STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1326

Michael P. Henderson,
Appellant,

vs.

Department of Corrections Faribault Facility, et al.,
Respondents.

Filed July 17, 2007

Affirmed

Minge, Judge

Rice County District Court

File No. 66-C3-05-001469

Michael Henderson, MCF – Stillwater, 970 Pickett Street, Bayport, MN 55003 (pro se appellant)

Lori Swanson, Attorney General, Richard L. Varco, Jr., Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Minge, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

Appellant challenges the district court’s grant of summary judgment on his constitutional claims against respondents’ enforcement of a policy prohibiting inmate-to-inmate property transfers via mail. We affirm.

FACTS

Appellant Michael Henderson is incarcerated at the Minnesota Correctional Facility in Faribault (MCF-Faribault). On July 27, 2005, an MCF-Faribault mailroom employee sent appellant a “Notice of Non-Delivery of Mail/Package.” The notice informed appellant that a photograph, sent to him by another inmate, was rejected for delivery and that he had 30 days to respond. Appellant responded, requesting review of the decision to not deliver the photograph. Two days later, MCF-Faribault Program Director Jackie Carter sent a response to appellant, upholding the non-delivery decision and citing a Department of Corrections (DOC) policy that forbids certain property transfers between incarcerated individuals.

Appellant served a summons and complaint upon respondents MCF-Faribault and Jackie Carter, alleging that they violated his constitutional rights by not delivering the photograph. Appellant filed a motion for summary judgment and respondents filed a motion to dismiss or, in the alternative, for summary judgment. After holding a telephone conference on the parties’ motions, the district court granted respondents’ motion for summary judgment and denied appellant’s motion. This appeal follows.

D E C I S I O N

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). No genuine issue of material fact exists when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted). A genuine issue for trial must be established by “sufficient evidence to permit reasonable persons to draw different conclusions.” Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006). On appeal, we “view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

The first issue presented is whether the DOC policy prohibiting property transfers between inmates infringes upon appellant’s First Amendment freedom. “[C]onvicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877 (1979). “[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.” Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974).

The Commissioner of Corrections has broad authority to regulate prison conditions and adopt regulations to prohibit prisoner conduct that would be harmful to staff or other prisoners. Minn. Stat. § 241.01, subd. 3a(b) (2006). Pursuant to this authority, the DOC has adopted various regulation-style “policies.” The DOC’s mail policy only permits offenders to “send/receive letters, post cards and signed greeting cards to each other.” Minn. DOC, Policy Number 302.020 § L(2) (July 1, 2005). And the same policy prohibits offenders from “send[ing] or receiv[ing] property in any form with another incarcerated offender.” Id.

When reviewing prison regulations, courts “must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 2167 (2003).

The Supreme Court has adopted a “reasonableness” test to evaluate the constitutionality of prison policies. O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400, 2404 (1987). Under that test, a regulation “is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987). Four factors are relevant to such a determination. Id. at 89-91, 107 S. Ct. at 2262. First, the regulation must have a “valid, rational connection” to the “legitimate governmental interest put forth to justify it.” Id. at 89, 107 S. Ct. at 2262 (quotation omitted). The second consideration is whether alternative means remain open to prison inmates to exercise the right. Id. at 90, 107 S. Ct. at 2262. The third factor considers “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. The fourth consideration is whether there are “ready alternatives” to the regulation. Id. Maintaining prison security is “central to all other corrections goals.” Pell, 417 U.S. at 823, 94 S. Ct. at 2804.

First, we consider whether the policy is rationally related to a legitimate interest. In support of their motion to dismiss or for summary judgment, respondents submitted the affidavit of the warden of MCF-Faribault. The warden stated that the DOC has an interest in “maintaining safe and secure institutions.” The warden also explained the various justifications for the policy. For example, inmate-to-inmate property transfers could allow for illicit economic activity, including extortion, gambling, and the purchase of drugs or sexual favors, to occur in prisons. In addition, the allowance of photograph transfers could compromise prison security, “facilitate the identification of an individual against whom some violent action is intended,” and facilitate the transmission of gang signs between inmates. We conclude that the policy prohibiting inmate-to-inmate property transfers is rationally connected to these legitimate security concerns.

