Titus Henderson v. Peter Huibregtse

*After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 11, 2008 *
Decided June 12, 2008
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2571
TITUS HENDERSON,
Plaintiff‐Appellant,
v.
PETER HUIBREGTSE, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 06‐C‐407‐C
Barbara B. Crabb,
Chief Judge.
O R D E R
Wisconsin inmate Titus Henderson attempted to subscribe to the Boscobel Dial, a local
newspaper, but the Dial refused his payment, citing a corporate policy against supplying
inmate subscriptions. Henderson believed that the denial of service was not an
independent decision but rather the result of pressure and interference by Boscobel city
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐2571 Page 2
officials and prison officials at the Wisconsin Secure Program Facility (WSPF). So he sued
the Dial’s publisher, numerous executives and employees, each member of the Boscobel
Common Council, the City of Boscobel, a city attorney, the mayor, the state employees
union, Secretary of the Wisconsin Department of Corrections Matthew Frank, and Deputy
Warden Peter Huibregtse under 42 U.S.C. § 1983, complaining of various constitutional
violations. The district court dismissed the bulk of Henderson’s claims at screening, see 28
U.S.C. § 1915A, but left untouched Henderson’s contentions (1) that Huibregtse and Frank
deprived him of his rights under the First Amendment by preventing WSPF inmates from
subscribing to the Dial and (2) that a City of Boscobel resolution urging the Dial’s publisher
to refuse subscription requests from WSPF inmates also violated his rights under the First
Amendment. After discovery, however, the court granted summary judgment in favor of
the remaining defendants. Henderson now appeals, and we affirm.
We construe the facts, as we must, in Henderson’s favor. See, e.g., Hicks v. Midwest
Transit, Inc., 479 F.3d 468, 470 (7th Cir. 2007). Henderson arrived at WSPF in January 2003.
From 1999 to early 2003, a WSPF policy expressly prohibited inmates from subscribing to or
possessing the Dial. That official policy evaporated in May 2003, though, after Dane County
Circuit Court Judge Michael Nowakowski ordered officials to permit WSPF inmates to
receive the Dial.
A few weeks later the Boscobel Common Council convened to discuss, among other
things, the prospect of inmate subscriptions to the Dial. The minutes from that meeting
reflect the concern among WSPF officials that inmate subscriptions might endanger prison
staff or local residents:
WSPF officials are worried that access to the Boscobel Dial will unnecessarily
provide too much personal information about WSPF staff and local residents
to WSPF convicts. If access to the Dial policy is allowed, residents can expect
solicitations from some convicts for money or for other motives. A Dane
County Judge ruled in favor of a WSPF inmate, reversing a WSPF policy that
inmates would not have access to the local paper. Mr. O’Rourke stated that
there are publications that have policies that prohibit sales to inmates at
correctional facilities. He believes that the publications are not legally bound
to honor subscriptions because of private ownership laws. He went on to say
that the Boscobel Dial would not have to honor subscriptions to WSPF
inmates for the same reason. The Boscobel Dial has decided that they will
honor requests from WSPF inmates if so asked. David Krier, Dial Editor,
stated if the Dial were to adopt the policy being discussed, they would be the
only paper in the state to do so.

