Hunnicutt v. Lantz et al
BENCH RULING. Judgment is entered in favor of defendants on all counts. The Clerk is directed to enter judgment and close the case. Signed by Judge Holly B. Fitzsimmons on 9/30/12. (Esposito, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARK DONAHUE and
CIV. NO. 3:07CV1422 (HBF)
Plaintiff Carnell Hunnicutt, Sr. brings this civil rights
action against employees of the Connecticut Department of
Correction ("DOC") pursuant to 42 U.S.C. §1983, claiming that
defendants unlawfully censored his outgoing mail both by refusing
to deliver a letter and cartoon and then confiscating the cartoon
in violation of his First Amendment rights under the United
Plaintiff challenges defendants' actions
and Connecticut Department of Correction Administrative Directive
§10.7 as applied. Plaintiff seeks injunctive and declaratory
relief in addition to an award of nominal and punitive damages.2
Former Commissioner Theresa Lantz was removed as a
defendant by operation of law and replaced by current
Commissioner Leo Arnone. Commissioner Arnone is sued in his
official capacity only. Defendants Choinski, McGill, Donahue and
Colon are sued in their individual and official capacities.
Plaintiff seeks injunctive relief by Court order returning
the cartoon and allowing him to mail it out. Plaintiff also
seeks declaratory relief "allow[ing] him to mail out similar nonthreatening cartoons in the future." [Doc. #106 at 15].
"Plaintiff seeks nominal damages . . . and $5,000 in punitive
A bench trial was held August 30, 2010. Closing arguments were
held on September 14, 2010.3
Testimony and evidence adduced at the trial are summarized
below as necessary to explain the Court’s preliminary findings
FINDINGS OF FACT
Based on the credible testimony, the exhibits, and the
entire record developed during the trial on August 30, 2010, the
Court finds the following facts established.
STIPULATIONS OF FACT
Plaintiff Carnell Hunnicutt, Sr. is sentenced to the custody
of the Commissioner of the Connecticut Department of
Correction. At all times relevant to this case, plaintiff
was housed at Northern Correctional Institution in Somers,
Connecticut. [Doc. #101, Stip. ¶1, (hereinafter "Stip.")].
Defendant Leo Arnone is the Commissioner of the Department
of Correction and is responsible for administering and
approving all Administrative Directives. [Stip. ¶2].
Defendant Wayne Choinski at all times relevant to this case
was the District Administrator for the Northern Region of
damages from each defendant found liable, along with injunctive
and declaratory relief." Id.
The official transcript was filed on September 29, 2010.
[Doc. #110, hereinafter cited as "Tr."]. A decision was delayed
while plaintiff attempted to settle this and other cases with the
Department of Correction. On September 27, 2012, it was reported
that those efforts were unsuccessful.
the Department of Correction. [Stip. ¶3].
Defendant Jeffrey McGill at all times relevant to this case
was the Warden at Northern and acting under color of state
law. [Stip. ¶4].
Defendant Mark Donahue at all times relevant to this case
was the Intelligence Coordinator at Northern and acted under
color of state law.
Defendant Luis Colon at all times relevant to this case was
an Intelligence Officer at Northern and acting under color
of state law.
On or about March 16, 2007, plaintiff drew a fictional
cartoon ("the cartoon") in response to a radio show.
Plaintiff addressed an envelope to Jenny Boom-Boom at Hot
93.7 with his name on the return address. [Stip. ¶8]. Jenny
Boom-Boom is the on-air name for a radio personality/disc
jockey at Hot 93.7.
Plaintiff's cellmate Willie Batts drafted an accompanying
letter on behalf of plaintiff and himself. [Stip. ¶9].
In that letter, Willie Batts wrote,
Hey my celly and I are fans of your show we
listen to you daily & you seem to have a
great sense of humor and a "very sexy voice."
Enclosed is a personal comic for you done for
humor purposes only. We don't mean to offend
you in any way, shape or form. We are not
sexually harassing you or stalking you by any
cost. We did this comic in a form of
flattery and a joken [sic] kinda way. My
celly's name is: Hunnicutt, a.k.a. The Mad
Cartoonist & mine is: Willie, a.k.a Brown
Eyez b.k.a. The Pornstar, we're both very
respectful men just doing something with our
time nothing more. If you enjoy the cartoon
please let us know we'll do part II along
with anything else you want. But until penmeet-paper again stay beautiful, sexy & at
Hot 93.7 to make our day at 2:00PM every day.
Song: Requested: My Neck, My Back (Lick it)
By Khia. We'll be listen [sic]"
[Stip. ¶10; Pl. Ex. 3].
On March 18, 2007, the cartoon and letter were placed into
an envelope, [Pl. Ex. 2], and the envelope was placed into
an institutional mailbox for delivery to Jenny Boom-Boom.
In the following days, the envelope was delivered to the
mail room at 34 Walker Drive, then picked up and transported
back to the intelligence office at Northern.
Defendant Colon, Correctional Officer Robert Lovett, and
defendant Donahue worked in the intelligence office and were
supervised by defendant McGill in March 2007.
Decisions about whether to reject outgoing mail could be
made, and often were made, independently by each of the
Whenever one of the defendants could not arrive
at a final decision, he made a recommendation and sent it up
the chain of command. Final authority rested with the
At all times relevant to this case, Connecticut Department
of Correction Administrative Directive 10.7(4)(E)(1) states,
in pertinent part, that,
All outgoing general correspondence
shall be subject to being read at
the direction of the Unit
Administrator, by person(s)
designated in writing by such
Administrator, for either a
specific inmate(s) or on a random
basis if the Commissioner or Unit
Administrator has reason to believe
that such reading is generally
necessary to further the
substantial interests of security,
order or rehabilitation. Outgoing
general correspondence may be
restricted, confiscated, returned
to the inmate, retained for further
investigation, referred for
disciplinary proceedings or
forwarded to law enforcement
officials, if such review discloses
correspondence or materials which
contain or concern . . . (h) mail
which attempts to forward
unauthorized correspondence for
another inmate or; (i) threats to
the safety or security of staff,
other inmates or the public.
[Stip. ¶15; Pl. Ex. 5].
At all times relevant to this case, Connecticut Department
of Correction Administrative Directive 10.7(4)(E)(1)
provided that, "the initial decision to take any action
provided for in Section (4)(E)(1) except to read, which
shall be at the discretion of the Unit Administrator, shall
be made by the designee of the Unit Administrator.
designee shall not be the same person who made the initial
[Stip. ¶16; Pl. Ex. 5].
At all times relevant to this case, Connecticut Department
of Correction Administrative Directive 10.7(4)(E)(3)
directed that, "Any restrictions imposed on outgoing general
correspondence shall be unrelated to the suppression of
expression and may not be restricted solely based on
unwelcome or unflattering opinions or factually inaccurate
statements." [Stip. ¶17; Pl. Ex. 5].
Defendants maintain a list of people to whom particular
inmates are not allowed to write, including former victims
Carnell Hunnicutt was not prohibited from
writing to Jenny Boom-Boom.
Defendant Colon opened the envelope, which he noticed was
addressed to Jenny Boom-Boom at Hot 93.7, and read the
cartoon and the letter.
Defendant Colon wanted to reject the cartoon because he
disapproved of the erotic and social content of the cartoon,
which he found offensive.
Defendant Colon approached his colleague Robert Lovett,
pointed out the sex scenes, and asked what he should do.
Lovett told defendant Colon that it was a grey area and that
he should take the cartoon to defendant Donahue.
Defendant Colon did not show Robert Lovett the letter
accompanying the cartoon.
