CRAIG E. WATERMAN (Name) .

JFl1~~lQ)

76829 (Institutional Register No.)

6~~2 2003

1300 N. WAREHOUSE RD. FT. LEAVEN-

(Current Mailing Address)

[]

W RTH NSA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

CRAIG E. WATERMAN

' Plaintiff

(Full and Correct Name)

vs.

T, CASE NO. 0 3- 3 4 1 5" G
(To be supplied by the Clerk)

COLLEEN L. MC GUIRE, KAREN SKAGGS, ~AN~D~JUD~~Y~WI~LL~I~AM~S__________ , Defendants.

CIVIL RIGHTS COMPLAINT PURSUANT TO 28 U.S.C. §133l

A. JURISDICTION

1)

~C~R(A~IpG~l~Ea.~lW~nA~TtE~RiMfAfN~f~)-------- , is a resident o(Sft-a~tM~eAUUINo~Ef~r-e-s-l~'d~e-n-c-y--p--r~i-o-r

to incarceration)

who is presently located at TIlE UNITED STATES DISCIpTINARY BARRACKS (Mailing address or place of confinement)

2 )

VEN Defendant CD]

1.. MC GlJIRE

Name of first defendant)

is a resident of

_FT~.~J~E~A~VViliO~~RuTH~ITK~A¥N~S~A~S~~~~_______________ ' is employed as (City, State)

~CQ~MM~~~ND~ANT~~~~~~~~__~~~~_________ ' and may be located (Position and title, if any)

at 1301 N. WAREHOUSE RD. FT. LEAVEN., KS. 66027. At the time the (Address for service of process)

claim(s) alleged in this complaint arose, was this defendant acting

in his official capacity as an employee of the United States?

Yes...x.....

No

If your answer is "Yes", briefly explain:

COLLEEN L. MC GUIRE affirmed the rejection of Mr. Waterman's mail as the appellate

.authp,rijtlr and SlJJ;lWrtS the mj SJJse and "pronst; tlltjonalit)1 of 0.5,D,5. Reg 2B-1

XE-2(F)

CIVIL RIGHTS COMPLAINT (28 U,S.C, §133t)

3)

Defendant KAR~ SKAC..GS

Name of first defendant}

is a resident of

~I~,E~~~VE~NWO~R~TH~,~K~A~N~S~A~S~~~~~~_________________ , is employed as (city, state)

~C~H~I~EF(~OP~Fo~Is~l~t~iTEo~n~S~EaR~nVdT~C~tE~iSt~Bl~Re~A,N~~ffH~~_a_n~yr) -________ ' and may be located

at 1 ~1 N. WAREHQ!lSE RD. IT. lEAVEN .. KS. (56027 Address for service of process)

At the time the

claim(s) alleged in this complaint arose, was this defendant acting

in his official capacity as an employee of the United States?

Yes 1L-

No

If your answer is "Yes", briefly explain:

KAREN SKAC..GS js chjef oyer discretionary matters. and chief supervisor for all

mail room staff.
(Use the back of this page to furnish the above information for additional defendants.) Please see attached page for additional defendants.
4) Jurisdiction is invoked pursuant to 28 U.S.C. § 1331. (If you wish to assert jurisdiction under different or additional statutes, you may list them below.)

B. NATURE OF THE CASE
1) Briefly state the background of your case.
This is an action seeking declaratory and injunctive relief against the
Commandant and mail room staff, from prohibiting mail to be delivered to Mr.
Waterman that should be allowed under the First Amendment of the U. S. Constitution. Mr. Waterman brings this action because of the United States Disciplinary Barracks' Commandant's refusal to change or alter U.S.D.B. Regulation 28-1, and instead allowing rejection of all Internet material, all copied material, and requiring him to obtain all publications or materials only from a publisher or commerial source, this is irrespective of it's binding, shape, form, content, or subject matter.

2

nefendant .Judy 1'/i lliams is a resi1ent of Leavenworth, ~ansas, is employed as ~ailroom (Inmate Services Branch) cler~ and supervisor, and may be located at 1301 N. Warehouse qd. Ft. Leavenwort~,
KS. 66027-2304.
At the time the claim(s) alleged in t~is complaint arose, was this defendant acting in her official capacity as an employee of the United States?
Yes JL... No __ . If your answer is "Yes", briefly explain:
Judy Williams was the official who directly rejected ~r. Waterman's mail under the misuse and unconstitutionality of U.S.D.B. regulation 28-1.

