Stow v. Davis et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Weston J. Stow
v. Civil No. 1:18-cv-768-JL
Opinion No. 2021 DNH 064
Dr. Anne Davis
MEMORANDUM ORDER
Following Judge Johnstone’s review of pro se inmate Plaintiff Weston J. Stow’s multi-
count, multi-defendant complaint,1 one federal claim and four state law claims remain against
Defendant Dr. Anne Davis.2 The remaining federal claim alleges that by reviewing Stow’s
outgoing letter to a third party, and writing a disciplinary report against Stow for statements
made in that letter, Dr. Davis engaged in acts “constitut[ing] illegal censorship in violation of
[Stow’s] First Amendment rights.”3 This court has jurisdiction over Stow’s federal claim under
28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction over his state law claims under 28
U.S.C. § 1367(a).
Dr. Davis now moves to dismiss the remaining claims, arguing that her conduct does not
constitute actionable censorship as a matter of law. She further argues that if Stow’s lone federal
claim is dismissed, this court can decline to exercise supplemental jurisdiction over his state law
claims. After reviewing the parties’ submissions and hearing oral argument, Dr. Davis’s motion
to dismiss is denied. Stow has sufficiently alleged conduct qualifying as censorship that
1 See 28 U.S.C. § 1915(a) and LR 4.3(d)(1) (outlining process for preliminary review by
Magistrate Judge); see also Complaint and Amended Complaint (doc. nos. 1 and 24).
2 See Report and Recommendation (doc. no. 25).
3 Doc. no. 25, at 4 (quoting Stow’s complaint).
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implicates the First Amendment of the United States Constitution under existing case law, and
Dr. Davis has neither raised nor developed other arguments for dismissal at the 12(b) stage.
Background. Accepting as true all well-pleaded facts in Stow’s complaint and drawing
all reasonable inferences from those facts in Stow’s favor, the court recites the following brief
background. See Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010). Stow is an inmate
in the custody of the New Hampshire Department of Corrections. On August 25, 2017, Stow
wrote a letter to Roger Goodell, the Commissioner of the National Football League. The gist of
the letter was that Stow was unhappy with the actions of NFL players electing not to stand
during the pre-game playing of the National Anthem and wanted to express this displeasure to
the League’s Commissioner. In the letter (which is four, single-spaced, handwritten pages long),
Stow quoted from a movie line in which a character says “your [sic] going to acquire courage or
I’m going to stick this steel leg of mine up your ass – you feel me,” and told the Commissioner
that this “message” applies to him, “only it will be the public that sticks a negative balance sheet
up your ass.”
Prior to mailing the letter, Stow asked a corrections employee to make him a photocopy
of the letter and its attachments. The employee returned the original letter to Stow and sent the
copies to New Hampshire State Prison Librarian John Perkins for review. A copy of the letter
then ended up with New Hampshire State Prison Education Department Principal Dr. Davis for
review. After reviewing the letter, Dr. Davis wrote a disciplinary report against Stow, charging
him with threatening to harm another person or property in the letter, which allegedly violated
Department of Corrections rules. The disciplinary report was ultimately filed without prejudice
to Stow. Because there was no guilty finding, no sanctions were imposed against Stow as a
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result of the disciplinary report. Dr. Davis’s actions did not delay or prevent Stow from sending
the letter out of the prison.
Analysis. Dr. Davis’s argument for dismissal is simple. She contends that her alleged
conduct – reviewing an inmate’s outgoing non-legal mail and issuing a disciplinary report based
on the content of that mail – does not constitute censorship that implicates the First Amendment.4
The court agrees that inspecting or perusing an inmate’s outgoing non-legal mail generally does
not constitute censorship. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 576 (1974) (“freedom
from censorship is not equivalent to freedom from inspection or perusal”); Busby v. Dretke, 359
F.3d 708, 722 (5th Cir. 2004) (“The Supreme Court has never held that reading inmate [non-
legal] mail violates the First Amendment.”); United States v. Whalen, 940 F.2d 1027, 1035 (7th
Cir. 1991) (“[I]t is well established that prisons have sound reasons for reading the outgoing mail
of their inmates”). And Stow has not alleged here that Dr. Davis altered his letter to a level that
would be considered censorship or even prevented the letter from being mailed. 5 If that were the
extent of Stow’s claim, the court would consider dismissing it. But Stow alleges more. Namely,
he claims that Dr. Davis’s filing of a disciplinary report (containing allegedly false statements)
against him based on the contents of the letter separately qualifies as unlawful censorship.
