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June 26, 1990

R.H. RISON, Warden for the United States Penitentiary at Lompoc, California; TOM CURD, Assistant Warden; PAUL HOFER, Executive Assistant to the Warden; JERRY WILLIFORD, Director, Western Region Federal Bureau of Prisons; and the FEDERAL BUREAU OF PRISONS, Defendants

The opinion of the court was delivered by: LEGGE

 This action was tried to the court, sitting without a jury, and was briefed, argued and submitted for decision. The court has heard and reviewed the testimony of the witnesses, and has reviewed the record, the exhibits admitted into evidence, the deposition transcripts admitted into evidence, the answers to interrogatories, the applicable authorities, and the arguments of counsel. This opinion constitutes the court's findings of fact and conclusions of law, as provided in Rule 52(a) of the Federal Rules of Civil Procedure. The facts stated below are found to be facts by a preponderance of the evidence, and by applying the burdens of proof discussed in paragraph VI.


 This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361, 2201, and 2241, and 5 U.S.C. § 702, et seq. (1982), and the first, fourth, fifth, and sixth amendments to the United States Constitution. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and (e) (1982), because one defendant resided in this district at the time the suit was filed and some of the acts that gave rise to plaintiffs' claims occurred in this district.

 Defendants have contested subject matter jurisdiction, on the grounds of the defense of sovereign immunity from plaintiffs' claims for monetary relief. However, because of the conclusions reached below, this court need not discuss that contention. Defendants also asserted that this court lacks subject matter jurisdiction over the claims of plaintiff The Chronicle Publishing Company, because The Chronicle lacks standing to assert those claims. That motion was previously denied by this court. Defendants also objected to venue, but defendants' objections were denied. *fn1"


 Plaintiff Dannie Martin is a convicted felon, who at the time of these events was incarcerated in the U.S. Penitentiary in Lompoc, California. The nature of Martin's conviction and his sentence need not be discussed here. Martin was assigned to Lompoc Penitentiary in part because his prison security level is consistent with that of Lompoc. Lompoc Penitentiary and its adjacent prison camp house approximately 2200 prisoners. Plaintiff The Chronicle Publishing Company is the publisher of "The San Francisco Chronicle," a newspaper of general circulation.

 While in prison, Martin developed skills as a writer. For approximately two years before the events in question here, Martin wrote articles and submitted them to The Chronicle. His articles were generally about prison life. Some were critical of prison authorities and some were not. The Bureau of Prisons took no action against Martin for any of his articles until the Gulag article discussed below.

 The Chronicle published approximately 18 of Martin's articles in a features section of Sunday editions of The Chronicle. The Chronicle treated Martin as a features writer, printed his byline on his articles, *fn2" and identified him as a prisoner in Lompoc. When it received articles from Martin, The Chronicle did some editing, had some conversations with Martin about changes, wrote the headlines, did the art work, and selected the pull-quotes to be set within the articles. Martin's articles were well received by the public.

 The Chronicle paid Martin for each of the articles. The Chronicle's payments went to Martin's attorney, because of Bureau of Prison regulations that limit an inmate's access to cash, and because of one of the regulations at issue here.

 The events causing this suit were precipitated by an article which Martin wrote and The Chronicle published, entitled The Gulag Mentality, in June 1988. When that article was published by The Chronicle and the newspaper was circulated within Lompoc prison, prison officials became concerned about possible violence. They placed Martin in administrative detention for a few days, while they conducted an investigation. Martin was then released from administrative detention. A few days later, the Bureau of Prisons transferred Martin to another federal prison, where he is still incarcerated. Martin has continued to write and publish in The Chronicle under a preliminary injunction issued by this court.

 The facts surrounding these events are discussed in more detail as appropriate below.


 Defendants charged that Martin violated two regulations of the Bureau of Prisons, which regulations are the focal point of plaintiffs' suit.

 One is 28 C.F.R. § 540.14(d)(4) (1988):

An inmate . . . may not direct a business while confined.

