*

 After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and

record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 1, 2006*

Decided November 2, 2006

Before

Hon. ILANA DIAMOND ROVNER, Circuit Judge

 Hon. DIANE P. WOOD, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

No. 06-3000

JEVON JACKSON, Appeal from the United States District

Plaintiff-Appellant, Court for the Eastern District of Wisconsin.

v. No. 05-C-711

WILLIAM POLLARD, Warden & J.P. Stadtmueller,

MATTHEW J. FRANK, Secretary, Judge.

Defendants-Appellees.

O R D E R

Jevon Jackson filed a civil rights action under 42 U.S.C. § 1983 against

William Pollard, the Warden of Green Bay Correctional Institution (“GBCI”), and

Matthew Frank, the Secretary of the Wisconsin Department of Corrections (“DOC”). 

Jackson, a GBCI inmate, alleged that his First Amendment rights were violated

when prison officials refused to deliver to him two pieces of mail: (1) a catalog that

accepted as payment unused first class postage stamps; and (2) a hard copy of an 

e-mail responding to his personal profile on an Internet-based pen pal service. The

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-3000 Page 2

district court granted summary judgment for Pollard and Frank. We affirm in part,

and vacate and remand in part.

The following facts are undisputed. Beginning in November 2004, Jackson

(with the assistance of non-incarcerated family members) listed his personal profile

on the Internet site “Inmate Connections.” For $40 a year, Inmate Connections will

publish on the Internet a “professionally-designed, full-color” profile of inmates that

prospective pen pals can access to obtain their contact information. If the inmate

prefers, the service will also print and send to the inmate the “first e-mail letter

from each pen pal”; after that, the pen pal and inmate write to each other directly. 

Jackson did not violate DOC regulations by having a profile listed on Inmate

Connections because DOC has no regulation prohibiting Wisconsin inmates from

having a personal web page. It also has no regulation barring inmates from

receiving handwritten responses to their personal web pages, and inmates may

receive e-mail print-outs unrelated to personal web pages as long as they are

printed on 81⁄2" by 11" paper. See DOC 309 IMP 1, 4. During his prison term,

Jackson has received handwritten letters “from three different people” in response

to his profile but only one (undelivered) e-mail printout. 

In 2005 GBCI refused to deliver to Jackson two pieces of mail: a catalog from

Mamarazzi, Inc., a company that accepts United States postage stamps as payment

for items it sells, and a letter from Inmate Connections containing a hard copy of an

e-mail responding to Jackson’s profile. In response, Jackson filed an offender

complaint challenging the non-delivery of the catalog. The prison’s inmate

complaint examiner dismissed the complaint on the basis that DOC regulations at

the time prohibited mail from companies that accept postage stamps as payment. 

Jackson did not appeal this decision. Instead, three months later he attempted to

revive his original complaint by stating that he had additional reasons as to why

the non-delivery was improper. The inmate complaint examiner rejected this

renewed attack on the basis that it impermissibly re-raised the challenge that

already was decided in Jackson’s first complaint. See Wis. Admin. Code § DOC

310.11(5)(g). Jackson appealed the rejection of his second complaint and Warden

Pollard affirmed, making the decision final. See id. § DOC 310.11(6). In another

complaint, Jackson also challenged the non-delivery of the Inmate Connections email, which the inmate complaint examiner dismissed because prison regulations

prohibit “Internet material or e-mail from inmate personal web pages.” See id.

§ 306.04(4)(c)(5); DOC 309 IMP 1, 4. Jackson appealed this finding, and Pollard

again affirmed. 

Jackson then filed his civil rights suit against Pollard and Frank, claiming

that his First Amendment rights were violated when GBCI refused to deliver the

Mamarazzi catalog and Inmate Connections letter. In granting summary judgment

for Pollard and Frank, the district court ruled that, because Jackson did not appeal
No. 06-3000 Page 3

the dismissal of his first offender complaint challenging the non-delivery of the

Mamarazzi catalog, he failed to properly exhaust his administrative remedies as to

that claim. According to the district court, the fact that Jackson failed to exhaust

his administrative remedies for his first offender complaint also doomed his second

offender complaint; because Jackson’s second complaint was an attempt to revive

his initial—and unexhausted—claim, the second complaint also must be dismissed

for failure to exhaust administrative remedies.