The next consideration is whether inmates have alternative means of exercising their constitutional rights. The policy in this case does not deprive prisoners of all means of expression, and alternative means of communication between prisoners exist. DOC’s mail policy specifies that inmates may “send/receive letters, post cards and signed greeting cards to each other.” Minn. DOC, Policy Number 302.020 § L(2). We conclude that the policy permits reasonable communication.

Next, we consider the impact of accommodation on guards, other inmates, and the allocation of prison resources. In her affidavit, the warden stated that allowing property transfers between inmates would provide “another method by which contraband can be introduced” into the prison, burdening prison staff with additional inspection tasks. In addition, according to the warden, permitting such exchanges would “create[] an unacceptable risk to prison security [because] mailroom staff cannot reasonably be expected to review each photograph, determine the purpose for which it is sent[,] . . . [and] determine whether . . . the photograph contains gang-related hand or body signs.” We conclude that respondents’ assertion that accommodating inmate-to-inmate property transfers would significantly burden prison mailroom staff, require additional resources to implement, and also potentially endanger prison inmates satisfies the reasonableness test.

Finally, we consider whether there are reasonable alternatives to the regulation. Appellant contends that the district court erroneously placed upon him the burden to provide feasible alternatives to the policy.

According to Turner,

prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint. . . . But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.

482 U.S. at 90-91, 107 S. Ct. at 2262. Subsequent decisions have considered whether the inmate has provided feasible alternatives. See, e.g., Overton, 539 U.S. at 136, 123 S. Ct. at 2169 (evaluating “whether the prisoner has pointed to some obvious regulatory alternative”). This caselaw confirms that the district court did not err by placing the burden on appellant to demonstrate feasible alternatives to the challenged policy.

Appellant has not proffered any feasible alternatives. Requiring prison mailroom staff to closely scrutinize items such as photographs for the transmission of gang signs or other signals that are not immediately apparent would impose more than a de minimis cost on correctional facilities. Such a policy would require staff training into constantly-evolving gang signs. Item-by-item inspection would place an added burden on DOC employees. In addition, there is a significant risk that mailroom staff may miss dangerous signals.

We conclude that the DOC policy prohibiting inmate-to-inmate property transfers bears a reasonable relation to respondents’ valid interests in maintaining prison security. And as applied here, the policy does not unconstitutionally infringe upon appellant’s First Amendment rights.

Appellant also contends that DOC’s “very intrusive” mail policy results in the “systematic denial” of items sent via mail to prisoners. Appellant claims that “numerous items” have not been delivered. But as previously addressed, DOC’s mail policy allows for mail transfer so long as the transfer complies with the stated conditions. Here, there is no evidence that DOC has failed to deliver a piece of mail that complies with the policy.

II.

The next issue is whether the DOC’s actions in refusing to deliver the photograph deprived appellant of property without due process of law. Specifically, appellant claims that the decision came without a formal hearing or review.

Respondents contend that appellant’s due process claim is inappropriate for appellate consideration because it is raised for the first time on appeal. Generally, we decline to consider matters neither argued nor raised in the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Although appellant’s complaint did not state any specific constitutional bases for his claim, he submitted a responsive memorandum which alleges “violations of ‘due process.’” In addition, the district court, in its summary judgment order, acknowledges appellant’s due process argument: “The complaint alleges that . . . [appellant] was deprived of his Fifth Amendment right to not be deprived of property without due process of law.” Therefore, we will consider the claim.

Both the United States Constitution and the Minnesota Constitution provide that no person shall be deprived of “life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. Prison inmates are entitled to due process protection, and prison officials “must provide inmates with an appropriate level of due process before they are deprived of a protected liberty interest.” Carrillo v. Fabian, 701 N.W.2d 763, 768 (Minn. 2005). Due process challenges are reviewed de novo. Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999).

Here, appellant received a written notice that the photograph sent to him by another inmate would not be delivered. The notice informed appellant that he could request a review of this decision. Appellant requested a review. Based on the DOC policy prohibiting inmate-to-inmate property transfers, MCF-Faribault officials informed appellant that the photograph would not be delivered. Appellant filed a civil action in district court and sought this court’s review of the district court’s dismissal of his case. The district court considered appellant’s claim, read the material he submitted, and provided a written decision. We conclude that the process afforded appellant satisfied the requirements of due process.

Affirmed.

Dated: