James Munson v. DONALD GAETZ, Warden

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1532
JAMES MUNSON,
Plaintiff-Appellant,
v.
DONALD GAETZ, Warden, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-cv-00881-GPM—G. Patrick Murphy, Judge.
ARGUED DECEMBER 8, 2011—DECIDED MARCH 9, 2012
Before MANION, ROVNER, and TINDER, Circuit Judges.
TINDER, Circuit Judge. James Munson, an Illinois De-
partment of Corrections prisoner serving a life sentence,
alleged in a pro se 42 U.S.C. § 1983 complaint that prison
officials violated his constitutional rights by barring
him from personally possessing two of the six books
he had shipped to the prison. The district court found
that Munson failed to state a claim upon which relief
may be granted. We affirm.

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2 No. 11-1532
I. Background
We accept as true Munson’s allegations given that
the district court dismissed his complaint for failure to
state a claim. See Smith v. Peters, 631 F.3d 418, 419 (7th
Cir. 2011). Munson suffers from a chronic medical condi-
tion as well as a variety of medical ailments that require
him to take several prescription drugs on a daily ba-
sis. Because he is incarcerated, Munson relies on
prison personnel for the accuracy of his medications
and dosages. Munson once became ill because someone
accidentally gave him another inmate’s medication for
twelve days. Given the life-threatening nature such
incidents pose, Munson has taken to educating himself
about his medications. Munson wants to know about
side effects, whether various mixtures of the medica-
tions for his chronic condition and his other ailments
could cause illness or death, and if he should avoid
certain foods. His lack of knowledge causes stress and
mental anguish and makes him leery of taking other
medications even though prescribed by a physician.
Munson turned to the prison library, which allows
inmates to check out books to take back to their cells
and photocopy books’ pages to keep in their permanent
collections. But Munson found that long waiting lists
and frequent prison lockdowns impaired his access to
the information he wanted. So Munson ordered six books
from a prison-approved bookstore. Some of the books
included Carpe Diem: Put A Little Latin in Your Life,
Diversity and Direction in Psychoanalytic Technique,
and Neurodevelopmental Mechanisms in Psychopathology.

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No. 11-1532 3
Munson’s complaint indicates that a prison official sent
the Physicians’ Desk Reference (PDR) and the Complete
Guide to Prescription & Nonprescription Drugs 2009 (Com-
plete Guide) to the prison’s publication reviewers for
further screening. We know from “Publication Review
Determination and Course of Action” forms attached to
his complaint that publication review officer Lisa
Shemonic decided Munson could not have the Complete
Guide and the PDR. To justify the decision, Shemonic
provided three reasons for both books. Shemonic simply
checked the available boxes for the first two reasons: the
books were “listed on the Disapproved Publications
List,” and the books contained material deemed “other-
wise detrimental to security, good order, rehabilitation,
or discipline, or it might facilitate criminal activity or be
detrimental to mental health.” The third reason was
more specific. Shemonic checked the box indicating that
the books contained “other” material and specified
“DRUGS” on the blank line. In the forms’ comment
section, Shemonic typed “ON THE DISAPPROVED LIST.”
Munson alleges in his complaint that “many other”
inmates possessed “these kinds of medical” books and
that these particular books may be available in the
prison’s library. Munson alleges that Shemonic told him
that even though the same books may be in the prison
library, prison officials did not want inmates “to have
the books in [their] cells or have personal ownership of
the books.” Munson filed a grievance but prison officials
affirmed the decision. Munson’s complaint suggests
that prison officials mailed the books somewhere and
his counsel stated at oral argument that it was his under-
standing that the books went to Munson’s family.

