Schorr v. Walton et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 3/22/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MATTHEW P. SCHORR, No. 64553-097,
Plaintiff,
vs.
JEFFREY S. WALTON,
WARDEN, and
DIRECTOR, FEDERAL
BUREAU OF PRISONS,
Defendants.

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CIVIL NO. 15-cv-1242-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Matthew Schorr is currently incarcerated at the Federal Correctional Institution
in Seagoville, Texas. (Doc. 1 at 2-3.) Proceeding pro se, he has filed a complaint pursuant to 28
U.S.C. § 1331 and the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents,
402 U.S. 388 (1971), alleging his civil rights were violated while he was incarcerated at the
United States Penitentiary at Marion, Illinois (“Marion”), which is within this judicial district.
(Id. at 2.) Schorr claims the Defendants violated his rights under the First and Fifth Amendments.
He seeks monetary relief, as well as a ruling that the “Ensign Amendment” is facially
unconstitutional.
Schorr filed his initial complaint on November 9, 2015. (Doc. 1.) He filed an amended
complaint on January 4, 2016. 1 This matter is now before the Court for a preliminary review of
Schorr’s amended complaint pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court shall

1

Schorr filed his Motion to Amend Complaint (Doc. 4) on January 4, 2016. It differs from the initial complaint in
that Defendant Walton is now sued only in his individual capacity and the current Warden of Marion is added as a
party and sued in his/her official capacity. The Motion (Doc. 4) is GRANTED. The Clerk is DIRECTED to docket
the amended complaint.

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review a “complaint in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a government entity.” Id. § 1915A(a). During this preliminary
review under § 1915A, the Court “shall identify cognizable claims or dismiss the complaint, or
any portion of the complaint,” if the complaint “is frivolous, malicious, or fails to state a claim
on which relief may be granted” or if it “seeks monetary relief from a defendant who is immune
from such relief.” Id. § 1915A(b)(1)-(2).
Background
The complaint alleges the following facts. On four different occasions, Defendant Jeffrey
S. Walton, former warden of Marion, returned to publishers certain publications that had been
addressed to Schorr and delivered to Marion through the mail. The reasons for the publications’
return were that they allegedly contained sexually explicit material or featured nudity.
Schorr’s first claim concerns Defendant Walton’s return of a May 2015 issue of Nylon
magazine. Nylon is a popular culture and fashion magazine. The issue in question contained, on
page 148, a picture of artist and peace activist Yoko Ono, widow of John Lennon, posing in front
of Gaston Lachaise’s 1932 bronze sculpture “Standing Woman” while the sculpture was on
exhibit at the Museum of Modern Art in New York City. “Standing Woman” depicts a tall, busty
woman in the nude. The sculpture depicts the woman’s exposed nipples.
On April 23, 2015, Schorr received a copy of a letter written by Walton, addressed to
Nylon. The letter indicated that Walton was returning the May 2015 issue. The Warden’s cited
reason for returning the issue, as contained in the letter, was that the issue “contain[ed] nude
material on page 148; statute [sic.] of female with nude breasts and nipples visible, which by its
nature, poses a threat to the orderly operation of the institution.” Schorr filed an administrative

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complaint, requesting a review of the May 2015 issue under staff supervision. Both Defendant
Walton and Defendant Director of the Federal Bureau of Prisons (“BOP”) denied his complaint.
On May 29, 2015, Schorr received another copy of a letter written by Walton, this one
addressed to Wired. The letter indicated that Walton was returning a June 2015 issue of the
magazine that had been addressed to Schorr. Wired is a magazine that reports on emerging
technologies and their cultural, political, and sociological effects. Page 89 of the issue contained
a drawing of a woman disrobing at what appears to be a beach, her nipples exposed. Walton’s
letter to Wired allegedly stated: “This publication on page 89 depicts nude pictures which by its
nature, poses a threat to the orderly operation of the institution.” Schorr filed an administrative
complaint, just as he had when Defendant Walton rejected and returned the Nylon issue. Both
Walton and the Director denied his grievance.
Schorr’s next allegation concerns Walton’s return of three catalogues published by CNA
Entertainment. Schorr received the letter indicating Walton’s rejection and return of the
catalogues on April 15, 2015. The three catalogues were entitled, “Flat Chested Model Lydia,”
“Fresh Faces Model Chloe Knox 1,” and “Fresh Faces Model Chloe Knox 2.” Schorr states the
aforementioned each consisted of a single 8½ x 11” catalogue containing eighty ½” x ¾”
thumbnail photographs for sale. Schorr does not state whether the photographs depicted nude
images. Walton’s stated reason for rejecting the catalogues, as contained in his letter, was that
they “contain[ed] sexually explicit information, or material or feature[d] nudity.” Again, Schorr
filed an administrative complaint that was subsequently denied by Walton and the Director.
Schorr’s last allegation concerns Walton’s rejection and return of a March 2015 issue of
Wired. The letter sent by Walton to the publisher, a copy of which was supplied to Schorr on
March 5, 2015, states that the issue “contain[ed] sexually explicit information or material or