C. CAUSE OF ACTION
1) I allege that my claims arise under the following constitutional provisions or laws of the United States and that the following facts form the basis for my allegations: (If necessary you may attach up to two additional pages (8 1/2" x II") to explain any allegation or to list additional supporting facts.)
A) (1 ) Coun t I: DEFENDANTS VIOlATED ME. WATERMAN'S FIRST AMENDMENT RIGfITS
BY PROHIBITING HIM FROM RECEIVING ANY MATERIAlS GENERATED ON THE INTERNET, REGARD-
LESS OF CONrFNT, AND MATTED ill HIM AT TIlE U.S.D B
(2) Supporting Facts: (Include all facts you consider important, including names of persons involved, places and dates. Describe exactly how each defendant is involved. State the facts clearly in your own words without citing legal authority or argument.) 1.) Judy Williams and Karen Skaggs has denied Craig Waterman's mail on the basis that it was material downloaded from the Internet. 2.) This material has included common law from the Supreme Court and Federal district or Circuit Courts that have been sent from Mr. Waterman's friend Fred Nixon within this past year.
B) (1) Count II: DEFENDANT'S VIffiATED MR. WATERMAN'S FIRST AMENDMENT
RIGfITS BY PROHIBITING HIM FRQM RECEIVING ANY MATFJUAT SWAT HAVE BEEN mpTED
TRRESPEcrUIF OF CONTENT AN!) MATTED ill HIM AT THE U.S.p.B.
(2) Supporting Facts: 1.) Judy Williams and Karen Skaggs has denied Craig Waterman mail that was copied from the original. 2.) This mail has included any copies of any material, regardless of subject matter or content. 3.) Specifically, copies of a friend's, Tracy Mazzacco's paralegal tests sent and rejected to him on the 18th of July 2003. 4.) Furthermore, copies of Maine State Statutes, sent to him by his mother as part of a lawsuit.
5.) The lawsuit's subject matter was over Craig Waterman's grandfather's
ashes and death, which is his mother's father. 6.) A copy of an attorney's letter sent to his mother was attached to the Maine State Statutes, and were part of that letter sent to Craig Waterman at the U.S.D.B. 7.) The statutes, attorney's letter were sent and then rejected on the 21st of July 2003. 8.) The mail that has been denied on the basis it was copied from the original has been enforced and affirmed by Colleen Me Guire as Commandant and appellate authority under U.S.D.B.
3

C) (1 ) Count III: DEFENDANTS VIOlATED MR. WATERMAN'S FIRST AMENDMENT RIGHTS BY REQUIRING HIM TO OBTAIN ALL PUBLICATIONS OR MATERIALS ONLY FROM A P!JBI.ISHEB OR CX2MMERIAL VENDOR IRRESPECTIVE OF IT'S BINDING, SHAPE, OR SUBJECT MATTER.

(2) Supporting Facts: 1.) Judy Williams and Karen Skaggs has denied Craig Waterman mail on the basis that it was not obtained from a publisher or commercial vendor under U.S.D.B. Regulation 28-1. 2.) This includes that no articles, cartoons, photographs, games, or calendars can be defaced from any publication and sent to Craig Waterman by friends or family regardless of subject matter or content under U.S.D.B.
Regulation 28-1. 3.) Moreover, no magazines, catalogs, newspapers, or books can be sent 'to
craig Waterman by friends or family irrespective
D. PREVIOUS LAWSUITS

1) ~ave you begun other lawsuits in state or federal court dealing

1n any way w1th the same facts involved in this action?

Yes

No

If your answer is""Y'es", describe each lawsuit. (If there is

more than one lawsuit, describe the additional lawsuits on

another piece of paper, using the same outline.)

a) Parties to previous lawsuit: Plaintiffs: Defendants:

b) Name of court and docket number

c) Disposition (for example: Was the case dismissed? Was it appealed? Is it still pending?)

d) Issues raised e) Approximate date of filing lawsuit f) Approximate date of disposition

4

A) (1) (2) (Continued): 3.) Furthermore, songs that were religious in nature, such as 'l.andy Travis I song "Three \ofooden Crosses" and other songs that just had a good message, that were sent from Mr. Waterman's parents in May of 2003. 4.) Any material downloaded or retrieved from the Internet, including e-mail, regardless of subject matter or content has been denied by both Judy ldilliams and '<aren Skaggs in the past under U.S.D.B. regulation 28-1. 5.) Their decision to do so has be upheld and enforced by Colleen Mc ~uire religiously as appellate authority under U.S.D.R. re 7 ulation 23-1. 6. ') "9y banning all material from the Internet it violates the constitution under the First Amendment and has no valid, rational connection to any legitimate penological justification or goal. 7.) Alternatively, the provision under 'J.S.D.'1. regulation 281 is over-broad and is an exaggerated response in justifying a reasonably legitimate penological goal in denying Craig 'ofaterman all materials downloaded from the Internet.

B) (1) (2) (Continued): regulation 23-1. 9.) By banning all material that has been copied irrespective of content or subject matter violates the constitution under the First Amendment and has no valid, rational connection to any legitimate penological justification or goal. 10.) Alternatively, the provision under U.S.D.". regulation 231is over-broad and is an exaggerated response in justifing that all material that has been copied to be denied to Craig "laterman irrespective of content or subject matter.

C)(1 )(2)(Continued):

of content, subject matter, shape, binding, or form under U.S.D."

rerrulation 23-1.

4. j ,Tudy "lilliams and T(aren Skaggs has denied Craig '"raterman

mail from his friend Tracy 1'lazzacco because it was copied and

not obtained from a publisher or commercial vendor on the 18th

and 22nd of July, 200j.

