Lane v. Feathers
Opinion and Order: The Petitioner's Petition for Writ of Habeas Corpus 2 is denied. Signed on 9/22/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARK ALAN LANE,
Civil No. 3:12-cv-02360-MC
OPINION AND ORDER
Petitioner brings these habeas corpus actions pursuant to 28 U.S.C. ' 2241. The matters
are before the Court on remand from the Ninth Circuit Court of Appeals. See Lane v. Feather,
610 F. App=x 628 (9th Cir. 2015). For the reasons that follow, the Petitions for Writ of Habeas
Corpus are DENIED.
1 - OPINION AND ORDER
Petitioner is currently an inmate in the custody of the Bureau of Prisons (ABOP@) at the
United States Penitentiary at Leavenworth, Kansas. At the time he filed his original petitions in
this court, he was incarcerated at the Federal Correctional Institution in Sheridan, Oregon (AFCI
Petitioner filed three petitions alleging that the BOP violated petitioner=s due process
rights in prison disciplinary proceedings. Lane v. Feather, Case No. 3:12-cv-02360-PA; Lane v.
Feather, Case No. 3:13-cv-0005-PA; Lane v. Feather, Case No. 3:13-cv-00100-PA. In each
case, petitioner challenged a Disciplinary Hearing Officer (ADHO@) finding that petitioner
violated BOP Prohibited Act Code 203, 28 C.F.R. ' 541.3 Table 1, 203 (ASection 203@), which
prohibits prison inmates from threatening another with bodily harm. Specifically, petitioner
alleged the BOP did not have Asome evidence@ to support a finding of a Section 203 violation.
District Judge Owen M. Panner found there was some evidence to support the violations, and
denied the petitions.
Petitioner appealed, arguing for the first time on appeal that the BOP=s application of
Section 203 violated his First Amendment rights. The three cases were consolidated, and in Lane
v. Feather, 610 F. App=x 628 (2015), the Ninth Circuit vacated Judge Panner=s judgments and
remanded the cases to this court. 1
The Ninth Circuit simultaneously reversed and remanded to the Central District of California
three other habeas cases where petitioner challenged prison disciplinary proceedings for
violating Section 203. See Lane v. McGrew, Case No. 2:13-CV-08448-GW-PLA, 2016 WL
8737522 (C.D. Cal. Dec. 7, 2016), report and recommendation adopted by 2017 WL 1395602
(C.D. Cal. Apr. 14, 2017), Lane v. Tews, Case No. CV 2:14-CV-01324-GW-PLA, 2016 WL
8738265 (C.D. Cal. Dec. 7, 2016), report and recommendation adopted by 2017 WL 1423700
(C.D. Cal. Apr. 14, 2017); and Lane v. Tews, Case No. 2:14-CV-04876-GW-PLA, Second
2 - OPINION AND ORDER
The Ninth Circuit reasoned that before determining whether Asome evidence@ supported
the DHO=s findings that petitioner violated Section 203, the court needed to first resolve the
definition of Athreat@ for the purposes of Section 203. Lane, 610 F. App=x at 629. The Ninth
Circuit concluded that Section 203 Ashould be interpreted to prohibit all threatening statements,
whether they amount to true threats or not.@ Id. This interpretation of the word Athreat@
implicated petitioner=s First Amendment rights. As such, the prohibition against threatening
bodily harm against another in outgoing prisoner mail found in Section 203 could only be valid if
it satisfied the test set forth by the Supreme Court in Procunier v. Martinez, 416 U.S. 396, 94 S.
Ct. 1800 (1974).
Id. Upon finding that the record was not sufficient to make such a
determination, the Ninth Circuit remanded the matter to this court Ato determine whether Section
203 satisfies Procunier.@
Id. Because the matter was vacated and remanded based on
petitioner=s First Amendment argument, the Ninth Circuit did not reach petitioner=s alternative
challenges. Id. at 629 n.2
2008 Disciplinary Proceeding - Case No. 2:12-cv-02360-MC
In 2008, while petitioner was housed at the United States Penitentiary in Atlanta,
Georgia, petitioner was charged in an incident report with threatening another person in violation
of Section 203. The reporting officer described the violation as follows:
On December 16, 2008, at 10:20 a.m., I opened an electronic mail message
forwarded from Central Office regarding an Administrative Remedy Appeal filed
by [petitioner]. The attachment received included the Central Office
Administrative Remedy Appeal form, and two handwritten notes from
Report and Recommendation (ECF No. 62, Dec. 7, 2016), report and recommendation adopted
by Order Accepting Second Report and Recommendation (ECF No. 64, Apr. 14, 2017).