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4 No. 11-1532
Munson filed a pro se 42 U.S.C. § 1983 complaint alleging
that the restriction violated his First, Eighth, and Four-
teenth Amendment rights. The district court screened
Munson’s complaint, 28 U.S.C. § 1915A(a), and dismissed
it with prejudice for failing to state a claim upon
which relief may be granted, id. § 1915A(b)(1). The court
noted that it appeared from Munson’s complaint that
the prison’s policy allowed prisoners to have limited
access to books about prescription drugs but not per-
sonal ownership. The court explained that it:
can imagine many illicit uses to which books like
the PDR and the Complete Guide could be put if . . .
prisoners were allowed unfettered access to such
materials, including, inter alia, drug trafficking,
drug abuse, and plotting suicide attempts, all of
which are, of course, activities highly detrimental
to prison security and discipline.
Munson v. Gaetz, et al., No. 10-881-GPM, 2011 WL 692015,
at *3 (S.D. Ill. Feb. 17, 2011). The court found the prison’s
decision to restrict Munson’s access to the PDR and the
Complete Guide reasonable. The court dismissed the
Eight Amendment claim because Munson only alleged
“quibbles” with the prison doctors’ prescriptions and
the Fourteenth Amendment claim because Munson
failed to allege a constitutionally protected property
interest. Id. The dismissal counted as a strike against
Munson. See 28 U.S.C. § 1915(g).

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No. 11-1532 5
II. Analysis
We review the dismissal of Munson’s complaint de novo.
Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009). We
accept well-pleaded facts as true but not legal conclu-
sions or conclusionary allegations that merely recite a
claim’s elements. McCauley v. City of Chicago, No. 09-3561,
2011 WL 4975644, at *4 (7th Cir. Oct. 20, 2011) (citing
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009)). We must
determine whether the “factual allegations ‘plausibly
suggest an entitlement to relief,’ ” id. (quoting Iqbal, 129
S. Ct. at 1951), to a degree that rises “above the specula-
tive level,” id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). The “plausibility determination is ‘a
context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.’ ” Id.
(quoting Iqbal, 129 S. Ct. at 1950). Although the 1995
Prison Litigation Reform Act “mandates early judicial
screening of prisoner complaints,” Jones v. Bock, 549
U.S. 199, 202 (2007), we still consider pro se complaints
liberally and hold them to a less stringent standard
than pleadings drafted by lawyers, see Maddox v. Love, 655
F.3d 709, 718 (7th Cir. 2011) (citing Erickson v. Pardus, 551
U.S. 89, 94 (2007)).
Munson argues that the district court erred in dis-
missing his complaint before taking evidence sup-
porting the penological interest justifying the prison’s
decision to restrict his access to the books. Munson main-
tains that the district court improperly relied on its
own speculation and that his complaint’s factual allega-
tions sufficiently stated a claim that the government
wrongly deprived him of his First Amendment rights.

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6 No. 11-1532
A prison’s refusal to allow an inmate access to a
book “presents a substantial First Amendment issue.
Freedom of speech is not merely freedom to speak; it is
also freedom to read.” King v. Fed. Bureau of Prisons,
415 F.3d 634, 638 (7th Cir. 2005) (citing cases). Forbidding
someone the right to read shuts “him out of the market-
place of ideas and opinions,” which is what the Free
Speech Clause protects. Id. Yet prisons may have “valid
penological reasons for limiting prison inmates’ access to
certain” books, such as those discussing famous prison
escapes or perhaps even books about making oneself
stronger. Id. But the prison must still justify its interest
in restricting access to the particular book. Given that
the prison restricted Munson’s First Amendment rights
by denying him the books, the restriction “is valid only
if it is reasonably related to legitimate penological inter-
ests.” Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004).
Under Turner v. Safley, we consider four factors to judge
the restriction’s constitutionality: (1) the validity and
rationality of the connection between a legitimate and
neutral government objective and the restriction;
(2) whether the prison leaves open “alternative means
of exercising” the restricted right; (3) the restriction’s
bearing on the guards, other inmates, and the allocation
of prison resources; and (4) the existence of alternatives
suggesting that the prison exaggerates its concerns.
482 U.S. 78, 89-91 (1987).
Munson’s appeal focuses on the district court’s justifi-
cation for the restriction’s rationality—that the court
could “imagine many illicit uses to which” prisoners
could put the books. Munson, 2011 WL 692015, at *3