.

5.) This material was a copy of Tracy Mazzacco's paralegal tests from her paralegal course. 6.) Furthermore, .Judy "!illiams and '<:aren Skaggs denied copies of 'Iaine State Statutes sent to 'Ir. lofaterman by 'lis mother as part of a lawsuit involving her on the 21st of July 2001, because they were not from a commercial source or vendor. 7.) Additionally, Judy ~illiams and '<aren Skaggs has denied Craig '!Iaterman mail because it was cut out newspaper articles, or pictures, sent from friends or family in the past. 3.) The mail that has been rejected on the basis it was not

directly from a commercial source or publisher has been

affirmed and enforced by Colleen Mc Guire as Commandant and

C) (1) (2) (Continued):
ap~ellate authority under U.S.n.B. regulation 2~-1.
9.) By banning all material that has not come directly from a commercial source, or publisher to wit: magazines, catalogs, newspapers, books, or articles, cartoons, photographs, games, or calendars that were defaced from the same, irrespective of
content, subject matter, shape, form, or binding, under TJ.S.n.B.
regulation 28-1 violates the TJ .S. constitution under the First Amendment, and has no valid, rational connection to any legitimate penological justification or goal.
10.) Alternatively, the provision under U.S.n.B. regulation
23-1 spoken of above is over-broad and is an exaggerated response to re-l.uire all materials spoken of above to come from a commercial source, or publisher, or denied because they were defaced from the same, to justify a reasonably legitimate peno-
logical goal under the First Amendment.

E. ADMINISTRATIVE RELIEF

1) Have you presented all grounds for relief raised in this

complaint by way of BP-9, BP-IO, and BP-ll grievances?

Yes

No ...K...-

2) If your answer to (1) is "Yes," state the date of disposition, result and reasons given for the administrative decision

3) If your answer to (1) is "No," list each ground not fully presented through the administrative grievance process and explain why it was not Mr. loJaterman is incarcerated at a mi1itaq'
federal prison and therefore the abcnre procedures do Dot apply.
4) Describe all other procedures you have used (such as tort claim or Parole Commission administrative appeals procedures) to exhaust administrative remedies as to each issue raised
Mr. lYaterrnan has exhallsted all administrative remedies offered under
U.S.D.B. Regl!lation 28-1, all of which have failed.
F. REQUEST FOR RELIEF
1) I believe that I am entitled to the following relief: A declaratory judgment and injunctive relief precluding Defendants from confiscating, destroying, or returning mail containing copies or Internet-genrated material, and enjoining Defendants from mandating that all publications or materials be sent directly from a publisher or commerial vendor.

Signature of Attorney (if any)

Signature of Petitioner

(Attorney's full address and telephone number)
5

DECLARATION UNDER PENALTY OF PERJURY
The undersigned declares (or certifies, verifies, or states) under penalty of perjury that he is the plaintiff in the above action, that he has read the above complaint and that the information contained therein is true and correct. 28 U.S.C. § 1746. 18 U.S.C. § 1621.

Ex e eu t ed a t .JF.J.t..,,--,I,l;e'fa~V~e:l:nIlolWIl:()u:r:,It.!lhc.."JlK.aaDDssa.ass_ on ~Oc~t~Q~be~rL-~2~Q~tbu-~___ ' ~_

(Locatiot,,)

(Date)

6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

)

CRAIG E. WATERMAN,

)

)

Plaintiff,

)

)

v.

)

)

)

COMMANDANT, United States

Disciplinary Barracks, et al.,

)

)

Defendants.

)

)

CIVIL ACTION No. 03-3415-CM

MEMORANDUM AND ORDER

Plaintiff, a military prisoner incarcerated at the United States Disciplinary Barracks

(USDB), Fort Leavenworth, Kansas, filed this action against the Commandant of the USDB,

Colonel Colleen L. McGuire, the USDB Chief of Inmate Services, and the USDB Publications

Review Officer (PRO) in their official capacities challenging defendants’ decision to deny plaintiff

access to certain mail. Specifically, plaintiff claims that the USDB’s publication policy allowing mail

room personnel to reject incoming mail containing photocopies of publications or materials not

coming directly from a publisher or commercial vendor, as applied to him, violates his First

Amendment rights. Plaintiff further alleges that defendants’ application of the USDB publication

policy to deny him one edition of Prison Legal News, a nationally-circulated periodical, also

violates his First Amendment rights. This matter is before the court on defendants’ Motion for

Summary Judgment (Doc. 22).

