Joseph D. Koutnik v. LEBBEUS BROWN , GERALD A. BERGE , Warden, and MATTHEW J. FRANK , Secretary

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3193
J OSEPH D. K OUTNIK ,
Plaintiff-Appellant,
v.
L EBBEUS B ROWN , G ERALD A. B ERGE ,
Warden, and M ATTHEW J. FRANK ,
Secretary,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 580—Barbara B. Crabb, Chief Judge.
____________
S UBMITTED M ARCH 28, 2006—DECIDED A UGUST 8, 2006
____________
Before R IPPLE , K ANNE and SYKES , Circuit Judges.
R IPPLE , Circuit Judge. Wisconsin prisoner Joseph Koutnik
brought this action under 42 U.S.C. § 1983 after an employee
of the prison in which he is incarcerated seized an article of
his outgoing mail. Mr. Koutnik claims that the Wisconsin
regulation relied upon by the defendants to justify the
seizure violates the First Amendment on its face and as
applied to him; he also claims that the defendants’ actions
violated his substantive due process rights. The district
court dismissed Mr. Koutnik’s facial challenge and his due

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2 No. 05-3193
process claim, and it granted summary judgment to the
defendants on his remaining First Amendment claim. For
the reasons set forth in this opinion, we affirm the judgment
of the district court.
I
A.
Mr. Koutnik is confined at the Wisconsin Secure Program
Facility. In December 2002, he placed in the outgoing
mail a letter addressed to Northern Sun Merchandising
(“Northern Sun”), a company that sells politically oriented
products, including t-shirts, posters and stickers. Northern
Sun invites design proposals for its products and pays
royalties if an idea is marketed successfully. Mr. Koutnik’s
letter encouraged Northern Sun to add communist-themed
posters to its product line and also suggested developing a
line of small posters targeted at inmates who are prohibited
by prison regulations from possessing stickers and large
posters. Mr. Koutnik also wrote: “I noticed that prison
reform is not as well represented as is needed and am
therefore including some of my ideas you should consider
using. [L]et me know what you think.” R.10, Ex.D. Several
designs were included as attachments. One, taking a page
to itself, was a drawing of a swastika textured with the
image of cell bars. Above the swastika was the slogan “The
Department of Corruptions,” and below it was the slogan
“Keeping Kids in Kages” written with enlarged, stylized
capital Ks. Id., Ex.F.
Lebbeus Brown, then a lieutenant at the facility, prevented
Mr. Koutnik’s letter from being sent. He issued a “Notice of
Non-Delivery of Mail,” advising Mr. Koutnik that the

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No. 05-3193 3
swastika drawing violated Wisconsin Administrative Code
DOC § 303.20. In relevant part, that section provides:
Any inmate who participates in any activity with an
inmate gang, as defined in [§] DOC 303.03(11), or
possesses any gang literature, creed, symbols or symbol-
isms 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. Institu-
tion staff may determine on a case by case basis what
constitutes an unsanctioned group activity.
Wis. Admin. Code DOC § 303.20(3). Lieutenant Brown later
would explain that, based on his training and experience, he
believes the swastika to be “a symbol of Aryan pride and
white supremacy, as well as racial hatred.” R.15 at 8.
Moreover, in this particular instance, he perceived the
capital Ks and the misspelling of “cages” in “Keeping Kids
in Kages” as a reference to the Ku Klux Klan. Id. at 9. The
Klan is not a sanctioned group at the facility, see Wis.
Admin. Code DOC § 309.365(c)(1), and Lieutenant Brown
reasoned that Mr. Koutnik “was identifying with and trying
to promote the growth of white supremacy groups while
merchandizing white supremacy material,” R.15 at 9. To
permit such activity, the Lieutenant concluded, would
create a security risk by emboldening white-supremacist
inmates to spark racial unrest on the assumption that the
facility and the Department of Corrections “were associated
with and condoned white supremacy activity.” Id. at 10.
Lieutenant Brown also decided that Mr. Koutnik’s desire to
merchandize his design was also incompatible with the
facility’s efforts to rehabilitate him, even if the design never
were reintroduced into the prison system.