The court also concluded that GBCI’s non-delivery of Jackson’s Inmate

Connections letter did not violate his First Amendment rights because the DOC

regulations prohibiting the delivery of e-mail responses to an inmate’s personal web

page passed the test expressed in Turner v. Safely, 482 U.S. 78 (1987). Turner

requires a party challenging the constitutionality of a prison regulation to

demonstrate four points, only one of which is pertinent to this appeal: that there is

no rational connection between the regulation and the legitimate penological

interest advanced as its justification. See id. at 89-91. In concluding that there was

a rational connection between the prohibition of e-mail responses to personal web

pages and legitimate penological interests, the district court relied solely on the

affidavit of Daniel Westfield, the DOC Security Chief. As relevant here, Westfield

attested that the regulations existed to: (1) protect the public from inmates who will

“victimize a person that may be susceptible to manipulation from an inmate with

criminal intentions”; and (2) “further DOC’s interest in efficient management and

preserving scarce resources” which would be depleted by the delivery of a possibly

large volume of Internet materials or e-mails responding to inmates’ web pages. 

On appeal, Jackson argues that the district court improperly granted Pollard

and Frank summary judgment. He asserts that the district court erred by

determining that he failed to exhaust his administrative remedies as to his initial

and subsequent complaints challenging the non-delivery of the Mamarazzi catalog. 

He also argues that there is a genuine factual dispute over whether the regulations

prohibiting inmates from receiving e-mail responses to their personal web sites are

rationally related to the penological interests of protecting the public and

preserving prison resources. We review the district court’s grant of summary

judgment de novo, Johnson v. Doughty, 433 F.3d 1001, 1009 (7th Cir. 2006) (citation

omitted), and examine whether the moving parties—that is, Pollard and

Frank—demonstrate that “there is no genuine issue as to any material fact” that

they are 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); Johnson, 433 F.3d at 1009. 

We can quickly dispose of Jackson’s claim that he exhausted his

administrative remedies when challenging the non-delivery of the Mamarazzi

catalog. Jackson candidly admits that he did not appeal his first offender complaint

challenging the non-delivery of the catalog; he thus failed to exhaust his
No. 06-3000 Page 4

administrative remedies as to that complaint. See 42 U.S.C. § 1997e(a); Wis.

Admin. Code DOC §§ 310.05, 310.07(5); Dixon v. Page, 291 F.3d 485, 489-91 (7th

Cir. 2002). Jackson’s second complaint was merely an attempt to resurrect his

unappealed and unexhausted challenge to the non-delivery of the catalog. Because

the prison’s administrative procedures prohibited Jackson from attempting to

exhaust by renewing an already-decided complaint, see Wis. Admin. Code DOC

§ 310.11(5)(g), the district court properly dismissed as unexhausted Jackson’s

challenge to the non-delivery of the catalog.

The district court, however, erred by granting summary judgment to Pollard

and Frank on Jackson’s First Amendment claim regarding the non-delivery of the

Inmate Connections letter. Inmates retain a First Amendment right to receive

information through the mail, see Beard v. Banks, 126 S. Ct. 2572, 2576-79 (2006)

(citing Turner, 482 U.S. at 84), but it is a right that can be restricted by prison

regulations that are “reasonably related to legitimate penological interests,” Turner,

482 U.S. at 89; Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). Although the

ultimate burden of persuasion with regard to the unreasonableness of a regulation

resides with the inmate, see Overton v. Bazzetta, 539 U.S. 126, 132 (2003), the

defendant administrators must “put forward” the legitimate governmental interest

alleged to justify the regulation, Turner, 482 U.S. at 89, and “‘demonstrate’ that the

policy drafters could rationally have seen a connection between the policy and [that

interest],” Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir. 2002) (internal quotations

and citation omitted). 

Protecting the general public is a legitimate penological interest, see, e.g.,

Altizer v. Deeds, 191 F.3d 540, 549 (4th Cir. 1999), and we afford great deference to

prison administrators’ “expertise” when they proffer such justifications for prison

regulations, see Koutnik v. Brown, 456 F.3d 777, 785 (7th Cir. 2006) (citing

Procunier v. Martinez, 416 U.S. 396, 405 (1974)). But a regulation cannot stand if

“the logical connection between the regulation and asserted goal is so remote as to

render the policy arbitrary or irrational.” Turner, 482 U.S. at 89-90; see also Jones

v. Brown, 461 F.3d 353, 360 (3d Cir. 2006); Prison Legal News v. Lehman, 397 F.3d

692, 699 (9th Cir. 2005) (“[I]f a regulation is not rationally related to a legitimate

and neutral governmental objective, a court need not reach the remaining three

factors [of the Turner test].”).

