United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1130

___________

Martin Wishnatsky, *

 *

Appellant, *

 *

v. *

 *

Timothy Schuetzle, Warden of the * Appeal from the United States

North Dakota State Penitentiary, in * District Court for the

his individual capacity; Wanda Bier, * District of North Dakota.

assistant to the NDSP Warden, in her *

individual capacity; Judy Berg, NDSP * [UNPUBLISHED]

property officer, in her individual *

capacity; Cordell Stromme, Chief of *

Security at NDSP, in his individual *

capacity; Mirna Stromme, NDSP mail *

clerk, in her individual capacity, *

 *

Appellees. *

___________

 Submitted: March 25, 1998

 Filed: March 27, 1998 

___________

Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

___________
The Honorable Rodney S. Webb, Chief Judge, United States District Court for 1

the District of North Dakota.

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PER CURIAM.

Martin Wishnatsky appeals from the district court&s grant of summary judgment 1

to North Dakota State Penitentiary (NDSP) officials in his 42 U.S.C. § 1983 action.

We affirm the judgment of the district court.

Mr. Wishnatsky claimed that while he was an NDSP inmate from March until

August 1992, defendants violated his First Amendment rights by screening from his

incoming and outgoing mail “postcards of unborn children, both alive in the womb and

dead through abortion.” According to defendants, they enforced a policy prohibiting

possession of pictures of aborted fetuses (aborted-fetus policy); inmates were permitted

to promote their abortion views orally, and to send, receive, and read letters, articles,

or other literature regarding abortion; and when a postcard violating the aborted-fetus

policy arrived at NDSP addressed to Mr. Wishnatsky, he was notified it was

prohibited, it was placed in his file for him to retrieve upon his release, and a copy of

the card&s written portion was given to him. 

Defendant Warden Timothy Schuetzle attested he had continued the abortedfetus policy based on his NDSP experience, as well as on abortion-related violence in

open society, and was “personally aware of numerous incidents at NDSP where

pictures were the impetus of physical confrontations.” Mr. Schuetzle attested he

believed abortion was “a sensitive issue to numerous inmates,” and inmates& beliefs on

the issue had “caused verbal threats and confrontation between inmates.” After Mr.

Schuetzle had enforced the policy to prohibit Mr. Wishnatsky from receiving postcards

depicting aborted fetuses, Mr. Wishnatsky complained of inmates& threats against him

that the district court found “quite chilling and obviously related to [his] stance on

abortion.”
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Although “[p]rison walls do not form a barrier separating prison inmates from

the protections of the Constitution,” their First Amendment rights may be limited by

regulations “reasonably related to legitimate penological interests.” See Turner v.

Safley, 482 U.S. 78, 84, 89 (1987). Given the deference granted prison officials and

the particular facts of this case--including the alternative means of expression available,

and the threats of inmate violence (which appear related to Mr. Wishnatsky&s abortion

stance)--we conclude Mr. Wishnatsky failed to meet his burden of demonstrating the

aborted-fetus policy was not reasonably related to NDSP&s penological interest in

security. See Bell v. Wolfish, 441 U.S. 520, 547 (1979) (prison administrators

accorded “wide-ranging deference” in adopting and executing policies they deem

necessary for security); Orebaugh v. Caspari, 910 F.2d 526, 527-28 (8th Cir.1990) (per

curiam) (inmate bears burden of proving policy is not reasonably related to legitimate

penological interest). 

Furthermore, Mr. Wishnatsky&s evidence did not establish that he was denied

postcards unmistakably depicting in utero fetuses, and we believe any denial of a

postcard that may have depicted a fetus in the womb was supported by the same

security concerns as the aborted-fetus policy. 

Finally, as inmates were prohibited from possessing pictures of aborted fetuses,

we conclude NDSP could properly confiscate as contraband any such postcards that

Mr. Wishnatsky attempted to mail from prison. 

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.