3 - OPINION AND ORDER
[petitioner]. It reads AI don=t think my judgment and commitment was >verified=
I=m going to bet my life! Are you willing to bet a Guard=s life?@ This
communication relays intent to inflict physical or other harm on any occasion.
Resp. Exh. 1, Moran Decl. & 4, Att. 4.
The DHO conducted a hearing and found petitioner guilty of the charged offense. The
DHO ordered petitioner to forfeit 27 days of good time credit, imposed 30 days of disciplinary
segregation, and took away petitioner=s telephone privileges for 180 days.
2009 Disciplinary Proceeding - Case No. 3:13-cv-00100-MC
In June 2009, while housed at the Federal Correctional Institution in Bennetsville, South
Carolina, petitioner was charged in an incident report with threatening another person with
bodily harm in violation of section 203. The reporting officer described the violation as follows:
At approximately 8:30 pm on 5/31/09, while monitoring outgoing mail, I read two
letters written by [petitioner]. The first letter was addressed to Brian Dempsey. . .
. On page one of the letter [petitioner] writes AI give the Bureau of Prisons staff a
chance to follow orders from the Civil Rights Division. I don=t want to, I may be
forced to take a life! Pray for me, that=s the last thing I want to do is cause the
next person harm.@ Furthermore, on page 5 he writes, AThe warden can be reached
at (843) 454-8200, Mr. Morrison and Mr. Blackington! I really don=t like it when
people play games or make an attempt on my life! Will I need to put on a pair of
shit kickers? Cross That Line!! (Try to take my life).
The second letter was addressed to U.S. District Court, Clerk, 304 Federal
Building, 101 NW MLK Jr. Blvd., Evansville, IN 47708. On the back of page six
[petitioner] writes AWhen the deal goes done! (sic) I want to make sure they come
for you and Mr. Brad Blackington. (Criminal charges).@
Resp. Exh. 2 (ECF No. 12), Decl. of Jerrie Comstock, Att. 4.
In a postscript to the second letter, petitioner added: AThat steel does damage to the human body!
I personal (sic) know! I had to put some work in at Greenville. The Fucker bled like a stuck pig.@
Id., Att. 5.
4 - OPINION AND ORDER
At the disciplinary hearing, petitioner stated he was Anot trying to get anything construed
as a threat.@ Id. The DHO considered petitioner=s statement, but did not find it credible in light of
the statements contained in petitioner=s letters. Id. The DHO report explained his reasoning:
The DHO considered your statement, AI=m not trying to get anything construed as
a threat.@ When the letter to the U.S. District Court was addressed during the
hearing, you were notified this type of behavior can be construed as new criminal
conduct as you were threatening a government official as noted in your letter.
Mr. Blackington is an Assistant United States Attorney. Although you indicated
you were threatening criminal charges, not bodily harm, the later part of the page
stated, APS That steel does damage to the human body! I personal know!! (smile
face) I had to put some work in at Greenville (smile face) That Fucker Bled like a
stuck hog!! The Guard asked that I just walk away and leave it alone.@
The first portion of the page threatened criminal charges, however, the second
portion of the page threatened bodily harm by annotating you have put steel
(weapon) in another individual while at Greenville and emphasized the weapon
inflicted serious damage on the human body. There are not other connotations that
can be drawn from this statement other than when you stated to Mr. Blackington
you wanted to make sure they come for him and steel can do damage to a body is
a threat to inflict bodily harm. Furthermore, in the first letter to Mr. Dempsey you
threatened to take a life, and put on a pair of Ashit kickers.@ You further stated
ACross that Line@ which is also considered a threat as you are threatening Mr.
Morrison and Mr. Blackington to cross that line and you would threaten to take a
life and put some Ashit kickers@ on to seek retribution.
Id. The DHO found petitioner committed the prohibited act of threatening another with bodily
harm and sanctioned petitioner to forfeiture of 27 days of good conduct time and 30 days of
non-vested good conduct time, 30 days of disciplinary segregation, and loss of commissary
privileges for 365 days. Id.
2010 Disciplinary Proceeding - Case No. 3:13-CV-00005-MC
In December 2010, while housed at the Federal Correctional Institution in Butner, North
Carolina, petitioner received an incident report charging him with threatening another person
5 - OPINION AND ORDER
with bodily harm in violation of section 203. The reporting officer described the incident as
On 12/15/10, at 9:00 a.m., an SID investigation was completed which concluded
that on 12/7/10, 9:57 a.m., the U.S. Marshals Service out of the Southern District
of Indiana notified the LCSI SIS Officer that [petitioner] authored a threatening
letter addressed to the Senate Judiciary Committees, and Representative Mike
Pence from Bradley Blackington, Assistant U.S. Attorney Southern District of
In the contents of the letter, [petitioner] states, AI want to expose this criminal
matter! The Bureau of Prisons may not take action. I may be forced to protect
myself and take a life. I=m doing my best to avoid trouble. I will never let the
Federal Government violate my rights, and not take action.@ Based on the
statements, [petitioner] displays a threatening intent to cause deadly harm.