I. Facts1 The facts of this case are largely undisputed. Plaintiff is an inmate at the USDB, serving a
sentence of 20 years of confinement. Plaintiff has been confined at the USDB since May 1, 1997. The USDB is the Department of Defense’s only long-term maximum security prison that houses some of the United States military’s most dangerous prisoners, including those who have been convicted of murder and of violent sex crimes. Thus, security and internal order and control are major considerations for actions taken by the officials at the USDB.
The USDB maintains a modern, up-to-date law library for the inmates. The USDB’s main library is centrally located in the facility, which consists of five computer workstations that run Westlaw’s LawDesk legal research software. The USDB has a total of sixteen LawDesk computer workstations throughout the facility. The software is updated regularly, and includes, but is not limited, to the Federal Reporters, Federal Supplements, Supreme Court Reports, U.S. Code Annotated, Military Justice Codes in Titles 10 and 32, Military Justice Reporters, Military Judge’s Benchlaw, American Jurisprudence, Manual for Courts-Martial, and the Military Criminal Law Benchbook. The law library also contains numerous shelved volumes of legal materials, and each domicile houses a computer workstation loaded with the LawDesk software.
All printed material mailed to inmates at the USDB is screened in accordance with USDB Regulation 28-1. According to Paragraph 5-1a(2)(l) of this regulation, mail may be rejected if,
1The court notes that plaintiff twice filed an identical pleading entitled “Plaintiff’s Cross-Motion for Summary Judgment” (Doc. 27 & 28), which the court considers both a response to defendants’ summary judgment motion and a motion for summary judgment. For purposes of this opinion, the court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed. R. Civ. P. 56.
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“Publication/material did not come directly from the publisher or commercial vendor or has been altered after publication by removing or defacing for example, pages, articles, cartoons, photographs, games, advertisements, or calendars.” Printed material that is considered questionable for release to inmates under Regulation 28-1 is set aside by mailroom personnel for review by the Publication Review Officer (PRO). When the PRO believes there exists a reasonable basis that a publication violates the standards of USDB Regulation 28-1, the PRO advises the inmate in writing of such a decision and the reason(s) for it. At that point, the inmate may accept the decision and dispose of the publication, appeal the PRO’s decision to the Commandant by submitting a request in writing through the Advisory Board, or request an exception to policy to the Commandant through the Advisory Board.
The Advisory Board recommends to the Commandant what reading material should be excluded from or allowed in to the inmate population in accordance with the guidelines in USDB Regulation 28-1. The Advisory Board reviews each publication individually and determines, by majority vote, whether to recommend exclusion or inclusion of the publication. The Commandant then reviews the publication, the inmate’s appeal, and the Advisory Board’s recommendation, and determines whether to allow or deny the inmate access to the publication.
On three separate occasions, plaintiff was denied materials that were sent to him via mail, on the basis that the materials did not come directly from the publisher or commercial vendor. In all three instances, plaintiff requested that the publications be sent through the Advisory Board, for a final decision by the Commandant. USDB Commandant denied plaintiff’s appeals and rejected the admission of the publications and material into the institution.
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Plaintiff also was denied access to Prison Legal News, Volume 15, on the basis that its content posed a threat to the security, safety, good order, or discipline of the institution. The page numbers initially cited as violative were 6, 16, 21, and 25. Plaintiff contends that in a conversation with Judy Williams, the individual who initially denied access to the publication, Williams stated that the periodical was being denied because it contained sexual assault or rape case material. Plaintiff requested review by the Advisory Board, for a final decision by the Commandant. USDB Commandant denied plaintiff’s appeal, stating that the publication instructs in the commission of criminal activity or institutional violations. Defendants contend that the publication contained an advertisement encouraging prisoners to trade their unused stamps for currency, which is a violation of USDB institutional regulations. II. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Id. (citing Anderson, 477 U.S. at 248).
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The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n.1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671. “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Id. Finally, the court notes that summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
The court acknowledges that plaintiff appears pro se and his response is entitled to a somewhat less stringent standard than a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this does not excuse plaintiff from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil
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Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Even a pro se plaintiff must present some “specific factual support” for his allegations. Id. III. Discussion
A. Proper Parties Plaintiff has stated that the named defendants were acting in their official capacity during the alleged incidents. A suit against an officer or agent of the United States Government, with respect to actions taken in his or her official capacity, generally is held to be a suit against the United States. Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996). Thus, to the extent plaintiff’s action seeks injunctive relief from defendants in their official capacity, the United States is substituted as the sole defendant.2 B. Non-Original Source Materials As alleged by plaintiff, the following were sent to plaintiff via mail and rejected by defendant: 1) material from the Internet that included common law from the Supreme Court, federal circuits, and federal district courts; 2) material from the Internet that included songs that were religious in nature; 3) paralegal tests that had been copied; 4) Maine State Statutes that had been copied. The court therefore examines the constitutionality of USDB Regulation 28-1, which bans publications or material that did not come directly from the publisher or commercial vendor. In Thornburgh v. Abbott, 490 U.S. 401 (1989), the Supreme Court held that regulations governing the receipt of reading materials by inmates must be analyzed under a reasonableness
2For the remainder of this opinion, the court will therefore refer to the defending parties as “defendant.”
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standard, and that such regulations are valid if they are reasonably related to a legitimate penological interest. These determinations should be made using the four-prong inquiry established in Turner v. Safley, 482 U.S. 78 (1987). Under this standard, courts must consider (1) whether there is a rational connection between the prison policy and a legitimate governmental interest; (2) whether there are alternative means for inmates to exercise their constitutional rights; (3) the effect that accommodating the exercise of the disputed rights would have on guards, other inmates, and prison resources; and (4) whether there are ready, easy-to-implement alternatives that would accommodate the inmates’ rights.