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No. 07‐2571 Page 3
The meeting concluded with a proposal to draft and issue an “advisory resolution”
requesting that the Dial deny subscriptions to WSPF inmates. And in June 2003 the
Common Council did just that. City of Boscobel Resolution # 6‐2‐2003 reads:
Therefore, Be It Resolved, that the Common Council of the City of Boscobel
urges Morris Newspaper Corporation, publisher of the Boscobel Dial, to
establish a policy that it will not sell subscriptions to the Dial to any inmate of
the Wisconsin Secure Program Facility.
At some point after June 2003 (the record does not tell us when) the Dial adopted a policy to
deny subscriptions to WSPF inmates, which, so far as we know, is still in force today.
In November 2005 Henderson attempted to mail a subscription request to the Dial,
but his letter was returned to him without any response, which Henderson took to mean
that prison officials never mailed the letter. He tried again, though, and this time the Dial
responded with a hand‐written reply: “We are returning your money order—We cannot
mail papers to our local prison. Sorry.” Henderson filed a grievance complaining that
prison officials had interfered with his subscription requests. An internal investigation
concluded, however, that “WSPF is not denying him access to the Boscobel Dial. His money
order was returned from the Boscobel Dial.” Henderson also received notification that
“WSPF has no control over private industry decisions regarding sales to inmates.” WSPF
officials ultimately dismissed the grievance, stating that “this is a consumer‐vendor issue
that the complainant will have to address with the newspaper directly.”
Henderson then sought relief in the district court, but, as the court noted in its
screening order, many of the defendants were not subject to suit under § 1983. Some were
not state actors; others enjoyed absolute immunity; and, according to the very allegations
contained in the complaint, a third group lacked any personal involvement whatsoever in
the alleged wrongdoing. When the court was done with its winnowing, only three
defendants remained: Huibregtse, Frank, and the City of Boscobel.
Henderson responded to the court’s screening order with a motion to amend his
complaint although he had not yet been served with any responsive pleading. See FED. R.
CIV. P. 15(a). But his proposed amended complaint was remarkably similar to the old one,
and the court suspected that Henderson was “attempting to reinstate claims and defendants
against whom I have denied him leave to proceed.” For that reason, and for the sake of
clarity, the court instructed Henderson to submit a revised version after “draw[ing] a line
through the allegations that concern matters upon which I already have ruled fail to state a
claim and circl[ing] allegations he is adding to the complaint.” Henderson never complied
with that instruction.

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No. 07‐2571 Page 4
Instead Henderson submitted four discovery requests to various WSPF employees,
all non‐parties, asking whether prisoners could receive the Dial. All four responses were
“no.” Henderson then demanded that defendants Frank and Huibregtse “authenticate and
verify” those four documents as evidence of an ongoing WSPF policy of refusing the Dial to
inmates. The defendants refused, and Henderson asked the court for additional time to
obtain discovery. See FED. R. CIV. P. 56(f). The court declined:
To the extent that plaintiff wants the court to consider documents generated
by the defendants or their agents to determine if a de facto policy existed, the
court will give due consideration to all of the evidence and arguments
properly submitted by plaintiff. But I agree with defendants that they cannot
be compelled essentially to admit to a de facto policy that they deny exists.
The evidentiary record now before the court is sufficient for both parties to
make their best presentations on the summary judgment motion.
In its order of summary judgment, the court concluded that the four discovery
responses—Henderson’s only evidence of the de facto policy that he alleged—were
inadmissible hearsay because Henderson had not established whether the four responders
had any personal knowledge of WSPF’s mail policy. Even if the evidence was not hearsay,
the court continued, “the questions and answers are too vague to be dispositive”; the
responses might have reflected only that WSPF employees were aware of the Dial’s
corporate policy to deny subscriptions to prisoners. And even if Henderson were correct
about a de facto WSPF policy of refusing Dial subscriptions, the court emphasized, it was
not the cause of his injury: the Dial itself was refusing to sell subscriptions to prisoners in
the first place. Finally, turning to the City of Boscobel’s actions, the court held that the
“non‐binding resolution” did not run afoul of the Constitution because it was merely
advisory. The court observed that the resolution “simply ‘urges’ a private entity to take
action” and there was no evidence that it was coercive.
Henderson’s first argument on appeal is that the district court abused its discretion,
see Dewitt v. Proctor Hosp., 517 F.3d 944, 949 (7th Cir. 2008), by denying his motion to file an
amended complaint. Henderson now recognizes, as do his opponents, that no motion was
required. Rule 15(a) permits a plaintiff to amend his complaint once, “as a matter of
course,” so long as no responsive pleading has been served. FED. R. CIV. P. 15(a)(1). This
near‐absolute right is not without exception, though. See Duda v. Bd. of Educ. of Franklin Park
Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 n.4 (7th Cir. 1998). A district court can still deny
an amended complaint filed as a matter of course if it fails to remedy deficiencies contained
in the original pleading and is therefore vulnerable to a motion to dismiss. See Johnson v.
Dossey, 515 F.3d 778, 780 (7th Cir. 2008); Duda, 133 F.3d at 1057 n.4. Viewed through this
lens, we cannot agree that the district court abused its discretion. Henderson describes the