During the SIS investigation, [petitioner] was questioned about the letter.
[petitioner] admitted authoring the letter but denied it was threatening. When
questioned, who=s (sic) life he [petitioner] was planning on taking or harming?
[petitioner] simply stated, AI can=t predict the future.@ Based on the content of the
letter, [petitioner] expresses a threatening message that he will kill or cause
deadly harm while incarcerated if his judiciary request is not reviewed and during
questioning [petitioner] did not deny his intent of Ataking a life.@
Resp. Exh. 3 (ECF No. 12, 12-4), Decl. of Jeffrey Tilley, Att. 3.
At the disciplinary hearing, petitioner stated, AYeah, I wrote it. It=s a statement of
self-defense, not a threat of bodily harm.@ Id. at 2. The DHO did not find petitioner=s explanation
of self-defense credible, explaining his reasoning as follows:
Your assertion that you wrote a statement of self-defense was considered, but was
insufficient to excuse you from the offense. Without question, you communicated
an intent to inflict bodily harm on another person by writing that you may be
forced to protect yourself and take a life, which constituted a threat that could not
be overlooked or excused under any circumstance. You were even given the
opportunity to expound on your denial and explain your remarks if you believed
you they had been somehow misconstrued when Officer Grimaldo asked whose
life you were planning on taking or harming. Instead, you reiterated your warning
by saying that you couldn=t predict the future.
6 - OPINION AND ORDER
Id. The DHO found petitioner violated Section 203 and sanctioned petitioner to forfeiture of 27
days of good conduct time, 15 days of disciplinary segregation, loss of phone privileges for 18
months, and loss of one year of Trulincs (email) privileges. Id.
Scope of Remand
As noted, the Ninth Circuit remanded these cases to this court to determine one issue:
whether Section 203 satisfies the two-part test set forth in the Supreme Court=s opinion in
Procunier. Notwithstanding the limited nature of the Ninth Circuit=s remand, petitioner asks the
court to address two additional issues: (1) whether the BOP=s interpretation of Section 203
constituted a new substantive rule promulgated without the notice-and-comment or articulated
rationale required by Sections 533 and 706 of the Administrative Procedure Act; and (2) whether
the BOP=s regulation, as applied to petitioner=s statement, is void for vagueness because it does
not provide adequate notice of the prohibited conduct and invites arbitrary enforcement by BOP
The court declines to address these issues. Addressing the additional issues that petitioner
has identified would violate the rule of mandate. AThe rule of mandate requires a lower court to
act on the mandate of an appellate court, without variance or examination, only execution.@
United States v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006) (quoting In re Sanford
Fork & Tool Co., 160 U.S. 247, 255 (1895)). Thus, in the instant matter, the Court cannot
address the additional issues raised by petitioner if doing so would exceed the boundaries as
delineated by the mandate. Salazar v. Ryan, 194 F.Supp.3d 931 (9th Cir. 2016).
7 - OPINION AND ORDER
Procunier v. Martinez Analysis 2
In Procunier, the Supreme Court established that prison officials cannot censor outgoing
inmate mail merely because it contains exaggerated complaints, magnified grievances,
expressions of inflammatory political, racial, or religious views, unwelcome criticism of policies,
rules, or officials, or disrespectful comments. Williams v. Fox, 2017 WL 916432, at *4 n.1 (D.
Idaho Mar. 7, 2017). Thus, a regulation restricting prisoners= exercise of their First Amendment
right to send mail to non-prisoners must meet two criteria under Procunier: (1) the regulation
must Afurther an important or substantial governmental interest unrelated to the suppression of
expression;@ and (2) the limitation on First Amendment freedoms must be no greater than is
necessary or essential to the protection of the particular governmental interest involved.
Procunier, 416 U.S. at 413.