The court begins by considering whether the objective underlying the disputed policy is legitimate and neutral and whether the policy is logically or rationally related to that objective. Defendant contends that the objective of the policy is to promote security. The legitimacy of promoting prison security is beyond question. Thornburgh, 490 U.S. at 412 (protecting prison security is central to all other corrections goals). Moreover, the policy appears to operate in a neutral fashion, banning all non-original source generated regular mail without regard to content. Defendant further contends that incoming mail that is not original source material, including Internetgenerated material, is presumptively tainted, and thus a risk to the security of the institution.
In Rogers v. Morris, 34 Fed. Appx. 481 (7th Cir. 2002), the Seventh Circuit upheld a Wisconsin state correctional institution’s ban on “paper-media internet material sent to CCI inmates via U.S. Mail from a person or source other than directly from the publisher or website.” As argued in Rogers, defendant in this case contends that allowing Internet material and material from a person or source other than directly from the publisher “increases the risk of sensitive information
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entering the prison unnoticed: senders can easily use ‘[c]omputer technolog[ies]’ such as ‘cut[ting] and past[ing]’ to embed information in downloaded photographs and articles before printing them, and such alterations are difficult for mailroom personnel to detect.” Id. at 482. Defendant also asserts that prohibiting the entrance of non-original source material is also a way of deterring inmates from violating copyright laws.3 The court determines that the policy disallowing non-original source material is rationally related to legitimate penal objectives.
The court next considers whether there are alternative means for plaintiff to exercise his constitutional rights. Foremost, the court notes that plaintiff does not contend that he was unable to obtain the withheld materials directly from the publisher or commercial vendor as the policy permits. USDB regulations permit inmates to obtain a wide variety of publications, as long as those publications are obtained from an original source. The second Turner factor is therefore satisfied.
The third factor concerns the effect that accommodating the exercise of the disputed right would have on guards, other inmates, and prison resources. With respect to publisher-only material, the Supreme Court has upheld a regulation requiring that hardback books be mailed directly from publishers, Bell v. Wolfish, 441 U.S. 520, 550 (1979), pointing out the administrative difficulties posed by the necessity of carefully inspecting each book mailed from unidentified sources. Similarly, in the present case, if inmates were allowed to receive photocopies or Internetgenerated materials from non-original sources, USDB staff would undoubtedly have to expend
3While plaintiff has not provided the materials that were denied to him, choosing instead to have them destroyed, the items plaintiff mentions in his complaint, including copies of paralegal tests and copied excerpts of a book, were likely protected by copyright laws.
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much greater personnel resources to screen the material for contraband or copyright violations, thereby increasing the workload on staff.
The USDB Inmate Services Branch houses the institution’s mailroom, and USDB staff handled approximately 179,939 pieces of incoming inmate mail in 2003. Currently the mailroom employs a staff of five people to intake, review, categorize, and distribute mail to the inmates. As such, the substantial increase in the volume of regular mail likely to result from allowing such materials, coupled with the unique characteristics of such mail, could drastically undermine the effectiveness of any existing screening procedures and greatly increase the risk of missing dangerous messages. See In re Collins, 86 Cal. App. 4th 1176, 104 Cal. Rptr. 2d 108 (2001) (upholding ban on “Internet-generated material”).
Finally, the court examines whether there are ready, easy-to-implement alternatives that would accommodate plaintiff’s rights. The Court in Turner expressly stated that this is not a “least restrictive alternative” test. Turner, 482 U.S. at 90. Instead, the court should focus on whether “an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests.” Id. at 90-91. Plaintiff has failed to suggest any such alternatives; rather, plaintiff merely proposes that the ban on non-original source material should be lifted in whole. Such an alternative completely ignores the legitimate security concerns that prompted the regulation.
In consideration of the Turner factors, the court concludes that USDB Regulation 28-1 does not violate plaintiff’s constitutional rights.
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C. Prison Legal News The court next considers whether the denial of Prison Legal News, Volume 15, is in violation of plaintiff’s constitutional rights. Defendant originally denied access to this publication on the basis that it contained legal cases involving sexual assault. However, upon review, USDB Commandant changed its position and denied plaintiff’s appeal on the basis that the publication “encourages or instructs in the commission of criminal activity or institutional violations.” Specifically, defendant contends that the publication contained an advertisement encouraging prisoners to trade their unused stamps for currency, which is a violation of USDB institutional regulations. Upon review of the publication at issue, the court found only one advertisement involving postage stamps. The advertisement states that the GreenBack Exchange is a currency exchange business that buys unused postage at a set percentage of face value. (Prison Legal News at 13). Notably, the advertisement does not encourage inmates to send in postage stamps in exchange for currency; rather, the advertisement states: “Send a SASE or (3) 37¢ stamps for details & application” (Id.). The court does not question that a prison regulation banning access to publications that encourage or instruct in the commission of criminal activity or institutional violations is facially valid. However, in the particular circumstances of this case, the court does not believe the advertisement at issue encourages in the commission of an institutional violation because the advertisement does not instruct an inmate to send in postage stamps for currency exchange. Instead, the advertisement instructs an inmate to send a self-addressed stamped envelope, or three postage stamps, to obtain
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details and an application. While the ultimate receipt by mail of said “details & application” may encourage or instruct in the commission of an institutional violation (i.e., the exchange of postal stamps for currency), the advertisement at issue does not.
The court believes that the blanket denial of Prison Legal News represents an “exaggerated response” to security needs. Turner, 482 U.S. at 90. The court bases this conclusion primarily on the fact that the advertisement encourages or instructs inmates to send for “details & application,” which itself is neither criminal activity nor an institutional violation. The court also considers the fact that inmates at USDB can receive magazines such as “Playboy” and “Muscle and Fitness” that advertise hardcore pornography, male enlargement supplements, and other prohibited muscle building supplements. For these reasons, the court grants plaintiff’s motion for summary judgment on this issue.
IT IS THEREFORE ORDERED that defendants’ Motion for Summary Judgment (Doc. 22) is granted in part. The court rules that USDB Regulation 28-1, banning non-original source material, does not violate plaintiff’s constitutional rights. Defendant is entitled to judgment as a matter of law.
IT IS FURTHER ORDERED that plaintiff’s Cross-Motion for Summary Judgment (Doc. 27) is granted in part. The court hereby enjoins defendant from denying plaintiff access to Prison Legal News, Volume 15, on the basis that the advertisement concerning postal stamps encourages or instructs in the commission of criminal activity or institutional violations.
Dated this 20th day of July 2004, at Kansas City, Kansas. s/ Carlos Murguia CARLOS MURGUIA
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United States District Judge -12-