 The other is 28 C.F.R. § 540.20(b) (1988):

The inmate may not receive compensation or anything of value for correspondence with the news media. The inmate may not act as a reporter or publish under a byline.

 Those sections are a part of voluminous regulations of the Bureau of Prisons for the operation of federal prisons. *fn3" They include many subjects not of concern in this litigation.

 There are extensive regulations, some restrictive but some very permissive, regarding contacts between inmates and the outside world. Part 540, of which the two challenged regulations are a portion, expressly deals with "contact with persons in the community." Those regulations include specific sections concerning inmate correspondence with the news media, and contacts between prisoners and the news media. The obvious objectives of the regulations as a whole are to permit inmates to communicate with the outside world, and to permit the news media to have access to inmates, to the extent that those communications do not interfere with the security of a prison. Most of those regulations need not be discussed in detail. Suffice it to say that the regulations attempt to balance the interests of the inmates, persons outside the prisons, the news media, and the security interests of the prison. The regulations also provide that they shall nevertheless be subject to the authority of the prison warden to act in preserving the security of the prison. Section 501.1 states: "When there is an institutional emergency which the Warden considers a threat to human life or safety, the Warden may suspend the operation of the rules contained in this chapter to the extent he deems necessary to handle the emergency." While this apparently refers to a suspension of all rules for all prisoners, and hence is not directly applicable to this case, it reflects the discretion vested in prison wardens when there is a danger to prison security.


 Plaintiffs challenge the two regulations on federal constitutional grounds. Essentially, they contend that both regulations are unconstitutional on their face. *fn4" Plaintiffs also challenge the constitutionality of the two regulations as they were applied to Martin and as they have been applied throughout the prison system. Plaintiffs make related allegations that defendants' actions against Martin were in retaliation for his criticism of prison authorities, and that Martin's due process rights were violated.


 Before discussing the application of the constitution to the regulations and to the acts of defendants, it is important for this court to note just what its role is and is not. The court's function is limited to determining whether defendants' regulations and acts met or violated constitutional requirements.

 This court's function is not to determine whether Martin, or any other prisoner, "should" be able to write for publication. Having read Martin's articles and having heard the evidence, this court of course has its own opinions on that subject. Martin's articles are entertaining and educational. Some of them appear to have actually produced worthwhile results. Martin's writing style is light, concise, and easily readable. Many legal writers, scholars, attorneys -- and yes, judges -- could well imitate his style.

 Writing by prisoners also appears to be worthwhile for rehabilitation, particularly if a prisoner such as Martin is able to use it as a base for a future career outside the prison. Writing is a healthy use of time. The writing of published articles could provide a good role model for other prisoners. And such articles, even if critical of the prison system, may provide a nonviolent means to defuse tensions within a prison. The public appears to be interested in the subject of life in prison; and light and air, literally or figuratively, are generally healthy to any institution.

 But this court's role is not that of a senior editor or a censor. The task of running the federal prisons has been delegated by Congress to the Bureau of Prisons, not to the courts. The Bureau has attempted to strike a balance between freedom of expression and prison security. This court's function is limited to determining whether that balance is consistent with the constitution.


 Who has the burden of proof in applying the requirements of the constitution to the regulations and to the acts of the parties?

 Both the burden of going forward with the evidence and the ultimate burden of proof usually lie with plaintiffs. However, plaintiffs here assert that the burden of proof is on defendants to demonstrate the constitutionality of the regulations. Such a shifting of the burden is proper where the regulations at issue restrict the speech of the general public. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986). Plaintiffs also rely on Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), subsequent appeal dismissed, 739 F.2d 443 (9th Cir. 1984) a decision of this circuit involving prisoners' challenges to state prison guidelines.

 However, this court believes that plaintiffs' arguments and Pepperling have been superseded by recent decisions of the United States Supreme Court. That Court appears to place the burdens upon the prisoners who challenge the constitutionality of prison regulations. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 350, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987); Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 1039-40, 108 L. Ed. 2d 178 (1990); Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 128, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977); Bell v. Wolfish, 441 U.S. 520, 551, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).