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No. 07‐2571 Page 5
court’s action as an “out‐right” denial of his amended complaint “without reason.” But the
court explained in detail its reasons for refusing the amended complaint as drafted—and
provided Henderson with instructions on how to submit a new amended complaint shorn
of futile claims. See Dossey, 515 F.3d at 780.
Henderson’s next argument is that summary judgment was premature because the
defendants had not yet authenticated his four discovery responses. We review a denial of a
continuance under Rule 56(f) for abuse of discretion. Hammer v. Ashcroft, 512 F.3d 961, 971
(7th Cir. 2008). Henderson does not tell us what he would have done with a continuance.
After all, the defendants had already notified him that they did not know “whether the
document in question is a true and correct copy, or if the alleged original was issued and
signed by the person indicated in the interrogatory.” Furthermore, the district court
accepted that the documents were genuine before deeming them inadmissible on hearsay
and vagueness grounds. To the extent that Henderson feels that he was entitled to an
admission of a de facto policy based on these documents, he offers us no supporting
authority. And, in any case, we cannot agree given the record before us that ten months
was not enough time to conduct discovery.
Henderson’s final argument is that the district court erred in granting summary
judgment to the defendants because the City of Boscobel resolution violates the First
Amendment. For that to be true, the resolution would have to have some coercive effect on
the Dial, which Henderson insists is the case. See, e.g., Lowery v. Euverard, 497 F.3d 584, 599
(6th Cir. 2008) (“The First Amendment prevents the state from using its coercive power to
prevent people from expressing their opinions.”). Henderson contends that Resolution # 6‐
2‐2003 is an “ordinance” that “compel[s]” Morris Newspaper Corporation to put a stop to
inmate subscriptions. But a plain reading of the resolution extinguishes this argument. The
resolution merely “urges” a private actor to enact a policy. Compulsion is noticeably
absent. Cf. Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d 1406, 1414‐15 (9th Cir. 1996)
(holding that a city resolution urging citizen support for a local newspaper boycott was
neither regulatory nor coercive but rather “a declaration of principle, rather than an exercise
of governmental powers”); Zilich v. Longo, 34 F.3d 359, 363‐64 (6th Cir. 1994) (holding that a
city resolution “expressing . . . disapproval and outrage” at former city councilman for
violating residency requirement did not violate the First Amendment because resolution
was merely hortatory and did not have the effect of a law). The resolution, therefore, is akin
to government speech, which is permissible so long as it does not prevent other speech. See,
e.g., Warner Cable Commc’ns, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990).
Henderson’s constitutional challenge fails for another, simpler reason as well: the
newspaper does not want to sell him a subscription. He assumes that the City’s
resolution—and not an independent business decision—prevents the Dial from sending him

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newspapers, thus invading his constitutional right to receive information. Without
question, the First Amendment protects Henderson’s right to listen as well as the Dial’s right
to speak. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
756‐57 (1976); Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007); Pa. Family
Inst., Inc. v. Black, 489 F.3d 156, 165‐67 (3d Cir. 2007). “A precondition of the right to receive,
however, is the existence of a ‘willing speaker.’” Shepard, 507 F.3d at 549 (quoting Va. State
Bd. of Pharmacy, 425 U.S. at 756). Accordingly, Henderson must offer evidence that but for
the challenged regulation, the Dial would have spoken. See Shepard, 507 F.3d at 549‐50;
Black, 489 F.3d at 165‐67. Unfortunately for Henderson, the record shows that the Dial was
not inclined to sell him a subscription. Indeed, in 2003—before the resolution—the Dial
published a letter to its readers articulating its own opposition to inmate subscriptions:
We do not condone, we have not solicited, and we will not support the sale of
the Dial to inmates at the correctional facility. Our focus is to provide news of
the community to people in our readership area and our primary concern is
for the people we serve.
We have not had any subscription requests to date from Supermax inmates
and we hope we never do. However, if that happens, we may not legally
have any choice. If we deny access after a judge has ruled otherwise, we
could find ourselves in a lawsuit from an inmate charging us with
discrimination.
We will do what legal counsel advises, but we want the community to know
that we are not interested in selling the paper to Supermax prisoners and we see no
value in doing so.
(emphasis added). Based on this record, then, Henderson cannot prevail on a claim that the
resolution has silenced the Dial.
Henderson’s remaining arguments lack merit and, although considered, do not
require elaboration. Henderson also raises a number of arguments for the first time in his
reply brief. These arguments are waived. See Valentine v. City of Chi., 452 F.3d 670, 678‐79
(7th Cir. 2006).
AFFIRMED.

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