

2
1 ''.),

 
 Case 4:01-cv-40456-JEG-CFB Document 43 Filed 03/21/2005 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

ARCHIE BEAR, WILLIAM STRINGER, :

and MICHAEL McBRIDE,

:

:

Plaintiffs,

:

:

vs.

:

:

WALTER KAUTZKY, and

:

JOHN MATHES,

:

:

Defendants.

:

:

CIVIL NO. 4:01-CV-40456
REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF ARCHIE BEAR

Defendants, Walter Kautzky and John Mathes, have filed a Motion for Summary Judgment, (Clerk’s No. 21), seeking dismissal of Plaintiff Archie Bear’s claim under 42 U.S.C. § 1983. Plaintiffs, including Bear, seek injunctive and declaratory relief from a prison policy change that curtails the exchange of legal assistance and correspondence among inmates at Iowa State Penitentiary (ISP), Fort Madison, Iowa. In their Motion, Defendants assert that Bear’s claim is moot because he has been transferred from ISP to Anamosa (Iowa) State Penitentiary (ASP), where he presently resides. Bear does not resist the Motion as it relates to his claims for injunctive and declaratory relief. He asks, however, that he be able to recover costs of this matter, either in part of in full, in the event that the remaining Plaintiffs prevail on their claims.
This case was referred to the undersigned on November 12, 2003, for a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B). This matter is fully submitted. After carefully considering the summary judgment record, the Court finds and recommends as follows on the issues presented.
STANDARD FOR SUMMARY JUDGMENT A court shall grant a motion for summary judgment only if the record shows that no genuine issues of material fact exists, and the moving party is entitled to judgment as a matter of law.

1

Case 4:01-cv-40456-JEG-CFB Document 43 Filed 03/21/2005 Page 2 of 5
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court in ruling on a motion for summary judgment must draw all justifiable inferences in the nonmoving party’s favor. Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
The moving party bears the initial burden of proving that the case lacks a genuine issue of material fact. Celotex, 477 U.S. at 323. The nonmoving party must then show sufficient evidence to establish every essential element of the party’s case, and on which the party will bear the burden of proof at trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-23.
MATERIAL FACTS NOT IN DISPUTE The following facts are either undisputed or viewed in the light most favorable to Bear, the nonmoving party. Before July 1, 2001, ISP allowed inmates to provide legal services to each other. To facilitate legal correspondence between inmates in the same housing unit, prison officials maintained the red star system for screening and delivering legal mail. On July 1, 2001, ISP changed its policy and stopped allowing inmates to provide each other with legal services, requiring them instead to seek legal assistance from the private attorney under contract with the prison. Under the new policy, officials eliminated the red star system. On July 27, 2001, Plaintiffs filed their Complaint, in which they claim that ISP’s new policy prevents them from pursuing challenges to their criminal convictions in violation of their First and Sixth Amendment rights. Plaintiffs seek injunctive and declaratory relief, and costs. On November 1, 2001, Bear was transferred to ASP, where he is currently incarcerated. Bear admits in his response that his claim presents issues related to termination of ISP’s red star system, a system that is not present at ASP.
DISCUSSION I. Claim Seeking Injunctive and Declaratory Relief
Defendants contend that Bear’s claim and request for injunctive and declaratory relief are moot because he has been transferred to ASP. In Bear’s Response, his attorney confirms that Bear is not seeking monetary damages or any form of relief other than injunctive and declaratory relief. Bear does
2

Case 4:01-cv-40456-JEG-CFB Document 43 Filed 03/21/2005 Page 3 of 5
not oppose the Motion for Summary Judgment in relation to his claims for injunctive and declaratory relief.
An inmate’s transfer away from a prison renders moot his claims seeking injunctive and declaratory relief from allegedly unconstitutional conditions at the prison. See Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999) (holding inmate’s claims for injunctive and declaratory relief for alleged violation of his First Amendment right to practice his faith became moot when he was transferred from ISP to ASP; he was no longer subject to ISP officials’ alleged unlawful policies or conduct); Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (holding that the release of certain prisoners left moot their request for injunctive relief, which was the only remedy they pursued on claims alleging deliberate indifference to a serious medical need and to rights under the Americans with Disabilities Act (ADA)); Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991) (holding that pretrial detainee’s release from jail rendered moot his request for injunctive relief, which included claims of mail tampering and denial of meaningful access to the courts); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (holding that an inmate’s claims for declaratory and injunctive relief to improve prison conditions were moot, when he was transferred to another prison and was no longer subjected to the alleged conditions); see also Randolph v. Rodgers, 253 F.3d 342, 345-46 (8th Cir. 2001) (holding deaf inmate’s ADA and Rehabilitation Act claims for injunctive relief were moot with respect to four of the five prison officials named as defendants, when inmate transferred to another prison; the actions required by an injunction - providing the inmate a sign-language interpreter during certain prison proceedings - would be impossible for the four defendants remaining at the original prison to execute). Based on current case law, Bear concedes his claims for injunctive and declaratory relief are moot as a result of his transfer from ISP to ASP, and he does not resist Defendants’ request for summary judgment on these claims.
Viewing the record in the light most favorable to Bear, the Court finds that no genuine issues of material fact are in dispute, and Defendants are entitled to judgment as a matter of law on Bear’s claims for injunctive and declaratory relief. The Court respectfully recommends that Defendants’ Motion for Summary Judgment be granted in relation to his claims for injunctive and declaratory relief.
3

Case 4:01-cv-40456-JEG-CFB Document 43 Filed 03/21/2005 Page 4 of 5
II. Request for Recovery of Costs Even though Bear does not resist summary judgment on his claims for injunctive and
declaratory relief, he requests that he be able to recover his costs in this matter should the remaining plaintiffs prevail on the merits of their claims.
Costs are governed by the general cost statute, 28 U.S.C. § 1920. In order to recover under the statute, Bear must prove himself to be a prevailing party because “a prevailing party is ordinarily entitled to recover costs.” Lampkins v. Thompson, 337 F.3d 1009, 1017 (8th Cir. 2003); see Fed.R.Civ.P. 54(d); 28 U.S.C. § 1920. A litigant is a prevailing party if he obtains some actual relief on the merits that “‘materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’” Murray v. City of Onawa, Iowa, 323 F.3d 616, 619 (8th Cir. 2003) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).
Since Bear has conceded that his claims are moot, thus entitling him to no form of relief, he cannot be a prevailing party within the meaning of § 1920. Even if the remaining plaintiffs should succeed, any injunctive and declaratory relief pertaining to ISP’s red star system will not directly benefit Bear because he no longer is an inmate at ISP. Therefore, Bear’s request for costs cannot be maintained.
Viewing the record in the light most favorable to Bear, the Court finds that no genuine issues of material fact are in dispute, and Defendants are entitled to judgment as a matter of law on Bear’s claims costs. The Court respectfully recommends that Defendants’ Motion for Summary Judgment be granted in relation to Bear’s request for costs.
RECOMMENDATION AND ORDER IT IS RESPECTFULLY RECOMMENDED, under 28 U.S.C. § 636(b)(1)(B), that Defendants’ Motion for Summary Judgment (Clerk’s No. 21) against Bear be granted for the reasons discussed above, and judgment entered in favor of Defendants on all Bear’s claims. IT IS ORDERED that the parties have until April 12, 2005, to file written objections to this Report and Recommendation, under 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990) (per curiam); Halpin v.
4

Case 4:01-cv-40456-JEG-CFB Document 43 Filed 03/21/2005 Page 5 of 5 Shalala, 999 F.2d 342, 345 & n.1, 346 (8th Cir. 1993). The Court will freely grant such extensions. Martin v. Ellandson, 122 F. Supp. 2d 1017, 1025 (S.D. Iowa 2000). Any objections filed must identify the specific portions of the Report and Recommendation and relevant portions of the record to which the objections are made and set forth the basis for such objections. See Fed.R.Civ.P. 72; Thompson, 897 F.2d at 357; Martin, 122 F. Supp. 2d at 1025. Failure to timely file objections may constitute a waiver of a party’s right to appeal questions of fact. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Newton, 259 F.3d 964, 966 (8th Cir. 2001) (citing Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994)).
IT IS SO ORDERED. Dated this 21st day of March, 2005.
5

 
 Case 4:01-cv-40456-JEG-CFB Document 53 Filed 06/17/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

ARCHIE BEAR, WILLIAM STRINGER, and MICHAEL McBRIDE,
Plaintiffs, vs. WILLIAM KAUTZKY and JOHN MATHES,
Defendants.

No. 4:01-cv-40456-JEG
ORDER ADOPTING REPORT AND RECOMMENDATION
DENYING MOTION FOR PARTIAL
SUMMARY JUDGMENT

This is an action brought by inmates pro se under 42 U.S.C. § 1983. The case
was referred to the Honorable Celeste F. Bremer, United States Magistrate Judge for the Southern District of Iowa, pursuant to 28 U.S.C. § 636(b)(1)(B), for further
proceedings and submission of recommendations for disposition. On March 31,
2005, Judge Bremer filed a Report and Recommendation proposing that Defendants’
motion for summary judgment be denied. The parties were given until April 29,
2004, to file written objections to the Report and Recommendation. Defendants
filed objections. When a magistrate judge submits a report and recommendation,
[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.
28 U.S.C. § 636(b)(1). After making the required review, the Court concludes Plaintiffs have created a genuine issue of material fact on the question whether they met

Case 4:01-cv-40456-JEG-CFB Document 53 Filed 06/17/2005 Page 2 of 2
the prison requirements for filing and appealing a grievance; therefore, the Court adopts the Report and Recommendation in whole.
Defendants’ motion for partial summary judgment is denied (Clerk’s No. 42). IT IS SO ORDERED. Dated this 17th day of June, 2005.
2

 
 Case 4:01-cv-40456-JEG-CFB Document 45 Filed 03/31/2005 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

ARCHIE BEAR, WILLIAM STRINGER, :

and MICHAEL McBRIDE,

:

:

Plaintiffs,

:

:

vs.

:

:

WALTER KAUTZKY, and

:

JOHN MATHES,

:

:

Defendants.

:

:

CIVIL NO. 4:01-CV-40456-JEG-CFB
REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

The Court has before it Defendants Walter Kautzky’s and John Mathes’ Motion for Partial Summary Judgment, (Clerk’s No. 42), filed August 18, 2004, seeking dismissal of Plaintiffs William Stringer’s and Michael McBride’s claims under 42 U.S.C. § 1983.1 In their Complaint, Stringer and McBride seek injunctive and declaratory relief from a prison policy that ends the exchange of legal assistance and correspondence among inmates at Iowa State Penitentiary (ISP), Fort Madison, Iowa, where Plaintiffs are incarcerated. Plaintiffs claim that ISP’s policy violates their rights under the First and Sixth Amendments by preventing them from pursuing challenges to their criminal convictions. Defendants are the Director of the Iowa Department of Corrections (IDOC) and the Warden of ISP.
Defendants assert they are entitled to summary judgment, because Stringer and McBride allegedly did not exhaust their administrative remedies before seeking judicial relief, as required

1 The Motion was originally filed on August 18, 2004, as a supplement, (Clerk’s No. 34), to the Motion for Partial Summary Judgment filed April 13, 2004, (Clerk’s No. 21), which challenged the claims of Plaintiff Archie Bear. The Clerk’s Office redocketed Clerk’s No. 34 as a motion for partial summary judgment on March 21, 2005 (Clerk’s No. 42).
1