4 Memo. of Law in Supp. of Mot. To Dismiss (doc. no. 34-1), at ¶ 21.
5 Stow argues in his Surreply that Dr. Davis placed colored dots on the letter and that this
constituted censorship. See Doc. no. 44. While the court ordinarily would not consider
arguments raised for the first time in a Surreply, even if it did so here, Stow’s argument is not
persuasive because the dots do not appear to have altered the letter in a way that would prevent
its mailing or prevent its recipient from reading or understanding the text. See Letter, Exhibit A
to Amended Complaint (doc. no. 24-1). The court also does not – because it need not for
purposes of this motion – address Stow’s argument that reading mail in violation of prison policy
separately constitutes censorship.
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Dr. Davis responds by arguing that her counsel could not identify “any case holding that
the mere initiation of a disciplinary proceeding in response to the contents of an inmate letter can
constitute actionable censorship under the First Amendment.”6 The court’s research, however,
reveals several cases supporting Stow’s theory of liability. In these cases, courts have found that
the filing of disciplinary charges against an inmate based on the contents of non-legal outgoing
mail can, under some circumstances, depending on the government interests involved and the
limitations imposed, plausibly constitute a form of indirect censorship. See, e.g., Barrett v.
Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (“Barrett’s complaint—which unequivocally
pleads facts alleging that the prison censored his outgoing mail and punished him for its
contents—states a claim that is clearly cognizable under Procunier. The district court was not in
a position to decide, on the pleadings, whether the Oregon State Penitentiary’s rules ‘further an
important or substantial government interest,’ or impose limitations ‘no greater than is necessary
or essential to the protection’ of those interests. These are questions that go to the merits of
Barrett’s claim, not to whether he has stated a claim.”); Gandy v. Ortiz, 122 F. App’x 421, 423
(10th Cir. 2005) (“Prison officials, however, may not punish inmates for statements made in
letters to outsiders that do not impinge on these important governmental interests. As the
Supreme Court has stated, ‘[p]rison officials may not censor inmate correspondence simply to
eliminate unflattering or unwelcome opinions or factually inaccurate statements.’ ‘If prison
officials cannot censor unflattering statements made in letters to outsiders, they also may not
punish an inmate for the contents of such letters.’”) (citation omitted)); Todaro v. Bowman, 872
F.2d 43, 49 (3d Cir. 1989) (“Todaro’s alleged situation mirrors that of the inmate in Brooks.
Since no legitimate penological interest in suppressing critical communications has been
6 Reply (doc. no. 42), at ¶ 4.
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articulated, Todaro’s confinement, if determined to be a punishment for communicating his
criticisms of the conditions of his incarceration, may be violative of the first amendment.”).7
Although the court finds that the alleged censorship implicates Stow’s First Amendment
rights, it does not decide whether the censorship is justified under the Procunier v. Martinez
criteria, as Dr. Davis has not raised or developed that argument in her motion papers. See
Procunier v. Martinez, 416 U.S. 396, 413-14 (1974) (holding that “censorship of prisoner mail is
justified if the following criteria are met. First, the regulation or practice in question must further
an important or substantial governmental interest unrelated to the suppression of expression.
