Joseph D. Koutnik v. Lebbeus Brown

* After an examination of 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. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 19, 2006*
Decided July 24, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
No. 05-4473
JOSEPH D. KOUTNIK,
Plaintiff-Appellant,
v.
LEBBEUS BROWN, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin
No. 04-C-911-C
Barbara B. Crabb,
Chief Judge.
O R D E R
Wisconsin inmate Joseph Koutnik brought this suit under 42 U.S.C. § 1983,
claiming that several prison officials violated his First Amendment rights by
preventing him from sending a letter containing illustrations to someone outside
the prison. He first challenged a state policy preventing prisoners from possessing
gang paraphernalia; next he challenged his restricted access to the mail. The
district court dismissed Koutnik’s first claim and granted summary judgment
against him on his second claim. We affirm.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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The facts are undisputed. Defendant Lebbeus Brown is a supervisory officer
and a “disruptive groups coordinator,” trained to identify street gangs operating
within the prison. While reviewing incoming and outgoing mail for gang-related
content, Brown screened Koutnik’s letter and refused to mail it because he believed
that the illustrations contained in the letter were gang-related, in violation of
Wisconsin Administrative Code §§ DOC 303.20(3), 309.04(4)(c)(10). As relevant
here, that policy prohibits prisoners from possessing “any gang literature,” id.
§ DOC 303.20(3), and states that the “department may not deliver incoming or
outgoing mail if it . . . [t]eaches or advocates illegal activity, disruption, or behavior
consistent with a gang or a violent ritualistic group,” id. § DOC 309.04(4)(c)(10).
Koutnik’s drawing depicted a 24-hour clock with hands pointing to 19, 3, and
18—numbers that Brown interpreted to correspond with the letters “S,” “C,” and
“R.” Brown believed that these letters represented the initials of Koutnik’s gang,
the “Simon City Royals.” In addition, small lettering that encircled the clock
spelled out the phrase “Mister Kujo the Watchdog in the Shadow,” which Brown
believed was a reference to Koutnik’s efforts to protect gang interests while
incarcerated.
Brown issued Koutnik a “Notice of Non-Delivery of Mail” and demoted him
one prisoner-class level. In response Koutnik filed an inmate complaint, but Ellen
Ray, an inmate complaint examiner, agreed with Brown’s determination that the
letter and drawings related to Koutnik’s former gang membership and
recommended dismissal of the complaint. Peter Huibregtse, a deputy warden,
affirmed Ray’s recommendation. Koutnik appealed the dismissal, disputing that
the letter was gang-related, but Richard Raemisch, Deputy Secretary for the
Wisconsin Department of Corrections, agreed with Brown’s assessment of the
illustration and dismissed the appeal.
Koutnik then filed a complaint in the district court. As relevant here,
Koutnik alleged that Brown, Ray, Huibregtse, and Raemisch violated his First
Amendment rights to free speech and expression by refusing to allow him to send
his illustration by mail. He also claimed that § DOC 303.20(3) is unconstitutionally
vague and overbroad.
The district court screened Brown’s complaint under 28 U.S.C. § 1915A and
dismissed Ray, Huibregtse, and Raemisch because their decisions were judicial in
nature and thus protected by absolute immunity. Subsequently the court dismissed
Koutnik’s constitutional challenge to § DOC 303.20(3) because the provision was
reasonably related to a legitimate penological interest—“preventing the formation
and spread of inmate gangs.” Finally the court granted Brown’s motion for
summary judgment under the standard outlined in Procunier v. Martinez, 416 U.S.
396 (1974); the court concluded that § DOC 309.04(4)(c)(10) furthers important
government interests including security and rehabilitation, and that Brown’s use of