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No. 11-1532 7
(emphasis supplied). We do not need to decide whether
the court erred in phrasing its ruling in terms of
imagining problems with the books because the attach-
ments to Munson’s complaint provided the prison’s
legitimate penological interest in restricting his access.
Quite simply, the prison gave the books’ drug-related
content as one of the reasons justifying its decision
to restrict Munson’s access to the books and we don’t
need to look beyond the books’ titles and the content of
Munson’s complaint to know that the books contain
information about drugs. Assessing the rational rela-
tionship between (A) the unquestionably legitimate
and neutral government objective of restricting prisoner
access to drug-related information and (B) the prison’s
decision to bar Munson from personally possessing the
PDR and the Complete Guide takes no leap of logic or
imagination. Perhaps the publication review officer
could have said more than just stating the obvious that
the books contained information about “DRUGS.” Yet
just as prison officials wouldn’t need to say much in
restricting access to books containing information about
how to make knives, or how to pick locks, there isn’t
much to say in justifying a decision to restrict access
to books containing information about drugs.
Munson reminds us that we shouldn’t judge the
books based on their covers. See generally 1 George
Eliot, The Mill on the Floss 24 (1860) (“They was all
bound alike—it’s a good binding, you see—and I thought
they’d be all good books . . . they’ve all got the same
covers, and I thought they were all o’ one sample, as
you may say. But it seems one mustn’t judge by th’ out-

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8 No. 11-1532
side.”). Affirming though doesn’t require even a glance
at the books’ covers because Munson’s complaint says
he wanted the books because of their drug-related con-
tent. Complaint at ¶¶ 21-25. Munson argues that the
prison’s reference to drugs on the publication review
form merely recited boilerplate language. Maybe the
statement “DRUGS” qualifies as boilerplate. But just as
the prison could use a form to explain its reasons for
denying Munson possession of the books, the prison
could use efficient yet sufficient boilerplate to justify
its decision to restrict books containing drug-related
content. Because we can readily discern the validity
and rationality of the connection between this legiti-
mate penological interest and restricting access to such
books, the district court did not err in finding the
prison’s restrictions reasonable.
Munson seeks to place his case in the company of a
trio of decisions where we found that the district courts
erred in dismissing at the screening stage. Yet in each
of these cases, efforts to bridge the gulf between the re-
striction and a penological interest caused uncertainty
on appellate review because either the complaint
didn’t provide the prison’s interest or the restriction’s
basis was just not legitimate or plausible. Unlike these
cases, Munson’s complaint doesn’t cause us any trouble
in recognizing the government’s legitimate interest and
the bridge between that and the restriction.
In Lindell, we held that although it might be possible
to envision a justification for restricting a prisoner to a
maximum of five postcards, the dismissal of the

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No. 11-1532 9
complaint at the screening stage prevented us from
actually knowing the reason behind the restriction. 377
F.3d at 657-58. The prisoner’s complaint did not concede
the existence of a policy or rule about postcards; rather,
he alleged that the prison arbitrarily confiscated his
postcards. Id. at 658. Dismissing the complaint at
screening prevented the defendants from ever having
to explain its basis for confiscating the postcards. Id.
Unlike the prisoner in Lindell, Munson attached to his
complaint the prison’s basis for barring him from person-
ally possessing the books and provided an admittedly
short, but sufficient, supporting rationale.
In Ortiz, we found that the district court improperly
assumed that a prisoner’s requests for a rosary and a
prayer booklet or pamphlet posed a security risk or
were incompatible with his detention. 561 F.3d at 668-70.
The grievances and replies attached to the prisoner’s
complaint showed that the prison’s chief made the
decision on the basis that as a Catholic the prison
chief knew that those “items are not vital to worship.” Id.
at 669. This reason, based on a personal religious
belief, was insufficient because a prisoner’s religious
beliefs “are not subject to restriction by the personal
theological views of another.” Id.; see also Grayson v.
Schuler, 666 F.3d 450, 455 (7th Cir. 2012) (“Prison chap-
lains may not determine which religious observances
are permissible because orthodox.”). Here, the restriction
rested on the legitimate interest in limiting access to
books about drugs, not the publication review officer’s
personal beliefs about the books.