Case 4:01-cv-40456-JEG-CFB Document 45 Filed 03/31/2005 Page 2 of 13
under 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 (PLRA). Plaintiffs filed a Response to the Motion on October 6, 2004.
This case was referred to the undersigned on March 21, 2005, for a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B). This matter is fully submitted. After carefully considering the summary judgment record, the Court finds and recommends as follows on the issues presented.
MATERIAL FACTS NOT IN DISPUTE The following facts are either undisputed or viewed in the light most favorable to Stringer and McBride, the nonmoving parties. I. Background Before July 1, 2001, IDOC allowed inmates to provide legal services to each other. To facilitate legal correspondence between inmates, ISP officials developed a system, called the Red Star system, for screening and delivering legal mail that inmates sent to other inmates in the same housing unit. On July 1, 2001, Defendant John Mathes, ISP’s warden, announced that IDOC, directed by Defendant Walter Kautzky, had adopted a new policy prohibiting inmates from providing legal services to each other, allowing them instead to obtain legal assistance from a private attorney under contract with the prison. After IDOC adopted the new policy, Mathes eliminated the Red Star system at ISP. To complain about IDOC’s new policy and ISP’s elimination of the Red Star system, at least one of the plaintiffs “Filed a grievance with John Mathes by inmate memo.” (Compl. at 2.) Plaintiffs assert, and Defendants do not deny, that the memorandum to Mathes was titled “grievance.” (Pls.’ Statement Disputed Material Facts at 1.2) Plaintiffs stated in their Complaint that in response to their grievance memorandum, Mathes advised them that they “must go through contract attorney even though the contract attorney does not provide help on actually
2 Due to a scrivener’s error, the Statement of Disputed Material Facts filed by Plaintiffs was captioned “Defendants’ Statement of Disputed Material Facts.” (Clerk’s No. 40.) To avoid confusion, the Court will refer to the Statement as Plaintiffs’ Statement of Disputed Material Facts.
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litigating criminal cases.” (Compl. at 2.) The record contains no copy of either the memorandum to Mathes or his response.
ISP’s written grievance policy states inmates may grieve “policies and conditions, within the institution or Department of Corrections that affect them personally, as well as actions by employees and offenders.” (Defs.’ Supp. App. at 13.) Under the policy, a grievance is “A formal, written complaint, utilizing the established procedures, filed by an offender.” (Id. at 12.) The policy defines standard grievances as, “Complaints which are not an emergency.” (Id. at 13.)
Inmates may file emergency grievances when there appears “to be a substantial risk of physical injury or other serious and irreparable harm if regular time limits are followed.” (Id.) When an inmate alleges an emergency, the grievance officer reviews the grievance and determines whether an emergency in fact exists. If the officer determines that an emergency exists, “the grievance will be investigated immediately and corrective action” initiated. (Id. at 14.) If in his judgment an emergency does not exist, the grievance officer will explain the denial in writing.
Nongrievable complaints are, “Policies which have formal appeal mechanisms. (Parole Board, disciplinary process, classification decisions, work release decisions, publications review, visiting decisions, etc.)” (Id. at 13.)
ISP’s grievance officer, Dave DeGrange, stated in his affidavit that the grievance process’ first step requires the inmate to try to resolve the dispute informally with the appropriate staff member. If the inmate’s complaint remains unresolved, he next files a grievance, which a prison official records in a log and assigns a number. DeGrange investigates the issue raised in the grievance, and he responds to the grievant. The inmate may appeal DeGrange’s decision to the warden first, and then to IDOC. “The maximum period between receipt of a grievance and the final appeal response will not exceed 90 days unless extensions have been given.” (Id. at 15.)
The written policy states that inmates must use the designated “Offender Grievance Complaint” form to submit a grievance and the “Grievant Appeal” form for appeals, and provides that, “Incomplete forms will be returned to be completed properly and resubmitted.” (Id. at 14.) The grievance complaint form provides a line for the inmate to indicate whether the
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grievance is standard or emergency. DeGrange stated in his affidavit that, “using the designated forms is not always
required,” although following the grievance process is required to complete the administrative remedy. (DeGrange Aff. at 2.) The record does not indicate under what circumstances the designated forms are not required, or what forms, other than those designated, an inmate may use to submit a grievance. DeGrange stated that inmates often complain to ISP staff about issues either verbally or through inmate memoranda, or kites, but he believed such complaints do “not mean that [the inmates] have initiated or even completed the grievance process.” (Id.)
McBride and Stringer have been at ISP since at least 1999, DeGrange stated. According to ISP’s records, neither McBride nor Stringer has filed any grievance at the prison. II. Procedural History
Plaintiffs filed their Complaint in this Court on July 27, 2001, challenging the prison policy banning prisoners’ communications with jailhouse lawyers and use of the Red Star system. The day Plaintiffs filed their Complaint, they also filed a Motion for Temporary Restraining Order and/or Preliminary Injunction.
In its Initial Review Order filed July 27, 2001, the Court directed Stringer and McBride to submit a signed copy of the Complaint’s signature page within 30 days if they wanted to be plaintiffs in the lawsuit. The Court also denied the motion for a temporary restraining order and ordered service of process to be issued by mail to Defendants and the Attorney General of the State of Iowa. The Court directed Defendants to respond to the motion for preliminary injunctive relief no later than August 13, 2001, and to report to the Court whether the case should be consolidated with Overton v. Galloway, No. 4-01-CV-80225, another § 1983 case in which ISP inmates were challenging the new prison policy. Finally, the Court ordered Defendants to reply to the Complaint within 60 days. (Clerk’s No. 4.)
The Clerk’s Office issued service of process by mail on July 30, 2001, to Defendants Mathes and Kautzky and to the Attorney General of the State of Iowa. On August 27, 2001, the Attorney General entered his appearance for Mathes and Kautzky and filed a Request for Extension of Time to Respond to Complaint and Motion for Injunctive Relief, stating, “The response to the request for injunctive relief and to the complaint will be filled contemporaneously.” (Clerk’s No. 9.) On the same day, Defendants filed their Resistance to
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Plaintiffs’ Motion for Injunctive Relief, Resistance to Consolidate With Overton et al. v. Galloway et al., No. 4:01-CV-80225, and supporting memoranda. Defendants did not raise the exhaustion issue in their Resistances. They did not file a response to the Complaint that day.
In its Order filed September 14, 2001, the Court scheduled a hearing on the motion for preliminary injunctive relief and on the consolidation issue. The docket, but not the Order, stated the hearing was also on the motion to extend time to respond to the Complaint. The docket entry for the minutes of the hearing held September 19 indicate the Court considered the motion to extend time, but the minutes themselves do not mention the motion. (See Clerk’s No. 15.)
On September 26, 2001, the Court ordered consolidation of Overton v. Galloway, No. 401-CV-80225, and the present case; granted a preliminary injunction in favor of Plaintiffs Stringer, McBride, Archie Bear and Romeo Hardin, enjoining enforcement of the new policy pendente lite and preserving the four plaintiffs’ access to the Red Star system; granted appointment of counsel for Stringer, McBride and Bear; and scheduled a final pretrial conference for December 14 and a trial for December 28, 2001. In its Order, the Court did not address Defendants’ pending motion to extend time to respond to the Complaint.
On October 2, 2001, Plaintiff Thomas Overton filed a Motion for Summary Judgment. On October 5, Defendants filed a Motion to Dismiss based on Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. This motion did not raise the issue of any Plaintiffs’ failure to satisfy the PLRA’s exhaustion requirement. On October 19, Defendants filed a Notice of Appeal from the Court’s September 26 Order granting a preliminary injunction. On October 30, the Court denied Overton’s Motion for Summary Judgment and Defendants’ Motion to Dismiss. The Court did not directly address Defendants’ pending motion to extend time to respond to the Complaint, but once the Motion to Dismiss was ruled upon, the Defendants were authorized to file an Answer pursuant to Federal Rule of Civil Procedure 12(a)(4). Plaintiffs did not file a motion for default judgment within 10 days.
The Court held a status conference on November 2, 2001, to discuss whether the case would be ready for the trial set in December. In its Order on November 5, the Court continued without date the trial and final pretrial conference pending issuance of the Eighth Circuit Court of Appeal’s opinion on the appeal. On November 15, Defendants filed their Answer, asserting
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the affirmative defense of failure to comply with the PLRA’s exhaustion requirement. On October 4, 2002, the Eighth Circuit Court of Appeals affirmed the district’s court
grant of preliminary injunction. On April 18, 2003, the Court rescinded its order consolidating this case with Overton v.
Galloway, No. 4-01-CV-80225.
STANDARD FOR SUMMARY JUDGMENT A court shall grant a motion for summary judgment only if the record shows that no genuine issues of material fact exists, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court in ruling on a motion for summary judgment must draw all justifiable inferences in the nonmoving party’s favor. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). The moving party bears the initial burden of proving that the case lacks a genuine issue of material fact. Celotex, 477 U.S. at 323. The nonmoving party must then show sufficient evidence to establish every essential element of the party’s case, and on which the party will bear the burden of proof at trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-23.
DISCUSSION Defendants assert that Plaintiffs failed to satisfy the PLRA’s exhaustion requirement. Plaintiffs deny this assertion. Plaintiffs further state that because Defendants did not raise the defense in a timely manner, Defendants have waived the affirmative defense of non-exhaustion or are equitably estopped from raising the defense. The PLRA’s exhaustion provision states, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). In prisoner cases covered by § 1997e(a), exhaustion is mandatory. Id. A lack of exhaustion, however, does not deprive federal courts of subject matter jurisdiction. Nerness v. Johnson, No. 04-2679, 2005 WL 627150, *1 (8th Cir. Mar. 18, 2005). The defendant has the burden to plead and prove the PLRA’s exhaustion requirement, which is an affirmative defense.
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Id. I. Waiver of Section 1997e(a)’s Exhaustion Requirement
Plaintiffs first argue that because Defendants did not assert the affirmative defense of exhaustion until after they lost the appeal of the district’s court grant of preliminary injunction, they waived the defense.
Reliance on the PLRA’s exhaustion requirement as an affirmative defense can be waived. Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001) (citing Randolph v. Rogers, 253 F.3d 342, 347 n.11 (8th Cir. 2001)); accord Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004) (following Foulk, 262 F.3d at 697); Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000); Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 536 (7th Cir. 1999); see Lyon v. Vande Krol, 305 F.3d 806, 808 (8th Cir. 2002) (holding ISP officials did not waive their right to raise non-exhaustion issue, because ISP officials raised the non-exhaustion issue at the first opportunity when, although district court ordered service of process on ISP officials prior to first appeal, the court entered a stay, pending appeal, of all proceedings in the district court before the ISP defendants were required to respond to the complaint).
On July 30, 2001, three days after Plaintiffs filed their Complaint and Motion for Temporary Restraining Order and/or Preliminary Injunction, service of process was issued on Defendants and the Attorney General of the State of Iowa. On August 27, Defendants requested an extension of time to respond to the Complaint and the request for a temporary restraining order. Although the Court did not directly rule on this request, it did address the Motion to Dismiss. This in effect extended Defendants’ time to answer pursuant to Federal Rule of Civil Procedure 12(a)(4). After the Court ruled on the Motion to Dismiss, Defendants filed their Answer on November 15, 2001, specifically raising the affirmative defense of Plaintiffs’ alleged failure to satisfy the PLRA’s exhaustion requirement, and Plaintiffs did not object until October 6, 2004, when they filed their Response to the Motion for Summary Judgment.
No material facts are in dispute. Under the circumstances of this case, the Court finds that Defendants did not waive the affirmative defense of failure to exhaust the PLRA’s exhaustion requirement. The Court respectfully recommends that Defendants’ Motion for Summary Judgment be considered. It should not be denied on the ground of waiver, as Plaintiffs argue.
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II. Equitable Bar by Lapse of Time Plaintiffs next submit that Defendants are equitably estopped from asserting the
affirmative defense of the PLRA’s exhaustion requirement, because Defendants did not assert the defense until after appealing the district court’s grant of the preliminary injunction, and in the intervening time, Plaintiffs and their counsel expended significant time and resources in this case, particularly in relation to the appeal, and Plaintiffs continued to “develop and deepen their relationship with their jailhouse lawyers.” (Pls.’ Brf. Res. Defs.’ Supp. Mot. Summ. J. at 1.)
Some courts have held that the PLRA’s exhaustion requirement is subject to the defense of equitable estoppel. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (following Wright v. Hollingsworth, 260 F.3d 357, 358 n.2 (5th Cir. 2001)). The doctrine of equitable estoppel “comes into play when a defendant takes active steps to prevent a plaintiff from suing on time.” Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995) (internal quotation and citations omitted); see Teamsters & Employers Welfare Trust of Illinois v. Gorman Bros. Ready Mix, 283 F.3d 877, 881 (7th Cir. 2002) (stating doctrine of equitable estoppel allows plaintiff to extend statute of limitations if defendant did something that made plaintiff reasonably believe he had more time to sue); Marvin Lumber v. PPG Indus., Inc., Nos. 02-2833, 02-2869, 2005 WL 659125, *11 (8th Cir. Mar. 23, 2005).
Plaintiffs’ estoppel argument, in contrast, asserts an equitable bar based on the lapse of time before Defendants’ assertion of the PLRA’s exhaustion requirement. The Court construes Plaintiffs’ challenge to Defendants’ exhaustion defense as more akin to the equitable doctrine of laches than to equitable estoppel.3 See City of Sherrill, New York v. Oneida Indian Nation of New York, No. 03-855, 2005 WL 701058, *12 (U.S. Mar. 29, 2005) (“It is well established that laches, a doctrine focused on one side’s inaction and the other’s legitimate reliance, may bar long-dormant claims for equitable relief”; stating the “‘doctrine of an equitable bar by lapse of time . . . should now be regarded as settled law in this court’”) (quoting Bowman v. Wathen, 1
3 Laches is a form of equitable estoppel. Teamsters & Employers Welfare Trust of Illinois, 283 F.3d at 882 (citing Central Improvement Co. v. Cambria Steel Co., 210 Fed. 696, 713 (8th Cir. 1913) (per curiam) (“Laches is equitable estoppel under another name”; stating court would consider together two claims of equitable estoppel and laches)).
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How. 234, 258 (1849)). Laches is not merely a matter of the passage of time, but is “principally a question of the inequity of permitting the claim [for equitable relief] to be enforced – an inequity founded upon some change in the condition or relations of the property or the parties.” Id. 3
Plaintiffs’ assertion of an equitable bar based on lapse of time fails for two reasons. First, some courts do not recognize a plaintiff’s defensive use of the laches doctrine against a general defense asserted by the defendant. See Northern Pacific R.R. v. United States, 277 F.2d 615, 624 (10th Cir. 1960) (stating, “laches is available only as a bar to affirmative relief. It cannot be invoked by Plaintiff to bar rights asserted by defendant merely by way of defense) (cited in 30A C.J.S. Equity § 128 (2004)); cf. Teamsters & Employers Welfare Trust of Illinois, 283 F.3d at 882 (stating only difference, although not material, between laches and equitable estoppel is which party asserts it: Laches is asserted defensively by defendant to bar a suit; and equitable estoppel is used offensively by plaintiff to obtain extra benefits).
Second, Plaintiffs’ claim of inequity, whether styled as laches or equitable estoppel – that Defendants’ delay in asserting the defense of the PLRA’s exhaustion requirement until after appealing the district court’s grant of the preliminary injunction caused Plaintiffs and their counsel to spend significant time and resources, particularly in relation to the appeal, and caused Plaintiffs to “develop and deepen their relationship with their jailhouse lawyers,” (Pls.’ Brf. Res. Defs.’ Supp. Mot. Summ. J. at 1) – relies on mere speculation. The same events about which Plaintiffs complain could reasonably have occurred even if Defendants had asserted the affirmative defense before appealing the district court’s decision. Furthermore, Plaintiffs have waited approximately three years to object to the affirmative defense raised by Defendants in their Answer filed November 15, 2001. The Court finds that the circumstances of this case do not rise to the level of evoking the doctrine of laches to render inequitable Defendants’ assertion of the affirmative defense of the PLRA’s exhaustion requirement.
The Court respectfully recommends that Defendants’ Motion for Summary Judgment be considered. It should not be denied on the ground of laches or estoppel. III. Defendants’ Motion for Summary Judgment Based on Failure to Exhaust
3
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Defendants argue that Plaintiffs failed to exhaust their available administrative remedies as required under the PLRA, because they did not comply with ISP’s grievance procedure. Plaintiffs counter that administrative remedies were not available for them to exhaust, and even if such remedies were available, Plaintiffs complied with the prison’s grievance procedure.
A. Available Administrative Remedies Plaintiffs dispute that the PLRA’s exhaustion requirement should bar their claims, arguing that ISP’s grievance system was not an available remedy within the meaning of the PLRA. Defendants maintain that the prison’s grievance system was an available remedy. An inmate satisfies section 1997e(a)’s exhaustion requirement by exhausting available remedies within the correctional facility. See Williams v. Norris, 176 F.3d 1089, 1089 (8th Cir. 1999) (per curiam). Section 1997e(a) does not require exhaustion of all remedies, but rather “exhaustion of ‘such administrative remedies as are available.’” Foulk, 262 F.3d at 698 (holding that remedies were not "available" to prisoner, when prison officials failed to respond to his grievance during time period required by regulations). Plaintiffs offer three theories for their contention that ISP’s grievance system was not an available remedy. First, Plaintiffs argue that because “no reasonable inmate would labor under the false assumption that the filing of a grievance against such a significant policy change would result in the policy being overturned and the Red Star Envelope system reinstated,” the grievance system was not an available remedy. (Pls.’ Brf. Res. Defs.’ Supp. Mot. Summ. J. at 1.) This argument fails, because for purposes of the PLRA’s exhaustion requirement, it does not matter whether an inmate subjectively believes that there is no point in pursuing administrative remedies. See Lyon, 305 F.3d at 809 (stating that § 1997e(a) “does not permit the court to consider an inmate’s merely subjective beliefs, logical or otherwise, in determining whether administrative procedures are ‘available’”) (citing Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000)). Second, Plaintiffs maintain the prison’s administrative remedies were unavailable for their claims, in that Plaintiffs required immediate injunctive relief from the Court to enable them to pursue their pending claims related to their convictions and prison conditions, and pursuing administrative relief would have been time consuming and fruitless. The Court finds this argument unpersuasive. ISP’s grievance system provided a
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procedure for inmates to file emergency grievances, and Plaintiffs have provided no evidence the procedure was inadequate. Furthermore, the Court may not consider Plaintiffs’ subjective belief that the grievance system would have been time-consuming and fruitless. See id.
Third, Plaintiffs assert that in Mathes’ response to their memorandum complaining about IDOC’s new policy prohibiting inmate-to-inmate legal services and ISP’s elimination of the Red Star system, the warden “did not direct the Plaintiffs to file a grievance, but rather he affirmatively directed them to proceed through the ISP contact attorney,” thus leading Plaintiffs reasonably to believe their complaint was nongrievable and the grievance system was therefore unavailable to them. (Compl. at 2.)
Although the PLRA does not define when an administrative remedy is available, the term’s plain meaning: “capable of use for the accomplishment of a purpose: immediately utilizable . . . accessible.” Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001). A remedy that prison officials prevent an inmate from using does not qualify as an available administrative remedy under §1997e(a). Id. (finding allegations that prison officials failed to respond to his written requests for grievance forms were sufficient to raise an inference that the prisoner had exhausted his "available" administrative remedies); see Booth v. Churner, 532 U.S. 731, 736, 736 n.4, 738 (2001) n.4 (“Without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust”; stating parties did not dispute that state grievance system at issue had authority to take some responsive action with respect to type of allegations that inmate raised; “modifier ‘available’ requires the possibility of some relief for the action complained of”).
In support of their contention, Plaintiffs point to their Complaint, in which they allege Mathes “advised that we must go through contract attorney even though the contract attorney does not provide help on actually litigating criminal cases.” (Compl. at 2.) The Court finds that Mathes’ alleged comment is insufficient to raise a reasonable inference that Mathes was telling Plaintiffs’ that their complaints were nongrievable, thus preventing them from using the administrative remedy. See Lyon, 305 F.3d at 809 (“Mr. Lyon was never told that there was not a procedure, moreover, so there is no basis for the application of an estoppel principle here, even if one might otherwise be available.”).
Viewing all reasonable inferences in the light most favorable to Plaintiffs, the Court finds
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they have not generated a genuine issue of material fact concerning whether the grievance system was not an available remedy within the meaning of the PLRA. The Court therefore turns to the issue of whether Defendants have shown no genuine issue of material fact exists and they are entitled to judgment as a matter of law, in that Plaintiffs failed to meet the PLRA’s exhaustion requirement.
B. Exhaustion of ISP’s Administrative Remedies In their pro se Complaint, Plaintiffs alleged they “Filed a grievance with John Mathes by inmate memo.” (Compl. at 2.) Defendants challenge this allegation on the grounds that “sending an inmate memo to a staff member does not constitute exhaustion of the grievance process.” (Mem. Supp. Defs.’ Supp. Mot. Summ. J. at 9.) Plaintiffs counter that a genuine issue of material fact exists concerning whether their memorandum to Mathes constituted a grievance under ISP’s grievance policy, in that the memo was titled as a grievance.4 Defendants also contend that Plaintiffs failed to appeal the denial of their grievance, as required under ISP’s grievance policy. The undisputed facts show the prison’s written grievance policy requires inmates to use designated form to submit a grievance. The policy also provides that inmates appeal the denial of a grievance by filling out and submitting the designated grievance appeal form to the warden. Here, Plaintiffs submitted their memorandum directly to Mathes, and he responded. DeGrange, however, stated in his affidavit that in practice inmates do not always have to use the designated forms to exhaust. No evidence indicates when the designated forms are not required. Similarly, no evidence shows how, other than using the designated forms, an inmate may submit a grievance or appeal. Mathes did not return the memorandum to Plaintiffs for them to resubmit their grievance in proper form. When prison officials do not establish the administrative rules applicable to the inmate at the time and place, and under the circumstances of his incarceration, the district court may lack a sufficient factual basis on which to find that the inmate failed to exhaust his administrative
4 The record does not contain the memorandum to Mathes and his response. Defendants do not dispute Plaintiffs’ allegations concerning the existence of the memorandum, its title, or Mathes’ response.
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remedies. Foulk, 262 F.3d at 698. Viewing all reasonable inferences in the light most favorable to Plaintiffs, the Court finds
they have generated a genuine issue of material fact concerning whether, at the time and place, and under the circumstances of their incarceration, they met ISP’s requirements for filing and appealing a grievance.
Material facts remain in dispute, and Defendants have not established their affirmative defense of failure to exhaust as a matter of law. Accordingly, the Court respectfully recommends that Defendants’ Motion for Summary Judgment be denied.
RECOMMENDATION AND ORDER IT IS RESPECTFULLY RECOMMENDED, under 28 U.S.C. § 636(b)(1)(B), that Defendants’ Motion for Summary Judgment (Clerk’s No. 42) against Plaintiffs Stringer and McBride be denied for the reasons discussed above. IT IS ORDERED that the parties have until April 22, 2005, to file written objections to this Report and Recommendation, under 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990) (per curiam); Halpin v. Shalala, 999 F.2d 342, 345 & n.1, 346 (8th Cir. 1993). The Court will freely grant such extensions. Martin v. Ellandson, 122 F. Supp. 2d 1017, 1025 (S.D. Iowa 2000). Any objections filed must identify the specific portions of the Report and Recommendation and relevant portions of the record to which the objections are made and set forth the basis for such objections. See Fed.R.Civ.P. 72; Thompson, 897 F.2d at 357; Martin, 122 F. Supp. 2d at 1025. Failure to timely file objections may constitute a waiver of a party’s right to appeal questions of fact. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Newton, 259 F.3d 964, 966 (8th Cir. 2001) (citing Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994)). IT IS SO ORDERED. Dated this 31st day of March, 2005.
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 Case 4:01-cv-40225-JEG Document 106 Filed 10/08/2003 Page 1 of 26