Under these standards, Jackson has raised a genuine issue of material fact

as to whether the regulation prohibiting delivery of printed e-mail responses to

personal web pages rationally advances the goal of protecting the public. It is

undisputed that DOC regulations allow inmates to: (1) have personal web pages;

(2) receive handwritten correspondence in response to their personal web pages;

(3) receive Internet materials and e-mail unrelated to personal web pages so long as

they are printed on 81⁄2" by 11" paper; and (4) communicate with the general public
No. 06-3000 Page 5

through other pen pal organizations. As Jackson points out, this evidence shows

that inmates can potentially manipulate the public: (1) through their personal web

pages; (2) by soliciting and receiving non-electronic responses to those web pages;

(3) by responding to other e-mail deliveries unrelated to personal web pages; and

(4) by otherwise contacting the public through existing pen pal organizations. 

Westfield offered evidence—in the form of an undeveloped conclusion—that

prohibiting inmates from receiving e-mail responses to personal web pages protects

the public. But a bare conclusion—even from a prison official—is insufficient to

compel a factual conclusion that the prison regulations promote public protection in

the face of contrary evidence. See Palmer v. Marion County, 327 F.3d 588, 596 (7th

Cir. 2003) (“The object of [Rule 56(e)] is not to replace conclusory allegations of the

complaint or answer with conclusory allegations of an affidavit.” (citing Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990))); Wolf, 297 F.3d at 308 (stating that

justification for prison policy “must ‘amount[] to more than a conclusory assertion.’”

(quoting Waterman v. Farmer, 183 F.3d 208, 218 n.9 (3d Cir. 1999))); cf. Zenith

Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 419-20 (7th Cir. 2005) (“‘An

expert [witness] who supplies nothing but a bottom line supplies nothing of value to

the judicial process.’” (quoting Mid-State Fertilizer Co. v. Exchange Nat’l Bank, 877

F.2d 1333, 1339 (7th Cir. 1989))). Westfield’s affidavit does not explain how

prohibiting the delivery of printed e-mail responses to personal web pages

materially advances public protection when, as Jackson’s evidence shows, inmates

may freely influence the public by soliciting and receiving from the public

handwritten responses to the inmates’ personal web pages. Accordingly, there is a

genuine factual dispute about whether the challenged regulation advances the goal

of public protection in a non-arbitrary manner. 

Also in genuine dispute is Westfield’s conclusory assertion that the

regulations preserve prison mail room resources by ensuring a low volume of mail. 

At least one federal circuit court has rejected this justification on the ground that

prohibitions on receiving Internet and e-mail printouts are, by themselves, an

“arbitrary way to achieve a reduction in mail volume.” See Clement v. Cal. Dep’t of

Corrs., 364 F.3d 1148, 1152 (9th Cir. 2003); cf. Morrison v. Hall, 261 F.3d 896, 903-

04 (9th Cir. 2001) (holding that prohibiting mail solely because of the postage rate

at which the mail was sent “is an arbitrary means of achieving the goal of volume

control”). Jackson’s experience reveals the arbitrariness underlying the regulation

at issue here—he received three handwritten responses to his Inmates Connection

profile but just one (undelivered) e-mail response. Westfield’s unexplained

conclusion that allowing hard-copies of e-mail responses to Internet profiles might

increase mail volume, while allowing handwritten responses would not, fails to

eliminate the factual dispute created by Jackson’s personal experience. Under

these circumstances, there is a triable issue as to whether banning e-mail responses

preserves prison mail room resources in a non-arbitrary manner. 
No. 06-3000 Page 6

We accordingly AFFIRM the district court’s grant of summary judgment as to

Jackson’s claim regarding the non-delivery of the Mamarazzi catalog, but VACATE

and REMAND the court’s grant of summary judgment as to Jackson’s claim

regarding the non-delivery of the Inmate Connections letter.