 
 AO 450 (Rev. 5/85) Judgmenl in a Civil Case

United States District Court

DISTRICT OF

KANSAS

CRAIG E. WATERMAN

v.
COMMANDANT, United States Disciplinary Barracks, et aL,

Plaintiff

JUDGMENT IN A CIVIL CASE
CASE NUMBER: 03-3415-CM

Defendant
D Jury Verdict. This action came before the Court for a trial by jury, The issues have been tried and the jury has rendered
its verdict.
!XI Decision by Court. This action came before the Court. The issues have been considered and a decision has been
rendered. IT IS ORDERED AND ADJUDGED pursuant to the Memorandum and Order filed and entered on the docket
July 20, 2004, defendant's motion for summary judgment (Doc. 22) is granted in part. USDB Regulation 28-1 does
violate plaintiffs constitutional rights.
IT IS FURTHER ORDERED AND ADJUDGED that plaintiffs cross-motion for summary judgment is granted in
part. Defendant is hereby enjoined from denying plaintiff access to Prison Legal News, Volume 15, on the basis
the advertisement concerning postal stamps encourages or instructs in the commission of criminal activity or
institutional violations.

July 23, 2004
Date

RALPH L. DeLOACH
Clerk

(By) Deputy Clerk

slK. Martinez

 
 District of Kansas - Docket Report

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U.S. District Court District of Kansas (Topeka) CIVIL DOCKET FOR CASE #: 5:03-cv-03415-CM-DJW

CLOSED

Waterman v. McGuire et al Assigned to: District Judge Carlos Murguia Referred to: Magistrate Judge David J. Waxse Case in other court: 10CCA, 04-03349
10CCA, 04-03349 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 10/22/2003 Date Terminated: 07/26/2004 Jury Demand: None Nature of Suit: 555 Habeas Corpus (Prison Condition) Jurisdiction: U.S. Government Defendant

Plaintiff Craig E Waterman

represented by Craig E Waterman 14121-045 USP-Lewisburg PO Box 1000 Lewisburg, PA 17837-1000 PRO SE

V. Defendant Colleen L McGuire Commandant
Defendant Karen Skaggs Chief of Inmate Services Branch
Defendant Judy Williams Mailroom Clerk and Supervisor (Inmate Services Branch)

represented by Connie R. DeArmond Office of United States Attorney -Wichita 1200 Epic Center 301 North Main Street Wichita, KS 67202 316-269-6481 Fax: 316-269-6484 Email: connie.dearmond@usdoj.gov ATTORNEY TO BE NOTICED
represented by Connie R. DeArmond (See above for address) ATTORNEY TO BE NOTICED
represented by Connie R. DeArmond (See above for address) ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

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10/22/2003 10/22/2003 11/05/2003
11/19/2003 12/23/2003
12/23/2003
01/05/2004 01/08/2004 01/15/2004 01/21/2004 01/21/2004 01/21/2004 01/26/2004
01/28/2004