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4 No. 05-3193
1 Title 28, § 1915A(a) of the United States Code requires district
courts to “review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action
in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.” In conducting this
review, district courts must identify cognizable claims and
dismiss the complaint, or any portion thereof, that fails to state a
claim.
B.
Mr. Koutnik filed the present action in which he alleged
that Lieutenant Brown’s seizure of the outgoing letter
violated both his first amendment and substantive due
process rights. Mr. Koutnik first submitted that the regula-
tion upon which Lieutenant Brown relied, DOC § 303.20(3),
is facially overbroad and that the seizure did not have a
legitimate penalogical purpose. The district court dismissed
the overbreadth challenge at the initial screening required
by 28 U.S.C. § 1915A(a), 1 but allowed Mr. Koutnik’s as-
applied challenge—concerning the use of the regulation to
seize his outgoing correspondence—to proceed.
Mr. Koutnik further alleged that the seizure of his letter
violated his right to substantive due process. However, the
district court took the view that this claim was precluded
because the Supreme Court has directed that substantive
due process claims be analyzed under the specific provision
of the Constitution most relevant to the claim, here the First
Amendment. See Albright v. Oliver, 510 U.S. 266, 273 (1994);
Graham v. Connor, 490 U.S. 386, 395 (1989); see also Conyers v.
Abitz, 416 F.3d 580, 586 (7th Cir. 2005). Consequently, this
claim was dismissed in the court’s initial screening order as
well.
The district court later granted summary judgment in
favor of the defendants, analyzing Mr. Koutnik’s remaining

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No. 05-3193 5
2 Mr. Koutnik initially argues that the district court erred in
dismissing his substantive due process claim. In his complaint,
Mr. Koutnik alleged that “his right to Free Speech, Substantive
Due Process and Freedom of Expression were violated by
Defendants.” R.2 at 1. His complaint further alleges that the
defendants’ acts “violated Koutnik’s first and fourteenth amend-
ment rights,” that the harms were “based on an unconstitution-
(continued...)
first amendment claim under the standard set out in
Procunier v. Martinez, 416 U.S. 396 (1974). That decision
authorizes censorship of outgoing correspondence if
justified by a substantial penalogical interest and if the
means employed are no more intrusive than necessary to
achieve that goal. See id. at 413. The prison ostensibly had
such a purpose, the court reasoned, because institutional
security and inmate rehabilitation are legitimate aims. See
Pell v. Procunier, 417 U.S. 817, 823 (1974). However, in
addressing each of these purposes, the district court ex-
pressed doubt that outgoing mail containing a political
or racial message constitutes a security risk. See Martinez,
416 U.S. at 416. Accordingly, it rested its grant of summary
judgment on its determination that the facility had a
substantial interest in rehabilitating Mr. Koutnik and that
the censorship of this article of his outgoing mail was a
measure that was no more intrusive than necessary to
achieve that goal. Even if Mr. Koutnik’s intent was solely to
criticize the penal system by associating it with a swastika
and the KKK, the court reasoned, Lieutenant Brown was
entitled to stop the outgoing mail because it contained those
references.
II2

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6 No. 05-3193
2 (...continued)
ally vague and overbroad prison rule” and that the regulation
should be declared “unconstitutionally vague and overbroad in
that . . . it is used to punish protected activity as noted in this
case.” Id. at 4.
As noted above, in evaluating the substantive due process
claim, the district court was guided by the Supreme Court’s
admonition in Albright v. Oliver, 510 U.S. 266, 273 (1994): “When
a particular amendment provides an explicit textual source of
constitutional protection against a particular sort of govern-
ment behavior, that amendment, not the more generalized notion
of substantive due process must be the guide for analyzing these
claims.” Id. (internal quotation marks and citations omitted).
Because the “Petitioner allege[d] specifically that the actions of
the respondents violated his First Amendment rights to free
speech and freedom of expression,” the district court found it
unnecessary to address the claims in terms of substantive due
process. R.3 at 6. On appeal, Mr. Koutnik does not contest
directly the district court’s application of the Albright rule; the
section of his brief dedicated to his “substantive due process”
claim simply expands upon his complaint and asks that the
regulation “be declared unconstitutionally vague” and that its
application be enjoined. Appellant’s Br. at 10.
We believe the district court employed the correct approach.
Here, Mr. Koutnik is alleging that the Department of Corrections
promulgated a vague and overbroad regulation that was used to
punish protected activity; these allegations invoke the protections
against government interference with free speech that are
guaranteed by the First Amendment. Consequently, it was proper
for the district court to evaluate Mr. Koutnik’s claims according
to a first amendment framework, cf. Eby-Brown Co., LLC v.
Wisconsin Dep’t of Agric., 295 F.3d 749, 754 (7th Cir. 2002) (citing
Albright and refusing to analyze complaints of unequal treatment
as substantive due process claims, as opposed to equal protection
(continued...)