FILED 10/8/2003 10:55:40 AM, USDC, Southern District of Iowa

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

THOMAS OVERTON and ROMEO HARDIN,
Plaintiffs,
vs.
LOUIS GALLOWAY and DON LYNCH,
Defendants.

No. 4:01-cv-40225
ORDER DENYING PLAINTIFFS’ MOTIONS TO AMEND AND FOR TEMPORARY
RESTRAINING ORDER AND GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT

Plaintiffs Thomas Overton and Romeo Hardin bring this action pro se under 42 U.S.C. § 1983, arguing Defendants Louis Galloway and Don Lynch violated their First Amendment right to freedom of expression and their Fifth Amendment, Sixth Amendment, and Fourteenth Amendment rights to be free from retaliation for the exercise of First Amendment rights. Plaintiffs seek damages, injunctive relief, costs, and fees.
Defendants moved for summary judgment on February 24, 2003. The motion related only to Galloway’s and Lynch’s review of Overton’s and Hardin’s mail. It did not concern a claim challenging the prison’s shutdown of the red star mail system. Plaintiffs Overton and Hardin filed an amended complaint in April 2003, which included no allegation regarding the red star mail system. After a hearing on the matter, Defendants filed a supplemental motion for summary judgment on July 3, 2003. The Court

Case 4:01-cv-40225-JEG Document 106 Filed 10/08/2003 Page 2 of 26
then allowed counsel representing Plaintiff Overton to withdraw on August 19, 2003. Plaintiff Overton thereafter filed a motion to amend the complaint and a motion for temporary restraining order, which Defendants resist. Overton filed another motion to amend the complaint on October 2, 2003, and the time for Defendants to resist the motion has not yet expired. For the following reasons, the Court denies Plaintiffs’ motions and grants Defendants’ motions.
MOTIONS TO AMEND AND FOR TEMPORARY RESTRAINING ORDER Overton seeks to add John Mathes, Warden of the Iowa State Penitentiary (ISP), as a defendant. Overton alleges that in May 2003, he filed a grievance with Mathes about false disciplinary charges. Mathes answered the grievance and then referred to the Attorney General’s office for prosecution a December 2002 disciplinary matter in which Overton bit a correctional officer. In July 2003, the Attorney General’s office filed criminal charges against Overton for the assault. Those charges remain unresolved. Overton alleges Mathes sought prosecution in retaliation for Overton’s complaints about prison officials. He seeks an order transferring him to another institution. Overton also seeks to add Todd Eaves, Joe Lampe, Charles Harper, Scott Poole, and Brad Allen as defendants for their alleged roles in attacking Overton in December 2002 and then covering up the attack by falsely disciplining Overton.
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Mathes, Eaves, Lampe, Harper, Poole, and Allen were not named as defendants in the amended and substituted complaint, and Overton does not allege he exhausted any of his state remedies concerning his claim against these persons, as required by 42 U.S.C. § 1997e(a). The Court denies Overton’s request to add them as defendants. See Fed. R. Civ. P. 15(a); cf. Younger v. Harris, 401 U.S. 37 (1971) (discussing abstention when there are ongoing state judicial proceedings).
SUMMARY JUDGMENT STANDARD Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). To preclude the entry of summary judgment, the nonmovant must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Continental Grain Co. v. Frank Seitzinger Storage, Inc., 837 F.2d 836, 838 (8th Cir. 1988). The nonmoving party must go beyond the pleading and by affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The quantum of proof that the nonmoving party must produce is not
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precisely measurable, but it must be “enough evidence so that a reasonable jury could return a verdict for the nonmovant.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). On a motion for summary judgment, the court views all the facts in the light most favorable to the nonmoving party and gives that party the benefit of all reasonable inferences that can be drawn from the facts. United States v. City of Columbia, Mo., 914 F.2d 151, 153 (8th Cir. 1990); Woodsmith Publ’g Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir. 1990).
SUMMARY OF MATERIAL FACTS Except where noted, the following facts are undisputed or taken in the light most favorable to Plaintiffs. Plaintiff Romeo Hardin and Plaintiff Thomas Overton are inmates at ISP. Defendants Louis Galloway and Don Lynch are investigators at ISP. In May 2001, Hardin and Overton filed the instant lawsuit. I. Romeo C. Hardin. A. Mail Confiscated in 1997. On July 23, 1997, a search warrant issued for a letter from Hardin to anther inmate. (Defs.’ Supp. App. at 30-32; Galloway Supp. Aff. & Ex. I.) Hardin avers he filed a grievance about the seized letters. Officials told him the letters were being held for investigation of a criminal matter, and they could be held for up to three years. Hardin avers that in 2000, when no criminal charges were filed, he asked for the letters,
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but prison officials have not returned the letters, and Galloway has not responded to Hardin’s requests for the letters. (Hardin Aff. ¶ 3.) Hardin has not included in this summary judgment record his grievances, responses to them, or any written request to Galloway about them. In Iowa, Hardin may seek return of the intentional or negligent deprivation of property through the Iowa Tort Claims Act, Iowa Code Chapter 669. Hardin also may seek return of property seized pursuant to a warrant through Iowa Code section 809.3.
B. March 27, 2001, Letter. Galloway seized a letter Hardin mailed to his mother, Laura Hardin, on March 27, 2001. The letter included a five-page document entitled, “Articles of Incorporation of Guns Away from Schools, Inc.” The document was similar to one inmate Overton sent to Laura Hardin that Galloway also seized on March 27, 2001. Galloway surmised that Overton gave Hardin the five-page document to mail to Laura Hardin, in hopes that either Overton’s or Hardin’s letter would reach Laura Hardin. (Defs.’ App. at 17-21, Ex. A.) Hardin was disciplined with sixteen days loss of good time and ten days of disciplinary detention in hearing number 01-03-155 for violating prison rules against complicity to enter into contracts, agreements, or to operate a business. (Defs.’ App. at 21, Ex. A.) Hearing number 01-03-155 has not been reversed or invalidated. (Defs.’ App. at 14, Stockbridge Aff. ¶ 4.)
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C. Religous Mail. Without giving a particular date, Hardin alleged in his amended and substituted complaint that Galloway seized Hardin’s outgoing mail that contained references of a religious nature. Defendants admit Hardin was disciplined for unauthorized group or gang conduct on several occasions. In response to Defendants’ first motion for summary judgment, Hardin filed an affidavit stating that on May 10, 2002, Galloway seized a letter Hardin wrote to Kentrell Baker because Hardin signed it, “Chief Lord”. Galloway wrote Hardin a report for the letter, stating “Chief Lord” referred to gang activity with the Vice Lords. Hardin avers the letter did not discuss matters related to gangs, and he is not a member of the Vice Lords. Hardin avers “Chief Lord” is a religious reference based on his religion, “God’s Bodies of Earth”, which is part of the “Five Percent Nations of God”. Hardin avers it is a pen name, and he has extensive copyrighted material for it. The discipline against Hardin was upheld based on Galloway’s word. Hardin does not state what discipline he received or whether the discipline was later overturned. (Hardin Aff. ¶¶ 4-5.) Defendants have not responded to the statements in Hardin’s affidavit. On March 28, 2003, Galloway seized mail Hardin intended to send to Laura Hardin. The envelope included two letters from Hardin and a letter from “Ruth” to inmate Hardin. One of Hardin’s letters began “Dear Minister”. Galloway recognized that
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although the greeting appeared religious, the title “Minister” can denote a position of leadership in a gang. Galloway feared Hardin, who Galloway knew to be a member of the Vice Lords gang, was asking the “Minister” to verify the rank of another inmate in the institution. The Vice Lords gang is a group that ISP officials view as a security threat to the institution. Hardin, however, avers he is not a member of the Vice Lords. Galloway also was concerned about references to “Alamin” in the letter. Although the reference to Alamin was mixed with discussion of Islam, Galloway believed “Alamin” referred to the Vice Lords at ISP in general or to a smaller group at ISP known as the “Almighty and Unknown Vice Lords”. It is against prison rules to send more than one letter at a time and to send mail to third parties at another address. In hearing number 03-04-146, an administrative law judge found Hardin misused the mail and engaged in unauthorized group or gang conduct, in violation of prison rules. Hardin was disciplined with ninety days loss of good time and ninety days of disciplinary detention. Hearing number 03-04-146 has not been reversed or invalidated. (Defs.’ Supp. App. at 9, 11-18, Ex. F, Stockbridge Supp. Aff.)
On May 23, 2003, Galloway seized mail from Hardin to someone in Birmingham, Alabama. Based on his training and experience, Galloway believed the letter mixed references to Islamic and Muslim sects with references to the Vice Lords gang, such as “Black and Gold”, “Lords”, “Lord”, and “Chief Lord”. Despite Hardin’s protest that the
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references were merely religious in nature, an administrative law judge found Hardin engaged in unauthorized group or gang conduct, in violation of prison rules. In hearing number 03-06-30, Hardin was disciplined with ninety days loss of good time and ninety days disciplinary detention. Hearing number 03-06-30 has not been reversed or invalidated. (Defs.’ Supp. App. at 10, 19-22, Ex. G, Stockbridge Supp. Aff.)
D. Mail from National Black United Front. In the fall of 2002, Hardin wrote to the National Black United Front. He received a letter from the National Black United Front that included a copy of the “Declaration of Genocide by U.S. Government Against the Black Population of the United States”. Hardin states the “Declaration” was removed from the letter. (Pls.’ App. at 10, 16, Ex. 3.) Hardin wrote his Unit Manager, asking why the “Declaration” had been removed. Hardin still has not received the document. (Hardin Aff. ¶ 6.) The summary judgment record does not include a copy of the notice of rejection of the “Declaration”, or any document suggesting Galloway or Lynch seized the “Declaration”. Galloway admits that literature from the National Black United Front was in Hardin’s mail that was the subject of discipline in hearing number 03-06-30, in the year 2003. (Defs.’ Supp. App. at 30, 34-38, Galloway Supp. Aff. ¶ 5, Ex. J.) Galloway states that if information from the National Black United Front was seized in the fall of 2002, Hardin would have received notice of it, and mail from the National Black United
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Front would not be denied without notice or individual examination of it. (Defs.’ Supp. App. at 30, Galloway Supp. Aff. ¶¶ 3-4.) There is a policy for filing grievances at ISP. (Defs.’ Supp. App. at 57-68, Ex. M.) Grievance Officer David DeGrange avers that Hardin files many grievances at ISP, but there is no record of a grievance from Hardin after July 2002 regarding the National Black United Front and mail that Hardin did not receive. (Defs.’ Supp. App. at 55, DeGrange Supp. Aff. ¶¶ 4-5.)
E. January 2003 Discipline. In early January 2003, Galloway seized a letter Hardin attempted to mail and wrote him a disciplinary report on it. Although the summary judgment record does not include a copy of the letter, it appears Hardin was attempting to send the letter to Heather Alvarez. In hearing number 03-01-48, Hardin presented evidence that on January 8, 2003, another inmate, Cliff Kite, also tried to contact Heather Alvarez, but Kite received only a rejection notice and a warning that future attempts to contact Alvarez would result in disciplinary action. Kite was attempting to contact Alvarez at an address in Eldon, Iowa. Hardin avers that Kite had filed no lawsuit against Galloway. (Hardin Aff. ¶ 7.) Because Kite did not indicate Alvarez was on work release, Galloway gave Kite only a warning. In Hardin’s case, however, Galloway wrote Hardin a disciplinary report. (Defs.’ Supp. App. at 39-40, Ex. K.) On January 10, 2003, the administrative law judge dismissed hearing number 03-01-48 because there was no evidence Hardin received an
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earlier warning like Kite received. (Pls.’ App. at 17, Ex. 4.) Galloway avers he did not give Kite a report because Kite’s letter was addressed to Alvarez at a nonprison address. Galloway gave Hardin a report because he addressed his letter to a residential facility. (Galloway Supp. Aff. ¶¶ 6-8.)
On January 13, 2003, Galloway seized a letter Hardin sent to Laura Hardin because Hardin was trying to communicate with a third person named Heather Marvin, also known as Heather Alvarez, and Tammy Greyowl, in violation of prison rules and previous warnings not to contact Greyowl or persons at other institutions. For his misuse of the mail on January 13, 2003, an ISP administrative law judge disciplined Hardin in hearing number 03-01-89 with sixteen days loss of good time and referral to the classification committee with a recommendation that Hardin be placed in protective custody status. Hearing number 03-01-89 has not been reversed or invalidated. (Defs.’ Supp. App. at 10, 23-28, Ex. H, Stockbridge Supp. Aff.) II. Thomas Overton.
A. December 5, 2000, Letter. Galloway seized a letter inmate Christner sent to Tom Christner that said, “Hey Tom, I am going to have this Dude write you a friendly letter. Send him 40 bucks please Tom. He is helping me a lot with my case.” (Defs.’ App. at 22, Ex. B.) Upon investigation, Galloway discovered Overton also sent Tom Christner a letter stating, “I'll be
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filing postconviction real soon on my case and wanted you to know that.” Christner and Overton resided in adjacent cells. Galloway believed Overton was the intended recipient of the $40.00. Overton admitted helping inmate Christner with the case but denied asking for any payment. Inmate Christner admitted trying to set up the $40.00 payoff but denied Overton knew about it. In hearing number 00-12-19, the administrative law judge disbelieved the inmates and found Overton misused the mail, in violation of prison rules. He disciplined Overton with ninety days loss of jailhouse lawyer privileges but no loss of good time. Hearing number 00-12-19 has not been reversed or invalidated. (Defs.’ App. at 15, 22-28, Ex. B, Stockbridge Aff.)
B. December 6, 2000, Letter. Lynch seized a letter addressed to Overton and received at ISP on December 6, 2000. The letter was from Yohan Webb, of Chicago, Illinois. Webb was discharged from ISP on September 10, 2000. Lynch believed the letter was in fact from another inmate at ISP, and Webb was acting merely as a courier for the two inmates. Prison policy forbids inmates from writing one another because of security concerns. “Inmates from different statuses may pass along details related to escapes, assaults, and other matters.” Lynch confiscated the letter because it relayed information to Overton about another inmate at ISP. (Defs.’ App. at 46-49, Lynch Aff., Ex. E.) Overton believes the sole content of the letter was a copy of a ruling in Romeo Hardin’s postconviction action;
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it did not include writings or ideas from another inmate. (Pls.’ App. at 18, Overton Aff. ¶ 2.) Overton was not disciplined for the incident. Officials at ISP have no record of Overton filing any grievance while at ISP. (Defs.’ Supp. App. at 55, DeGrange Aff. ¶ 3.)
C. December 7, 2000, Letter. Galloway seized a letter Overton mailed to Patricia Overton on December 7, 2000. Galloway thought the material in the mailing concerned establishing a nonprofit business. Believing the material may have violated prison rules prohibiting inmates from establishing or operating a business, Galloway issued Overton a “Notice of Rejection of Outgoing Correspondence”. Galloway informed Overton he could consult Treatment Director Bernard Eaves about the letter. Galloway later learned the material was returned to Overton and no disciplinary report was filed against Overton. (Defs.’ App. at 42-45, Ex. D.) Overton avers that ISP contract attorney, Peter Hansen, and ISP’s Treatment Director told Overton his nonprofit organization did not constitute a “business”. (Pls.’ App. at 18, Overton Aff. ¶ 3.) Officials at ISP have no record of Overton filing any grievances while at ISP. (Defs.’ Supp. App. at 55, DeGrange Aff. ¶ 3.) D. March 27, 2001, Letter. Galloway seized two letters Overton mailed to Laura Hardin on March 27, 2001. One letter from was inmate Romeo Hardin to Laura Hardin. Hardin’s letter included a five-page document entitled, “Articles of Incorporation of Guns Away from Schools,
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Inc.” The document listed Overton as a member of the board of directors of the corporation, and the letter referred to Overton’s nickname, “OT”. (Defs.’ App. at 29-30, Ex. C.) The other letter was from Overton to Laura Hardin. Overton asked Laura Hardin to be director of the corporation, which Overton characterized as a nonprofit organization. Overton wrote to Laura Hardin, “It’s very simple and there is lots of money . . . . I’ll show you how to open the bank account, keep records, get contributions of cars, airline service, computers, houses, etc. It’s all legal because I got approved by the Secretary of State in Iowa.” (Defs.’ App. at 33, Ex. C.) Galloway discovered the Secretary of State of Iowa had no articles of incorporation for Guns Away from Schools, Inc. In issuing Overton a disciplinary report, Galloway wrote Overton “seems intent o[n] turning a noble idea into personal gain.” (Defs.’ App. at 36-37, Ex. C.)
Based on the similar content of the letters seized from Overton and Hardin on March 27, 2001, Overton’s similar letter seized December 7, 2000, and Galloway’s conversation with the office of the Secretary of State of Iowa, Galloway wrote Overton a disciplinary report for the mail. In hearing number 01-03-156, an administrative law judge found Overton violated prison rules against entering into contracts, agreements, and operating a business. As a result, Overton was disciplined with sixteen days loss of good time and ten days of disciplinary detention. Hearing number 01-03-156 has not been reversed or invalidated. (Defs.’ App. at 15, 29-41, Ex. C, Stockbridge Aff. ¶ 8.)
