# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 16 , 2018 *

Decided March 16

, 2018

Before

FRANK H. EASTERBROOK

, Circuit Judge

DANIEL A. MANION

, Circuit Judge

DIANE S. SYKES

, Circuit Judge

No. 17

- 1874

TIMOTHY B

. WILKS

, Plaintiff

- Appellant

,

v

.

WELCOME ROSE

, et al., Defendant s

- Appellees

. Appeal from the United States District Court

for the Eastern District of Wisconsin

.

No. 15

- C

- 1053

C.N. Clevert

, Jr., Judge

.

O R D E R

Timothy Wilks

, a Wisconsin inmate

, principally argues in this appeal that prison

officials violated the First Amendment when they banned him from using his cell to

market a book that he has published . The district judge entered summ ary judgment for
the defendants, ruling that penological interests justify the restriction . We agree and

thus affirm the judgment.

* We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 1874 Page 2

T en years ago Wilks sued officials at Waup u n Correctional Institution for barring him from publishing religious books. The parties settled the case

, and the Wisconsin Department of Corrections set out rules under which prisoners may publish books that they write while incarcerat ed

. W ith the approval of Waupu n ’s administration

, Wilks

then contracted with a n outside company to publish at least one religious book.

This case i nvolves a dispute over Wilks’s plan to market his book from his cell

. His publishe r mailed him 100 marketing postcards that displayed the book’s cover image, biographical information about Wilks , and instructions for ordering the book from the publisher

. A property officer told Wilks that the post cards were contraband

. Wilks replied that he would mail the postcards to a family member, but he later asked

the prison’s p roperty d epartment to hold his postcards w hile he contested their

classification as contraband. A prison supervisor has since explained that Wil ks could not keep the postcards in his cell because he risked violat ing two prison regulations: soliciting inmates to buy his boo k and retaining in his cell more than 25 pieces of personal correspondence

. (Wilks does not contest either regulation.) The sup ervisor proposed as a compromise that the prison ’s mail staff store the postcards and mail them individually in prepaid envelopes that Wilks would supply. Although t he prison’s security director tentatively approved th at proposal , Wilks rejected it. T he director has since explained that the proposal is unworkable because mail staff would be diverted

from their necessary work of screen ing all prison mail. He further explained that allowing inmates to market from their cells risks defrauding the public, “ spawning disputes between inmates and members of the public [,] and entangling the prison in

inmate business activities.”

Wilks filed a grievance accusing the pr ison of violating his “rights to perfect [his] book publishing interests.” He wanted to keep t he postcards in his cell and mail them directly t o potential customers. Waupun’s warden dismissed Wilk s ’s grievance , and a complaint examiner recommended dismissing his administrative appeal

. The examiner

a lso rejected the proposed compromise that Wilks too had rejected: It “cannot be implemented” because “[t]here is no authority granted in the administrative rules to allow an inmate permission to market a publication while in prison if the publication (the enterprise) did not exist prior to the inmate’s sentencing.” The Secretary of the Department of Corrections dismiss ed the appeal

. At this point, Wilks could have mailed the postcards to someone outside the prison to promot e sales . B ut he opted to have the postcards destroyed

. Wilks was permitted to ke ep one in his cell , however.No. 17

- 1874 Page 3

This litigation under 42 U.S.C § 1983 followed

. T he district jud ge allowed Wilks to proceed on a claim that prison officials viol ated the First Amendment by barring mailings from his cell to market his book

. T he judge dismiss ed a due

- process claim

about the disposal of his postcards , reasoning that Wilks had asked for the ir disposal. ( Wilks also raised a claim for breach of the settlement contract but he does not contest that claim’s dismissal on appeal .) The district judge then entered summary judgment

for the defendants because they had identified legitimate penological interests that justified restrictions on Wilks’ s marketing activities . The judge added that the

defendants would be entitled to qualified immunity even if t hey violated Wilks’s rights

because he pointed to “ no case establishing an inmate’s constitutional right to market or sell his published works.”