1 COMPLAINT filed by Craig E Waterman (smnd) (Entered: 10/24/2003)
2 MOTION for Leave to Proceed in forma pauperis by Plaintiff Craig E Waterman (Attachments: #(1) Inmate Personal Deposit Fund)(smnd) (Entered: 10/24/2003)
3 ORDER ENTERED: Within thirty (30) days, plaintiff shall submit an initial partial filing fee of $5.00. Objections to this order must be filed on or before the date payment is due. Failure to pay the fees as required herein may result in dismissal of this action without prejudice. Signed by Senior Judge G. Thomas VanBebber on 11/05/03. (smnd) (Entered: 11/05/2003)
PARTIAL FILING fee paid on 11/19/03. Receipt number 047229, in the amount of $ 5.00. (sal) (Entered: 11/19/2003)
4 ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Collection action shall continue until plaintiff satisfies the $150.00 filing fee. The clerk of the court shall issue appropriate summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. Signed by Senior Judge G. Thomas VanBebber on 12/23/03. (smnd) (Entered: 12/23/2003)
5 MINUTE ORDER REASSIGNING CASE: Case reassigned to Judge Carlos Murguia for all further proceedings. Judge G. Thomas VanBebber no longer assigned to case. Signed by Deputy Clerk on 12/23/03. (smnd) (Entered: 12/23/2003)
Summons Issued as to Defendants Colleen L McGuire, Karen Skaggs, Judy Williams, U.S. Attorney and U.S. Attorney General (smnd) (Entered: 01/05/2004)
6 MOTION for extension of time to file traverse by Plaintiff Craig E Waterman (smnd) (Entered: 01/08/2004)
7 Summons Returned Executed by personal service upon United States Attorney by serving Brandi Williams, Administrative Clerk, on 01/13/04 (smnd) (Entered: 01/15/2004)
8 Summons Returned Unexecuted as to Defendant Colleen L McGuire (smnd) (Entered: 01/22/2004)
9 Summons Returned Unexecuted as to Defendant Karen Skaggs (smnd) (Entered: 01/22/2004)
10 Summons Returned Unexecuted as to Defendant Judy Williams (smnd) (Entered: 01/22/2004)
11 MINUTE ORDER STRIKING re 6 MOTION for extension of time. Document filed in wrong case. Counsel directed to take no action. Motions terminated: 6 MOTION for extension of time. Signed by Deputy Clerk on 01/26/04. (smnd) (Entered: 01/26/2004)
12 Summons Returned Executed by certified mail upon United States

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02/17/2004 02/24/2004 02/27/2004
03/01/2004 03/04/2004 03/05/2004 03/05/2004 03/05/2004 03/19/2004 03/19/2004 04/12/2004 04/12/2004
04/29/2004

Attorney General (smnd) (Entered: 01/28/2004)
13 NOTICE regarding address for service of summons upon defendants by Craig E Waterman (smnd) (Entered: 02/18/2004)
14 MOTION to Supplement by Plaintiff Craig E Waterman (Attachments: # (1) Prison Legal News)(smnd) (Entered: 02/25/2004)
15 ORDER ENTERED: Plaintiff's motion 14 to supplement is granted. The clerk of the court shall reissue summons to defendants McGuire, Skaggs and Williams pursuant to Rule 4 of the Federal Rules of Civil Procedure, to be served by a United States Marshal or a Deputy Marshal, at no cost to plaintiff absent a finding by the court that plaintiff is able to pay such costs. Signed by Judge Carlos Murguia on 02/26/04. (smnd) (Entered: 02/27/2004)
Alias Summons Issued as to Defendants Colleen L McGuire, Karen Skaggs and Judy Williams (smnd) (Entered: 03/01/2004)
16 MOTION for Extension of Time to File Answer re 1 Complaint by Defendants Colleen L McGuire, Karen Skaggs, Judy Williams (DeArmond, Connie) (Entered: 03/04/2004)
17 Alias Summons Returned Executed by certified mail upon Defendant Colleen L McGuire; served on 3/3/2004, answer due 5/3/2004 (smnd) (Entered: 03/08/2004)
18 Alias Summons Returned Executed by certified mail upon Defendant Karen Skaggs; served on 3/3/2004, answer due 5/3/2004 (smnd) (Entered: 03/08/2004)
19 Alias Summons Returned Executed by certified mail upon Defendant Judy Williams; served on 3/3/2004, answer due 5/3/2004 (smnd) (Entered: 03/08/2004)
20 ORDER granting 16 Motion for Extension of Time to Answer re 1 Complaint; Answer deadline is extended to 4/12/04. Signed by Judge Carlos Murguia on 3/18/04. (ck) (Entered: 03/19/2004)
21 RESPONSE by Plaintiff Craig E Waterman re 16 MOTION for Extension of Time to File Answer re 1 Complaint (smnd) (Entered: 03/22/2004)
22 MOTION for Summary Judgment by Defendants Colleen L McGuire, Karen Skaggs, Judy Williams (DeArmond, Connie) (Entered: 04/12/2004)
23 MEMORANDUM IN SUPPORT of 22 MOTION for Summary Judgment by Defendants Colleen L McGuire, Karen Skaggs, Judy Williams (Attachments: # 1 Declaration of LTC Peter J. Grande# 2 Declaration of Karen Skaggs# 3 USDB Reg. 28-1)(DeArmond, Connie) (Entered: 04/12/2004)
PARTIAL FILING fee paid on 4/29/04. Receipt number 047755, in the