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No. 05-3193 7
2 (...continued)
claims), and we address Mr. Koutnik’s overbreadth and vague-
ness claims below.
3 We note that Mr. Koutnik forwarded identical vagueness and
overbreadth arguments in a separate action; this court rejected
those arguments in an unpublished order. Koutnik v. Brown,
No. 05-4473, slip op. at 3-4 (7th Cir. July 24, 2006).
A.
On appeal, Mr. Koutnik first argues that the district court
erred in dismissing his facial challenge to Wisconsin
Administrative Code DOC § 303.20(3) at the screening stage.
This section prohibits participating “in any activity with an
inmate gang” or “possessing any gang . . . symbols”; in turn,
DOC § 303.02 (11) defines “an inmate gang” as “a group of
inmates which is not sanctioned by the warden.” Mr.
Koutnik asserts that, at the Wisconsin Secure Program
Facility, there are no inmate groups sanctioned by the
warden. Therefore, he argues that DOC § 303.20(3) prohibits
the possession of symbolism which could be associated with
any group. 3
Mr. Koutnik misreads the provision. The operative section
of the administrative code does not prohibit inmates from
possessing the symbolism of any group, but rather any
inmate group not approved by the warden. This distinction
is significant because it makes the provision quite narrow;
indeed, if strictly read, DOC § 303.20 would not authorize
prison administrators to ban the symbolism of white
supremacy groups if there were no inmate groups associ-
ated with that cause. With this understanding of the regula-
tion in mind, we turn to Mr. Koutnik’s legal arguments.
To launch a successful overbreadth challenge, a plain-
tiff must show “that a law punishes a ‘substantial’ amount

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8 No. 05-3193
of protected free speech.” Virginia v. Hicks, 539 U.S. 113,
118 (2003); see also Hodgkins ex rel. Hodgkins v. Peterson, 355
F.3d 1048, 1056 (7th Cir. 2004). We have explained, however,
that “the concepts of ‘overbreadth’ and ‘vagueness’ in the
jurisprudence of the First Amendment were devised
in order to prevent the slightest discouragement of free
speech, and therefore have only limited relevance to a
sphere where the right of free speech is limited.” Ustrak v.
Fairman, 781 F.2d 573, 580 (7th Cir. 1986). Prison inmates
have limited first amendment rights, see, e.g., Turner v.
Safley, 532 U.S. 223, 228 (2001) (noting that “the constitu-
tional rights that prisoners possess are more limited in scope
than the constitutional rights held by individuals in society
at large”); therefore, “[w]hatever scope overbreadth analysis
has in criminal prosecutions . . . it has little or none in civil
litigation dealing with prisons’ internal operations,” Borzych
v. Frank, 439 F.3d 388, 391 (7th Cir. 2006). This limitation on
the overbreadth doctrine grows out of the inherent restric-
tions on the rights of prisoners and the concomitant special
need of prison administrators for flexible regulations. “Some
open-ended quality is essential if a prison is to have any
guidelines; it is impossible to foresee all literature that may
pose a threat to safety and security.” Id. Given the extremely
limited scope of overbreadth analysis in this context, we
conclude that any overbreadth in the regulation at issue
here “is not ‘substantial’ in relation to its proper applica-
tions.” Id. The district court correctly dismissed the
overbreadth claim pursuant to § 1915A(b)(1).
We turn, then, to Mr. Koutnik’s vagueness challenge.
[E]ven if a law does not reach a substantial amount of
constitutionally protected conduct, it can be found to be
impermissibly vague if it fails to define the offense with
sufficient definiteness that ordinary people can under-

