Case: 1:14-cv-06361 Document #: 180 Filed: 09/09/19 Page 1 of 21 PageID #:2193

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREGORY KOGER,
Plaintiff,
v.
THOMAS J. DART and COOK
COUNTY, ILLINOIS,
Defendants.

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No. 14 C 6361
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Plaintiff’s Motion for Reconsideration
of Denial of Plaintiff’s Motion for Summary Judgment [Doc. No. 175]. For the
reasons that follow, Plaintiff’s motion for reconsideration is granted, and the Court’s
prior order [Doc. No. 171] is vacated. Plaintiff’s Motion for Summary Judgment
[Doc. No. 115] is denied, and Defendants’ Motion for Summary Judgment [Doc. No.
118] is granted.
DISCUSSION
I.

MOTION FOR RECONSIDERATION
Plaintiff has moved the Court to reconsider its June 26, 2019 order granting

Defendants’ motion for summary judgment and denying Plaintiff’s motion. See
Koger v. Dart, No. 14 C 6361, 2019 WL 2616992 (N.D. Ill. June 26, 2019). In that
opinion, the Court determined that because no damages claim survived after
appeal, summary judgment in Defendant’s favor was warranted. Specifically, the
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Court found that the lone property damage claim described by the Seventh Circuit
in Lyons v. Dart, 901 F.3d 828 (7th Cir. 2018), was a procedural due process claim
that was not pleaded and thus could not salvage Plaintiff’s suit. Plaintiff contends
that the Court committed a manifest error of law by not ruling on the merits of his
First Amendment claim after the matter was vacated and remanded in part by the
Seventh Circuit. 1
A party moving to alter or amend a judgment under Federal Rule of Civil
Procedure 59(e) “must clearly establish (1) that the court committed a manifest
error of law or fact, or (2) that newly discovered evidence precluded entry of
judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 955 (7th Cir. 2013)
(citation and internal quotations omitted). A district court’s ruling on a Rule 59(e)
motion is reviewed under an abuse of discretion standard, meaning that it will not
be disturbed unless “no reasonable person could agree with the decision to deny
relief.” Id. “A ‘manifest error’ is not demonstrated by the disappointment of the
losing party.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Rather,
“[i]t is the ‘wholesale disregard, misapplication, or failure to recognize controlling
precedent.’” Id.; see Burritt v. Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015). A Rule
59(e) motion “does not provide a vehicle for a party to undo its own procedural
failures, and it certainly does not allow a party to introduce new evidence or
advance arguments that could or should have been presented to the district court

The Court assumes familiarity with the somewhat convoluted procedural history of the
case.

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prior to the judgment.” Popovitis v. Circuit City Stores, 185 F.3d 726, 730 (7th Cir.
1999).
Plaintiff’s claim of property damage for the loss of his books was properly
treated as an unpleaded procedural due process claim. The complaint alleges his
First Amendment rights were violated by the policy forbidding him from having
more than three books in his cell, not by a policy related to the ultimate disposition
of the books after confiscation. According to Plaintiff, the constitutional violation
occurred upon removal of the books from his cell and existed whether the books
were destroyed, put into the jail library, or maintained and returned to him upon
release.
If the books were impermissibly destroyed in violation of Plaintiff’s
procedural due process rights, the relevant inquiry would have been whether CCJ
had a constitutionally adequate pre-deprivation process to deal with the confiscated
materials. See Lyons, 901 F.3d at 830 (“[G]iven the nature of the [three-book] policy
(as Koger describes it), some form of pre-deprivation process – such as asking a
prisoner to designate what should be done with the excess books – would have been
practical.”); see also Miller v. Downey, 915 F.3d 460, 464 (7th Cir. 2019) (noting that
a prisoner’s Fourteenth Amendment due process claim that a mailed newspaper
was unconstitutionally confiscated and destroyed is separate from his First
Amendment claim); Munson v. Gaetz, 673 F.3d 630, 637 (7th Cir. 2012) (explaining
that a prisoner’s claim that an alleged deprivation of a property interest in books is
properly brought pursuant to the Fourteenth Amendment); Michalowicz v. Vill. of