Defendant Colon then showed the cartoon to defendant
Before rejecting the cartoon, somebody brought the cartoon
to the attention of defendant McGill, who in turn brought
the cartoon to the attention of defendant Choinski; everyone
agreed that delivery of the cartoon should be rejected
because of the content. [Stip. ¶24].
Defendant McGill agreed that delivery of the cartoon should
be rejected because of the erotic and social content, which
he deemed offensive.
Defendant Choinski agreed that delivery of the cartoon
should be rejected because of the erotic and social content,
which he deemed offensive.
The Commissioner of the Department of Correction approved
and administered a custom or policy that staff should reject
outgoing mail that Department staff believed may offend
members of the public. [Stip. ¶27].
On or about March 22, 2007, plaintiff received a notice from
defendant Colon stating that the cartoon had been rejected.
Defendant Colon indicated on the rejection notice that the
letter was not rejected because there was unauthorized
enclosure, discussion of criminal activity, or an
unauthorized correspondent, but for some other reason.
The other reason was that "the drawing was threatening in
nature" and that the plaintiff violated A.D. 10.7 by
"sending a letter from I/M Batts. Free postage envelopes
must contained [sic] letters from the approved indigent
Plaintiff was never issued a disciplinary report for
threatening - or any other reason - on account of trying to
send the cartoon. [Stip. ¶31].
Plaintiff was never referred to the state police or any
other law enforcement agency for attempting to threaten a
member of the public.
At all times relevant to this case, Connecticut Department
of Correction Administrative Directive 9.6(5)(F) stated
that, "The Unit Administrator shall ensure that no employee
who is the subject of an investigation shall investigate or
participate in the resolution of an administrative remedy."
[Stip. ¶33; Pl. Ex. 6].
At all times relevant to this case, Connecticut Department
of Correction Administrative Directive 9.6(6)(A) stated
that, "An inmate must attempt to seek informal resolution
prior to filing an inmate grievance."
[Stip. ¶34; Pl. Ex.
Plaintiff sent an inmate request form to defendant McGill,
asking him to resolve the issue. [Stip. ¶35].
Plaintiff appealed the confiscation and censoring of his
cartoon through the official grievance procedure to
defendant McGill, the Level 1 grievance reviewer.
Notwithstanding the fact that his own rejection of the
cartoon was the subject of the grievance, defendant McGill
denied plaintiff's grievance on the ground that plaintiff's
"outgoing general correspondence has been determined
Plaintiff appealed defendant McGill's decision to Wayne
Choinski, who served as the Level 2 grievance reviewer.
Notwithstanding the fact that his own rejection of the
cartoon was the subject of the grievance, Wayne Choinski
denied plaintiff's grievance, stating that
the so-called cartoons are indeed threatening
in nature. They are intended to frighten,
demean, degrade and harass women, and they
create a sexually offensive and hostile
working environment for all staff who are
involved in reviewing these materials. The
DOC has a duty to protect the public from
such offensive and threatening materials and
confiscation of your materials furthers this
legitimate public safety goal. [
Stip. ¶39; Pl. Ex. 14].
By May 15, 2007, plaintiff exhausted the prison grievance
procedure with regards to the rejection and confiscation of
[Stip. ¶40; Pl. Ex. 14].
Defendants confiscated the cartoon because they didn't want
plaintiff to try to send it again, for the same reason that
they originally rejected it.
REVIEW OF EVIDENCE
Defendant Luis Colon
Defendant Luis Colon has worked for the Department of
Correction since 1993 and was working in the Intelligence Unit at
Northern in March 2007. [Tr. 4]. His responsibilities included
reviewing incoming and outgoing inmate correspondence.
testified that mail review is guided by Administrative Directive
10.7. [Tr. 5, 37].
Colon testified that plaintiff was on mail review status in
March 2007 when plaintiff deposited an envelope addressed to
Jenny Boom-Boom in the outgoing mail at Northern. [Tr. 8].
Hunnicutt was placed on mail review status in February 2007 on
Colon’s recommendation, which was approved by Warden McGill. [Tr.
Colon explained that Hunnicutt's envelope was opened because
plaintiff was on mail review status. [Tr. 10-12, 14]. He
testified that the Intelligence Unit does not monitor or restrict
outgoing mail that is addressed to a radio station or
specifically to Jenny Boom-Boom when an inmate is not on mail
review status. [Tr. 14]. They do not reject outgoing mail based
the identity of the addressee unless the inmate is specifically
prohibited from writing to that person. [Tr. 14].
Exhibit 1, the cartoon at issue,
is entitled "Jenny 'Boom-
Boom' In Da Club" "By The Mad Cartoonist & Brown Eyes".4 It
consists of twelve hand drawn frames with six frames on page one
and six frames on page 2. The written content includes the
Frame 1: Jenny Boom-Boom "Hey Fellas, what are you
doing in those jumpsuits?" Inmate #1: "Well, Jenny . . . we
escaped outta Northern to meet you in person." Inmate #2, "Yeah."
Inmate #1 is drawn with glasses. Inmate #2 is drawn clean
shaven and taller than Inmate #1. Inmates #1 and #2 are depicted
wearing jumpsuits and are not identified by name in the cartoon
or in Batt's letter. [Pl. Ex. 3]. Hunnicutt testified that
Inmate #1 was drawn in his likeness. Question, "And am I right
that in the second panel of the cartoon you're actually
portraying yourself slobbering like a dog?" Answer, "Yes." [Tr.
Frame #2: Jenny Boom-Boom "You mean to tell me that you
two escaped just to meet me? I can't put this on the air." Inmate
#2 "Yeah, my man has been down 12 years and was dying to meet you
so here we are." Inmate #1 "Drool Slobber" .
Frame 3: Jenny Boom-Boom "Well guys. Let
me put my
microphone away." Inmate #2 "Hot! Hot! Hot!" Inmate #1 "Good
Googly Moogly! That ass is juicy!"
Frame 4: Jenny Boom-Boom "Jeez! Is this what they mean
when they say hard time?" Inmate #2 "We heard you have an oral
fixation. Shwing!" Jenny Boom-Boom "Yeah I do."
Frame 5: Jenny Boom-Boom "Meet me in the back for this!
Pow!" Inmate #1 "Oh my God!"
Frame 6: Inmate #1 "My heart . . . " Jenny Boom-Boom
"And this!" "Boom! Boom! Clap! Clap!"
Frame 7: Title "Later in the backroom . . ." Jenny
Boom-Boom "Okay boys Jenny is gonna lower the "boom" on you!"
Inmate #2 "Yum milk." Inmate #1 "Vulva nectar" "Smack!"
Frame 8: Jenny Boom-Boom "Oh my! You guys are working
it!" Inmate #2 "Slurp slurp" Inmate #1 "Lap lap lick lap" "Yum
Frame 9: Inmate #1 "Oh Jenny I love you" Jenny BoomBoom "Let me get my oral affixation on!" Inmate #2 "My toes are
Frame 10: Jenny Boom-Boom "Save your loads for me."
Inmate #2 "Holy Shit! I'm coming! I'm coming"
Frame 11: Jenny Boom-Boom "Beautiful" "Grunt! Squirt!
Frame 12 Inmate #1 "Sorry to hit and run, Jenny, But we
gotta get back before count time. We'll treasure this experience
forever! We'll listen to you on Hot 93.7" Jenny Boom-Boom "Bye
fellas. Come see me once you get out!" [Pl. Ex. 1; Tr. 16-21].
The cartoon depicts “Jenny Boom-Boom” and Inmates #1 and #2
partially nude in frames 5 and 6 and fully nude in frames 7
through 12. The inmates' penes are drawn as sexually aroused
depicted engaging in sex acts with Jenny Boom-Boom
simultaneously. All three are engaging in oral, anal and/or
vaginal sex in frames 7 through 11. In frame 11, Jenny Boom-Boom
is shown in close up with two penes ejaculating on her face. [Pl.