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No. 05-3193 9
stand what conduct is prohibited and it fails to establish
standards to permit enforcement in a nonarbitrary,
nondiscriminatory manner.
Fuller by Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist. 61,
251 F.3d 662, 666 (7th Cir. 2001). A party raising a facial
challenge to a statute or regulation on vagueness grounds
“must demonstrate that the law is impermissibly vague
in all of its applications.” Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 497 (1982). “The nature of
the law” also affects the vagueness analysis. Fuller, 251 F.3d
at 667. Thus, for example, school officials may have greater
latitude in fashioning student disciplinary rules because of
the “need to be able to impose disciplinary sanctions for a
wide range of unanticipated conduct disruptive of the
educational process.” Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 686 (1986). Similarly, as we have noted above,
“[s]ome open-ended quality is essential if a prison is to have
any guidelines; it is impossible to foresee all literature that
may pose a threat to safety and security.” Borzych, 439 F.3d
at 392.
In the present context, we believe a reasonable person
would understand the regulation to prohibit the symbols
employed here, a swastika and the letters “KKK.” These
symbols have been associated with racist and white suprem-
acist groups for over half of a century—groups, not surpris-
ingly, that are not recognized by the warden. Furthermore,
the fact that the regulation provides some latitude to prison
officials in defining gang symbols does not render it void for
vagueness. Indeed, this court has upheld school regulations
prohibiting “gang-like activity” against a vagueness chal-
lenge. See Fuller, 251 F.3d at 667-68. Given the greater
flexibility accorded prison officials to ensure order and
safety in a prison population, we do not believe that the

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10 No. 05-3193
4 In their brief, the defendants urge that we apply the standard
set forth in Turner v. Safley, 482 U.S. 78 (1987), “in light of the
Supreme Court’s indication in Shaw v. Murphy, 532 U.S. 223, 229
(2001), that there is a unitary standard applicable to prisoners’
constitutional claims.” Appellees’ Br. at 16. In essence, they
maintain that Shaw operated as a de facto overruling of Procunier
v. Martinez, 416 U.S. 396 (1974). We decline this invitation. In
Shaw, the Court framed the issue accordingly:
(continued...)
regulation fails to inform the inmate population as to what
symbols are prohibited. The regulation, therefore, is not
unconstitutionally vague.
B.
Mr. Koutnik’s remaining first amendment claim is that the
statute is unconstitutional as applied to his activity. The
district court held, and we agree, that censorship of an
inmate’s outgoing mail still is scrutinized under the stan-
dard espoused in Martinez, 416 U.S. at 413. See Antonelli v.
Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996); Gaines v. Lane,
790 F.2d 1299, 1304 (7th Cir. 1986). Although Martinez later
was overturned in part, the Supreme Court specified in
doing so that the decision would remain the standard
for cases involving outgoing mail. See Thornburgh v. Abbott,
490 U.S. 401, 413 (1989). Other circuits have applied Marti-
nez in that context, and so shall we. See, e.g., Nasir v. Morgan,
350 F.3d 366, 371 (3d Cir. 2003) (applying Martinez to
seizures of outgoing correspondence); California First
Amendment Coalition v. Woodford, 299 F.3d 868, 878 (9th Cir.
2002). But see Altizer v. Deeds, 191 F.3d 540, 548 (4th Cir.
1999) (applying a more deferential standard where outgoing
mail was inspected, but not censored). 4

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No. 05-3193 11
4 (...continued)
Under our decision in Turner v. Safley . . . restrictions on
prisoners’ communications to other inmates are constitutional
if the restrictions are “reasonably related to legitimate
penological interests.” In this case, we are asked to decide
whether prisoners possess a First Amendment right to
provide legal assistance that enhances the protections
otherwise available under Turner. . . .
532 U.S. at 225 (quoting Turner, 482 U.S. at 89; emphasis added).
The Court, however, determined that Turner provided the
appropriate analytical framework and “decline[d] to cloak the
provision of legal assistance with any First Amendment protec-
tion above and beyond the protection normally accorded
prisoners’ speech.” Id. at 231.
Shaw, therefore, did not address the right of prisoners to send
mail outside the prison—the regulation of which is governed
by the Martinez standard. Furthermore, as noted above, after
the Court handed down Shaw, other courts of appeals have
applied the Martinez standard, not the Turner standard, to
evaluate the regulation of prisoners’ outgoing mail.
There are two prongs to the Martinez test. “First, the
regulation or practice in question must further an important
or substantial governmental interest unrelated to the
suppression of expression.” Martinez, 416 U.S. at 413; see also
Gaines, 790 F.2d at 1304. Such interests include “security,
order, and rehabilitation.” Martinez, 416 U.S. at 413. Second,
the challenged action “must be no greater than is necessary
or essential to the protection” of that interest. Id.
The district court identified the governmental interest at
stake in this case as the rehabilitation of Mr. Koutnik and
other inmates. There is no question that the rehabilitation of
inmates is a legitimate interest of penal institutions. “The
more difficult task however, is not in identifying an impor-

