David Davenport v. Brian Rodgers

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 22, 2015*
Decided December 22, 2015
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 15-1622
DAVID DAVENPORT,
Plaintiff-Appellant,
v.
BRIAN RODGERS,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:14-cv-0207-JMS-WGH
Jane E. Magnus-Stinson,
Judge.
O R D E R
David Davenport has sued Brian Rodgers, a civilian mail clerk at the jail where he
was a pretrial detainee, for intercepting and giving to prosecutors letters in which he
acknowledges his crimes. The district court ruled that, based on Davenport’s allegations
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See F ED. R. A PP . P.
34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 15-1622 Page 2
and the undisputed facts, Rodgers is entitled to judgment as a matter of law. Because
that ruling is correct, we affirm the judgment for Rodgers.
While awaiting trial on drug charges at the Marion County Jail, Davenport mailed
two incriminating letters. Working in the mail room, Rodgers’s suspicions about the first
letter were aroused when it was returned to the jail for insufficient postage. Inmates
frequently attempt to thwart bans on communicating with one another by mailing letters
with inadequate postage, listing another inmate as the sender, and hoping it will be
routed to that inmate when returned to the jail. Following jail policy, Rodgers read the
letter to see if it contained an improper inmate-to-inmate communication. It contained a
signed confession to the crimes with which Davenport was charged. After reading the
confession, Rodgers gave the letter to his superiors, who instructed him to monitor
Davenport’s other mail. Within a couple of days, Davenport attempted to mail a second
letter. This time he asked his girlfriend to perjure herself at his criminal trial. After
reading that letter, Rodgers turned it over to his supervisors, who then gave both letters
to the county prosecutor.
Davenport unsuccessfully moved to have the letters excluded from his trial. In
affirming his conviction, the Court of Appeals of Indiana explained that he had no
reasonable expectation of privacy in outgoing mail while in jail. It emphasized that the
facility’s inmate handbook provided him actual notice that “[a]ll mail for inmates, both
incoming and outgoing, will be opened . . . It shall be read, censored or rejected based on
content and for security reasons.” Davenport v. State, No. 49A02-1210-CR-842, 2013 WL
5659477, at *4–6 (Ind. Ct. App. Oct. 17, 2013).
In this suit under 42 U.S.C. § 1983, Davenport seeks damages from Rodgers. He
revives his Fourth Amendment arguments and adds two new legal theories. The first is
that Rodgers violated Davenport’s First Amendment “privacy right” by forwarding his
letters to the prosecutor. Second, Rodgers allegedly violated his due process rights by
failing to notify him promptly, as required by the inmate handbook, that Rodgers had
forwarded the letters. The district court dismissed all but the First Amendment claim
and later granted summary judgment on that claim, reasoning that forwarding the
letters to the prosecutor served a legitimate penological interest.
Davenport renews all of his legal theories on appeal. We begin with his Fourth
Amendment claim and note that Rodgers does not raise issue preclusion, even though
Davenport litigated (and lost) this claim in his state-court appeal. See Starzenski v. City of
Elkhart, 87 F.3d 872, 877 (7th Cir. 1996). But Davenport loses on the merits anyway. The

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No. 15-1622 Page 3
Supreme Court long ago held that the Fourth Amendment does not prohibit the
government, in implementing reasonable security measures in prisons, from seizing and
using as evidence letters written voluntarily by a prisoner. Stroud v. United States, 251
U.S. 15, 21–22 (1919). The principle applies to pretrial detainees as well. See Smith v.
Shimp, 562 F.2d 423, 425-26 (7th Cir. 1977) (holding that state’s interest “in monitoring
the nonprivileged correspondence of the pretrial detainees” overrides privacy interests);
United States v. Brown, 878 F.2d 222, 225–26 (8th Cir. 1989). Davenport wrote his letters
freely and with full knowledge of the jail’s procedures for reading correspondence for
security reasons; therefore, neither Rodgers’s reading the letters nor forwarding them to
the prosecution violated the Fourth Amendment.
Davenport’s due process claim is equally flawed. He argues that, although the
jail’s regulations permitted Rodgers to inspect his mail, Rodgers did not notify
Davenport before diverting the mail, as those regulations require. But a failure to follow
procedures set by local rules or regulations in itself does not violate due process. See
Kvapil v. Chippewa Co., 752 F.3d 708, 715 (7th Cir. 2014); Rowe v. DeBruyn, 17 F.3d 1047,
1051–52 (7th Cir. 1994).
Davenport’s First Amendment claims were also properly dismissed. Without
violating the First Amendment, prison officials may seize and read inmate mail as long
as the practice furthers an important governmental interest and is no greater restriction
than necessary. See Koutnik v. Brown, 456 F.3d 777, 784–85 (7th Cir. 2006); Smith, 562 F.2d
at 425-26. Davenport does not contest the legitimacy of the jail’s practice of reading mail
for security reasons; instead he argues that what Rodgers did after reading the letters
violated his speech rights. But the First Amendment prohibits the state from restricting
the free expression of ideas, Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002),
and by diverting the mail to prosecutors, Rodgers did not seek to stifle any ideas.
Furthermore, “[g]iven that jail officials could legitimately read [Davenport’s] mail, we
do not think that the First Amendment would bar them from turning letters over to the
prosecutor if the jailers happened to find valuable evidence during their monitoring.”
Busby v. Dretke, 359 F.3d 708, 721 (5th Cir. 2004). Rodgers merely “’overheard’ a
damaging admission during the course of [his] duties,” Busby, 359 F.3d at 721, and in
meeting his legitimate responsibilities to law enforcement, he could forward the
admission without becoming liable for suppressing speech.
A FFIRMED.

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