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this provision to restrict Koutnik from mailing gang-related material was generally
necessary to protect these governmental interests.
On appeal, Koutnik argues that the district court improperly dismissed his
claim that § DOC 303.20(3) is unconstitutional on its face. That provision prohibits
inmates from possessing gang parapharnelia:
Any inmate who participates in any activity with an inmate gang . . .
or possesses any gang literature, creed, symbols or symbolisms is
guilty of an offense. An inmate’s possession of gang literature, creed
symbols or symbolism is an act which shows that the inmate violates
the rule.
Id. § DOC 303.20(3). Koutnik contends that this section is vague and overbroad
because the warden does not publish a list of sanctioned or unsanctioned groups,
and that the rule vests virtually complete discretion in the hands of prison officials,
thus denying him due process.
The United States Constitution permits greater restriction of prisoners’ First
Amendment rights than it allows elsewhere. Beard v. Banks, No. 04-1739, 2006 WL
1749604, at *6 (U.S. June 28, 2006). Prison regulations are reviewed deferentially
and will be upheld if they are “‘reasonably related to legitimate penological
interests,’ even when [they] ‘impinge on inmates’ constitutional rights.’” Lewis v.
Casey, 518 U.S. 343, 387 n.9 (1996) (quoting Turner v. Safley, 482 U.S. 78, 89
(1987)). Gang suppression is a legitimate penological interest, Wilkinson v. Austin,
125 S. Ct. 2384, 2396-97 (2005); Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir.
2005); therefore, § DOC 303.20(3) is valid so long as it is reasonably related to this
goal. Koutnik suggests that for the regulation to be reasonable, the warden should
be required to identify those groups that are sanctioned and those that are not.
However we have upheld statutes designed to give police officers discretion to
identify gangs operating outside the prison setting, see Fuller ex rel. Fuller v.
Decautur Public Sch. Bd., 251 F.3d 662, 668 (7th Cir. 2001), and we do not find it
unreasonable that prison officials are afforded the same discretion, given the
dangerous environment in which they operate.
Koutnik next challenges the district court’s determination that his First
Amendment rights were not violated when Brown refused to mail his illustration
outside the prison, or when Ray, Huibregtse, and Raemisch declined to intervene.
He contends that the prison’s interests in security and order were not served by
refusing to mail the illustrations because they were “never to be seen by another
prisoner.” Further, Koutnik disagrees that censoring his illustrations furthered the
prison’s interest in rehabilitation; he argues that Brown lacked expertise to opine

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No. 05-4473 Page 4
on the effect the drawing had on his rehabilitation, and in any event that Brown
never articulated how censoring the letter advanced the prison’s rehabilitative
goals.
Prisoners have a First Amendment right both to receive and send mail.
Kaufman v. McCaughtry, 419 F.3d 678, 685 (7th Cir. 2005). And the Supreme
Court has recognized that the implications of outgoing correspondence for prison
security are of a categorically lesser magnitude than the implications of incoming
materials. See Thornburgh v. Abbott, 490 U.S. 401, 411, 413 (1989). Still prisons
may regulate the transmission of outgoing mail so long as doing so “furthers one or
more of the substantial governmental interests of security, order, and
rehabilitation,” and is “generally necessary” to protect these interests. Procunier,
416 U.S. at 413-14. See Nasir v. Morgan, 350 F.3d 366, 371, 374 (3d Cir. 2003);
Leonard v. Nix, 55 F.3d 370, 374 (8th Cir. 1995); Martucci v. Johnson, 944 F.2d 291,
295-96 (6th Cir. 1991).
The district court properly concluded that the prison’s refusal to allow
Koutnik to mail his drawings advanced an important penological interest—gang-
suppression—and was generally necessary to protect that interest. See Westefer,
422 F.3d at 575. We “generally defer to the judgment of prison officials when they
are evaluating what is necessary to preserve institutional order and discipline,”
Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005), and here Brown—who, as the
district court noted, was specifically trained to monitor disruptive groups in the
Wisconsin prisons—adequately substantiated his conclusion regarding the concerns
posed by Koutnik’s drawings.
Finally because Koutnik’s constitutional argument lacks merit, we need not
address his argument that Ray, Huibregtse, and Raemisch were not absolutely
immune from liability. See Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 616-17
(7th Cir. 2002). However we point out that the Supreme Court has limited the
extension of absolute immunity in a similar context, affording only qualified
immunity to prison discipline committee members. Cleavinger v. Saxner, 474 U.S.
193, 206 (1985); see also Walker v. Bates, 23 F.3d 652, 656 (2d Cir. 1994). Similar to
the procedures used by the prison discipline committee in Cleavinger, the prison’s
policies here for reviewing prisoner complaints lacked procedural safeguards
common to the judicial process such as a hearing, the right to counsel, or discovery.
For the reasons outlined in Cleavinger, Ray, Huibregtse, and Raemisch were
entitled only to qualified immunity for their role in evaluating Koutnik’s complaint.
But the district court’s error was harmless because Koutnik still failed to establish
a constitutional violation. Moreover, Koutnik has earned a strike for purposes of 28
U.S.C. § 1915(g) for filing this frivolous appeal. See Hains v. Washington, 131 F.3d
1248, 1250 (7th Cir. 1997).

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AFFIRMED.

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