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feature[d] nudity on pages 81, 83, 84, and 91.” Schorr claims the images on the aforementioned
pages “illustrate a news article,” but does not inform the Court what exactly the images depicted.
Walton and the Director denied Schorr’s subsequent administrative complaint.
Schorr sues Walton in his individual capacity, and both the current Warden of Marion
and the Director in their official capacities.
Discussion
Schorr’s complaint consists of four numbered counts. Each count concerns one of the
four events described above. Count I alleges constitutional violations surrounding the rejected
Nylon issue, Count II the rejected June 2015 Wired issue, Count III the three rejected CNA
Entertainment catalogues, and Count IV the rejected March 2015 Wired issue. Each count, in
turn, contains three “claims for relief.” All twelve claims for relief allege the same things: (1)
Defendant Walton deprived Schorr of his First and Fifth Amendment rights each time he rejected
and returned the aforementioned publications and when he denied him due process in his
administrative appeals; (2) Defendant Director deprived Schorr of his First and Fifth Amendment
rights when he affirmed the rejections of his administrative appeals; and (3) the Ensign
Amendment is unconstitutional.
To facilitate the management of future proceedings, and in accordance with the
objectives of Federal Rules of Civil Procedure 8 and 10, the Court finds it appropriate to
reorganize the claims in Schorr’s pro se complaint and break them into different numbered
counts, as shown below. The parties and the Court will use these designations in all pleadings
and orders, unless otherwise directed by the Court. The designation of these counts does not
constitute an opinion as to their merit.
COUNT 1:

The Ensign Amendment is unconstitutional, both facially and as
applied.
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COUNT 2:

Defendants Walton and Director deprived Schorr of his First
Amendment rights each time Walton rejected and returned the
aforementioned publications.

COUNT 3:

Defendants Walton and Director deprived Schorr of his rights
when they denied his administrative appeals.

A. Count 1
Count 1 survives preliminary review. The Ensign Amendment states, in relevant part:
[N]o funds [available to the Attorney General for the Federal Prison System] may
be used to distribute or make available to a prisoner any commercially published
information or material that is sexually explicit or features nudity.
28 U.S.C. § 530C(b)(6) (emphasis added). Implementing regulations define “sexually explicit”
as “a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex,
or masturbation.” 28 C.F.R. § 540.72(b)(4). “Nudity” refers to “pictorial depiction[s] where
genitalia or female breasts are exposed.” Id. § 540.72(b)(2). The term “features” means the
publication depicts “nudity or sexually explicit conduct on a routine basis or promotes itself
based upon such depictions in the case of individual one-time issues.” Id § 540.72(b)(3).
However, nudity is not a “feature” where it illustrates “medical, educational, or anthropological
content.” Id.
The regulations also define the procedures prisons must take when they are prohibited
from distributing material under the Ensign Amendment:
When commercially published information or material may not be distributed by
staff or made available to inmates due to statutory restrictions (for example, a
prohibition on the use of appropriated funds to distribute or make available to
inmates information or material which is sexually explicit or features nudity,) the
Warden or designee shall return the information or material to the publisher or
sender. The Warden or designee shall advise the publisher or sender that an
independent review of the decision may be obtained by writing to the Regional
Director within 20 days of receipt of the notification letter. Staff shall provide the
inmate with written notice of the action.