Colon was asked, "And so despite the fact that no physical
assault was portrayed in the cartoon, nobody portrayed in the
cartoon makes another person do something they don't want to do,
and nobody is portrayed as unhappy in the cartoon, you believe
that the particular sex acts portrayed in the cartoon were
sexually threatening; is that correct?" He responded, "They were
threatening in nature." [Tr. 22]. Colon stated, "We believe that
[the cartoon] was threatening in nature because it could cause
mental anguish, or physical or mental issues to the receiver."
After inspecting the letter and cartoon, Colon brought the
cartoon to his supervisor, Captain Donahue, for review of Colon's
initial decision to confiscate the mailing. [Tr. 24, 27]. Captain
Donahue agreed with Colon that the cartoon and letter should be
rejected from the outgoing mail.
[Tr. 24, 40].
Colon sent Hunnicutt a "Returned Letter or Funds
Notification" form for "Outgoing: Jenny Boom-Boom"
correspondence. [Pl. 4]. Colon wrote in the comments section of
the form, "Content is rejected under A.D. 10.7. Drawings are
threatening in nature. I/M [Hunnicutt] also violating 10.7 by
sending a letter from I/M Batts #329751. Free postage envelopes
must contain letters from the approved indigent inmate." [Pl.
Ex. 4; Tr. 41].
Colon testified that the contents of Hunnicutt's envelope
were in violation of the Administrative Directive because an
inmate cannot include another inmate's correspondence in the same
William Batts wrote the letter. Hunnicutt drew the
cartoon and Hunnicutt was the [return] addressee on the envelope.
Colon testified that Captain Donahue made the "ultimate
determination to reject the mail." [Tr. 40].
was the one that was sending the comics, and it wasn't Mr. Batts.
Mr. Batts' letter was actually already a violation of the
directive, so it was going to be rejected no matter what." [Tr.
42]. When asked, "Would you still have rejected [the] cartoon if
the letter from inmate Batts wasn't in [the envelope] at all?" he
answered, "Yes." [Tr. 43].
Colon was then asked, hypothetically,
if the cartoon and the Batts letter went out in the mail, would
the recipient have been threatened by the cartoon, and he
answered yes. To the followup,
"Despite the fact that the letter
said, 'please don't be threatened.'?",
Colon answered, "Doesn't
matter." [Tr. 46-47].
Defendant Captain Marc Donahue
Defendant Marc Donahue was hired by the Department of
Corrections in 1994 and held the position of Administrative
Captain in the Intelligence Unit at Northern from 2005 to 2007.
[Tr. 76]. In March 2007, he was a Disciplinary and Intelligence
Coordinator, responsible for monitoring incoming and outgoing
inmate correspondence, and the liaison between the Attorney
General's Office and Northern. [Tr. 77]. Two correctional
officers, defendant Colon and Officer Lovett, were assigned to
the mail room in March 2007. [Tr. 78].
Donahue did not open and
review mail; the two officers that reported to him, Colon and
initially reviewed the mail. [Tr. 78]. The officers
would bring any piece of mail they wanted to reject to Donahue
for approval. [Tr. 79]. Donahue would review the decision and, if
he wanted to reject the correspondence, he would present it to
In March 2007, Jeffrey McGill was the Warden at
Donahue estimated that hundreds of pieces of incoming
and outgoing mail were reviewed daily. [Tr. 77]. Inmates placed
on mail review status had all of their incoming and outgoing mail
opened and inspected. [Tr. 49-50].
Donahue testified he rejected Hunnicutt's outgoing envelope
for several reasons: the cartoon was threatening in nature; the
envelope contained another inmate's correspondence with
plaintiff's name on the return address; and the cartoon depicted
an escape. [Tr. 79-82]. He agreed that the subject matter
depicted in the cartoon was fictional but said that "any
communication that goes outside of the prison that describes or
depicts an escape, . . . should be rejected." [Tr. 82].
Donahue testified that Administrative Directive
10.7(E)(1)(i), "threats to the safety . . . of . . . the public,"
encompasses emotional harm. [Tr. 63-64].
"I related the
emotional injury to 'threats.'" [Tr. 64]. When asked, "So the
definition of 'threat' to you, is the definition of
'threatening' piece of mail to you, a piece of mail that may have
been intended to cause emotional harm?", he answered, "Yes." [Tr.
"The reason I rejected it was I feel it may have been
emotionally threatening to the recipient." [Tr. 61, 65, 68, 75].
Donahue agreed that the cartoon depicted consensual sex but
believed that it could cause emotional injury to the recipient.
[Tr. 65]. "I wasn't sure, but my job is to protect the public,
and something so obscene, I know that personally, if a relative
of mine, a female, a niece, received that, it would probably be
very upsetting." [Tr. 61].
Defendant Wayne Choinski
Defendant Wayne Choinski was the District Administrator for
the Northern Region of the Department of Corrections in March
2007, [Tr. 83], a position he held for three years before
retiring. [Tr. 94]. He was employed by the State for
approximately twenty-seven years. In his role as the District
Administrator, Choinski provided advice and assistance to the
wardens in his region. [Tr. 83-4].
Choinski was Warden at Northern from June 2003 until
February 2006 before his promotion to District Administrator.
He testified that, "Northern houses all of the
security risk group threat members . . . all the gang members
that have been designated as a threat to the population or have
been designated as having a leadership role are housed at
Northern." Along with inmates placed on Administrative
Segregation, "those inmates who the Department considers so
dangerous and so much of a threat to the general population that
they need to be housed in a separate facility, are housed at
Northern." [Tr. 94]. In "both the administrative segregation
program and the security risk group program . . . inmates go
through programming. So they have an opportunity to earn their
way out of Northern." [Tr. 95].
As District Administrator, Choinski reviewed Level II
grievance appeals, disciplinary appeals and correspondence
Choinski received from inmates at Northern, and he assisted the
warden by lending his experience and acting as a "sounding board"
for decisions. [Tr. 95]. He was asked, "Do inmates at Northern
pose any unique security or safety concerns vis-a-vis the
public?" He answered, "Absolutely. Over the years there's been a
number of attempts and, you know, some were successful, some were
not, of getting correspondence out of Northern that contained
gang hits on individuals, as well as information about staff that
has gone out, attempts to conspire with individuals on the
outside to commit crimes, that type of stuff." [Tr. 96]. Choinski
testified that Northern houses sex offenders, and the department
is concerned about sexually predatory behavior by inmates
"towards staff, other inmates, as well as inmates at Northern
sending items out that might end up going to a victim." [Tr. 9697]. He explained, "The primary mission of the Department is to
protect the public; secondly, to protect staff, and also, just as
important, to protect the inmates." [Tr. 97].
Warden McGill showed Hunnicutt's cartoon to Choinski in
March 2007 before plaintiff initiated a grievance. Choinski
agreed with the Warden that the cartoon shouldn't go out, based
on Administrative Directive 10.7. [Tr. 85]. Choinski testified at
his deposition that the kinds of offensive materials that would
not be allowed in outgoing mail included sexually explicit
materials, racially inflammatory materials or religiously
offensive materials. [Tr. 87]. Choinski explained, "It could be
materials that might inflame someone, maybe depicting someone of
a religious group or a sexual orientation, but most of what we
dealt with in corrections were sexually explicit, sexually
graphic, incoming and outgoing materials." [Tr. 88]. He testified
that he did not know whether Carnell Hunnicutt knew Jenny BoomBoom. He responded, “Absolutely,” to the question, "But in this
case you would have rejected the cartoon if it was going out to
any person, man or woman in the entire world, not just Jenny
Boom-Boom, is that correct?"[Tr. 89]. Choinski testified at his
deposition that he "would have rejected [the cartoon] based on
the fact that you have cartoon characters with erect penes who
were ejaculating with a female. We just wouldn't let it out. We
wouldn't let it come in." [Tr. 90].