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Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008) (“To state a procedural due-process
claim, a plaintiff must allege (1) deprivation of a protected interest, and (2)
insufficient procedural protections surrounding that deprivation.”). However,
Plaintiff did not allege a procedural due process violation, and he never asked the
Court to reconsider its November 13, 2018 decision denying his motion to add such
a claim after the case was remanded.
Plaintiff also does not dispute that, having been released from the CCJ prior
to filing the lawsuit, he lacked standing to obtain First Amendment injunctive
relief. See Lyons, 901 F.3d at 830; UWM Student Ass’n v. Lovell, 888 F.3d 854, 860
(7th Cir. 2018). Thus, the thin reed on which Plaintiff’s entire lawsuit presently
rests is his prayer for nominal damages of $1.00 for the First Amendment violation.
Cf. UWM Student Ass’n, 888 F.3d at 859 & n.4 (explaining that where a plaintiff
seeks only injunctive relief, mootness/lack of standing disposes of the entire claim).
In its rulings on summary judgment, this Court concluded that Plaintiff’s
prayer for nominal damages claim fell along with his requests for injunctive and
declaratory relief. See Peterson v. Vill. of Downers Grove, 150 F. Supp. 3d 910, 926
(N.D. Ill. 2015); Freedom from Religion Fndn., Inc. v. City of Green Bay, 581 F.
Supp. 2d 1019, 1029-30 (E.D. Wisc. 2008) (holding that a claim of nominal damages
alone does not satisfy Article III’s case or controversy requirement and that “for
justiciability purposes, there is no reason to treat nominal and declaratory relief
differently”); see also UWM Student Ass’n, 888 F.3d at 862 (“To the extent plaintiffs
seek a declaratory judgment to secure emotional satisfaction from a declaration that

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they were wronged, that will not save their claims from being dismissed as moot.”).
The Court is thus unconvinced that Plaintiff has shown the summary judgment
order contained a manifest error. Nevertheless, in an effort to eliminate at least one
appealable issue and save some litigation costs in this five-year-old case alleging no
actual damages from the constitutional violation, 2 the Court will grant the motion
to reconsider in order to address the underlying merits of Plaintiff’s claim that he
suffered a constitutional deprivation from CCJ’s three-book policy.
II.

MOTIONS FOR SUMMARY JUDGMENT
A.

Facts 3

Plaintiff Gregory Koger was serving a 300-day sentence between July and
October of 2013, in the Cook County Jail (“CCJ”). (Pl.’s LR 56.1(a)(3) at ¶1.) During
this time, Koger asked friends to send him books and other reading materials. (Id.
at ¶4.) Jail records show that during his sentence, Koger received forty-two books
and one magazine. (Id. at ¶2.) While it is disputed whether Koger was allowed to
possess more than three books in his cell, it appears that for most of his detention,
Koger physically possessed more than three books in his cell at a time. (Id. at ¶3.)

As the late Judge Evans opined in another case where Plaintiff sought only nominal
damages: “So when all is said and done, the State of Illinois has spent a lot of money
defending this case for six years. Koger may end up with a dollar, and his lawyer . . . will
get a limited amount of attorney’s fees. A waste of time? Some may disagree, but I lean
towards saying ‘yes.’” Koger v. Bryan, 523 F.3d 789, 805-06 (7th Cir. 2008) (Evans, J.,
concurring).
2

Unless otherwise noted, the following material facts are undisputed or are deemed
admitted due to a party’s failure to comply with Local Rule 56.1, which this Court strictly
enforces. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001).
3