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10 No. 11-1532
Most analogous to Munson’s case is our decision in
King, where we found that the district court prematurely
dismissed a complaint before taking evidence sup-
porting the decision to bar an inmate from a book
about computer programming. 415 F.3d at 639. In its
brief in King, the government explained that the prison
did not want the prisoner to have the books because
they were concerned he would write a computer
program that would disrupt the prison’s computer
system. We found the idea, that the prisoner would
somehow access the prison network to infect it with a
virus, “far-fetched” and regardless, inadequate to
defeat the prisoner’s claim without “some evidence
to show that the restriction is justified by the need to
protect the prison’s computer system.” Id. Quite unlike
King, the attachments to Munson’s complaint, not a
government brief, provided the prison’s penological
interest. And unlike the implausible scenario in King
that had the prisoner breaking into a room to access
a computer, connecting to the prison’s computer
network, and then somehow infecting the network with
a virus, understanding the legitimacy of the prison’s
interest in restricting access to books containing infor-
mation about drugs does not require accepting the possi-
bility of some incredible chain of events.
Munson’s complaint provided the prison’s legitimate
interest in restricting his access to the books and
the rational connection between that interest and the
restriction takes no imaginative dive into the depths of
the prison officials’ consciousness. Cf. Ciarpaglini v. Saini,
352 F.3d 328, 331 (7th Cir. 2003) (affirming a district

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No. 11-1532 11
court on an alternative but adequate ground that the
defendant “simply pled himself out of court by saying
too much”). The books contain drug-related content
and the prison restricted Munson’s access to the books
because of their drug-related content. There was little
else to say. Compare Amatel v. Reno, 156 F.3d 192, 199
(D.C. Cir. 1998) (rejecting the need for “record evidence”
because “common sense” does not have to “be the
mere handmaiden of social science data or expert testi-
monials in evaluating congressional judgments” because
“conformity to commonsensical intuitive judgments is
a standard element of both reasonableness and rational-
ity”), and Giano v. Senkowski, 54 F.3d 1050, 1054-55 (2d
Cir. 1995) (holding that a valid and rational connection
existed between the government’s reasons for a policy
because of “common sense”), with Jones v. Brown, 461
F.3d 353, 361-63 (3d Cir. 2006) (holding that although
common sense may suffice in some instances, it did
not afford a reasonable basis in this case), Ramirez v. Pugh,
379 F.3d 122, 128 (3d Cir. 2004) (holding that the connec-
tion between a restriction and the rehabilitative interest
ceased to be “obvious upon consideration of the entire
federal inmate population”), Wolf v. Ashcroft, 297 F.3d
305, 308 (3d Cir. 2002) (holding that although “the connec-
tion may be a matter of common sense in certain
instances . . . there may be situations in which the con-
nection is not so apparent and does require factual devel-
opment”), Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir.
1988) (rejecting “the piling of conjecture upon conjecture”);
Amatel, 156 F.3d at 208 (Wald, J., dissenting) (reserving
the possibility that the connection between a ban and

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12 No. 11-1532
rehabilitation could be “so self-evident that no further
evidence was necessary to demonstrate its reasonable-
ness”), and Giano, 54 F.3d at 1059 (Calabresi, J., dissenting)
(agreeing that some regulations are “so obviously
related to legitimate penological concerns that chal-
lenges to them may be dismissed at the summary judg-
ment stage based simply upon an (irrefutable) ‘com-
mon sense determination’ ”).
Munson next argues that the regulations governing
possession of books are invalid. See Overton v. Bazzetta,
539 U.S. 126, 132 (2003) (holding that “is not on the State
to prove the validity of prison regulations but on the
prisoner to disprove it”). Munson must overcome
the substantial discretion granted prison officials in
determining “appropriate means of furthering penological
goals” because they “bear a significant responsibility
for defining the legitimate goals of a corrections system
and for determining the most appropriate means to
accomplish them.” Id. The challenged regulation
survives if it bears a rational relation to legitimate peno-
logical interests. Id. (citing Turner, 482 U.S. at 89).
Munson alleges that “many other” inmates “have these
kinds of medical” books in their possession. Complaint
at ¶ 28. Munson’s complaint doesn’t explain what
books other prisoners have or what level of access they
have to those books. Regardless, these alleged “inconsis-
tent results are not necessarily signs of arbitrariness or
irrationality.” Thornburgh v. Abbott, 490 U.S. 401, 417 n.15
(1989). The documents attached to Munson’s complaint
suggests that the prison’s publication review process