Choinski agreed that the cartoon does not portray nonconsensual sex. He thought the drawing depicted the artist's
sexual fantasy and that of his cellmate.
[Tr. 90-91]. Choinski
I don't know, and I didn't know, and I still
don't know if Mr. Hunnicutt or his cell
partner knew the intended receiver, if they
knew a person that worked in the potentially in the mail room at that radio
That cartoon was drawn, in my opinion, as Mr.
Hunnicutt and his cell partner's - that was
Certainly, to protect the receiver, male or
female, in this case, female, from being
offended and just being - feeling threatened
by receiving - you have two convicted felons,
convicted felons, Level V inmates at the
State of Connecticut's highest security
facility, what's referred to in the community
as a "Supermax," who draw a cartoon of a
woman who's receiving this envelope being
ejaculated on, is offensive and it's
threatening. And I can't imagine anyone in
the general public receiving this and not
feeling threatened and offended that, "Oh my
God. These two inmates were able to get this
out of Northern."
It shows them - and the woman's not going to
see it and say, "oh, yeah, well this is
consensual sex." It shows her being raped
and sexually assaulted by two incarcerated
inmates, regardless of, I suppose, whether at
Northern or whether at a Level II facility.
The woman's not going to interpret it as,
"oh, this is just fun." you know, I can't
assume that. I have to assume, as the warden
assumed, that she would receive it, be
offended, and we're in essence, we're
protecting her from that.
Choinski testified that he handled the Level II grievance,
or series of grievances, in reference to this cartoon. At his
deposition he said, "The so-called cartoons are indeed
threatening in nature. They are intended to frighten, demean,
degrade and harass . . . and they create a sexually offensive and
hostile working environment. All staff are involved in reviewing
these materials. The DOC has a duty to protect the public from
such offensive and threatening materials and confiscation of your
materials furthers this legitimate public safety goal." [Tr. 92].
With regard to "mail review" status, Choinski said that
Hunnicutt, "along with other inmates at Northern Correctional
Institution, were subject to mail review, . . . I believe it's in
the inmate handbooks that says they're subject to mail review,
incoming and outgoing mail review, so he should assume, at any
point, that his correspondence is subject to being reviewed."
[Tr. 92]. "[A]ll inmates are subject to mail review. It's in our
policy. That's . . . Administrative Directive 10.7. " [Tr. 93].
Choinski testified that when an inmate files a Level I
Grievance, a counselor is in charge of correcting and researching
all the facts, coming to a tentative conclusion and discussing
the issue with the Warden. The Warden will look at the facts and
recommendation and he makes the final decision. If denied at the
facility level, an inmate can appeal to a Level II Grievance.
Level II Grievance is heard by the District Administrator.
Choinski has a counselor/supervisor obtain copies of the Level I
Grievance, obtain copies of all the information that the Level I
person gathered, and then also gather any additional information.
The person gathers facts and then sits with Choinski and
discusses whether to uphold, deny or reverse a lower level
decision and writing a response. [Tr. 101-02]. Choinski denied
Hunnicutt's Level II Grievance, concluding that,
[t]he mail you attempted to send included a
letter from another inmate, which is a
violation of A.D. 10.7. The so-called
cartoons are indeed threatening in nature.
They are intended to frighten, demean,
degrade and harass women, and they create a
sexually offensive and hostile working
environment for all staff who are involved in
reviewing these materials. The DOC has a
duty to protect the public from such
offensive and threatening materials and
confiscation of your materials furthers this
legitimate public safety goal.
[Pl. Ex. 14; Tr. 102].
Choinski testified that the fact that Batts' letter states
that "we don't mean to offend you in any way, shape or form we
are not sexually harassing you or stalking . . ." did not carry
any weight. Choinski stated that just because "they don't mean it
to be threatening . . . does not mean it's going to be
interpreted by the receiver as not threatening.
To send a
disclaimer with a sexually explicit, pornographic cartoon . . .
of the receiver basically being sexually assaulted, sending a
disclaimer does not make it all okay, no. Well there's a
disclaimer, they don't mean me no harm.
And anyway, add into
that they're two Level V offenders, convicted felons, in a
correctional institution." [Tr. 103].
Choinski testified that Administrative Directive 10.7,
"Outgoing general correspondence," fits within the definition of
threats to the safety or security of staff, other inmates or the
public. [Tr. 104]. "[T]o me [the cartoon] was threatening to the
receiver, who is certainly a member of the public." [Tr. 104].
When asked whether the discretion of the reviewing officer is
limited because the outgoing mail directive 10.7 (E)(1)(i) does
not specifically refer to materials that could cause emotional
injury, language that is included in the incoming mail directive
at 10.7(F)(1)(f), Choinski responded, "No . . . . Either way it's
a threat." [Tr. 104-05].
Choinski testified that he "did not know how the receiver
would interpret [this cartoon], and its quite likely that a
member of the public, receiving this cartoon from the offender
incarcerated in the state of Connecticut, would interpret it asand especially when it shows a likeness of them, that they would
interpret that they [are] being sexually assaulted, they [are]
being raped by two offenders." [Tr. 106]. He continued, "You have
to assume that a reasonable person is going to be offended by
it." [Tr. 106]. “The cartoon is the inmate's sexual fantasy.
Plaintiff drew the cartoon with everyone as a willing
participant, but this is Hunnicutt's sexual fantasy.” [Tr. 107].
Administrative Directive 9.6(F), "Process Integrity,"
states, "The Unit Administrator shall ensure that no employee who
is the subject of an investigation shall investigate or
participate in the resolution of an administrative remedy."
Ex. 6]. Choinski testified that he helped draft A.D. 9.6(F),
stating that 9.6(F) does not involve review of a Level II
grievance. In this case, no employee was the subject of an
investigation. This was a grievance process, not an
"investigation" under the DOC regulations, which is a separate
Choinski stated that a fact finding took place that was
relevant in making a determination on a grievance. [Tr. 109-10].
Defendant Jeffrey McGill was the Warden at Northern
Correctional Institution in March 2007. Before retiring in 2009,
McGill was employed by the Connecticut Department of Correction
for twenty-two years. [Tr. 114-115].
McGill testified that Northern is the State's maximum
security prison for male offenders. "[A]s the Level V maximum
security prison, the inmates that came to Northern were on a type
of program. There were five programs [at Northern] at the time.
One was administrative segregation [t]hat housed the most
dangerous and violent offenders in the state.
And then there was
some level of programs, like security risk groups, chronic
discipline, special needs, and death row. So with those five
classifications, they were all extremely dangerous, so how we
deal with the inmate population, security means, it was just, at
all times, highly sensitive." [Tr. 134].
McGill testified that in his twenty-two years of experience
in the Department of Correction, he came across plans of escape
"many times." Some of the escape plans were contained in outgoing
mail from inmates. [Tr. 134-35].
McGill reviewed Hunnicutt's Level I Grievance and rejected
it, determining that the cartoon was appropriately withheld from
entering the outgoing mail. [Tr. 115].
McGill cited three
reasons for his decision: "one being that there was a caption
regarding escape. There was another factor where [the cartoon]
included inmate correspondence from another inmate in the
envelope, which is directly against department policy, and also
that fact that I felt the cartoon and the caption was threatening
in nature." [Tr. 115-16].
McGill agreed that a reasonable person would be offended by
the cartoon and would find it threatening because of its nature,
of what it said and how it said it. [Tr. 119-20]. McGill
testified, "A reasonable person, to include myself, my staff who
were reading it, and the people opening it, absolutely, and not
to mention that there was an escape part in the cartoon also.