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05/03/2004 05/06/2004
05/20/2004 06/02/2004 06/02/2004 06/24/2004 07/12/2004 07/20/2004 07/20/2004 07/26/2004
09/08/2004 09/08/2004

amount of $8.00. (sal) (Entered: 04/29/2004)
24 MOTION for Extension of Time to file response as to 22 MOTION for Summary Judgment by Plaintiff Craig E Waterman (smnd) (Entered: 05/03/2004)
25 ORDER granting 24 Motion for Extension of Time to File Response/Reply re 22 MOTION for Summary Judgment. Response deadline 6/1/2004. Signed by Judge Carlos Murguia on 05/06/2004.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (jc) (Entered: 05/06/2004)
26 ORDER REFERRING CASE to Magistrate Judge David J. Waxse. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry)(jc) (Entered: 05/20/2004)
27 CROSS-MOTION for Summary Judgment by Plaintiff Craig E Waterman (Attachments: #(1) Enclosure I; #(2) Exhibit A; #(3) Exhibit B; #(4) Exhibit C; #(5) Exhibit D; #(6) Exhibit E; #(7) Exhibit F)(smnd) (Entered: 06/02/2004)
28 RESPONSE by Plaintiff Craig E Waterman re 22 MOTION for Summary Judgment (Attachments: #(1) Enclosure I; #(2) Exhibit A; #(3) Exhibit B; #(4) Exhibit C; #(5) Exhibit D; #(6) Exhibit E; #(7) Exhibit F) (smnd) (Entered: 06/02/2004)
29 REPLY to Response to Motion by Defendants Colleen L McGuire, Karen Skaggs, Judy Williams re: 27 MOTION for Summary Judgment (DeArmond, Connie) (Entered: 06/24/2004)
30 NOTICE of Change of Address by Department of the Army for Craig E Waterman, #14121-045, now at FCI-Ray Brook, P.O. Box 300, Ray Brook, New York 12977 (smnd) (Entered: 07/12/2004)
31 MEMORANDUM AND ORDER granting in part and denying in part 22 Motion for Summary Judgment and granting in part and denying in part 27 Cross Motion for Summary Judgment . Signed by Judge Carlos Murguia on 7/20/04. (ck) (Entered: 07/20/2004)
32 DOCKET ANNOTATION: 31 Order on Motion for Summary Judgment sent by regular and certified mail to Craig E. Waterman: 7002 2030 0000 9349 6768. (ck) (Entered: 07/20/2004)
33 JUDGMENT regarding Memorandum and Order of 7/20/04 regarding Motions for Summary Judgment. Defendants' motion for summary judgment is granted in part. Plaintiff's cross-motion for summary judgment is granted in part. Signed by deputy clerk on 7/23/04. (km) (Entered: 07/27/2004)
34 NOTICE of Change of Address by Craig E Waterman, #14121-045, now at USP-Lewisburg, P.O. Box 1000, Lewisburg, Pennsylvania 17837-1000 (smnd) (Entered: 09/08/2004)
35 NOTICE OF APPEAL as to 31 Order and 33 Judgment by Plaintiff Craig

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09/08/2004
09/15/2004 09/20/2004 09/20/2004 12/17/2004 12/29/2004 04/06/2005 07/15/2005

E Waterman (smnd) (Entered: 09/15/2004)
APPEAL FEE STATUS: filing fee PENDING re Notice of Appeal Final Judgment 35 on behalf of Plaintiff Craig E Waterman (THIS IS A TEXT ONLY ENTRY-NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (smnd) (Entered: 09/15/2004)
36 PRELIMINARY RECORD ON APPEAL transmitted to 10CCA re 35 Notice of Appeal - Final Judgment (smnd) (Entered: 09/15/2004)
37 RECEIPT FROM 10CCA of Preliminary Record on Appeal re 35 Notice of Appeal - Final Judgment (Appeal No. 04-3349) (smnd) (Entered: 09/20/2004)
38 APPEAL DOCKETED in 10CCA on 09/17/04 and assigned Appeal No. 04-3349 re 35 Notice of Appeal - Final Judgment filed by Craig E Waterman (smnd) (Entered: 09/20/2004)
39 RECORD ON APPEAL transmitted to 10CCA re 35 Notice of Appeal Final Judgment (Appeal No. 04-3349) (smnd) (Entered: 12/17/2004)
40 RECEIPT FROM 10CCA of Record on Appeal re 35 Notice of Appeal Final Judgment (Appeal No. 04-3349) (smnd) (Entered: 12/29/2004)
41 APPEAL MANDATE from 10CCA dismissing Notice of Appeal - Final Judgment 35 filed by Craig E Waterman for lack of prosecution pursuant to 10th Cir. R. 42.1(smnd) (Entered: 04/06/2005)
ORIGINAL FILE RETURNED from 10CCA re 35 Notice of Appeal Final Judgment (Appeal No. 04-3349), One File and One Expandable (sal) (Entered: 07/15/2005)

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