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No. 11-1532 13
involved individualized determinations. The six books
Munson ordered passed through what appears to be
an initial screening process. Of those six books, the
prison allowed three of the books, one of which dis-
cussed psychoanalysis and another psychopathology,
through the initial screening process without comment.
(Munson’s complaint doesn’t say what happened to
the sixth book.) The prison’s individualized determina-
tion evidently leaves room for distinguishing books
based on their content. That some prisoners have
some type of access to books containing general medical
information doesn’t defeat the prison’s decision to specifi-
cally restrict Munson’s access to certain books containing
information about drugs. See Mays v. Springborn, 575
F.3d 643, 649 (7th Cir. 2009) (per curiam) (holding that
it “takes no great leap to understand the prison’s
reasons for wanting an article about a prison riot and
images of gang signs” barred even though the prisoner
“had access to other writings and to television shows
about prison riots”).
Munson challenges the restrictions on the basis of the
books’ availability in the prison library. This alternative
access to the information contained within the PDR and
Complete Guide does not undermine the prison’s decision;
rather, it simply suggests that under the second Turner
factor Munson has “alternative means of exercising” his
restricted right to access knowledge about drugs. 482
U.S. at 90. As noted by the Supreme Court in Thornburgh,
attempts “to achieve greater consistency by broader
exclusions might itself run afoul of” this factor by
applying “a more broadly restrictive rule.” 490 U.S. at

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14 No. 11-1532
417 n.15 (citing Fyodor Dostoyevsky, The House of the
Dead 40 (Penguin 1985) where prisoners were permitted
to read only the Bible). “The exercise of discretion
called for by these regulations may produce seeming
‘inconsistencies,’ but what may appear to be incon-
sistent results are not necessarily signs of arbitrariness
or irrationality.” Id. The availability of like-books for
copying and borrowing from the prison library merely
suggests that Munson had alternative, albeit more re-
stricted, access to the books. Allowing reduced access
does not mean that barring unfettered access is illegiti-
mate, even if restricted access creates an appearance
of inconsistency. See Mays, 575 F.3d at 649 (holding that
the level of “deference we afford prisons permits such
seeming inconsistencies”).
The Eighth Amendment prohibits the government
from inflicting “cruel and unusual punishments.” U.S.
Const. amend. VIII. Whether a punishment is unconstitu-
tional depends on “ ‘evolving standards of decency that
mark the progress of a maturing society.’ ” Estelle v. Gamble,
429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S.
86, 101 (1958)). The denial of medical care may cause
“pain and suffering which no one suggests would serve
any penological purpose.” Id. at 103. Thus, the “deliberate
indifference to serious medical needs of prisoners con-
stitutes the ‘unnecessary and wanton infliction of pain.’ ”
Id. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173
(1976)). For Munson’s Eighth Amendment claim to
survive, he must allege that he (1) “suffered an objectively
serious harm that presented a substantial risk to his
safety, and (2) the defendants were deliberately indif-

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No. 11-1532 15
ferent to that risk.” Minix v. Canarecci, 597 F.3d 824, 831
(7th Cir. 2010).
Munson cites in support of this claim his receipt of
another person’s medications, that mixing his medica-
tions improperly could cause death, and that he is con-
cerned that prison physicians fail to prevent this. As
problematic as these claims are, Munson fails to allege
that the decision to deny him possession of the PDR
and the Complete Guide constituted deliberate indiffer-
ence. At most, Munson’s alleges that certain prison
officials made a mistake, not that they were deliberately
indifferent. See Forbes v. Edgar, 112 F.3d 262, 266 (7th
Cir. 1997) (holding that the Eighth Amendment “is not
coterminous with a medical malpractice claim”); Snipes
v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (requiring
medical treatment to be “blatantly inappropriate as
to evidence intentional mistreatment likely to seriously
aggravate the prisoner’s condition”). Munson also
does not allege that the defendants were involved in the
alleged misprescription incident. See Minix, 597 F.3d at
833-34 (noting that § 1983 liability “requires ‘personal
involvement in the alleged constitutional deprivation’ ”
(quoting Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th
Cir. 2003))). Any possible indifference to Munson’s
medical needs rests not with the prison officials
involved in the publication review process but with
those involved in maintaining his prescription regime.
The Eighth Amendment protects a prisoner’s right to
receive adequate treatment, Forbes, 112 F.3d at 266, not
the right to have one’s own set of books about drugs.