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E. February 4, 2002, Cell Search and Seizure. Officers conducted a targeted search of Overton’s cell on February 4, 2002, while Overton was in a meeting with an agent of the Iowa Division of Criminal Investigation. (Pls.’ App. at 19, Overton Aff. ¶ 4.) A debt list was taken during the search, and Overton was disciplined for possessing it. The discipline was later dismissed. (Defs.’ Supp. App. at 45-48, Ex. L.) Neither Galloway nor Lynch were involved in the February 4, 2002, search or the discipline. (Defs.’ Supp. App. at 31, 54, Galloway Supp. Aff. ¶ 9, Lynch Supp. Aff. ¶ 2.)
DISCUSSION I. Return of Property.
Defendants argue that Hardin’s claim for mail confiscated in 1997 amounts to a request for return of property for which a meaningful post-deprivation remedy is available, and the claim is beyond the statute of limitations in any event. The Supreme Court has held that neither intentional nor negligent deprivations of property violate due process if meaningful state post-deprivation remedies for the losses are available, because the post-deprivation state remedies provide due process of law. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional deprivations); Parratt v. Taylor, 451 U.S. 527, 543 (1981) (negligent deprivations); see also Iowa Code Ch. 669, 670 (Iowa’s statutory tort claims procedure). Hardin has an adequate post-deprivation remedy in the Iowa State
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Tort Claims Act, Iowa Code Chapter 669, and he also could have sought return of property seized pursuant to a warrant through Iowa Code section 809.3. Because Hardin has an adequate post-deprivation remedy in state court, the court will dismiss his claim for relief under section 1983.1 II. February 4, 2002, Incident.
Defendants argue that neither of them were involved in the search of Overton’s cell on February 4, 2002; therefore, they cannot be held liable for any constitutional violations stemming from it. They add that because prison officials eventually dismissed the discipline resulting from the February 4, 2002, search, Overton received all the process due to him. There is no evidence in this summary judgment record that either Galloway or Lynch were involved in the February 4, 2002, incident. The Court will therefore dismiss Overton’s claim regarding the incident. III. Exhaustion.
Defendants ask the Court to dismiss all of Overton’s claims because he never exhausted his administrative remedies before bringing suit on them. As for Hardin, Defendants argue Hardin failed to exhaust administrative remedies before bringing suit
1 Because the Court concludes Hardin may seek relief through state post-deprivation procedures, the Court does not address Defendants’ argument that Hardin’s claim is barred by the statute of limitations. See Wycoff v. Menke, 773 F.2d 983, 984 (8th Cir. 1985) (applicable statute of limitations for claims brought in Iowa under 42 U.S.C. § 1983 is two years), cert. denied, 475 U.S. 1028 (1986).
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about mail from the National Black United Front in the fall of 2002, and the literature from the National Black United Front was the subject of disciplinary proceedings against Hardin that were not reversed or invalidated.
Prisoners challenging conditions of their confinement must exhaust available administrative remedies before filing a suit under 42 U.S.C. § 1983. Title 42 U.S.C. § 1997e(a) provides:
No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). Section 1997e(a)’s “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust all administrative remedies is an affirmative defense, and defendants have the burden of pleading and proving it. Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001). Hardin presents nothing to counter Defendants’ evidence that he failed to exhaust his administrative remedies in retrieving mail sent to him from the National Black United Front in the fall of 2002. There is no genuine issue of fact whether Hardin exhausted his available administrative remedies with regard to the mailings. Moreover, there is no evidence either Defendant was involved in the fall 2002 confiscation of material sent to
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Hardin from the National Black United Front. Defendants are therefore entitled to judgment as a matter of law on Hardin’s claim that Defendants wrongfully withheld literature from the National Black United Front. The Court will dismiss the claim with prejudice. See Mark v. Nix, 983 F.2d 138, 140 (8th Cir. 1993) (per curiam) (no liability for defendants who were not responsible for confiscation).
Although Defendants do not address in particular Galloway’s seizure of a letter Hardin intended to send to Kentrell Baker on May 10, 2002, the Court concludes the claim must be dismissed because Hardin does not allege he exhausted his administrative remedies before filing suit about the incident. The Court will dismiss the claim without prejudice based on 42 U.S.C. § 1997e(a).
As for Overton, he presents no evidence suggesting he exhausted his available administrative remedies on any of his claims before filing suit. They can be dismissed without prejudice on this ground, alone. Moreover, as discussed in the following sections, Overton’s allegations regarding seized mail must be dismissed on other grounds as well. IV. Discipline and Retaliation.
Defendants argue the claims Overton and Hardin bring regarding confiscated mail that was the subject of disciplinary actions must be dismissed if those actions were not reversed or invalidated. Likewise, they argue that Overton’s and Hardin’s retaliation
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claims in connection with those disciplinary actions also must be dismissed. As for the confiscations that did not result in discipline, Defendants argue prison officials had legitimate penological reasons to seize the mail.
A. Discipline Involving Loss of Good Time. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the United States Supreme Court held that “to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” The decision in Heck is rooted in the principle that a prisoner challenging the fact or length of imprisonment must seek relief through a petition for a writ of habeas corpus and not through an action under section 1983. Id. at 481; see also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (sole remedy to obtain earlier release is through habeas petition). The Court extended the rule of Heck to prison disciplinary decisions in Edwards v. Balisok, 520 U.S. 641, 645-48 (1997). The prisoner in Edwards challenged the procedures used in a disciplinary proceeding against him that resulted in, among other things, his loss of good time. Even though the inmate sought damages and future injunctive relief but not restoration of good time credits, the Supreme
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Court ruled the inmate could not bring a section 1983 suit challenging the disciplinary decision until the decision was invalidated because success on his section 1983 action would necessarily imply the invalidity of his lost good time credits. Id. at 648.
Defendants would have this Court impose the favorable termination requirement in Heck on every disciplinary decision. The caselaw does not support them. The opinions on which Defendants rely, Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996), and Portley-El v. Brill, 288 F.3d 1063, 1066-67 (8th Cir. 2002), followed the favorable termination requirement in Heck, but both Sheldon and Portley-El involved loss of good time. Although the Court of Appeals for the Eighth Circuit has not specifically addressed whether Edwards extends to prison discipline that does not involve loss of good time, all but one of the appellate courts to consider the issue have ruled that Edwards does not apply to such prison disciplinary decisions. See Ramirez v. Galaza, 334 F.3d 850, 856-58 (9th Cir. 2003) (discussing cases). The undersigned agrees with the reasoning of the majority of those cases and concludes Edwards applies only when the success of a prisoner’s section 1983 challenge would undermine the fact or length of that inmate’s imprisonment. Consequently, Edwards is relevant only to the discipline resulting in lost good time, that is, Hardin’s challenges regarding mail taken on March 27, 2001, January 13, 2003, March 28, 2003, and May 23, 2003, and Overton’s challenges regarding mail taken on March 27, 2001. Plaintiffs’ First Amendment claims are “so
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entangled with the propriety of the disciplinary result, which triggered the loss of goodtime credits, that ruling in [plaintiffs’] favor on First Amendment grounds would necessarily imply the invalidity of the disciplinary result and the lengthened sentence.” Sheldon, 83 F.3d at 233; see also Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (if prison official shows “some evidence” of rule violation, inmate’s retaliation claim must fail), cert. denied, 515 U.S. 1145 (1995). The Court, therefore, will dismiss without prejudice Overton’s and Hardin’s claims related to discipline that resulted in lost good time. Plaintiffs may reassert the claims in a new section 1983 case if the loss of good time is invalidated.
B. Retaliation for the Exercise of First Amendment Rights. Inmates retain limited First Amendment rights. [W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Four factors the court considers in this evaluation are (1) whether a valid, rational connection exists between the regulation and the penological interest justifying it; (2) whether the inmate has an alternative means of exercising the right; (3) whether accommodation of the right would significantly affect other inmates, guards, and prison resources; and (4) whether there is a ready alternative to the challenged regulation at a de minimis cost to the penological interest. Id. at 89-91; see also Leonard v. Nix, 55 F.3d 370, 374-75
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(8th Cir. 1995) (“Prison rules censoring a prisoner’s personal outgoing mail are justified only if the regulation or practice in question furthers an important governmental interest of security, order, or rehabilitation, and the limitation on the prisoner’s retained First Amendment rights must be no greater than necessary to protect the governmental interest.”). In balancing the inmate’s rights and security of the institution, the court gives great deference to prison officials’ judgment. See Timm v. Gunter, 917 F.2d 1093, 1099 (8th Cir. 1990), cert. denied, 501 U.S. 1209 (1991).
“Conduct that retaliates against the exercise of a constitutionally protected right is actionable, even if the conduct would have been proper if motivated by a different reason.” Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001). Prison officials cannot “impose a disciplinary sanction against a prisoner in retaliation for the prisoner’s exercise of his constitutional right.” Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993), cert. denied, 512 U.S. 1209 (1994). To prevail on their section 1983 retaliation claims, Plaintiffs must prove they were engaging in protected conduct, Defendants took adverse action against them, and that retaliation was the actual motivating factor behind the adverse action; that is, but for the exercise of First Amendment rights, mail would not have been confiscated and they would not have been punished. See id.; see also Sisneros v. Nix, 95 F.3d 749, 752 (8th Cir. 1996) (“This is a ‘but for’ test dealing with motive, not causation.”). In the context of prison disciplinary decisions, “a defendant may successfully defend a retaliatory-discipline claim by showing ‘some evidence’ that the
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inmate actually committed a rule violation.” Moore v. Plaster, 266 F.3d 928, 931 (8th Cir. 2001), cert. denied, 535 U.S. 1037 (2002); see also Henderson, 29 F.3d at 469. At the summary judgment stage, the court views the evidence in the light most favorable to plaintiffs and considers whether a reasonable jury could find that plaintiffs were engaging in protected behavior and whether the “but for” test is satisfied.
Turning to Overton’s remaining First Amendment claims, the Court first observes Overton failed to exhaust his administrative remedies regarding them, and they can be dismissed without prejudice on that ground. Second, the Court concludes there are no genuine issues of material fact, and Defendants are entitled to judgment as a matter of law on the claims; therefore, they will be dismissed with prejudice.
1. December 5, 2000, Letter. The record includes Galloway’s detailed description of the language in Overton’s December 5, 2000, letter intimating that Overton was seeking payment for helping another inmate with a postconviction action, as well as Overton’s admission that he was helping the other inmate, the inmate’s admission that he tried to pay Overton, and the inmate’s letter paving the way for payment. There was some evidence that Overton misused the mail. Both his free speech and retaliation claims regarding the December 5, 2000, letter are without merit, and they will be dismissed with prejudice.
2. December 6, 2000, Letter. Defendants have identified legitimate security concerns for their rule forbidding inmates from writing one another, including
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inmate communication about escapes and assaults. Overton does not dispute that Webb was merely the courier for Hardin to mail his postconviction action to Overton. Upon consideration of the Turner factors, and giving prison officials broad discretion to manage their institutions, see Timm, 917 F.2d at 1099, the decision to reject the mail from Webb was reasonably related to prison security. Overton’s free speech and retaliation claims regarding the December 6, 2000, letter will be dismissed with prejudice.
3. December 7, 2000, Letter. Overton’s December 7, 2000, letter to Patricia Overton was ultimately returned to Overton after Galloway confiscated it. Inmates have no First Amendment right to operate a business while in prison, and prison officials could rightly withhold the letter because Overton attempted to set up a business. See Garland v. Polley, 594 F.2d 1220 (8th Cir. 1979). As Defendants point out, several months after Overton’s letter was confiscated on December 7, 2000, Overton again tried to mail a letter that attempted to set up a business. On that occasion, the letter was taken, and Overton was disciplined. Galloway reasonably believed Overton violated prison rules against operating a business; he did not seize it in violation of Overton’s right to free speech, and no reasonable juror could find Galloway seized the letter in retaliation for the exercise of a constitutional right. Overton’s claim regarding the December 7, 2000, letter will be dismissed with prejudice.
C. Equal Protection. The equal protection guarantee essentially means all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440
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(1985). To prove an equal protection violation, a plaintiff must show that he was treated differently than similarly situated inmates and that there was no rational basis related to a legitimate state purpose for the unequal treatment. Wishon v. Gammon, 978 F.2d 446, 450 (8th Cir. 1992).
Hardin complains that in January 2003 Galloway wrote Hardin a disciplinary report for mailing a letter to someone but gave only a warning to a different inmate who wrote a letter to the same person at about the same time. Galloway wrote Hardin the report because prison rules prohibit inmates from writing inmates at other institutions, and the address on Hardin’s letter was an institution. There is no dispute that, unlike Hardin, the other inmate listed the person’s address as a street address rather than a prison address. There is no suggestion on this summary judgment record that the other inmate had been sanctioned for violating that rule. Galloway had a rational basis for treating the inmates differently, and the Court concludes there is no equal protection claim. Hardin’s claim about the January 2003 discipline will be dismissed.
D. Summary. There are no genuine issues of material fact. Hardin has an adequate postdeprivation remedy for mail confiscated in 1997; therefore, he cannot challenge the seizure in this section 1983 action. Hardin cannot challenge the discipline resulting from mail taken on March 27, 2001, January 13, 2003, March 28, 2003, and May 23, 2003, because success on those claims would imply the invalidity of his lost good time, and
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Hardin has not shown the disciplinary decisions have been invalidated. Hardin’s retaliation claims for those incidents likewise fail. Hardin failed to exhaust his administrative remedies before bringing suit about mail seized on May 10, 2002, and mail seized from National Black United Front taken in the fall of 2002. Furthermore, neither Defendant was involved in the confiscation of material from National Black United Front. Finally, Hardin suffered no equal protection violation with regard to mail Galloway seized in January 2003. Defendants are entitled to judgment as a matter of law on all of Hardin’s claims.
Overton’s claims can be dismissed for failure to exhaust administrative remedies. In addition, neither Defendant was involved in the February 4, 2002, search and seizure in Overton’s cell; therefore, they will not be held liable for it. Overton cannot challenge the discipline resulting from mail taken on March 27, 2001, because success on that claim would imply the invalidity of his lost good time, and Overton has not shown the disciplinary decision has been invalidated. Overton’s retaliation claims for that incident likewise fail. Galloway was justified in confiscating Overton’s mail on December 5, 2000, December 6, 2000, and December 7, 2000. Defendants are entitled to judgment as a matter of law on all of Overton’s claims.
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O R D E R S The Court denies Plaintiffs’ motions to amend the complaint (Clerk’s No. 95, No. 105). The Court denies Plaintiffs’ motion for a temporary restraining order (Clerk’s No. 96). The Court grants Defendant Galloway’s and Defendant Lynch’s motion for summary judgment (Clerk’s No. 60), and the Court grants their supplemental motion for summary judgment (Clerk’s No. 87). As pleaded in Plaintiffs’ amended complaint, this case no longer concerns the red star mail system. Because Defendants are entitled to summary judgment on all claims in Plaintiffs’ amended complaint, the Court directs the Clerk of Court to enter judgment in favor of Defendants and against Plaintiffs on all claims. Plaintiffs’ claims regarding discipline that resulted in loss of good time, and Hardin’s claim regarding mail seized on May 10, 2002, are dismissed without prejudice. Plaintiffs’ remaining claims are dismissed with prejudice. IT IS SO ORDERED. Dated this 8th day of October, 2003.
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 Case 4:01-cv-40456-JEG-CFB Document 59 Filed 01/25/2006 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