The first requirement under Procunier is that a regulation restricting prisoners= outgoing
mail must further an important or substantial government interest not related to the suppression
of expression. Procunier, 416 U.S. at 413. In Procunier, the Supreme Court identified three such
governmental interests that might justify restrictions on outgoing prisoner mail: security, order,
and rehabilitation. Id. at 413. A prisoner has an unrestricted right to send outgoing mail unless
the content of the mail falls into categories presenting a threat to one the three legitimate interests
Although the Ninth Circuit unequivocally instructed this Court to apply the two-part test set forth
in Procunier, Respondent urges the Court to ignore this directive and, instead, evaluate
petitioner’s claim under the test announced in Turner v. Safley, 482 U.S. 78 (1978). In light of the
Ninth Circuit’s unequivocal direction, however, and the fact that Ninth Circuit precedent
establishes that Procunier, not Turner, is controlling in cases involving First Amendment
challenges concerning outgoing correspondence sent by prisoners, Respondent’s argument is not
well taken. See Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (“Procunier is controlling
law in the Ninth Circuit and elsewhere as applied to claims involving outgoing prisoner mail”).
8 - OPINION AND ORDER
including, but not limited to, Aescape plans, plans related to ongoing criminal activity, and threats
of blackmail or extortion.@ Thornburgh v. Abbott, 490 U.S. 401, 412 (1989).
Respondent contends that Section 203 prohibiting prisoners from Athreatening another
with bodily harm@ furthers several governmental interests discussed in Procunier. First, the
prohibition against threats advances institutional security, because the issuance of threats creates
an atmosphere of hostility and disrespect, even if the threats are not intended to be acted upon.
Second, the prohibition shields outside recipients from communications by inmates that threaten
violence towards another person. Finally, by prohibiting threats, inmates are compelled to use
positive communication skills and encouraged to use mature, non-violent means to express their
concerns or grievances, which aids in rehabilitation. Moreover, Respondents note that prison
rules prohibiting threats have already been found valid under Procunier. See Barrett Belleque,
475 Fed.Appx. 653, 2012 WL 1145270, at *1-2 (9th Cir. 2012) (A[r]ules prohibiting inmates
from directing disrespectful comments toward staff indisputably further legitimate penological
interests in security, order[,] and rehabilitation@) (citation omitted). Accordingly, Section 203
satisfies the first part of Procunier.
Under the second prong of Procunier, the limitation must be no greater than necessary to
further the particular government interest involved. Procunier, 416 U.S. at 413. The challenged
regulation is valid only if it limits the inmate=s First Amendment freedoms no more Athan is
necessary or essential to the protection of the particular governmental interest involved.@ Id. This
does not mean that prison officials= decisions are subject to a strict Aleast restrictive means test.@
Abbott, 490 U.S. at 411. Instead, Procunier Arequire[s] no more than that a challenged regulation
be >generally necessary= to a legitimate governmental interest.@ Abbott, 490 U.S. at 411 (quoting
9 - OPINION AND ORDER
Martinez, 416 U.S. at 414). Procunier does, however, require Aa close fit between the challenged
regulation and the interest it purport[s] to serve.@ Id.
Notwithstanding the rigor of the Procunier test, courts must afford administrators some
latitude in anticipating the probable consequences of allowing certain speech in the prison
environment. Procunier, 416 U.S. at 412. Accordingly, prison officials are not required to show
with certainty that any particular correspondence would have adverse consequences. Id.
This Court agrees with the Magistrate Judge Abrams= conclusion that Section 203=s
prohibition against threatening another with bodily harm is necessary to ensure security and
order within the prison. Lane v. Tews, 2016 WL 8738265, at *9; Lane v. McGrew, 2016 WL
8737522, at *9. The regulation prohibits inmates only from threatening to commit acts of
violence against other people; it does not prohibit inmates from expressing in outgoing mail their
dissatisfaction with prison official or the prison system, including in ways that might strike
people as crude, vulgar, and offensive. 3 Given the regulation=s limited reach, it is sufficiently
tailored to accommodate petitioner=s freedom of expression, while allowing prison officials to
ensure prison security. Moreover, the regulation is sufficiently related to the legitimate goal of
rehabilitating prison inmates.
Petitioner has not established that the prison disciplinary proceedings against him violate
the First Amendment. Accordingly, petitioner is not entitled to habeas corpus relief under 28
U.S.C. ' 2241, and his Petitions must be denied.
Courts have consistently refused to uphold regulations restricting outgoing mail based on
concerns about prison security and order where the correspondence merely contains disparaging,
derogatory, or false remarks about a prison official. See Lane v. Tews, 2016 WL 8738265, at
*6-7 and Lane v. McGrew, 2016 WL 8737522, at *6-7 (collecting and discussing cases).
10 - OPINION AND ORDER
Petitioner=s Petitions for Writ of Habeas Corpus are DENIED, and these cases are
IT IS SO ORDERED.
DATED this 22nd day of September, 2017.
/s Michael J. McShane
United States District Judge
11 - OPINION AND ORDER
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