That too." [Tr. 121]. When asked the hypothetical, "[i]f Mr.
Hunnicutt wrote the letter and enclosed the cartoon in an
envelope just like the envelope that's in evidence, would the
package be properly rejected under the criteria you apply?"
"The entire enclosure, yes." [Tr. 122].
When asked, "Somebody writes a letter to a friend, and says, 'I
know I'm not going anywhere, but I fantasize every day about
escaping, just for a few hours.' Would you block that as an
unauthorized or illegal correspondence?",
He agreed to the question, "So someone's not even allowed
to mention, in the way that I said, the thought of escaping,
correct?" [Tr. 123]. McGill further explained, "It depends how
it's worded, what the language is. If that word 'escape,' the
exact word 'escape' was in the . . . was written, I would take
that very seriously and look at rejecting it, yes." [Tr. 124].
Question, "Even if it's clearly not an expression of an intention
to escape, but simply an expression of a fantasy that may be very
common?" Answer, "In my experience, and especially in my time at
Northern Correctional Institution, I would never take it for
granted, and I'd take it very serious, regardless of how it's
expressed." [Tr. 124].
Setting aside the escape piece, McGill was asked whether he
agreed that the "sex was described  as being consensual?"
"By the author, yes. I felt it threatening. By
reviewing it myself, I felt it threatening, and my staff did
also, and that's based on the content and my perception that it
was threatening in nature." [Tr. 125]. When asked, "And the
intent that you saw expressed in the cartoon, was to inflict harm
on the recipient [radio personality], correct?”, he answered,
"yes." [Tr. 124].McGill testified that, "It didn't appear that
the woman [in the cartoon], in fact, was depicted as being in
charge of what was going on." [Tr. 127]..."The reason [the
cartoon] was rejected, [was] because I perceived it to be
threatening. So to answer this question, if it was perceived to
be threatening, yes, then it would be rejected." [Tr. 129].
McGill agreed with Choinski's testimony that the cartoon was
offensive but responded, "No, not necessarily," when asked if
that was enough to keep it from being sent out. [Tr. 130]. “[I}t
would have to be threatening as well?" Answer, "Correct." [Tr.
McGill also said that he “absolutely takes escape seriously,
no matter how fantastical or improbable or imaginary the
discussion.[Tr. 132]. In response to the question, "[W]hy is just
even a fantasy or mention of escape a concern to an experienced
prison official [for] a correctional warden at a Level V facility
like Northern?", he replied, "[I]n my 22 years I spent . . . I
was at five correctional facilities, and not to say that it's not
the highest of priorities at any correctional facility, but yes,
being at the maximum security prison with that type of inmate,
and that security level . . . was a heightened concern." [Tr.
135]. McGill stated that plans of escape often involve
confederates or co-conspirators who are civilians outside of the
prison and outgoing mail is a means to communicate. [Tr. 135].
On cross examination, McGill explained that he thought the
cartoon was threatening and so did his staff.
drawn cartoons of female staff members before and they felt
harassed. [Tr. 137].
McGill factored that into weighing whether
or not someone receiving the Jenny Boom-Boom cartoon, Pl. Ex. 1,
would feel harassed or threatened. [Tr. 137-38].
question, "Was it your understanding from reviewing the cartoon,
that the female figure, especially that is depicted in the nude,
and it looks like [she is] being sodomized, is it your
understanding that that was supposed to be the addressee on the
letter, Jenny Boom-Boom? That's a depiction of her?", he
answered, "That is what I assumed." [Tr. 139].
McGill stated that he was also concerned about other people
at Jenny Boom-Boom's workplace handling the incoming mail, a mail
person or secretary. He was concerned the cartoon may be jarring,
shocking, and threatening.
"Like I said before . . . my staff
felt threatened when they received the letter. So anybody that
opened that letter would have the possibility of [feeling]
threatened . . . ." [Tr. 140]. McGill did not agree with Batts'
statement that they are "both very respectful men;" he did not
believe that the cartoon was a respectful display of the
treatment of women and he had no reason to believe that Jenny
Boom-Boom consented to the receipt of the letter and cartoon.
McGill testified that the mission of the DOC is to protect
the public, "first and foremost;" DOC staff and the inmates. [Tr.
He stated that the decision to reject Hunnicutt's mailing
followed proper chain of command and Administrative Directive
10.7. Colon appropriately brought the mailing to Captain Donahue
for review. McGill agreed with Captain Donahue's assessment that
the cartoon was threatening in nature. McGill would have
disagreed with a decision to permit this correspondence to be
mailed. [Tr. 143].
McGill understood that the cartoon was confiscated so that
Hunnicutt would not send it out, with or without a letter from
Batts. He thought the confiscation was reasonable.[Tr. 145].
McGill stated, "[S]omeone that opened this letter, whether it was
my staff, a secretary or the intended recipient, whoever opened
that, and they started reading the captions of this cartoon, and
they see right away that there [are] two inmates going to escape
to come do something, as it is depicted, and then as it goes
further on and they see what's mentioned in those captions, that
would definitely instill fear in a reasonable person." [Tr. 14748]. He thought that, "the entire . . . almost every caption in
that cartoon was threatening in nature,
. . . virtually the
entire thing would have to be changed" to make it nonthreatening.
Almost all of the cartoon constituted a threat. [Tr.
Plaintiff Carnell Hunnicutt
Plaintiff Carnell Hunnicutt is an inmate at Northern
Correctional Institution and was incarcerated there in March
Willie Batts was his cell mate at that time and together
they would listen to radio station 93.7. [Tr. 150].
Hunnicutt recalled listening to radio personality Jenny
Boom-Boom's radio show, stating she made sexual comments, talked
about her former sexual experiences and discussed different
musical stars she would like to have sex with. He stated she did
this in a humorous manner.
Hunnicutt said that Batts "put it
[his] head. He told me that, 'Hey, you ought to do a cartoon for
[Jenny Boom-Boom] and we'll send it to her.' I thought, 'Well you
know, she's kind of wild on the radio, so why not?'" [Tr. 151].
Hunnicutt testified that Batts drafted a letter to go along
with the cartoon.
Plaintiff placed Batts's letter and the
cartoon in an envelope and put it in the door for an officer to
pick up and place in the outgoing mail box. [Pl. Ex. 1, 2, 3].
Hunnicutt stated he was unaware at that time that he had been
placed on mail review status. [Tr. 152]. Hunnicutt received a
rejection notice from Officer Colon, stating that the "content is
rejected under A.D. 10.7. Drawings are threatening in nature. I/M
also violating 10.7 by sending a letter from I/M Batts . . . Free
postage envelopes must contain letters from the approved
indigent inmate." [Pl. Ex. 4; Tr. 153].
Hunnicutt testified that he did not understand Officer
Colon's rejection notice "because it didn't fall under criteria
of threatening, [be]cause it contained no threats, and I did not
receive a [disciplinary report] as per 9.5 for threats. So I
thought it was bogus on face value, and I charged . . . I
appealed it." The cartoon "wasn't to threaten anyone . . . That's
what I do. I do cartoons for humorous purposes."
Pl. Ex. 1]. Hunnicutt testified, "The scenario is we meet Jenny
Boom-Boom in the club.
She asks us a couple questions, and the
next thing you know, one thing leads to another, which she
basically initiates, and we just follow her lead." [Tr. 154].
Plaintiff stated he depicted Jenny Boom-Boom as the most powerful
person in the cartoon. He based her likeness "on an R. Crumb5 type
character, big Amazonian-type woman wearing leather . . . . And
she's in control and she's basically initiating things."