WILLIAM STRINGER and MICHAEL McBRIDE,
Plaintiffs,
vs.
WILLIAM KAUTZKY and JOHN MATHES,
Defendants.

No. 4:01-cv-40456-JEG
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

Plaintiffs William Stringer and Michael McBride bring this action pursuant to 42 U.S.C. § 1983, alleging Defendants denied Plaintiffs their constitutional right of access to the courts. After Defendants moved for partial summary judgment based on Plaintiffs’ failure to exhaust their administrative remedies, this Court adopted a report and recommendation by Magistrate Judge Celeste F. Bremer recommending that the Court deny Defendants’ motion for partial summary judgment. Defendants thereafter filed a second motion for summary judgment, which Plaintiffs resist. The matter is ready for ruling. For the following reasons, the Court grants Defendants’ second motion.
I. Summary Judgment Standard. Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). To preclude the entry of summary judgment, the

Case 4:01-cv-40456-JEG-CFB Document 59 Filed 01/25/2006 Page 2 of 5
nonmovant must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must go beyond the pleadings and by affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The quantum of proof that the nonmoving party must produce is not precisely measurable, but it must be “enough evidence so that a reasonable jury could return a verdict for the nonmovant.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). On a motion for summary judgment, the Court views all the facts in the light most favorable to the nonmoving party and gives that party the benefit of all reasonable inferences that can be drawn from the facts. Lickteig v. Bus. Men’s Assur. Co. of Am., 61 F.3d 579, 583 (8th Cir. 1995).
II. Summary of Material Facts. Defendants maintain that Plaintiffs have not exhausted their available administrative remedies by following the proper procedures for filing a grievance at ISP. In the previous ruling on Defendants’ motion for partial summary judgment, of which the Court takes full judicial notice, the Court pointed out,
[Grievance Officer David] DeGrange, however, stated in his affidavit that in practice inmates do not always have to use the designated forms to exhaust. No evidence indicates when the designated forms are not required. Similarly, no evidence shows how, other than using the designated forms, an inmate may submit a grievance or appeal. [Warden] Mathes did not return the memorandum to Plaintiffs for them to resubmit their grievance in proper form.
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When prison officials do not establish the administrative rules applicable to the inmate at the time and place, and under the circumstances of his incarceration, the district court may lack a sufficient factual basis on which to find that the inmate failed to exhaust his administrative remedies. [Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001).] (Report and Recomm. at 12, Clerk’s No. 43; Order Adopting Report and Recomm., Clerk’s No. 53.) Based on the summary record, the Court ruled that Plaintiffs “generated a genuine issue of material fact concerning whether, at the time and place, and under the circumstances of their incarceration, they met ISP’s requirements for filing and appealing a grievance.” (Report and Recomm. at 13; Order Adopting Report and Recomm., Clerk’s No. 53 .) Defendants’ second motion for summary judgment addresses the question whether Plaintiffs’ memorandum to Warden Mathes and his response constitute compliance with ISP’s grievance policy. Plaintiffs do not dispute Defendants’ Second Statement of Undisputed Facts (Clerk’s No. 57), but they argue Defendants’ additional facts are nearly identical to those submitted with the first motion for summary judgment (Clerk’s No. 36). Defendants have submitted a supplemental affidavit of Grievance Officer David DeGrange. DeGrange states, “If paperwork is submitted which is not on the designated [grievance] form, it must meet the requirements for a grievance. Specifically, it must be identified as a grievance, must contain the required information including steps taken for an informal resolution of the problem.” (DeGrange Aff. ¶ 4.) DeGrange states the grievance must be submitted to a grievance officer, who numbers the grievance, issues a receipt for it, investigates it, and maintains the records of grievances filed. (DeGrange
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Aff. ¶ 5.) DeGrange states a document is considered a grievance “[o]nly if the proper form is submitted with the required information or on other paperwork which is not on the form, but contains the required information, and submitted to the proper person.” (DeGrange Aff. ¶ 6.) “If an offender does not clearly specify a matter as a grievance by using the proper form or designating paperwork with the required information as a grievance and filing it with the proper person, it is not a grievance.” (DeGrange Aff. ¶ 8.) DeGrange acknowledges Plaintiffs sent the Warden a memo that Plaintiffs contend is a grievance. According to DeGrange, memos sent directly to the Warden do not comply with the Iowa Department of Corrections policy for filing, responding to, and recording grievances; they are therefore not considered grievances. The Warden’s role in the grievance process is in an appeal capacity only. (DeGrange Aff. ¶ 10.) DeGrange avers he never received an inmate memorandum addressed to Warden Mathes referred to by Plaintiffs, and as a result the memo “was never numbered or made a[] grievance as defined by institutional policy,” and Plaintiffs never “filed a grievance relating to the denial of access to the courts by not letting them use red star envelopes.” (DeGrange Aff. ¶ 11.)
III. Discussion. As the Court previously ruled, 42 U.S.C. § 1997e(a) requires that Plaintiffs complete the grievance process at ISP before filing suit. It is undisputed that Plaintiffs’ memo to the Warden was not on a standard grievance form. Defendants’ supplemented summary judgment record clarifies the circumstances under which a document that is
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not on a standard grievance form is nonetheless treated as a grievance under the prison’s grievance procedure. Plaintiffs insist the Warden “possesses the inherent authority to consider and process a grievance that ordinarily would be processed by a grievance officer” (Pls.’ Resist. ¶ 4). Plaintiffs provide no evidence to support their position, however, and under undisputed guidelines outlined by Defendants, Plaintiffs’ memo to the Warden does not constitute a grievance under the prison’s policy. Plaintiffs failed to exhaust their administrative remedies. There are no material facts in dispute, and Defendants are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
IV. Summary. The Court grants the motion for summary judgment filed by Defendants Walter Kautzky and John Mathes (Clerk’s No. 57). The Court directs the Clerk of Court to enter judgment in favor of Defendants and against Plaintiffs William Stringer and Michael McBride. Plaintiffs’ case is dismissed without prejudice for failure to exhaust under 42 U.S.C. § 1997e(a). IT IS SO ORDERED. Dated this 25th day of January, 2006.
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1983pr, TERMED
U.S. District Court United States District Court for the Southern District of Iowa (Central)
CIVIL DOCKET FOR CASE #: 4:01-cv-40456-JEG-CFB

Stringer, et al v Kautzky et al Assigned to: Judge James E. Gritzner Referred to: Magistrate Judge Celeste F. Bremer Demand: $0 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 07/27/2001 Date Terminated: 01/26/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff
Archie Bear TERMINATED: 06/20/2005

represented by Bruce Douglas Nestor DELEON & NESTOR, LLC 3547 Cedar Avenue South MINNEAPOLIS, MN 55407 612 659 9019 Fax: 612 436 3664 Email: nestor@denestlaw.com TERMINATED: 06/20/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clemens Erdahl Nidey, Peterson, Erdahl & Tindal 425 - 2nd Street SE Suite 1000 Cedar Rapids, IA 52401 319 369 0000 Fax: 369 6972 Email: sbright@npetlaw.com TERMINATED: 03/16/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff William L Stringer

represented by William L Stringer #803349 ISP-FORT MADISON P O Box 316 Fort Madison, IA 52627 PRO SE

Bruce Douglas Nestor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Michael McBride

V. Defendant Walter Kautzky

Defendant John Mathes

Date Filed

#

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Clemens Erdahl (See above for address) TERMINATED: 03/16/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael McBride ISP-FORT MADISON P O Box 316 Fort Madison, IA 52627 PRO SE
Bruce Douglas Nestor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clemens Erdahl (See above for address) TERMINATED: 03/16/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William A Hill Department of Justice 1305 East Walnut Street Hoover State Office Building Des Moines, IA 50319 515 281 6162 Fax: 281 4902 Email: whill@ag.state.ia.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William A Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Docket Text
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01/26/2006 01/25/2006
09/09/2005 07/27/2005
06/20/2005 06/20/2005 06/17/2005 06/17/2005 05/03/2005 04/26/2005 04/26/2005 04/22/2005 04/22/2005

60 JUDGMENT in favor of Defendants against Plaintiffs per 59. Entered by R Johnson for Marjorie Krahn, Clerk on 1/26/2006. (rmj) (Entered: 01/26/2006)
59 ORDER granting 57 Motion for Summary Judgment. Clerk of Court to enter judgment in favor of Defendants and against Plaintiffs William Stringer and Michael McBride. Plaintiffs' case is dismissed without prejudice for failure to exhaust under 42 USC section 1997e(a). Entered by Judge James E. Gritzner on 1/25/2006. (nlh) (Entered: 01/25/2006)
58 RESPONSE to Motion re 57 Second MOTION for Summary Judgment by Defendants filed by William L Stringer, Michael McBride. Replies due by 9/21/2005. (Nestor, Bruce) (Entered: 09/09/2005)
57 Second MOTION for Summary Judgment by Defendants by Walter Kautzky, John Mathes. Responses due by 8/22/2005 (Attachments: # 1 Defendants' Second Statement of Undisputed Material Facts# 2 Defendants' Second Appendix# 3 Memorandum in Support of Defendants' Second Motion for Summary Judgment)(Hill, William) (Entered: 07/27/2005)
56 ORDER Additional Dispositive Motion Deadline due by 8/1/2005. See attached order for particulars. Entered by Magistrate Judge Celeste F. Bremer on 6/20/2005. (npo) (Entered: 06/20/2005)
55 JUDGMENT in favor of Defendants against Plaintiff Bear. Summary Judgment against Plaintiff Bear. Entered by R Johnson for Marjorie Krahn, Clerk on 6/20/2005. (rmj) Additional attachment(s) added on 6/20/2005 (rmj, ). (Entered: 06/20/2005)
54 ORDER ADOPTING REPORT AND RECOMMENDATIONS 43, granting 21 motion for summary judgment. Clerk shall enter judgment in favor of Defendants on all of Plaintiff Bear's claims. See order for particulars. Entered by Judge James E. Gritzner on 6/17/2005. (nlh) (Entered: 06/17/2005)
53 ORDER ADOPTING REPORT AND RECOMMENDATIONS 45, denying 42 motion for partial summary judgment. Entered by Judge James E. Gritzner on 6/17/2005. (nlh) (Entered: 06/17/2005)
52 ORDER denying 47 Plaintiff Stringer's motion for summary judgment. Entered by Judge James E. Gritzner on 5/3/2005. (nlh) (Entered: 05/03/2005)
Set/Reset Deadlines: Pltf's Response to R & R due by 4/29/2005 see Text Order #51 (lh, ) (Entered: 04/27/2005)
51 TEXT ORDER granting 49 Plaintiffs' unresisted Motion for Extension of Time to file a response to Report and Recommendation. Plaintiffs shall have to and including 4/29/05 to respond to the Report and Recommendation. Entered by Magistrate Judge Celeste F. Bremer on 4/26/2005. (mlr ) (Entered: 04/26/2005)
50 CERTIFICATE OF SERVICE by William L Stringer re 49 First MOTION for Extension of Time to File Response to Report and Recommendation (Nestor, Bruce) (Entered: 04/22/2005)
49 First MOTION for Extension of Time to File Response to Report and Recommendation by William L Stringer. Responses due by 5/9/2005 (Nestor,

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04/15/2005 04/13/2005 04/08/2005 03/31/2005
03/21/2005 03/21/2005
10/06/2004 10/06/2004 10/06/2004 09/22/2004 08/18/2004 08/18/2004

Bruce) (Entered: 04/22/2005)
48 RESPONSE to Motion re 47 MOTION for Summary Judgment Defendants's Resistance to Pro Se Motion for Summary Judgment filed by Walter Kautzky, John Mathes. Replies due by 4/27/2005. (Hill, William) (Entered: 04/15/2005)
47 MOTION for Summary Judgment by William L Stringer, Pro Se. Responses due by 5/9/2005 (Attachments: # 1 Letter to CRW-CFB# 2 envelope) (lh, ) (Entered: 04/13/2005)
46 OBJECTION to 45 Report and Recommendations Defendants' Objections to March 31, 2005 Report and Recommendant on Defendants' Motion for Partial Summary Judgment filed by Walter Kautzky, John Mathes. (Hill, William) (Entered: 04/08/2005)
45 REPORT AND RECOMMENDATION re [42 & 21] Defendants' MOTIONS for Partial Summary Judgment. Objections to R&R due by 4/22/2005. Material facts remain in dispute. Accordingly, the Court recommends that Defendants' Motions for Summary Judgment be denied. See Order for particulars. Entered by Magistrate Judge Celeste F. Bremer on 3/31/2005. (mlr ) (Entered: 03/31/2005)
44 Text ORDER REFERRING CASE to Magistrate Judge for Report and Recommendation -- for remaining motion for partial summary judgment; see R&R Doc. #43. . Entered by Rob Raker, Acting Clerk on 3/21/2005. (ld, ) (Entered: 03/21/2005)
43 REPORT AND RECOMMENDATION re 21 Motion for Partial Summary Judgment against Archie Bear filed by John Mathes, Walter Kautzky. Objections to R&R due by 4/12/2005. See attached R&R for details. (Motion for Partial Summary Judgment against remaining plaintiffs 42 to be addressed in separate R&R.) Entered by Magistrate Judge Celeste F. Bremer on 3/21/2005. (npo) (Entered: 03/21/2005)
41 MEMORANDUM in Opposition to Supplemental Motion for Sumamry Judgment re 21 Motion for Summary Judgment filed by Archie Bear, Michael McBride, William L Stringer. Replies due by 10/19/2004. (bp, ) (Entered: 10/06/2004)
40 STATEMENT OF DISPUTED MATERIAL FACTS re 21 Motion for Summary Judgment filed by Archie Bear, Michael McBride, William L Stringer. (bp, ) (Entered: 10/06/2004)
39 RESPONSE to Supplement Statement of Undisputed Material Facts/Motion re 21 Motion for Summary Judgment filed by Archie Bear, Michael McBride, William L Stringer. Replies due by 10/19/2004. (bp, ) (Entered: 10/06/2004)
38 ORDER by Magistrate Judge Celeste F. Bremer; Defendants shall have to and including 10/15/04 to file a reply (cc: all counsel) (dv) (Entered: 09/22/2004)
42 MOTION for Partial Summary Judgment (Redocketed as motion/see document #34 for image, docketed as supplement) by Walter Kautzky, John Mathes. (ld, ) Modified on 3/23/2005 to edit filed date to 8/18/04. (ld, ). (Entered: 03/21/2005)
37 SUPPLEMENTAL APPENDIX filed by defendant Walter Kautzky, defendant John Mathes [34-1] re: motion s/j (don) (Entered: 08/18/2004)

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08/18/2004 08/18/2004 08/18/2004 08/18/2004 07/29/2004 07/29/2004 07/23/2004 07/15/2004 07/13/2004 07/06/2004 06/15/2004
05/27/2004 04/13/2004 04/13/2004 04/13/2004

36 SUPPLEMENTAL STATEMENT of undisputed material facts by defendant Walter Kautzky, defendant John Mathes [34-1] in support of s/j (don) (Entered: 08/18/2004)
35 MEMORANDUM by defendant Walter Kautzky, defendant John Mathes in support [34-1] of supplemental motion for s/j (don) (Entered: 08/18/2004)
34 SUPPLEMENTAL by defendant Walter Kautzky, defendant John Mathes [21-1] to motion for summary judgment before Judge James E. Gritzner (don) (Entered: 08/18/2004)
33 MOTION by defendant Walter Kautzky, defendant John Mathes to extend time to file supplemental motion for s/j from 08/17/04 to 08/18/04 and ORDER granting order motion By JRR, Clerk[33-1] (cc: all counsel) (don) (Entered: 08/18/2004)
32 ORDER by Magistrate Judge Celeste F. Bremer ; Final pretrial cnf (MAG) satisfied , ; Discovery ddl set for 10/01/04 (cc: all counsel) (dv) (Entered: 07/29/2004)
31 PROPOSED FINAL PRETRIAL ORDER submitted by defendant (dv) (Entered: 07/29/2004)
30 ORDER by Magistrate Judge Celeste F. Bremer denying motion for appointment of counsel [29-1] (cc: all counsel) (dv) (Entered: 07/23/2004)
29 MOTION by plaintiff William L Stringer for appointment of counsel before Magistrate Judge Celeste F. Bremer (dv) (Entered: 07/15/2004)
28 ORDER by Magistrate Judge Celeste F. Bremer ; Final pretrial cnf (MAG) set for 07/29/04 at 10:30 ; Evidentiary hearing (MAG) set for 08/17/04 at 9:00 held by ICN (cc: all counsel) (dv) (Entered: 07/13/2004)
27 RESPONSE by plaintiff Archie Bear [21-1] re: motion for summary judgment before Judge James E. Gritzner (dv) (Entered: 07/06/2004)
26 ORDER by Magistrate Judge Celeste F. Bremer; Court extends the deadline for filing a response to 7/2/04 to allow Plaintiff Bear to clarify the nature of his claims, including the nature of the relief he seeks (cc: all counsel) (dv) (Entered: 06/16/2004)
25 ORDER by Magistrate Judge Celeste F. Bremer; The Court extends the deadline for response to the pending motion to 6/9/04 (cc: all counsel) (dv) (Entered: 05/27/2004)
24 APPENDIX filed by defendant Walter Kautzky, defendant John Mathes [21-1] re: motion for summary judgment before Judge James E. Gritzner (dv) (Entered: 04/13/2004)
23 STATEMENT by defendant Walter Kautzky, defendant John Mathes [21-1] in support of motion for summary judgment before Judge James E. Gritzner (dv) (Entered: 04/13/2004)
22 MEMORANDUM by defendant Walter Kautzky, defendant John Mathes in support [21-1] of motion for summary judgment before Judge James E. Gritzner (dv) (Entered: 04/13/2004)

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04/13/2004 04/06/2004 03/16/2004 03/15/2004 03/05/2004 01/23/2004 11/12/2003 09/26/2001 09/19/2001
09/14/2001
08/27/2001 08/27/2001 08/27/2001

21 MOTION by defendant Walter Kautzky, defendant John Mathes for partial summary judgment before Judge James E. Gritzner (dv) Modified on 3/21/2005 to add the word "partial"(ld, ). (Entered: 04/13/2004)
20 ORDER by Magistrate Judge Celeste F. Bremer ; Final pretrial cnf (MAG) 07/12/04 10:30am ; Evidentiary hearing (MAG) 07/22/04 9:00am ; Telephone Hearing satisfied (cc: all counsel) (don) (Entered: 04/07/2004)
19 ORDER by Magistrate Judge Celeste F. Bremer granting motion to withdraw attorney Clemens A. Erdahl [18-1] for Michael McBride, William L Stringer, Archie Bear (cc: all counsel) (dv) (Entered: 03/17/2004)
18 MOTION by plaintiff Archie Bear, plaintiff William L Stringer, plaintiff Michael McBride to withdraw attorney Clemens A. Erdahl before Magistrate Judge Celeste F. Bremer (dv) (Entered: 03/15/2004)
17 ORDER by Magistrate Judge Celeste F. Bremer Rule 16(b) Telephone Hearing set for 04/06/4 at 10:00 (cc: all counsel) (dv) (Entered: 03/05/2004)
FILING FEE PAID: on 1/23/04 in the amount of $ 20.50, receipt # 68426. copy fee (dv) (Entered: 01/23/2004)
16 ORDER by Judge James E. Gritzner Case reopened , Case referred to Magistrate Judge Celeste F. Bremer for submission of report and recommendation See order re: reopening this member case under its own caption (cc: all counsel) (dv) (Entered: 11/12/2003)
REMARK THIS CASE CONSOLIDATED INTO CASE NO. 4-01-CV-80225. ALL FURTHER FILINGS TO BE FILED IN THAT FILE (dv) (Entered: 09/26/2001)
15 CLERK'S COURT MINUTES: courtroom clerk: Shirley Dooley; court reporter: Teresa Kenkel; motion to extend time to respond to complaint and motion for injunctive relief before Honorable Charles R. Wolle [9-1] ; hearing held 9:00 9/19/01, motion for temporary restraining order and/or preliminary injunction before Honorable Charles R. Wolle [2-1] ; hearing held 9:00 9/19/01 (dv) (Entered: 09/19/2001)
14 ORDER by Honorable Charles R. Wolle setting hearing on motion to extend time to respond to complaint and motion for injunctive relief [9-1] 9:00 9/19/01, setting hearing on motion for temporary restraining order and/or preliminary injunction [2-1] 9:00 9/19/01; This will be held via ICN (cc: all counsel) (dv) (Entered: 09/14/2001)
13 MEMORANDUM by defendant Walter Kautzky, defendant John Mathes in support [12-1] of objection (don) (Entered: 08/27/2001)
12 OBJECTIONS by defendant Walter Kautzky, defendant John Mathes to [2-1] motion for temporary restraining order and/or preliminary injunction before Honorable Charles R. Wolle (don) (Entered: 08/27/2001)
11 MEMORANDUM by defendant Walter Kautzky, defendant John Mathes in support [10-1] of objection (don) (Entered: 08/27/2001)

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08/27/2001 08/27/2001 08/27/2001 08/06/2001 08/03/2001 08/03/2001 07/30/2001
07/27/2001
07/27/2001 07/27/2001 07/27/2001 07/27/2001

10 OBJECTIONS to consolidate by defendant Walter Kautzky, defendant John Mathes to [4-1] order (don) (Entered: 08/27/2001)
9 MOTION by defendant Walter Kautzky, defendant John Mathes to extend time to respond to complaint and motion for injunctive relief before Honorable Charles R. Wolle (don) (Entered: 08/27/2001)
8 ATTORNEY APPEARANCE for defendant Walter Kautzky, defendant John Mathes by WILLIAM A HILL (don) (Entered: 08/27/2001)
7 SUPPLEMENT by plaintiff Michael McBride [1-1] to complaint (dr) (Entered: 08/06/2001)
6 RESPONSE by plaintiff William L Stringer [4-1] re: order (dr) (Entered: 08/03/2001)
5 SUPPLEMENT by plaintiff William L Stringer [1-1] to complaint (dr) (Entered: 08/03/2001)
REMARK - Service of process issued by mail this date to dfts Mathes and Kautzky, and Attorney General of State of Iowa; copy of signature page of complaint mailed this date to pltfs Stringer and McBride (dr) (Entered: 07/30/2001)
4 INITIAL REVIEW ORDER by Honorable Charles R. Wolle: By not later than 8/13/01, dfts shall resond to motion for preliminary injunctive relief and report to the court whether this case should be consolidated with 4-01-cv-80225; court directs clerk of court to send a copy of signature page of complaint to inmates Stringer and McBride so they may sign their names to the complaint; if they do not inform court of their intention to be pltfs in this lawsuit within 30 days of date of this order, court will dismiss then as pltfs; service of process shall issue by mail to dfts and to Attorney General of State of Iowa; re [2-1] motion for temporary restraining order and/or preliminary injunction (cc: all counsel) (dr) (Entered: 07/30/2001)
FILING FEE PAID: on 7/27/01 in the amount of $ 150.00, receipt # 61404. (dr) (Entered: 07/27/2001)
3 MEMORANDUM by plaintiffs in support [2-1] of motion for temporary restraining order and/or preliminary injunction before Honorable Charles R. Wolle (dr) (Entered: 07/27/2001)
2 MOTION by plaintiffs for temporary restraining order and/or preliminary injunction before Honorable Charles R. Wolle (dr) Modified on 07/27/2001 (Entered: 07/27/2001)
1 PRISONER COMPLAINT (cc: pltf(s)). (dr) (Entered: 07/27/2001)

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1983pr, LEADTR, TERMED
U.S. District Court Southern District of Iowa (Central) CIVIL DOCKET FOR CASE #: 4:01-cv-40225-JEG

Overton, et al v. Galloway, et al Assigned to: Judge James E. Gritzner Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff Thomas D Overton
Plaintiff Romeo Hardin

Date Filed: 04/12/2001 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Thomas D Overton #800971 ISP-FORT MADISON P O Box 316 Fort Madison, IA 52627 PRO SE
Bruce Douglas Nestor DELEON & NESTOR, LLC 3547 Cedar Avenue South MINNEAPOLIS, MN 55407 612 659 9019 Fax: 612 436 3664 Email: nestor@denestlaw.com TERMINATED: 08/19/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clemens Erdahl Nidey, Peterson, Erdahl & Tindal 425 - 2nd Street SE Suite 1000 Cedar Rapids, IA 52401 319 369 0000 Fax: 369 6972 Email: jlancial@npetlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce Douglas Nestor (See above for address) TERMINATED: 11/04/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Archie Bear
Plaintiff William L Stringer
Plaintiff Michael McBride
V. Defendant Louis Galloway

Clemens Erdahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce Douglas Nestor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clemens Erdahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce Douglas Nestor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clemens Erdahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce Douglas Nestor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clemens Erdahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William A Hill Department of Justice 1305 East Walnut Street Hoover State Office Building Des Moines, IA 50319 515 281 6162 Fax: 281 4902

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Defendant Don Lynch
Defendant Walter Kautzky
Defendant John Mathes

Email: whill@ag.state.ia.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William A Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William A Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William A Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/12/2001 04/12/2001 04/12/2001 04/12/2001 05/25/2001
05/25/2001 05/30/2001

#

Docket Text

1 MOTION by plaintiff Thomas D Overton to proceed in forma pauperis before Honorable Charles R. Wolle (dr) (Entered: 04/12/2001)

2 MOTION by plaintiff Thomas D Overton for temporary restraining order before Honorable Charles R. Wolle (dr) (Entered: 04/12/2001)

REMARK - Copy of complaint submitted to Judge Wolle this date; no payment received with pleadings (dr) (Entered: 04/12/2001)

3 ORDER by Honorable Charles R. Wolle denying motion for temporary restraining order and request for heaering on the matter [2-1] (cc: all counsel) (dr) (Entered: 04/13/2001)

4 INITIAL REVIEW ORDER by Honorable Charles R. Wolle granting motion to proceed in forma pauperis. The complaint shall be filed for pltf. Overton. Pltf. Hardin has not submited an application to proceed in forma pauperis. he must file such an application by 6/23/01. Service of process shall issue by mail to defts. and to the A.G.; defts. must reply to this complaint within 60 days. [1-1] adding party (cc: all counsel) (jj) (Entered: 05/29/2001)

5 COMPLAINT (cc: pltf(s)). (jj) (Entered: 05/29/2001)

REMARK - Service of process issued by mail this date to dfts Don Lynch, Louis Galloway, and Attorney General of State of Iowa (dr) Modified on 06/11/2001 (Entered: 05/30/2001)

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06/11/2001 06/14/2001 06/19/2001 06/20/2001
07/05/2001 07/16/2001 07/16/2001 07/19/2001
07/24/2001 07/24/2001 08/06/2001 08/15/2001

