MICHAEL J. McSHANE, District Judge.
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.
Petitioner is currently an inmate in the custody of the Bureau of Prisons ("BOP") 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 ("FCI Sheridan").
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 ("DHO") finding that petitioner violated BOP Prohibited Act Code 203, 28 C.F.R. § 541.3 Table 1, 203 ("Section 203"), which prohibits prison inmates from threatening another with bodily harm. Specifically, petitioner alleged the BOP did not have "some 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.
The Ninth Circuit reasoned that before determining whether "some evidence" supported the DHO's findings that petitioner violated Section 203, the court needed to first resolve the definition of "threat" for the purposes of Section 203. Lane, 610 F. App'x at 629. The Ninth Circuit concluded that Section 203 "should be interpreted to prohibit all threatening statements, whether they amount to true threats or not." Id. This interpretation of the word "threat" 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 "to 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
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:
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.
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:
Resp. Exh. 2 (ECF No. 12), Decl. of Jerrie Comstock, Att. 4.
In a postscript to the second letter, petitioner added: "That 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.
At the disciplinary hearing, petitioner stated he was "not 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:
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.
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 with bodily harm in violation of section 203. The reporting officer described the incident as follows:
Resp. Exh. 3 (ECF No. 12, 12-4), Decl. of Jeffrey Tilley, Att. 3.
At the disciplinary hearing, petitioner stated, "Yeah, 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:
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 staff
The court declines to address these issues. Addressing the additional issues that petitioner has identified would violate the rule of mandate. "The 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).
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 "further 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 including, but not limited to, "escape 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 "threatening 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) ("Mules 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 "than 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 "least restrictive means test." Abbott, 490 U.S. at 411. Instead, Procunier "require[s] no more than that a challenged regulation be `generally necessary' to a legitimate governmental interest." Abbott, 490 U.S. at 411 (quoting Martinez, 416 U.S. at 414). Procunier does, however, require "a 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.
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.
Petitioner's Petitions for Writ of Habeas Corpus are DENIED, and these cases are DISMISSED.
IT IS SO ORDERED.