Hunnicutt portrayed himself as slobbering like a dog, having a
heart attack, and at the end returning to Northern by count time.
"At count time you just gotta be in your cell."
After Hunnicutt received a rejection notice for the March 16
mailing, he first filed an inmate request to both Major Rodriguez
[Pl. Ex. 17] and Warden McGill. [Pl. Ex. 18]. "This is me asking
about my outgoing mail being censored and reviewed, and not going
out in a timely manner." [Tr. 157].
Major Rodriguez responded,
"According to Administrative Directive 10.7, Inmate
Communications, 'All outgoing general correspondence shall be
subject to being read at the direction of the Unit
Administrator.'" [Pl. Ex. 17]. Hunnicutt stated that, "It was my
understanding [Major Rodriguez] was the mail room supervisor, or
he had something to do with the mail room." [Tr. 157].
Major Rodriguez, Why is my outgoing mail
being reviewed/censored and not going out in
a timely manner? Under Procunier v. Martinez
you have no right to censor my mail going out
to the public/public representatives. The
last time you did this this ended up in Court
with me proving you wrong. Do we have to go
"Robert Dennis Crumb (born August 30, 1943)-known as Robert
Crumb and R. Crumb-is an American artist, illustrator, and
musician recognized for the distinctive style of his drawings and
his critical, satirical, subversive view of the American
through this again? And what reasons do you
have for disrupting my mail? Am I high
security or SRG? Answer these questions. I'm
a Level 4 prisoner-How do you justify
tampering with my mail?
[Pl. Ex. 17].
Hunnicutt's Inmate Request dated March 21, 2007 to Warden
McGill states, "I'm inquiring as to why my outgoing mail is being
delaying in mailing out and certain letters being withheld for 15
days before being returned. I wrote Captain Donahue and
specifically asked, 'Am I on mail review, and if so, why?' And no
answer was given.
He did write that, '[a]ll general
correspondence shall be subject to being reviewed at the
direction of the Unit Administrator.'
Is this your doing? Did
you place me on mail review? I'd like an answer." [Pl. Ex. 18].
Warden McGill responded on March 27,
"All mail is handled in
accordance with Dept. policy. I checked with our mail room and
all mail is being processed without delay." [Pl. Ex. 18; Tr. 16869].
After receiving these responses, Hunnicutt initiated the
grievance procedure and his grievance was denied. [Tr. 161-62].
Hunnicutt testified that Colon told him that the cartoon was
confiscated and would not be returned. [Tr. 162].
Hunnicutt drew the likeness of Jenny Boom-Boom "basically from a
description . . . that guys described her as, with my own spin, a
long spin to it." [Tr. 162].
"I sent [Jenny Boom-Boom] a
birthday card that I did a lot of cards for other guys who, on a
regular basis, send her . . . birthday cards.
And so that's how
I know [what] she look[s] like, the way they describe her with
the blond hair, big bust, things of that . . . you know, they
describe her anatomy and everything to me. And I only sent her
like one card." "Other guys would pay me to draw the cards and I
would make the cards, and they [would] send them out in their
names." [Tr. 164].
Hunnicutt testified that the cartoon was confiscated in
March 2007 and no one from the prison has indicated that they
might let him send it out in the future. [Tr. 164]. "And do you
think you could send [the cartoon] out now, without any problem?
Answer, "I would not try because I thought it was pretty drawn.
I've never looked at it . . . but I think I would do a better job
now." [Tr. 165]. "And what is your perception of whether the
prison would let you send it out?" Answer, "I don't think they
would because they think that [unintelligible] and they're more
corrupt and criminal then I could ever be." [Tr. 165].
Hunnicutt stated that he sent Jenny Boom-Boom a birthday
card prior to mailing the March 16 cartoon. In the birthday card,
Hunnicutt drew her with clothes on and she was not having sex and
he was not depicted in the drawing. [Tr. 166]. Hunnicutt believed
that the cartoon was humorous and that Jenny Boom-Boom might be
flattered that she was well drawn. [Tr. 167].
Hunnicutt drew the cartoon at issue in this case. Mr. Batts
wrote the letter. Hunnicutt filled out an envelope and made some
drawings on the front, assembled the cartoon and the letter and
placed them inside the envelope. [Tr. 169]. The envelope and the
postage for the envelope were free to Hunnicutt because he was
indigent at the time. [Tr. 169-70; See Pl. Ex. 5, Administrative
He admitted knowing at the time that sending
this envelope was a violation of the Administrative Directives.
Hunnicutt was asked, "You would agree with me that because
you violated the Administrative Directives by including the maila letter from another inmate in your envelope, the mail was
properly withheld by DOC?" He answered, "That's a Catch-22. Yes
and no." "'No' because mail going to the media is not supposed to
'Yes' because there was a letter contained by another
inmate." To the followup question, "So if I understand you
correctly, you don't believe that the Department of Correction
ever should have even opened this letter in the first place?", he
"No, had no reason to." [Tr. 171].
Hunnicutt never met Jenny Boom-Boom and had had no direct
communication with her. "Only sent her a birthday card. That was
it." [Tr. 171-72].
CONCLUSIONS OF LAW
This case was pled, extensively briefed and passionately
argued as a freedom of speech/First Amendment action. But on the
evidence presented, it turns on the more prosaic but still
important issues of prison regulation. Did the defendants
lawfully prevent plaintiff from mailing the letter at issue? And
once they did so, could they lawfully refuse to return it to
The answers are "yes" and "yes."
This leaves to another day
the question of whether prison officials may protect the public
by screening and refusing to mail a cartoon that officials
reasonably believe will frighten or make a recipient feel
Rejection of Plaintiff's Outgoing Mail
Defendants' inspection and rejection of Hunnicutt's
correspondence, dated March 16, 2007, did not violate plaintiff's
First Amendment rights. [Pl. Ex. 1, 2, 3]. Plaintiff acknowledged
that he was on mail review status in March 2007 and,
consequently, his incoming and outgoing correspondence was
subject to inspection. Indeed, plaintiff does not challenge
Administrative Directive 10.7(E)(1), which permits review,
inspection and rejection of outgoing mail.
Wolff v. McDonnell,
418 U.S. 539, 576 (1974) (noting that “freedom from censorship is
not equivalent to freedom from inspection or perusal”);
v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971) ("Discipline and
prison order are sufficient interests to justify . . . regulation
[of unauthorized correspondence] incidental to the content of
Martin v. Brewer, 830 F.2d 76, 77 (7th Cir.
1987) (inmates have no generalized First Amendment right
preventing prison staff from opening and reading mail); Gaines v.
Lane, 790 F.2d 1299, 1304 (7th Cir. 1986) (upholding prison
regulation that allowed nonprivileged, outgoing mail to be opened
and inspected); Therrien v. Martin, No. 3:07CV1285(JCH), 2007 WL
312181, *3 (D. Conn. Oct. 19, 2007) ("While the Supreme Court has
afforded special protections to an inmate's legal mail, it never
has held that the First Amendment prevents correctional staff
from reading prisoners' non-legal mail.").
Plaintiff conceded at trial that defendants had a legitimate
basis, pursuant to Administrative Directive 10.7(E)(1)(h), to
reject his correspondence because the mailing included a letter
from inmate Batts.6
In this action, plaintiff does not challenge
the administrative directive or contend that it was improperly
applied. "The opening and inspecting of [plaintiff's] outgoing
mail is reasonably related to the legitimate penological interest
of institutional security." See, e.g., Altizer v. Deeds, 191 F.3d
540, 547-48 (4th Cir. 1999) (stating that if inmates' outgoing
mail could not be opened and inspected, “a prison official would
never know that a letter contained the very type of material
that, according to the Supreme Court, could rightfully be
censored, i.e., correspondence sent by an inmate that would be
detrimental to the security, good order, or discipline of the
institution; necessary for the protection of the public; or used
to facilitate criminal activity”); Smith v. Delo, 995 F.2d 827,
830 (8th Cir. 1993) (holding that “[a]lthough there is less of a
security risk with outgoing mail precisely because the mail is
going out of the prison, there is also no doubt that prison
officials are justified in discovering and refusing to process
Plaintiff testified that when he placed the cartoon with
Batts's letter into the envelope, he understood that he was
violating Administrative Directive 1.7(E)(1)(h). (Tr. 169-70).
mail that contains” “escape plans, contraband, threats, or
evidence of illegal activity”) (emphasis added).