6 SUPPLEMENT by plaintiff Thomas D Overton [1-1] to motion to proceed in forma pauperis before Honorable Charles R. Wolle (dr) (Entered: 06/11/2001)
FILING FEE PAID: on 6/11/01 in the amount of $ 1.54, receipt # 61115. Balance $148.46. (dr) (Entered: 06/14/2001)
7 MOTION by plaintiff Romeo Hardin to proceed in forma pauperis before Honorable Charles R. Wolle (dr) (Entered: 06/19/2001)
8 ORDER by Honorable Charles R. Wolle granting Romeo Hardin's motion to proceed in forma pauperis [7-1]; court assesses an initial partial filing fee of $9.39, payable to clerk of court; pltf shall be responsible for payment of half of $150.00 filing fee; remainder of his share of the fee owed shall be paid to clerk of court from prisoner's account in accordance with 28 U.S.C. 1915(b); a notice of this obligation shall be sent to pltf and appropriate prison official; pltf shall complete and submit attached authorization within 30 days from date this order is filed (cc: all counsel) (dr) (Entered: 06/20/2001)
9 MOTION by plaintiff Romeo Hardin to alter or amend order of 6/20/01 before Honorable Charles R. Wolle (dr) (Entered: 07/05/2001)
10 MOTION by plaintiff Thomas D Overton for temporary restraining order , and for preliminary injunction before Honorable Charles R. Wolle (dr) (Entered: 07/17/2001)
11 MEMORANDUM by plaintiff Thomas D Overton in support [10-1] of motion for temporary restraining order, [10-2] of motion for preliminary injunction before Honorable Charles R. Wolle (dr) (Entered: 07/17/2001)
12 ORDER by Honorable Charles R. Wolle denying motion for temporary restraining order [10-1]; dft's shall respond to motion for preliminary injunction by 8/13/01; re [10-2] motion for preliminary injunction; denying motion to alter or amend order of 6/20/01 [9-1] (cc: all counsel) (dr) (Entered: 07/20/2001)
13 ATTORNEY APPEARANCE for defendant Louis Galloway, defendant Don Lynch by WILLIAM A HILL (don) (Entered: 07/24/2001)
14 ANSWER by defendant Louis Galloway, defendant Don Lynch complaint [5-1] (don) (Entered: 07/24/2001)
FILING FEE PAID: on 8/6/01 in the amount of $ 3.95, receipt # 61466. Balance owed is $144.51 (jj) (Entered: 08/09/2001)
15 ORDER by Honorable Charles R. Wolle; This is an action brought by an inmate pro se under 42 U.S.C. section 1983. Any party wishing to file a dispositive motion must do so no later then 11/16/01. Absent exceptional circumstances, the court will not entertain any dispositive motion filed after that date. A "dispositive motion" is any motion which would dispose of all or part of the case if granted. Such motions include motions for summary judgment under Federal Rule of Civil Procedure 56 and motions for judgment on the pleadings under rule 129(c) (cc: all counsel)

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08/23/2001 08/27/2001 08/27/2001 08/27/2001 09/04/2001 09/04/2001 09/14/2001
09/19/2001
09/26/2001
09/28/2001 09/28/2001 10/01/2001 10/02/2001

(dv) (Entered: 08/15/2001)
16 STATUS REPORT by plaintiff Thomas D Overton plaintiff prays for the court to enter injunctive relief beings the defendants failed to respond (dv) (Entered: 08/23/2001)
17 MOTION by defendant Louis Galloway, defendant Don Lynch to extend time to respond to the request for injunctive relief before Honorable Charles R. Wolle (don) (Entered: 08/27/2001)
18 RESISTANCE by defendant Louis Galloway, defendant Don Lynch to motion for preliminary injunction before Honorable Charles R. Wolle [10-2] (don) (Entered: 08/27/2001)
19 MEMORANDUM by defendant Louis Galloway, defendant Don Lynch in support [18-1] of motion response (don) (Entered: 08/27/2001)
20 REPLY by plaintiff Thomas D Overton, plaintiff Romeo Hardin re [18-1] motion response (dv) (Entered: 09/04/2001)
21 REPLY by plaintiff Thomas D Overton, plaintiff Romeo Hardin re [19-1] memorandum (dv) (Entered: 09/04/2001)
22 ORDER by Honorable Charles R. Wolle setting hearing on motion to extend time to respond to the request for injunctive relief [17-1] 9:00 9/19/01, setting hearing on motion for preliminary injunction [10-2] 9:00 9/19/01 via ICN (cc: all counsel) (dv) (Entered: 09/14/2001)
23 CLERK'S COURT MINUTES: courtroom clerk: Shirley Dooley; court reporter: Teresa Kenkel; motion for preliminary injunction before Honorable Charles R. Wolle [10-2] ; hearing held 9:00 9/19/01 (dv) (Entered: 09/19/2001)
24 ORDER by Honorable Charles R. Wolle terminating motion to extend time to respond to the request for injunctive relief [17-1], denying motion for preliminary injunction [10-2] Case consolidated 4:01-cv-80225 with member cases 4:01-cv-80456 , ;Bench Trial set for 12/28/01 at 9:00 on the grounds of the Iowa State Penitentiary , ; Final pretrial cnf (MAG) set for 12/14/01 at 10:00; held by telephone conference call (cc: all counsel) (dv) (Entered: 09/26/2001)
25 ORDER by Honorable Charles R. Wolle ; Trial rescheduled to 12/27/01 at 9:0 (cc: all counsel) (dv) (Entered: 09/28/2001)
26 ORDER by Magistrate Judge Celeste F. Bremer; The Court appoints attorneys Clemens Erdahl and Bruce Nestor to represent plaintiffs Bear, Stringer, and McBride. (cc: all counsel) (dv) (Entered: 09/28/2001)
39 ATTORNEY APPEARANCE for plaintiff Archie Bear, plaintiff William L Stringer, plaintiff Michael McBride by Clemens Erdahl and Bruce D. Nestor (dv) (Entered: 10/22/2001)
27 MOTION by plaintiff Thomas D Overton for summary judgment before Honorable Charles R. Wolle (dv) (Entered: 10/02/2001)

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10/02/2001 10/05/2001 10/05/2001 10/05/2001 10/10/2001 10/12/2001 10/12/2001
10/12/2001 10/12/2001 10/15/2001 10/19/2001
10/19/2001
10/19/2001 10/22/2001 10/22/2001

28 MEMORANDUM by plaintiff Thomas D Overton in support [27-1] of motion for summary judgment before Honorable Charles R. Wolle (dv) (Entered: 10/02/2001)
29 TRANSCRIPT filed October 5, 2001 RE:Plaintiffs' request for preliminary injunction. Transcript loose in file (DCAP) (Entered: 10/05/2001)
30 MOTION by defendants to dismiss before Honorable Charles R. Wolle (DCAP) (Entered: 10/05/2001)
31 MEMORANDUM in support [30-1] of motion to dismiss before Honorable Charles R. Wolle (DCAP) (Entered: 10/05/2001)
32 LETTER to court from plaintiff William L Stringer (dv) (Entered: 10/10/2001)
33 MOTION by defendant Louis Galloway, defendant Don Lynch to strike motion for summary judgment before Honorable Charles R. Wolle [27-1] before Honorable Charles R. Wolle (dv) (Entered: 10/12/2001)
34 MEMORANDUM by defendant Louis Galloway, defendant Don Lynch in support [33-1] of motion to strike motion for summary judgment before Honorable Charles R. Wolle [27-1] before Honorable Charles R. Wolle (dv) (Entered: 10/12/2001)
35 RESISTANCE by defendant Louis Galloway, defendant Don Lynch to motion for summary judgment before Honorable Charles R. Wolle [27-1] (dv) (Entered: 10/12/2001)
36 MEMORANDUM by defendant Louis Galloway, defendant Don Lynch in support [35-1] of motion response (dv) (Entered: 10/12/2001)
FILING FEE PAID: on 10/12/01 in the amount of $ 6.42, receipt # 62143 balance due 138.09. (dv) (Entered: 10/16/2001)
37 MOTION by plaintiff Archie Bear, plaintiff William L Stringer, plaintiff Michael McBride to strike motion to dismiss before Honorable James E. Gritzner [30-1] and , to extend time to respond to motion to dismiss (DCAP) Modified on 03/26/2002 (Entered: 10/19/2001)
38 NOTICE OF Interrogatroy APPEAL by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes from Dist. Court decision [24-4] cc:counsel,USCA (don) (Entered: 10/19/2001)
RECEIVED [38-1] re appeal fee in amount of $ 105.00 ( Receipt # 62188) (don) (Entered: 10/19/2001)
40 STATUS REPORT by plaintiff Romeo Hardin (dv) (Entered: 10/22/2001)
41 MOTION by plaintiff Thomas D Overton for appointment of counsel before Magistrate Judge Celeste F. Bremer (dv) (Entered: 10/22/2001)

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10/25/2001 10/25/2001 10/29/2001 10/30/2001
10/30/2001 11/02/2001 11/02/2001 11/05/2001 11/09/2001 11/15/2001 11/21/2001 11/27/2001 12/10/2001 12/10/2001 01/14/2002

NOTIFICATION by Circuit Court of Appellate Docket Number [38-1] 01-3462 (don) (Entered: 10/25/2001)
42 BRIEFING SCHEDULE received from Circuit Court ; transcript due 12/4/01 [38-1] Clemens Erdahl & Bruce D. Nestor appointed counsel for Bear's appeal (don) (Entered: 10/25/2001)
43 NOTICE regarding transcript for appeal by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes (don) (Entered: 10/29/2001)
44 ORDER by Honorable Charles R. Wolle granting motion for appointment of counsel [41-1], denying motion to strike motion to dismiss [30-1] and [37-1], denying motion to dismiss [30-1], denying motion for summary judgment [27-1]The Court directs the clerk of court to send a copy of this order to plaintiffs Overton, Hardin, and counsel for plaintiffs Bear, Stringer, and McBride. The Court appoints Clemens Erdahl and Bruce Nestor to represent plaintiffs Overton and Hardin. (cc: all counsel) (dv) (Entered: 10/30/2001)
45 RESISTANCE by plaintiff Archie Bear, plaintiff William L Stringer, plaintiff Michael McBride to Motion to Dismiss (dv) (Entered: 10/31/2001)
46 ATTORNEY APPEARANCE for plaintiff Thomas D Overton, plaintiff Romeo Hardin by BRUCE D NESTOR, CLEMENS ERDAHL (dv) (Entered: 11/02/2001)
47 CLERK'S COURT MINUTES: courtroom clerk: K. Bartolo; court reporter: none; (dv) (Entered: 11/02/2001)
48 ORDER by Honorable Charles R. Wolle ; Trial continued w/out date ; Final pretrial cnf (MAG) continue w/out date (cc: all counsel) (dv) (Entered: 11/05/2001)
49 LETTER to court from plaintiff Romeo Hardin (dv) (Entered: 11/09/2001)
50 ANSWER by defendant Walter Kautzky, defendant John Mathes complaint [5-1] (dv) (Entered: 11/15/2001)
51 LETTER from court to Mr. Hardin in response to hes letter of 11/5/01 (dv) (Entered: 11/21/2001)
52 ORDER by Honorable Charles R. Wolle; Plaintiff's motion to consolidate filing fees is denied (cc: all counsel) (dv) (Entered: 11/27/2001)
FILING FEE PAID: on 12/10/01 in the amount of $ 6.86, receipt # 62609. amount owed 130.30 (dv) (Entered: 12/12/2001)
FILING FEE PAID: on 12/10/01 in the amount of $ .93, receipt # 62609. amount owed 137.16 (dv) (Entered: 12/12/2001)
FILING FEE PAID: on 1/14/02 in the amount of $ 66.60, receipt # 62838. amount owed 63.70 (dv) (Entered: 01/15/2002)

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03/08/2002 03/26/2002 05/09/2002 06/10/2002 10/09/2002 11/07/2002 12/10/2002 12/20/2002 01/17/2003 01/30/2003 02/18/2003
02/24/2003
02/24/2003
02/24/2003
02/24/2003

FILING FEE PAID: on 3/8/02 in the amount of $ 6.57, receipt # 63215. amount owed 57.13 (dv) (Entered: 03/08/2002)
53 cc: LETTER to counsel from court advising of judge reassignment to Gritzner and number change to 4:01-cv-40225 (Reassignment includes member case 4:01-cv-40456) (ld) (Entered: 03/26/2002)
FILING FEE PAID: on 5/8/02 in the amount of $ .79, receipt # 63642. amount owed 56.34 (dv) (Entered: 05/09/2002)
FILING FEE PAID: on 6/10/02 in the amount of $ .34, receipt # 63851. amount owed 56.00 (dv) (Entered: 06/10/2002)
54 COPY of Appellate Court Order: District court to be affirmed (gk) (Entered: 10/09/2002)
FILING FEE PAID: on 10/3/02 in the amount of $ 56.00, receipt # 64863. (dv) (Entered: 11/07/2002)
55 MANDATE from Circuit Court of Appeals affirming the decision of the District Court [38-1] (cc: Counsel) (gk) (Entered: 12/10/2002)
56 ORDER by Magistrate Judge Celeste F. Bremer ; Status hearing (MAG) 01/23/03 10:00am by telephone conference (cc: all counsel) (don) (Entered: 12/20/2002)
57 MOTION by plaintiff Romeo Hardin to amend complaint before Magistrate Judge Celeste F. Bremer (dv) (Entered: 01/17/2003)
58 ORDER by Magistrate Judge Celeste F. Bremer ; Jury trial 05/19/03 9:00 am 1 day ; Final pretrial cnf (MAG) 05/07/03 10:30 am , ; Discovery ddl 04/18/03 (cc: all counsel) (don) (Entered: 01/30/2003)
59 ORDER by Judge Ronald E. Longstaff Case consolidated 4:01-cv-40225 with member cases 4:02-cv-40495, per order on 03/26/02 case #4:01-cv40456 (cc: all counsel) (Vacated per order 4/18/03) (don) Modified on 04/22/2003 (Entered: 02/26/2003)
60 MOTION by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes for summary judgment before Judge James E. Gritzner (don) Modified on 09/11/2003 (Entered: 02/26/2003)
61 APPENDIX filed by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes [60-1] re: motion for summary judgment before Judge James E. Gritzner (don) Modified on 02/26/2003 (Entered: 02/26/2003)
62 STATEMENT of undisputed material facts by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes [60-1] in support of motion for summary judgment before Judge James E. Gritzner (don) Modified on 02/26/2003 (Entered: 02/26/2003)
63 MEMORANDUM by defendant Louis Galloway, defendant Don Lynch,

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02/26/2003 02/26/2003 02/26/2003 02/26/2003 02/26/2003 02/26/2003 03/14/2003 03/18/2003 03/19/2003 03/21/2003 04/07/2003 04/07/2003 04/09/2003
04/11/2003

defendant Walter Kautzky, defendant John Mathes in support [60-1] of motion for summary judgment before Judge James E. Gritzner (don) Modified on 02/26/2003 (Entered: 02/26/2003)
64 AFFIDAVIT of L. Romeo Hardin and Maurice Campbell (dv) Modified on 02/27/2003 (Entered: 02/27/2003)
65 MOTION by plaintiff Romeo Hardin to amend complaint before Magistrate Judge Celeste F. Bremer (dv) Modified on 02/27/2003 (Entered: 02/27/2003)
66 RESISTANCE by plaintiff Romeo Hardin to motion for extension of time filed in 10495 (dv) Modified on 02/27/2003 (Entered: 02/27/2003)
67 AFFIDAVIT of Romeo Hardin (dv) Modified on 02/27/2003 (Entered: 02/27/2003)
68 STATUS REPORT by plaintiff Romeo Hardin (dv) (Entered: 02/27/2003)
69 LETTER to court from plaintiff Romeo Hardin (dv) (Entered: 02/27/2003)
70 ORDER by Judge James E. Gritzner denying motions to amend complaint [65-1], [57-1], Under 02-40495 motion to extend time is moot (cc: all counsel) (don) Modified on 03/14/2003 (Entered: 03/14/2003)
71 MOTION by plaintiff to extend to 4/7/03 to file resistance to motion for summary judgment before Magistrate Judge Celeste F. Bremer (dv) (Entered: 03/18/2003)
72 ORDER by Judge James E. Gritzner granting motion to extend time to 4/7/03 to file resistance to motion for summary judgment [71-1], re [601] (cc: all counsel) (ld) (Entered: 03/20/2003)
REMARK -- rec'd "Pro se" filing from Thomas Overton, "Resistance to Defs' Motion for Summary Judgment" Same forwarded to plntfs' court appointed counsel this date. (ld) (Entered: 03/21/2003)
73 MOTION by plaintiff to extend to 4/9/03 to file a reply to motion for summary judgment before Magistrate Judge Celeste F. Bremer (dv) (Entered: 04/07/2003)
74 MOTION by plaintiff to amend complaint before Magistrate Judge Celeste F. Bremer (dv) (Entered: 04/07/2003)
75 ORDER by Magistrate Judge Celeste F. Bremer granting motion to extend to 4/9/03 to file a reply to motion for summary judgment before Magistrate Judge Celeste F. Bremer [73-1] ; Status hearing (MAG) set for 04/17/03 at 2:30 by phone call placed by counsel for plaintiff (cc: all counsel) (dv) (Entered: 04/09/2003)
76 RESISTANCE by plaintiff to motion for summary judgment before Judge James E. Gritzner [60-1] (dv) (Entered: 04/11/2003)