On appeal Wilks principally challenges the dismissal of his claim that prison

officials have violated the Firs t Amendment by restricting how he may commercially

market his book. The parties debate the standards that govern our analysis. We usually analyze the constitutionality of prison re gulations using the standard in Turner v. Safley

, 482 U.S. 78, 89

– 91 (1987), but we scrutinize the censorship of an inmate’s outgoing mail

under the less

- deferential standard in Procunier v. Martinez , 416 U.S. 396, 413 (1974)

. Thornburgh v. Abbott , 490 U.S. 401, 413 (1989) ; see Koutnik v. Brown , 456 F.3d 777, 784 (7th Cir. 2006). Because the parties disagree about whether the prison has “ censored ”

Wilks’s outgoing mail, they also disagree about which standard applies. We need not
resolve this debate, however, because Wilks cannot prevail even under the Martinez

standard

.

Martinez holds that a prison regulation that censors outgoing mail is permissible

if the regulation (1) furthers an important governmental interest “ unrelated to the suppression of expression ” and (2) is no greater than necessary to accomplish that

interes t. 416 U.S. at 413. Waupun’s regulation restricts Wilks by requiring that he have someone outside the prison mail the postcards to market the book

. But Wilks has not created a triable question that this restriction fails under these two elements

.

First, W ilks offers no evidence that reasonably questions the importan ce of the prison’s identified interest s in prohibiti ng marketing from an inmate’s cell . These are the interests of preserving the resources of the mail room’s staff, who must screen the

mail of all of the inmates, and en suring that th e prison protect s the public from

inmate

- generated mail fraud

. We have recognized both of these interests as substantial

. See Woods v. Comm’ r of the Ind. Dep ’t. of Corr. , 652 F.3d 745, 749 (7th Cir. 2011) ( recognizin g that prison officials have legitimate interest in preventing fraud byNo. 17

- 1874 Page 4

banning prisoners from advertising to the public for pen pals); Jackson v. Frank , 509 F.3d 389, 391 (7th Cir. 2007) ( prison officials are constitutionally permitted to save resources
b y limiting the types of mail staff must process).

Second, Wilks offer s no evidence that the restriction is greater than necessary to
further these interests

. He argu es that the compr om ise ( that both he and the prison staff rejected) of having the mail room ’s staff market the book for him is such evidence. As he sees it, that compromise is workable ; otherwise administrators would not have proposed it. But the current regulation is not materially more restrictive than the rejected compromise

. Under the cu rrent regulation, Wilks may ask anyone outside the prison (including the publisher) to send out his mailings. Wilks replies that he lack s funds to pay someone to help market the book . But he offers no evidence that an

outsider requires payment from him

. An d even if outsider s do require payment

, that fact does not imply that Wilks may commandeer the prison’s staff to help him market his

book for his commercial gain

. For prisons may permissibly bar an inmate from using

the prison ’s resources to enhance an inmate’s business operations. See King v. Federal Bureau of Prison, 415 F.3d 634, 636 (7th Cir. 2005). Thus b ecause the restriction is no greater than necessary to serve the prison’s legitimate interests

, the First Amendment

claim fails.

We have one final matter. Wilks also challenges the dismissal of his due

- process claim at screening

. To the extent that Wilks contend s that he did not receive proper procedural protections before the staff destroyed his post card s , his claim fails because

Wilks admits that he directed the destruction of the postcards

. And t o the extent that

Wilk s suggests that the restriction on his marketing activities violated his right to substantive due process, th at argument amounts to little more than a futile repackaging

o f Wilks’s First Amendment claim. W hen “ a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that amendment, not the more generalized notion of substantive due process,

mus t be the guide for analyzing these claims .” Albright v. Oliver , 510 U.S. 266, 273 (1994) (int ernal quotation marks omitted) ; see also Koutnik , 456 F.3d at 781 n. 2.

We have considered Wilks ’s remaining arguments, and none merits discussion.

AFFIRMED