 The most direct recent discussion of the burdens of proof by the Supreme Court is Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 1882, n. 12, 104 L. Ed. 2d 459 (1989). The Court said that it was not expressly passing on the evidentiary burdens or on the shifting of those burdens. But the Court extended deference to the procedures used by the district court, which applied a shifting of the procedural burdens with the ultimate burden of proof being on the prisoners.

 This court believes that the initial burden is upon plaintiffs to establish a prima facie case that the regulations or the acts of defendants violated plaintiffs' claimed constitutional rights. The burden of going forward with the evidence then shifts to defendants to articulate a reasonable relationship between the regulations, their acts, and some legitimate penological objective. The burden of going forward with the evidence, and the ultimate burden of proof, is then on plaintiffs to refute that showing, or to otherwise invalidate the regulations and acts. Plaintiffs may attempt to do so on grounds such as pretext, other alternatives, irrational conduct, or arbitrary conduct. For example, "a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner, 482 U.S. at 89-90. Further, the regulations must operate in a neutral fashion without regard to the content of the expression. Id. at 90.

 Recent Supreme Court cases might be read as defining the burden of proof to be evidence which is "substantial" or "conclusive". However, this court need not define or apply those higher measures of proof here, since it concludes that plaintiffs have not carried their burden of proof by the measure of a preponderance of the evidence.


 The question of whether the regulations meet constitutional requirements is of course governed by the Supreme Court's decisions defining the rights, primarily the first amendment rights, of prisoners. It is clear that prisoners do have first amendment rights. But those rights must be balanced with their status as prisoners and with legitimate penological objectives. As stated by the Supreme Court in Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974):

[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.

 See also Hudson v. Palmer, 468 U.S. 517, 523, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984).

 In recent first amendment cases, the Court has extended considerable deference and discretion to the decisions of prison administrators. The Court said in Turner v. Safley,

Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.

 482 U.S. at 84-85. See also O'Lone, 482 U.S. at 349-350; Block v. Rutherford, 468 U.S. 576, 588, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984); Harper, 110 S. Ct. at 1038; Abbott, 109 S. Ct. at 1879; Wolfish, 441 U.S. at 547; and Jones, 433 U.S. at 128, 129. The rationale for this judicial policy is that the problems of prison administration are ill suited to resolution by court decree, and are more rationally within the expertise and powers of the executive branches of government.

 Coupled with this judicial deference to prison officials, the Supreme Court has also defined a rational relationship test. That is, prison regulations and the acts of prison officials meet constitutional standards if they are rationally related to a legitimate penological objective. Turner, 482 U.S. at 89-90; Abbott, 109 S. Ct. at 1882.

 Plaintiffs contend that a stricter constitutional test is required by Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974). Plaintiffs argue that the test defined in Martinez has survived the more recent Supreme Court cases cited above, because Martinez dealt expressly with communications going out of a prison and involved consideration of the public's interests. However, Martinez was recently discussed by the Supreme Court in Abbott, 109 S. Ct. at 1879, n. 9, and in Turner, 482 U.S. at 84-89, and Martinez's holding has been restricted and in part disapproved by the Court. And in the present case we are not dealing exclusively with outgoing communications, as was Martinez. Here, the outgoing communications were newspaper articles which were then revised, published, and redistributed back into the prison. Indeed, the consequences of the writings were not created by sending them out, but by their publication and distribution back into the prison. Because of both that factual distinction and the Supreme Court's recent pronouncements in Turner, Abbott, and Harper, this court concludes that the Martinez standard is not the one applicable here.

 Rather, the standard to be applied is that announced by the Supreme Court in Turner v. Safley. The test is whether, giving due deference to the discretion of prison officials, their regulations and acts bear a rational relationship to a legitimate penological objective. As stated in Turner v. Safley,

When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if "prison administrators . . ., and not the courts, are to make the difficult judgments concerning institutional operations."

 482 U.S. at 89 (quoting Jones v. North Carolina Prisoners' Union, 433 U.S. at 128). This standard was recently ...

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