The legitimate need to screen outgoing mail for such content
also justifies an administrative directive that requires inmates
to send mail under their own names rather than in envelopes
identified with other prisoners.
Accordingly, the Court finds that the inspection of the
March 16, 2007, correspondence does not rise to a violation of
plaintiff's First Amendment rights.
See Caldwell v. Beard, 305
Fed. Appx. 1 (3rd Cir. Dec. 28, 2008) ("[W]e agree that prison
employees did not violate [plaintiff's] constitutional rights by
inspecting his outgoing nonprivileged mail”). Regardless of the
cartoon content, the mailing violated the Administrative
Directive prohibiting mailing of another inmate’s correspondence,
and could be properly confiscated.
Retention of the Cartoon
Having found that confiscation of the March 16, 2007,
mailing did not rise to a First Amendment violation, the next
question for the Court is whether the retention of the cartoon
violated plaintiff's First Amendment rights.
Defendants argue that the decision not to return the cartoon
to plaintiff was "reasonably related" to legitimate penological
objectives. Turner v. Safely, 482 U.S. 78, 89 (1987) (holding
that restrictions on inmate-to-inmate communications pass
constitutional muster only if the restrictions are reasonably
related to legitimate and neutral governmental objectives.); Shaw
v. Murphy, 532 U.S. 223, 229 (2001) (The judiciary is "ill
equipped" to administer and regulate the day-to-day activities of
penal institutions); Overton v. Bazzetta, 539 U.S. 126, 132
(2003) ("We 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."); Thornburgh v. Abbott, 490 U.S. 401, 416
(1989) (Court deference to decisions of prison officials is
warranted where prison officials have provided individualized
review of the banned items).
Defendants contend that plaintiff was not entitled to keep
his cartoon because it depicted both an escape and sexually
explicit acts on a member of the public.
In deciding to keep the cartoon, Warden McGill factored into
his decision not only that he found the cartoon threatening, but
so did his staff. McGill testified that on a prior occasion,
Hunnicutt drew female staff members and they felt harassed.7 [Tr.
Hunnicutt v. Faneuff, CV000803077, 2001 Conn.
Super. LEXIS 3603, *6 (Conn Super. Dec. 14, 2001) (holding
"[m]easures aimed at preventing the plaintiff, or any other
The DOC's Mission Statement reads, "The Department of Correction
shall protect the public, the staff, and provide safe, secure,
and humane supervision of offenders with opportunities that
support successful reintegration. See
inmate, from drawing and maintaining material depicting him
performing violent and sexually explicit acts on corrections
employees is rationally related to reasonable objectives of
prison administration, namely the preservation of the safety of
corrections employees and suppressing or repressing an inmate's
violent and sexually abusive ideation.").
In Hunnicutt v. Faneuff, Judge Bryant found that
restricting the plaintiff's right to produce
and maintain [sexually explicit] material
does not impermissibl[y] restrict his First
Amendment speech rights. The reasonableness
of corrections views of the detrimental
effects of the plaintiff's speech is
inescapable and are sufficiently compelling
to outweigh and prevail against plaintiff's
First Amendment associational rights.
2001 Conn. Super. LEXIS 3603, *6.
In Hunnicutt v. Faneuff,
plaintiff argued that he "should not be denied the right to his
drawings because other inmates were allowed to have pornographic
material." 2001 Conn. Super. LEXIS 3603, *6. Judge Bryant found a
"rational basis for distinguishing between the disruptive and
dangerous effects of violent and sexually explicit material
published by the media depicting willing professional models and
actors on the one hand and violent and sexually explicit material
drawn by the plaintiff depicting corrections employees being
subjected to fictional sexually explicit and violent acts
committed by the plaintiff on another."
2001 Conn. Super. LEXIS
3603, *6-7. While the cartoon here did not purport to feature
correctional employees, it featured a purportedly specific real
person, a member of the public, being subjected to the
plaintiffs’ sexual fantasies.
Plaintiff argues that the initial decision to confiscate the
mailing resulted in a rolling First Amendment violation because
the confiscation stopped plaintiff from re-mailing the cartoon.
However, once the cartoon was discovered in the outgoing mail and
reviewed by defendants, the decision to retain the cartoon was
discretionary and motivated by internal prison management safety
and security concerns. The Court has carefully reviewed Warden
McGill's testimony and that of defendants Choinski and Donahue,
and finds defendants' decision to retain the cartoon warrants
judicial deference to the correctional officials' expertise and
Here, deference to the defendants' decision
is particularly appropriate because it was based on their long
and varied experience as correctional officials and buttressed by
concrete examples of how restricting prisoners' retention of
sexually explicit materials, specifically sexually explicit
materials depicting an escape drawn by Hunnicutt, is related to
protecting the public "and humane supervision of offenders . . .
that support successful reintegration." See Hunnicutt v. Faneuff,
CV000803077, 2001 Conn. Super. LEXIS 3603, *6-7 (Conn. Super.
Dec. 14, 2001). Plaintiff's cartoon depicts, among other things,
two escaped inmates ejaculating on a female, and engaging in
oral, vaginal, and anal sex. See Moses v. Dennehy, 523 F. Supp.
57, (D. Mass. 2007) ("The use of sexually explicit material in
the course of a sexual assault demonstrates that such material
impairs the security of the prison."), aff'd, Josselyn v.
Dennehy, No. 08-1095, 333 Fed. Appx. 581, 2009 WL 1587695 (1st
Cir. 2009). Defendants' interest in prohibiting the possession of
a sexually explicit cartoon depicting an escape is a legitimate
This interest is
"not related solely to
the suppression of expression and [is] neutral on [its] face."
Finally, and most importantly, the depiction of an escape is
a matter that defendants take very seriously in maintaining
internal security and order at the prison. The decision to retain
the cartoon on this basis is logically related to legitimate
security concerns of prison officials, who testified that escape
is always taken seriously and it is of no matter whether the
depiction of the escape is fantasy.8 In light of that testimony,
McGill was asked, "Somebody writes a letter to a friend,
and says, 'I know I'm not going anywhere, but I fantasize every
day about escaping, just for a few hours.' Would you block that
as an unauthorized or illegal correspondence?" McGill responded
"yes." Question, "So someone's not even allowed to mention, in
the way that I said, the thought of escaping, correct?" Answer,
"yes." [Tr. 123]. McGill further explained, "It depends how it's
worded, what the language is. If that word 'escape,' the exact
word 'escape' was in the . . . was written, I would take that
very seriously and look at rejecting it, yes." [Tr. 124].
Question, "Even if it's clearly not an expression of an intention
to escape, but simply an expression of a fantasy that may be very
common?" He responded, "In my experience, and especially in my
time at Northern Correctional Institution, I would never take it
for granted, and I'd take it very serious, regardless of how it's
expressed." [Tr. 124]. Question, "[I]s it your approach that you
take [escape] seriously, no matter how fantastical or improbable
or imaginary the discussion is?" Answer, "Absolutely." [Tr. 132].
