Kenneth Toliver VS Warden Jeffery Travis, Chaplain Wayne Cook, John Doe Secretary, Department of Corrections and John Does, Regional Wardens
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0279 KENNETH TOLIVER VERSUS WARDEN JEFFERY TRAVIS CHAPLAIN WAYNE COOK SECRETARY OF DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS JOHN DOES REGIONAL WARDENS ET AL Judgment Rendered September 10 2010 APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 563 DIVISION D 930 THE HONORABLE JANICE CLARK JUDGE Kenneth Toliver Angie Louisiana Debra A Rutledge Baton Rouge Louisiana PlaintiffAppel lee Kenneth Tolliver in Proper Person Attorney for DefendantAppellant Department of Public Safety and John Corrections Does Regional Wardens et al BEFORE WHIPPLE MCDONALD AND McCLENDON JJ McDONALD J This is an appeal by the Department of Corrections Department of a judgment of the Nineteenth Judicial District Court reversing a decision of the Department that certain religious publications could not be received by the petitioner For the following reasons the district court judgment is reversed The petitioner in this matter Kenneth Toliver is an inmate housed at Rayburn Correction Center RCC In October 2007 Toliver filed a grievance Administrative Remedy Procedure No RCC2007480 complaining that publications addressed to him at RCC from a religious organization Yahweh Ben Yahweh had been improperly rejected by prison officials Information contained in the publications was determined to be racist in nature and detrimental to security a violation of Department Regulation C02 009 and Toliver was not allowed to receive them On November 8 2007 Toliver appealed the First Step decision of the Administrative Remedy Procedure denying relief to the Secretary of the Department On January 2 2008 the Secretary issued the Second Step Response again denying Toliver relief Toliver then sought judicial review of the s Department action in the Nineteenth Judicial District Court In accordance with legislatively established procedure LSAR 15 S 1171 et seq the matter was referred to a commissioner for screening In a Preliminary Report it was recommended that the matter proceed to review of Administrative Decision RCC2007 480 and that the petition be served on the Department in accordance with law The Commissioner Preliminary Report was adopted and s the matter was ordered to proceed as an appeal of the Administrative Record of RCC2007480 The judgment so ordering also dismissed a claim for damages that had been improperly cumulated with the record before the court 2 In June 2008 the Commissioner issued a Stay Order and Remand to the s Warden level to supplement the record with a copy of Regulation C02009 and additionally to supplement the record with specific information in the materials or about the group that would promote racial unrest or to be a danger to the security of the prison Additional information was filed in compliance with this remand Also the Department filed a Motion for Leave to File Documents Under Seal for documents submitted that were supplements to the administrative remedy under review but that contained information that the Department asserted is denied to all inmates The motion was granted and this record contains those documents under seal After review of the matter the Commissioner issued a recommendation that the Department decision be affirmed as neither arbitrary manifestly erroneous s or in violation of the petitioner rights and the appeal be dismissed with prejudice s A Traversal of the Commissioner Recommendation was filed by Toliver After s de novo review of the record and the traversal filed by Toliver and for the reasons stated in Toliver traversal the Department decision was found to be in violation s s of the petitioner First Amendment rights Judgment reversing the Department s s decision was rendered and signed on December 29 2009 This appeal timely followed The Department asserts that it is an error of law for the district court to find that the Department violated Toliver First Amendment rights by refusing to allow s him to receive Yahweh publications Also the Department asserts that the district court erred in not applying the test outlined in Turner v Safley 482 U S 78 107 S 2254 96 L 64 1987 Ct 2d Ed The recognition and protection of prisoners constitutional rights is well established in law See Cruz v Beto 405 U 319 92 S 1079 31 L 263 S Ct 2d Ed Per Curiam However it is equally well established that when a prison regulation 3 impinges on inmates constitutional rights the regulation is valid if it is reasonably related to legitimate penological interests Turner v Safley 482 U at 89 As S noted by the Turner court courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform Turner v Safeey 482 U at S 84 citing Procunier v Martinez 416 U 396 405 94 S 1800 1807 40 S Ct 2d Ed L 224 1974 The Turner court reiterated the concerns addressed in Martinez he T problems of prisons in America are complex and intractable and more to the point they are not readily susceptible of resolution by decree Running a prison is an inordinately difficult undertaking that requires expertise planning and the commitment of resources all of which are peculiarly within the province of the legislative and Prison administration is executive branches of government moreover a task that has been committed to the responsibility of those branches and separation of powers concerns counsel a policy of judicial restraint Turner v Safely 482 U at 8485 Citations Omitted S The Turner court went on to formulate a standard of review for prisoners constitutional claims that is responsive both to the policy of judicial restraint regarding prisoner complaints and to the need to protect constitutional rights Turner v Safely 482 U at 85 citing Procunier v Martinez 416 U at 406 S S More recently in Johnson v California 543 U 499 509515 125 S 1141 S Ct 1148 1152 160 L 949 2005 the Supreme Court affirmed that the Turner 2d Ed standard is appropriate for determining the question of infringement of prisoners fundamental rights while holding that a strict scrutiny standard of review was applicable to a prisoner equal protection challenge of a state department of s corrections policy of initially housing prisoners double celled with inmates of the same race In reviewing the law in this matter we note that the federal Fifth Circuit Court of Appeal addressed the identical issue in Chriceol v Phillips 169 F 313 3d 5 Cir 1999 Applying the Turner factors that had been discussed and 11 elaborated in O v Estate of Shabazz 482 U 342 107 S 2400 96 Lone S Ct 2d Ed L 282 1987 the Chriceol court found that the prison policy of s withholding mail that advocates racial religious or national hatred that creates a serious danger of violence is valid Chriceol 169 F at 316317 The O 3d Lone court specifically addressed the issue in the context of prison regulations that impinge on prisoners First Amendment rights Considering the court holding in s Lone O we find that it was legal error for the district court to fail to recognize that when a prison regulation impinges on prisoners First Amendment rights the regulation is valid if it is reasonably related to legitimate penological interests See O v Estate ofShabazz 482 U at 353 Lone S After careful de novo review of the record we find that the Commissioner s report clearly set forth the law and accurately represented the facts in this case Specifically we note the following statement in the report that addresses Department Regulations No C02 009 Procedures For Publications Section C Item 1 f The regulation at issue in the matter allows for refusal of certain printed material that includes racially inflammatory material or material that could cause a threat to the inmate population staff and security of the facility Clearly the goal in this case is a constitutionally valid one security and racial harmony Additionally a publication that contains advice or assertions that would threaten racial harmony or more importantly incite one race against another within the prison should be considered as racially inflammatory Thus if the Department determination that the s language in the publications meets that standard is not arbitrary or erroneous then it must be affirmed We note that the material received in the mail room from the Yahweh Ben Yahweh group was determined by at least two prison chaplains and by consensus of the Regional Wardens to be racist in nature and to pose a security threat to the institution We have reviewed the materials submitted under seal and agree with the determination made by the prison personnel Further decisions of this nature 5 made by prison officials should be given deference by the courts in light of the law as cited above and in recognition of the nature of their duties Accordingly we reverse the judgment of the district court and render judgment in favor of the Department of Corrections dismissing Toliver appeal s with prejudice at his cost REVERSED AND RENDERED C7
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