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Id. § 540.72(a). The above quoted statutory and regulatory language renders it clear that
Defendant Walton was acting pursuant to the Ensign Amendment when he rejected and returned
the publications.
While prisoners generally have a constitutionally-protected interest in their incoming and
outgoing mail, “[p]rison officials may . . . impose restrictions on prisoner correspondence if
those restrictions are ‘reasonably related to legitimate penological interests.’” Van den Bosch v.
Raemisch, 658 F.3d 778, 785 (7th Cir. 2011) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
Crime deterrence, prisoner rehabilitation, and protecting the safety of prison guards and inmates
are all legitimate penological interests. Id. In Turner, the Supreme Court held that prison
regulations must be assessed under the following factors: (1) whether there is a “valid, rational
connection between the prison regulation and the legitimate governmental interest put forward to
justify it”; (2) whether the inmate has access to “alternative means” of exercising the restricted
right; (3) the “impact [an] accommodation of the asserted constitutional right will have on guards
and other inmates, and on the allocation of prison resources generally”; and (4) whether the
regulation is an “exaggerated response to prison concerns.” Turner, 482 U.S. at 89-91.
Schorr alleges that Warton based his rejection of the publications on his interest in
maintaining security and order within the prison. A factual record is necessary to determine
Warton’s actual penological interest or interests in rejecting the publications, as well as the
rationality of the Amendment’s overall connection to such an interest. See Ramirez v. Pugh, 379
F.3d 122, 128 (3d Cir. 2004) (holding that the development of a factual record is necessary to
determine the Ensign Amendment’s connection to rehabilitative interests). Therefore, Count 1
may proceed at this time.

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B. Count 2
Count 2 alleges a valid First Amendment claim against Defendant Walton. The Seventh
Circuit has held that “[t]he free-speech clause of the First Amendment applies to
communications between an inmate and an outsider.” Zimmerman v. Tribble, 226 F.3d 568, 572
(7th Cir. 2000) (citing Martin v. Brewer, 830 F.2d 76, 76 (7th Cir. 1987)). To assert a cause of
action for interference with or denial of one’s mail under the First Amendment, a prisoner must
“allege[] a continuing pattern or repeated occurrences of such conduct.” Id. (citing Sizemore v.
Williford, 829 F.2d 608, 609 (7th Cir. 1987)). Because Schorr has alleged at the very least
repeated instances of Defendant Walton returning mail addressed to Schorr, Count 2 survives
preliminary review as to Walton.
Count 2 does not survive, however, as to Defendant Director. Schorr attempts to tie the
Director into his First Amendment claim against Walton by re-asserting his allegations against
Walton. Because Schorr has not alleged that the Director was personally involved in rejecting
and returning the publications, the Director is dismissed without prejudice from Count 2.
C. Count 3
Schorr may proceed with his claims against Walton, but not the Director, as to Count 3.
Prison grievance procedures are not constitutionally mandated and thus do not implicate the
Constitution per se. As such, the alleged mishandling of grievances “by persons who otherwise
did not cause or participate in the underlying conduct states no claim.” Owens v. Hinsley, 635
F.3d 950, 953 (7th Cir. 2011). However, in Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015), the
Seventh Circuit held that a prisoner’s correspondence to a prison supervisor may “establish a
basis for personal liability [for violations of the prisoner’s constitutional rights] where that
correspondence provides sufficient knowledge of a constitutional deprivation.” Id. at 781-82.

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Here, Schorr filed four administrative appeals with Walton and the Director, all of which
were denied. Because Schorr alleges that Walton is directly implicated in the alleged underlying
constitutional wrong, he may proceed on a due process claim against Walton as to Count 3.
Schorr has not, however, alleged that his administrative appeal to the Director contained
coherent and highly detailed descriptions of his alleged constitutional injury sufficient to put the
Director on notice that a violation had occurred. Therefore, the Director is dismissed without
prejudice as to Count 3.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed on COUNT 1, on COUNT 2
against Defendants WARDEN and WALTON, and on COUNT 3 against Defendants
WARDEN and WALTON. Defendant DIRECTOR is DISMISSED from COUNTS 2 and 3
without prejudice.
The Clerk of Court shall prepare for Defendants WARDEN and WALTON: (1) Form 5
(Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of
Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint,
and this Memorandum and Order to the Defendants’ place of employment as identified by
Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to
the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps
to effect formal service on that Defendant, and the Court will require that Defendant pay the full
costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending

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the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon each Defendant (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on each Defendant or counsel. Any paper
received by a district judge or magistrate judge that has not been filed with the Clerk or that fails
to include a certificate of service will be disregarded by the Court.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Plaintiff’s Motion for Extension of Time to Effect Service (Doc. 6) is DENIED as
MOOT.
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
Magistrate Judge for further pre-trial proceedings, including for a decision on Plaintiff’s Motion
for Limited Discovery (Doc. 5).
Further, this entire matter shall be REFERRED to the United States Magistrate Judge for
disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to
such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).

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Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for leave to
commence this civil action without being required to prepay fees and costs or give security for
the same, the applicant and his or her attorney were deemed to have entered into a stipulation
that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall
pay therefrom all unpaid costs taxed against Plaintiff and remit the balance to Plaintiff. Local
Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: March 22, 2016
s/ MICHAEL J. REAGAN
MICHAEL J. REAGAN
Chief Judge
United States District Court

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