Question, "[W]hy is just even a fantasy or mention of escape a
concern to an experienced prison official [for] a correctional
warden at a Level V facility at Northern?" Answer, "[I]n my 22
years I spent . . . I was at five correctional facilities, and
not to say that it's not the highest of priorities at any
correctional facility, but yes, being at the maximum security
prison with that type of inmate, and that security level . . .
defendants are entitled to deference on the basis of internal
safety and security concerns at the prison.
Smith v. Delo, 995
F.2d 827, 830 (8th Cir. 1993) (holding that prison officials
"have a strong interest in preventing, deterring, and discovering
"The recognition of privacy rights for
prisoners in their individual cells simply cannot be reconciled
with the concept of incarceration and the needs and objectives of
Hunter v. Palmer, 468 U.S. 517, 526 (1984).
Accordingly, the decision to retain the cartoon was
rationally related to reasonable objectives of prison
administration in maintaining safety and security within the
prison. Moreover, given the prior decision in Hunnicutt v.
Faneuff, CV000803077, 2001 Conn. Super. LEXIS 3603 (Conn. Super.
Dec. 14, 2001), there was no basis for prison officials to
was a heightened concern." [Tr. 135]. McGill stated that plans of
escape often involve confederates or co-conspirators who are
civilians outside of the prison and outgoing mail is a means to
communicate. [Tr. 135].
Donahue testified that although he agreed that the subject
matter depicted in the cartoon was fictional, "any communication
that goes outside of the prison that describes or depicts an
escape . . . should be rejected." [Tr. 82].
The Supreme Court noted in Hunter v. Palmer that "Prisons,
by definition, are places of involuntary confinement of persons
who have a demonstrated proclivity for antisocial criminal, and
often violent, conduct. Inmates have necessarily shown a lapse in
ability to control and conform their behavior to the legitimate
standards of society by the normal impulses of self-restraint;
they have shown an inability to regulate their conduct in a way
that reflects either a respect for law or an appreciation of the
rights of others." 468 U.S. at 526.
conclude that confiscation of this cartoon was a violation of any
of Mr. Hunnicutt’s constitutional rights.
As set forth above, the Court is unable to determine the
merits of plaintiff's underlying First Amendment claim because
that claim is not ripe. Thomas v. Union Carbide Agr, Products Co,
473 U.S. 568, 579 (1985) (plaintiff must "demonstrate
sufficient ripeness to establish a concrete case or
Ripeness is a justiciability doctrine concerned with the
timing of a lawsuit.
Thomas, 473 U.S. at 579-80(citation
omitted). The “basic rationale” of the ripeness doctrine “is to
prevent the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements.” Abbott
Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on other
grounds, Califano v. Sanders, 430 U.S. 99 (1977). A matter “is
not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur
at all.” Texas v. United States, 523 U.S. 296, 300 (1998)
(quotation marks omitted). "[D]etermining whether a dispute is
ripe for review requires a two-pronged analysis of (1) whether
the issues presented to the district court are fit for review,
and (2) what hardship the parties will suffer in the absence of
Connecticut v. Duncan, 612 F.3d 107, 113 (2d Cir. 2010)
(citing Abbott Labs, 387 U.S. at 148-49).
As the Supreme Court
has explained, the ripeness doctrine's “basic rationale is to
prevent the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements.”
consideration.” Abbott Labs., 387 U.S. at 148. "The 'fitness of
the issues for judicial decision' prong recognizes the restraints
Article III places on federal courts. It requires a weighing of
the sensitivity of the issues presented and whether there exists
a need for further factual development. Meanwhile, the 'hardship
to the parties prong clearly injects prudential considerations
into the mix, requiring us to gauge the risk and severity of
injury to a party that will result if the exercise of
jurisdiction is declined." Murphy v. New Milford Zoning Comm'n,
402 F.3d 342, 347 (2d Cir. 2005)(internal citations omitted).
Our Circuit Court has "repeatedly observed that, 'when a court
declares that a case is not prudentially ripe, it means that the
case will be better decided later . . . . [not] that the case is
not a real or concrete dispute affecting cognizable current
concerns of the parties.'” Duncan, 612 F.3d at 114 (quoting New
York Civil Liberties Union v. Grandeau, 528 F.3d 122, 131 (2d
The Declaratory Judgment Act, in turn, provides a statutory
basis for granting declaratory relief “[i]n a case of actual
controversy within its jurisdiction.” 28 U.S.C. § 2201(a).
Upholding the constitutionality of the Act, the Supreme Court
distinguished between “a real and substantial controversy
admitting of specific relief through a decree of a conclusive
character” and “an opinion advising what the law would be upon a
hypothetical state of facts,” and ultimately concluded:
Where there is such a concrete case admitting
of an immediate and definitive determination
Plaintiff's assertion of a First Amendment violation is an
issue "not ripe for adjudication as it rests upon contingent
future events that may not occur as anticipated, or indeed may
not occur at all."
Texas v. United States, 523 U.S. at 300. It
is not contested that defendants confiscated the cartoon and
letter to prevent Hunnicutt from mailing it. The Court has found
that there was a legitimate basis for that decision because the
mailing contained an unauthorized letter from inmate Batts.
Because the cartoon was not returned to plaintiff, it is also not
contested that the cartoon was not again posted for the outgoing
mail or rejected by defendants, a contingent future event that
did "not occur at all." Texas v. United States, 523 U.S. at 300.
Plaintiff's counsel asserts that if the cartoon were
returned to Hunnicutt in a timely manner,
he would have mailed
it out immediately. However, this was not a subject of
of the legal rights of the parties in an
adversary proceeding upon the facts alleged,
the judicial function may be appropriately
exercised although the adjudication of the
rights of the litigants may not require the
award of process or the payment of damages.
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937).
Jurisdiction over a declaratory-judgment action may exist despite
the underlying basis of liability being contingent, but in
assessing its jurisdiction a court “should focus on ‘the
practical likelihood that the contingencies will occur.’ ”
Associated Indem. Corp. v. Fairchild Indus., Inc., 961 F.2d 32,
35 (2d Cir. 1992) (quoting 10A C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure § 2757, at 587 (2d ed. 1983)).
Furthermore, district courts have discretion “to refuse to
exercise jurisdiction over a declaratory action that they would
otherwise be empowered to hear.” Dow Jones & Co. v. Harrods Ltd.,
346 F.3d 357, 359 (2d Cir. 2003).
plaintiff's testimony at trial. At trial,
plaintiff was asked,
"And do you think you could sent [the cartoon] out now, without
any problem?" Answer, "I would not try . . . ." [Tr. 165].
Clearly, nothing prevented plaintiff from drawing another cartoon
and posting it in the outgoing mail while the grievances were
Texas v. United States, 523 U.S. 296, 300 (1998)
("A matter “is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated, or
indeed may not occur at all.”). (quotation marks omitted).
Indeed, at oral argument,
plaintiff's counsel conceded that at
some point the cartoon aged and it is now no longer possible to
send the cartoon in the context of responding to one particular
Plaintiff has not shown hardship in the absence of review.
Plaintiff has not asserted that all of his outgoing mail
containing cartoon images has been rejected from the outgoing
mail since March 2007.
Any argument that his future efforts to
include a cartoon in the outgoing mail will be thwarted by
defendants is conjectural/hypothetical and would require review
of the yet-to-be drawn cartoon on a case by case basis.
Based on the foregoing, the constitutional challenge as
presented by plaintiff is not fit for judicial review for lack of
Accordingly, judgment is entered in favor of defendants on
This is not a recommended ruling.
The parties consented to
proceed before a United States Magistrate Judge [Doc. #79] on May
11, 2010, with appeal to the Court of Appeals.
SO ORDERED at Bridgeport this 30th day of September, 2012.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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