Prison officials may not censor inmate correspondence simply to eliminate unflattering or
unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation
authorizing mail censorship furthers one or more of the substantial governmental interests of
security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be
no greater than is necessary or essential to the protection of the particular governmental interest
involved. Thus a restriction on inmate correspondence that furthers an important or substantial
7 See also Loggins v. Delo, 999 F.2d 364, 367 (8th Cir. 1993) (disciplinary action based on
inmate’s letter to brother constituted censorship); Brooks v. Andolina, 826 F.2d 1266, 1267–68
(3rd Cir.1987) (disciplinary action based on outgoing letter stating that a guard had searched a
visitor in “a very seductive manner” constituted censorship); Santiago v. Rabideau, No. 15 C
1856, 2016 WL 4490578, at *8 (N.D. Ill. Aug. 23, 2016) (“The Court concludes as a matter of
law, the comments made in Plaintiff’s letter—while offensive, aggressive, and vulgar – ‘did not
present a danger to the community inside the prison.’ Plaintiff had an established First
Amendment right to express himself in this letter, and that right was violated when he was
punished for the contents of his letter and placed in solitary confinement. Therefore, as the Court
finds no material facts in dispute with regard to the contents of Plaintiff’s letter, it concludes that
punishing Plaintiff for the contents of the letter violated his First Amendment rights.” (citation
omitted)).
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interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad.”),
overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).
Censorship, or “interference with . . . intended communication,” can be direct or indirect
and may include prison disciplinary actions arising from inmate correspondence. Minnesota
Civil Liberties Union v. Schoen, 448 F. Supp. 960, 965–66 (D. Minn. 1977); see also Taylor v.
Sterrett, 532 F.2d 462, 469 (5th Cir. 1976) (noting that the “phenomenon of censorship, of
course, appears in a multitude of forms” and can include disciplinary reports that have an
“indirect chilling of the content” of inmate correspondence). Indirect censorship “involves a
reluctance on the part of the communicating parties to include certain communication in written
correspondence because of the knowledge that such written correspondence may be read by
other parties.” Schoen, 448 F. Supp. at 966.
If, however, “under the guise of legitimate personal correspondence, a prisoner uses
outgoing mail as a means to be verbally abusive to prison staff without incurring disciplinary
consequences, disciplinary measures taken to preserve the prison’s security interests do not
offend the First Amendment.” Leonard v. Nix, 55 F.3d 370, 375–76 (8th Cir. 1995) (emphasis
added). That scenario is not present here. Stow did not address his letter to prison staff and did
not mention prison staff or his fellow inmates, let alone threaten them. The letter was therefore
not a ruse to be verbally abusive to staff and did not otherwise present a security concern to the
staff or other inmates. The court thus denies Dr. Davis’s motion based on the narrow argument
presented therein.8
8 Dr. Davis suggests in passing that because the disciplinary report against Stow cannot be
considered an “adverse act” for purposes of a retaliatory discipline claim, it too cannot constitute
actionable censorship. See Doc. no. 34-1, at 6 n. 2. In support, Dr. Davis cites Starr v. Dube,
334 F. App’x 341 (1st Cir. 2009) (unpublished). But Starr involved a retaliatory discipline claim
under § 1983, not a First Amendment censorship claim, and the two claims contain different
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Ruling. There may be other grounds for dismissing Stow’s federal censorship claim at a
later procedural posture with the benefit of a more robust factual record, and more developed
legal arguments regarding the governmental policies and the scope of the limitations imposed.
The court cannot rule as a matter of law on a 12(b) motion, however, that Stow’s complaint fails
to state a censorship claim upon which relief can be granted. Dr. Davis’s motion9 is accordingly
DENIED and the court will continue to exercise supplemental jurisdiction over Stow’s state law
claims.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: March 30, 2021
cc: Weston J. Stow, pro se
Samuel R. V. Garland, Esq.
elements of proof. Compare Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011) (outlining
elements of retaliatory discipline claim), with Procunier, 416 U.S. at 413-14 (outlining elements
of censorship claim). Dr. Davis has not cited any case law in the censorship context supporting
the argument that a disciplinary report that is de minimis for purposes of a retaliation claim
cannot alternatively support a censorship claim. Nor has she otherwise developed this argument
in a non-conclusory manner. The court accordingly rejects Dr. Davis’s “de minimis” argument.
9 Doc. no. 34.
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