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16 No. 11-1532
The Fourteenth Amendment prohibits the government
from depriving “any person of . . . property, without due
process of law.” U.S. Const. amend. XIV, § 1. Munson
asserts that the prison’s decision to prohibit him from
having the books deprived him of a property interest
without due process. See Mathews v. Eldridge, 424 U.S.
319, 333 (1976). This claim requires two levels of analysis:
“First, we must determine whether the plaintiff was
deprived of a protected interest; second, we must deter-
mine what process is due.” Leavell v. Ill. Dep’t of Nat. Res.,
600 F.3d 798, 804 (7th Cir. 2010) (quoting Pugel v. Bd. of
Trs. of Univ. of Ill., 378 F.3d 659, 662 (7th Cir. 2004).
Munson’s claim fails both. Given that prison officials
legitimately barred Munson from around-the-clock-
access to the books, he cannot claim that the prison
denied him a protected property interest. We also
question whether Munson alleges an actual deprivation
of his property given that it appears from Munson’s
complaint, and from his counsel’s statement at oral argu-
ment, that the prison sent the interdicted books to a
member of his family. Although we have only recognized
in an unpublished order that a prisoner is not deprived
of a property interest when he is able to send the
property to a destination of his choice, see Faust v. Parke,
114 F.3d 1191, 1997 WL 284598, at *1 (7th Cir. 1997) (table
decision), the Tenth Circuit has repeatedly recognized
this principle, see Searcy v. Simmons, 299 F.3d 1220, 1229
(10th Cir. 2002) (sending prisoner’s property to relatives
did not constitute a deprivation of property ownership);
Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002)
(“While an inmate’s ownership of property is a protected

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No. 11-1532 17
property interest that may not be infringed without
due process, there is a difference between the right to
own property and the right to possess property while
in prison.”); Williams v. Meese, 926 F.2d 994, 998 (10th
Cir. 1991) (prisoner’s retention of control over ring and
postage stamps seized by prison officials, as indicated
by the property’s delivery to an address of the plaintiff’s
choosing, demonstrated that he had not been “deprived”
of the property, although he lacked possession). Munson’s
complaint just alleges a prohibition against his posses-
sion of the books while in prison; he does not allege a
deprivation of his ownership in the books. Munson’s
complaint also makes it clear that he received all the
process he was due in the form of a written notice ex-
plaining why he couldn’t possess the books and a mean-
ingful chance to be heard by a series of prison officials.
Stewart v. McGinnis, 5 F.3d 1031, 1037 (7th Cir. 1993)
(noting that due process requires “a meaningful oppor-
tunity to be heard on” whether an item is contraband).
Munson alleges that after the initial denial by the pub-
lication review officer, Complaint at ¶ 1, he was able to
file a grievance with a counselor, id. at ¶¶ 3-4, followed
by an appeal of that decision to two other officials, id. at
¶ 5. Munson took his case to the administrative
review board, id. at ¶ 8, and then the prison director, id.
Munson cannot complain now about the lack of a
hearing because he does not allege that prison officials
denied a request for a hearing. See Ill. Admin. Code tit. 20,
§ 504.830(c) (“An offender may be afforded an oppor-
tunity to appear before the Grievance Officer unless the
grievance is deemed without merit.”).

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18 No. 11-1532
III. Conclusion
We AFFIRM the district court’s dismissal of Munson’s
complaint.
3-9-12

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