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12 No. 05-3193
tant governmental interest at stake, rather it is in determin-
ing whether the enforcement of [the rule] was no greater an
infringement upon [Mr. Koutnik’s] first amendment liberties
than [was] necessary to protect the state’s interest.” Rios v.
Lane, 812 F.2d 1032, 1037 (7th Cir. 1987). It is on this element
of the Martinez test that Mr. Koutnik focuses his challenge
to the district court’s judgment. Specifically, Mr. Koutnik
claims that the defendants have not established that the mail
sent to Northern Sun contained gang symbols or that “the
drawing [of] a swastika and referencing the Ku Klux Klan
in an outgoing letter threatens a prisoner’s rehabilitation.”
Appellant’s Br. at 20. We now address each of these conten-
tions.
With respect to whether Mr. Koutnik’s mail to Northern
Sun contained gang-related symbols, we believe that this
is an assessment that prison staff is uniquely suited to make.
Knowledge of prison gang symbols—how they are used and
what they mean—is acquired primarily through interaction
with, and observation of, prisoners. Additionally, gang
symbolism is not static; symbols change and are added as
gangs expand their bases and combine with other groups.
Consequently, because the prison staff has daily contact
with gang members and because the number and kind of
gang symbols do not remain constant, we shall defer to the
staff’s assessment that Mr. Koutnik’s correspondence to
Northern Sun contained gang symbols. Cf. Beard v. Banks,
126 S. Ct. 2572, 2578 (2006) (plurality opinion) (reiterating
that “courts owe ‘substantial deference to the professional
judgment of prison administrators’ ” (quoting Overton v.
Bazzetta, 539 U.S. 126, 132 (2003))); Martinez, 416 U.S. at 405
(observing that problems related to prison administration
require “expertise” “peculiarly within the province of the
legislative and executive branches of government”).

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No. 05-3193 13
Mr. Koutnik also maintains that his inclusion of a swas-
tika and his veiled reference to the KKK are not related in
any way to his rehabilitation. In his brief, he points to the
Supreme Court’s statement in Martinez that “the weight of
professional opinion seems to be that inmate freedom to
correspond with outsiders advances rather than retards the
goal of rehabilitation.” 416 U.S. at 412. However, the Court’s
statement was premised on two internal policy statements
of the Federal Bureau of Prisons. The first of these stated:
“Constructive, wholesome contact with the community is a
valuable therapeutic tool in the overall correctional pro-
cess.” Id. at 412 n.13 (internal quotation marks and citations
omitted). The second acknowledged that “[c]orrespondence
with members of an inmate’s family, close friends, associ-
ates and organizations is beneficial to the morale of all
confined and may form the basis for good adjustment in the
institution and the community.” Id. (internal quotation
marks and citations omitted). Taken in that context, we
believe that the Supreme Court’s statement in Martinez
actually supports the defendants’ position here. Mr.
Koutnik’s correspondence was not an effort to establish
“constructive, wholesome contact” with the outside commu-
nity that would foster successful reintegration into society,
id.; it was an effort to appeal to groups that would hinder,
rather than foster, respectful human interaction, both inside
and outside of prison. Mr. Koutnik’s attempts to market
symbols affiliated with racially intolerant groups obviously
thwarted the State’s legitimate goals “to encourage the
plaintiff to live crime-free when he is released from cus-
tody” and to foster “the ability to resolve conflicts without
resorting to violence, and to recognize that successful
reintegration into society requires respecting the rights of
others.” R.15 at 11. Accordingly, the confiscation of his
outgoing mail in this case did “further [the] important or

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14 No. 05-3193
substantial governmental interest” in rehabilitation. Marti-
nez, 416 U.S. at 413.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
A FFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-06

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