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On October 5, 2013, CCJ corrections officers searched Deck 3A of Division 10
jail, where Koger was housed. (Id. at ¶5.) Plaintiff claims that correctional officers
confiscated more than thirty books from him and left him with three books, not
bothering to ask which three books he wanted to keep, and that he never saw the
confiscated books again. (Id. ¶6.) Other inmates who were searched at that time
similarly stated that correctional officers confiscated books and magazines from
them and all other inmates in that housing unit, leaving each inmate with no more
than three books. 4 (Id. at ¶7.)
The policy used to confiscate the excess books found during the search is a
formal written policy found in the Inmate Information Handbook (the “Handbook”)
titled “Items Allowed in Your Cell.” (Id. at ¶¶15, 16.) The policy limits the amounts
of property an inmate may possess in two ways. (Defs.’ LR 56.1(a)(3) at ¶2.) First,
inmates may possess only certain amounts of individual, numerically-limited items.
(Id.) For example, inmates may only possess one comb, one bar of soap, four pairs of
socks, etc. (Id.) Books and reading materials are also limited by this numerical
policy. (Id. at ¶6.) Specifically, inmates may only possess: “THREE (3) TOTALMAGAZINES OR BOOKS PER INMATE (religious material excluded).” (Pl.’s LR

Defendants deny that Koger had thirty books taken and that he was not permitted to
select which books he wanted to keep. (Defs.’ LR 56.1(b)(3)(B) at ¶6.) One of Defendants’
witnesses, Sergeant Peter Giunta, the officer in charge of the search team, stated that
although he had no personal recollection of the particular search, he did not recall any
books or magazines being taken. He claimed that if anything had been confiscated, he
would have documented it. (Pl.’s LR 56.1(a)(3) at ¶8.) Defendants also offer as evidence the
October 5, 2013 Search Report, which does not indicate any books were taken. (Id. at ¶6.)
For purposes of this motion, however, Plaintiff’s assertion that as many as thirty books
were confiscated is taken as true.

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56.1(a)(3) at ¶15.) The policy allows CCJ inmates to keep unlimited legal papers,
one Bible or Koran, one study book, and three magazines or books, not including
religious material. (Defs.’ LR 56.1(b)(3)(B) at ¶15; see also Defs.’ LR 56.1(a)(3) at
¶29.)
The second limitation imposed on inmates and their property is an overall
volume limit on all personal items. (Defs.’ LR 56.1(a)(3) at ¶2.) Excluding shoes, all
other personal property, included numerically-limited items, must fit inside a
“property bag,” which is about two cubic feet in size. (Id. at ¶¶2, 20; see also Pl.’s LR
56.1(a)(3) at ¶¶ at 27-29.) If an inmate is in possession of materials in violation of
either the numerical limit or volume limit, it is undisputed that the inmate would
be considered to possess “contraband.” (Pl.’s LR 56.1(a)(3) at ¶17.) The Handbook
defines the possession of contraband as an offense that can result in discipline
and/or criminal charges. (Id. at ¶18.)
There is no temporal limitation on keeping books and magazines in one’s cell,
and detainees are permitted to discard books and magazines if they have too many,
share books and magazines with other detainees, check out up to two books from
the library, and receive new books and magazines through the mail or from other
sources. (Defs.’ LR 56.1(a)(3) at ¶7.)
Defendants’ claimed justifications for the three-book policy are: (1) books and
magazines can be used to set fires; (2) books can be used as weapons or as
makeshift body armor; (3) books can be used to hide weapons or other contraband;
(4) books can be used to send coded messages between inmates; (5) books can be

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used to jam cell doors or locks; (6) books can be used to cover windows or obstruct
officers’ view into cells; (7) inmates may have disputes over books; (8) pages from
books and magazines can be used to clog toilets; (9) pages from books and
magazines can be used to clog or cover ventilation systems; (10) limiting books
limits clutter and tripping hazards for detainees and jail personnel; and (11)
limiting the number of books and magazines limits the amount of overall property
jail staff must search for contraband. (Pl.’s LR 56.1(a)(3) at ¶24.)
B.