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04/11/2003 04/11/2003 04/11/2003 04/14/2003 04/18/2003 04/18/2003 04/18/2003
05/23/2003 06/13/2003 06/13/2003
07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003

77 MEMORANDUM by plaintiff in support [76-1] of motion response (dv) (Entered: 04/11/2003)
78 STATEMENT by plaintiff [76-1] in support of motion response (dv) (Entered: 04/11/2003)
79 APPENDIX filed by plaintiff [76-1] re: motion response (dv) (Entered: 04/11/2003)
80 LETTER to court from plaintiff Romeo Hardin (dv) (Entered: 04/14/2003)
81 RESISTANCE by defendant to motion to amend complaint before Magistrate Judge Celeste F. Bremer [74-1] (dv) (Entered: 04/18/2003)
82 MEMORANDUM by defendant Louis Galloway in support [81-1] of motion response (dv) (Entered: 04/18/2003)
83 ORDER by Magistrate Judge Celeste F. Bremer granting motion to amend complaint [74-1] ; Jury trial continued ; Final pretrial cnf (MAG) continued vacating order [59-2] consolidating 4:02-cv-40495 and 4:01cv-40225, setting hearing on motion for summary judgment [60-1] 11:00 6/13/03 -- see order for specifics... (cc: all counsel) (ld) (Entered: 04/22/2003)
REMARK -- rec'd report to court from plntf' Hardin this date. Same forwarded to his counsel. (ld) (Entered: 05/23/2003)
84 ORDER by Judge James E. Gritzner motion for summary judgment [601] ; hearing held 11:00 6/13/03. This hearing will be continued to another date. See order for particulars (cc: all counsel) (dv) (Entered: 06/13/2003)
85 CLERK'S COURT MINUTES: courtroom clerk: Leslie; court reporter: Terri Martin; taking under advisement on the motion for summary judgment before Judge James E. Gritzner [60-1] (dv) (Entered: 06/13/2003)
86 ANSWER by defendant Louis Galloway, defendant Don Lynch complaint [5-1] (gk) (Entered: 07/03/2003)
87 SUPPLEMENTAL MOTION by defendant Louis Galloway, defendant Don Lynch for summary judgment before Judge James E. Gritzner (gk) (Entered: 07/03/2003)
88 MEMORANDUM by defendant Louis Galloway, defendant Don Lynch in support [87-1] of motion for summary judgment before Judge James E. Gritzner (gk) (Entered: 07/03/2003)
89 STATEMENT by defendant Louis Galloway, defendant Don Lynch [871] in support of motion for summary judgment before Judge James E. Gritzner (gk) (Entered: 07/03/2003)
90 APPENDIX filed by defendant Louis Galloway, defendant Don Lynch [87-1] re: motion for summary judgment before Judge James E. Gritzner (gk) (Entered: 07/03/2003)

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07/30/2003 07/30/2003 08/14/2003 08/19/2003 08/29/2003 08/29/2003 08/29/2003 09/04/2003
09/04/2003 09/10/2003 09/24/2003
09/24/2003 09/24/2003
09/24/2003

91 OBJECTIONS by plaintiff Thomas D Overton, plaintiff Romeo Hardin to [87-1] motion for summary judgment before Judge James E. Gritzner (dv) (Entered: 07/30/2003)
92 MEMORANDUM by plaintiff Thomas D Overton, plaintiff Romeo Hardin in support [91-1] of objection (dv) (Entered: 07/30/2003)
93 MOTION by plaintiff Thomas D Overton to withdraw attorney Bruce D. Nestor before Magistrate Judge Celeste F. Bremer (dv) (Entered: 08/14/2003)
94 ORDER by Magistrate Judge Celeste F. Bremer granting motion to withdraw attorney Bruce D. Nestor [93-1] for Thomas D Overton (cc: all counsel) (dv) (Entered: 08/19/2003)
95 MOTION by plaintiff Thomas D Overton to amend complaint before Magistrate Judge Celeste F. Bremer (dv) (Entered: 08/29/2003)
96 MOTION by plaintiff Thomas D Overton for temporary restraining order before Judge James E. Gritzner (dv) (Entered: 08/29/2003)
97 MEMORANDUM by plaintiff Thomas D Overton in support [96-1] of motion for temporary restraining order before Judge James E. Gritzner (dv) (Entered: 08/29/2003)
98 ORDER by Magistrate Judge Ross A. Walters re [97-1] memorandum, re [96-1] motion for temporary restraining order , re [95-1] motion to amend complaint. Plaintiff did not serve dft these pleadings. The clerk of court shall send copies of these motions and briefs to the office of the AG(cc: all counsel) (dv) (Entered: 09/04/2003)
REMARK copies of doc #95,96,97 were sent to AG w/order (dv) (Entered: 09/04/2003)
99 LETTER to court from plaintiff Thomas D Overton in re: wanting copies of pleadings #'s 95,96,97. Clerk sent copies to pla this date (dv) (Entered: 09/10/2003)
100 RESISTANCE by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes to motion to amend complaint before Magistrate Judge Celeste F. Bremer [95-1] (don) (Entered: 09/24/2003)
101 MEMORANDUM by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes in support [100-1] of motion response (don) (Entered: 09/24/2003)
102 RESISTANCE by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes to motion for temporary restraining order before Judge James E. Gritzner [96-1] (don) (Entered: 09/24/2003)
103 MEMORANDUM by defendant Louis Galloway, defendant Don Lynch, defendant Walter Kautzky, defendant John Mathes in support [102-1] of

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10/02/2003 10/02/2003 10/08/2003
10/09/2003 10/15/2003 10/17/2003 10/23/2003 10/27/2003 10/31/2003 11/04/2003

motion response (don) (Entered: 09/24/2003)
104 REPLY by plaintiff Thomas D Overton re [102-1] motion response (dv) (Entered: 10/03/2003)
105 MOTION by plaintiff Thomas D Overton to amend complaint before Magistrate Judge Celeste F. Bremer (dv) (Entered: 10/03/2003)
106 ORDER by Judge James E. Gritzner denying motion to amend complaint [105-1], denying motion for temporary restraining order [96-1], denying motion to amend complaint [95-1], granting motion for summary judgment [87-1], granting motion for summary judgment [60-1]Plaintiffs' remaining claims are dismissed with prejudice (cc: all counsel) (dv) (Entered: 10/08/2003)
107 JUDGMENT: signed by JRR, Clerk re [106-1] order terminating case (4:01-cv-40456) (cc: all counsel) OJ 312-57 (dv) (Entered: 10/09/2003)
108 MOTION by plaintiff Romeo Hardin to amend findings of fact and conclusions of law before Judge James E. Gritzner (dv) (Entered: 10/15/2003)
109 ORDER by Judge James E. Gritzner denying motion to amend findings of fact and conclusions of law [108-1] (cc: all counsel) (gk) (Entered: 10/17/2003)
110 MOTION by plaintiff Thomas D Overton to amend findings and facts before Judge James E. Gritzner (dv) (Entered: 10/23/2003)
111 MEMORANDUM by plaintiff Thomas D Overton in support [110-1] of motion to amend findings and facts before Judge James E. Gritzner (dv) (Entered: 10/27/2003)
112 MOTION by plaintiff Romeo Hardin to withdraw attorney Bruce D Nestor before Magistrate Judge Celeste F. Bremer (gk) (Entered: 10/31/2003)
113 ORDER by Judge James E. Gritzner granting motion to withdraw attorney Bruce D Nestor [112-1] for Romeo Hardin, denying motion to amend findings and facts [110-1] (cc: all counsel) (dv) (Entered: 11/04/2003)

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 305 F.3d 802 (2002)
Archie BEAR, et al., Plaintiffs-Appellees, v.
Walter KAUTZKY, et al., Defendants-Appellants.
No. 01-3462.
United States Court of Appeals, Eighth Circuit.
Submitted: June 13, 2002. Filed: October 4, 2002.
803 *803 William A. Hill, argued, Asst. Atty. Gen., Des Moines, IA, for appellant.
Bruce D. Nestor, argued, Iowa City, IA, for appellee.
Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
LOKEN, Circuit Judge.
Iowa prison officials appeal the district court's[1] grant of a preliminary injunction permitting four inmates at the Iowa State Penitentiary (ISP) to communicate with other inmates serving as "jailhouse lawyers," and to use a discontinued method of inmate-to-inmate legal correspondence known at ISP as the red star system, pending trial of plaintiffs' claims that a new, more restrictive policy deprives them of effective access to the courts. We review the district court's grant of preliminary injunctive relief for abuse of discretion. Goff v. Harper, 60 F.3d 518, 520 (8th Cir.1995). Because defendants made no showing that an absolute ban on inmate legal correspondence serves a legitimate penological purpose, and no showing that these plaintiffs or their jailhouse lawyers misused the former system, we conclude the district court did not abuse its discretion in granting the injunction.
Prior to July 1, 2001, ISP officials permitted inmates to provide legal services to each other. ISP maintained the red star system to facilitate correspondence between inmates in the same prison unit regarding legal matters. The red star system for screening and delivering legal mail is described in Goff v. Nix, 113 F.3d 887, 888 (8th Cir.1997). On July 1, 2001, ISP officials adopted a new policy banning inmates from providing legal services to 804 each other, eliminating the red star system, *804 and directing inmates to seek legal assistance from a private attorney under contract with ISP. Two groups of inmates filed actions challenging the new policy under 42 U.S.C. § 1983 and moved the district court for a preliminary injunction enjoining its enforcement pendente lite. The court consolidated the two actions and, following an evidentiary hearing, granted the requested injunction in favor of four plaintiffs: Archie Bear, William Stringer, Michael McBride, and Romeo Hardin.[2]
The new ISP policy impacts two frequently-litigated issues 0907 the extent to which an inmate has a First Amendment right to communicate with other inmates, and the boundaries of an inmate's constitutional right of access to the courts. As to the first, in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court held that, because inmates retain First Amendment free speech rights, a prison regulation limiting correspondence between inmates at other correctional institutions "is valid if it is reasonably related to legitimate penological interests." As to the second, in Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), quoting Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Court confirmed that inmates have a constitutional right of access to the courts that obligates prison officials to provide some means, such as a prison law library or a legal assistance program, "for ensuring `a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'" In Shaw v. Murphy, 532 U.S. 223, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001), the Court helped define the interplay between these two issues by ruling that communications between inmates about legal matters are not entitled to greater constitutional protection than other communications 0907 the deferential Turner standard applies.

In this case, plaintiffs allege that the new ISP policy effectively denies them access to the courts. At the preliminary injunction hearing, the four plaintiffs testified that they have post-conviction proceedings pending or planned, that they do not have the knowledge or skill needed to pursue these claims without legal assistance, and that they either were receiving effective assistance from jailhouse lawyers or seek to obtain such assistance for these specific claims. This testimony satisfied, at least for preliminary injunction purposes, the requirement that an inmate plaintiff demonstrate actual injury, that is, "that the alleged shortcomings in the [prison's] library or legal assistance program hindered his efforts to pursue a legal claim." Lewis, 518 U.S. at 351, 116 S.Ct. 2174; see Johnson v. Avery, 393 U.S. 483, 501-02, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (White, J., dissenting). Regarding the ISP's new policy of making a contract attorney available, one plaintiff testified that the attorney has a conflict of interest, another testified that he tried unsuccessfully for one year to meet with that attorney, and a third testified that the attorney knew nothing about criminal law and was unable to provide research assistance, conduct investigations, or file papers.
Defendants presented no testimony or documentary evidence at the hearing.
805 *805 In exercising its discretion to grant a preliminary injunction, the district court applied the familiar four-part test adopted in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir.1981). First, the court concluded that the four plaintiffs satisfied the irreparable injury requirement because they risked "losing the ability to file meaningful challenges to their convictions or conditions of confinement."[3] Second, while acknowledging that defendants have a "strong interest in maintaining security and order at ISP" and that inmates have been known to abuse jailhouse lawyer systems, the court concluded that the balance of harms tips in plaintiffs' favor because defendants presented no evidence that continued legal communications during the pendency of these proceedings would cause harm at ISP. Third, given the lack of evidence from defendants addressing the Turner factors, the court concluded that plaintiffs "may well prevail on the merits" because they are "trying to bring nonfrivolous challenges to their convictions and to the conditions of their confinement [and do] not have the means to do it themselves." Finally, assessing the public interest factor, the court concluded that protecting constitutional rights by maintaining the status quo for a handful of inmates outweighed the public interest "in minimizing court interference in the orderly and secure running of the prison system."
On appeal, defendants argue that plaintiffs have shown no irreparable injury because three of them have appointed counsel for their pending habeas cases. Regarding plaintiffs' likelihood of success on the merits, defendants argue the right of access to the courts is not unlimited, there is no constitutional requirement to provide inmate-to-inmate legal communications, and ISP's providing of a contract attorney to assist inmates "satisfies the requirement of a person trained in the law." Therefore, the district court's preliminary injunction is an excessive intrusion upon the public interest in the orderly and secure running of the prison system.
Our difficulty with this argument is that it ignores the interplay between the First Amendment and right-of-access issues. We agree there is no absolute First Amendment right to communicate with other inmates about legal or other matters. Thus, in Goff v. Nix, 113 F.3d at 891, we upheld ISP's ban on legal correspondence between inmates located at different facilities because defendants made a sufficient showing that the restraint was reasonably related to a legitimate penological interest. But Goff is distinguishable from this case in two critical respects. First, plaintiffs in this case allege that ISP has imposed a total ban on all inmate legal communications, and they presented evidence that they have no satisfactory alternative way of obtaining needed legal assistance to pursue specific post-conviction claims. Second, and even more important, defendants introduced no evidence justifying the new policy under the deferential Turner standard, despite the Supreme Court's repeated caution that inmates do have First Amendment rights and therefore free speech restrictions must be justified by legitimate penological concerns.
As we explained in Goff v. Nix, 113 F.3d at 892, when a regulation restricting inmate legal communication is 806 challenged, the Turner factors must be weighed in a manner that takes into account *806 any impact on the
inmate's right of access to the courts. But courts must still defer to prison officials' reasonable penological decisions. In Bounds and Lewis, the Supreme Court emphasized that there is no one prescribed method of ensuring inmate access to the courts. A prison system may experiment with prison libraries, jailhouse lawyers, private lawyers on contract with the prison, or some combination of these and other devices, so long as there is

no actual harm to the access rights of particular inmates. See Lewis, 518 U.S. at 351; cf. Christopher v. Harbury, ___ U.S. ___, ___, 122 S.Ct. 2179, 2185, 153 L.Ed.2d 413 (2002).
In this case, defendants may well present sufficient evidence at trial to justify the new ISP policy under the Turner standard as it applies in access-to-the-courts cases. Indeed, the Supreme Court has repeatedly noted the legitimate penological interests in restricting inmate-to-inmate correspondence, including communications regarding legal matters and the activities of jailhouse lawyers. See Shaw, 532 U.S. at 231, 121 S.Ct. 1475; Turner, 482 U.S. at 91-93, 107 S.Ct. 2254; Johnson, 393 U.S. at 488, 499-500, 89 S.Ct. 747. But on this record, we conclude the district court carefully applied the Dataphase factors and did not abuse its discretion in granting a limited preliminary injunction in favor of the four plaintiffs.
The court's order of September 26, 2001 is affirmed.
[1] The HONORABLE CHARLES R. WOLLE, United States District Judge for the Southern District of Iowa.
[2] The fifth plaintiff, Thomas Overton, seeks to continue serving as a jailhouse lawyer. The district court properly denied him a preliminary injunction on the ground that he has not demonstrated the requisite irreparable injury because he has no constitutional right to provide legal assistance to other inmates. See Gassler v. Rayl, 862 F.2d 706, 707-08 (8th Cir.1988).
[3] Consistent with Lewis v. Casey, 518 U.S. at 354-55, 116 S.Ct. 2174 the district court limited its preliminary injunction to plaintiffs' correspondence regarding challenges to their convictions and conditions of confinement.
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