Legal Standard

Summary judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The Court
must draw all reasonable inferences in favor of the nonmovant. Bennington v.
Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001).
However, once the movant has carried its burden under Rule 56(c), “its
opponent must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The party opposing summary judgment must offer admissible
evidence in support of his version of events, and hearsay evidence does not create a
genuine issue of material fact. McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 484
(7th Cir. 1996); see Larimer v. Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir.
1998) (“‘If the non-moving party bears the burden of proof on an issue, . . . that

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party may not rest on the pleadings and must instead show that there is a genuine
issue of material fact.’”) (citation omitted). “The mere existence of an alleged factual
dispute is not sufficient to defeat a summary judgment motion. . . . The nonmovant
will successfully oppose summary judgment only when it presents ‘definite,
competent evidence to rebut the motion.’” Vukadinovich v. Bd. of Sch. Trs. of N.
Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002) (citations omitted).
“In considering a motion for summary judgment, this court is not required to
scour the record in search of evidence to defeat the motion; the nonmoving party
must identify with reasonable particularity the evidence upon which the party
relies.” Pleniceanu v. Brown Printing Co., No. 05 C 5675, 2007 WL 781726, at *7
(N.D. Ill. Mar. 12, 2007) (citing Johnson v. Cambridge Indus., Inc., 325 F.3d 892,
898 (7th Cir. 2003)); see also Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th
Cir. 2005) (“We will not scour a record to locate evidence supporting a party's legal
argument.”); Knapp v. County of Jefferson, No. 06 CV 4028, 2007 WL 496396, at *1
(S.D. Ill. Feb. 13, 2007) (denying summary judgment where defendant’s brief
“contains no facts section and . . . fail[s] to point to the relevant portions of the
record to establish the facts of this case”).
In addition, “[c]onclusory allegations and self-serving affidavits, without
support in the record, do not create a triable issue of fact.” Hall v. Bodine Elec. Co.,
276 F.3d 345, 354 (7th Cir. 2002). Similarly, affidavits or depositions based on
speculation, rumor, or conjecture are not sufficient to defeat a properly supported
motion for summary judgment. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d

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332, 337 (7th Cir. 1991). Finally, the Court is “‘not required to draw every
conceivable inference from the record,”’ McCoy v. Harrison, 341 F.3d 600, 604 (7th
Cir. 2003) (citation omitted), nor must it “scour the record in search of evidence to
defeat a motion for summary judgment.” Hall v. Bodine Elec. Co., 276 F.3d 345, 354
n.4 (7th Cir. 2002) (citation and internal quotation omitted).
C.

Analysis

The only issue to be decided in the parties’ cross-motions for summary
judgment is whether Plaintiff’s First Amendment rights were violated by
Defendants’ enforcement of the three-book policy. Plaintiff does not allege any
content-based restrictions, nor does he complain that his Fourteenth Amendment
rights were violated by faulty jail procedures for determining which books to remove
from his cell and/or destroying his property. This Court is not charged with
determining the constitutionality of the policy in the abstract or as applied to
hypothetical future inmates at CCJ. As Judge Easterbrook stated, the case was
remanded to determine what CCJ’s book policy was, “how (if at all) it affected
Koger, and if necessary consider the validity of that policy and whether Koger is
entitled to damages.” Lyons, 901 F.3d at 830.
The Seventh Circuit recently cautioned that “when faced with a First
Amendment challenge . . . brought by an inmate no longer housed at the facility in
question,” the trial court should “resolv[e] the case on narrower grounds, focusing
precisely on the case and controversy brought by [the plaintiff],” rather than
making unnecessary constitutional decisions. See Miller, 915 F.3d at 464

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(“[P]rinciples of ‘judicial restraint’ counsel in favor of resolving ‘as-applied
challenges before facial ones in an effort to decide constitutional attacks on the
narrowest possible grounds and to avoid reaching unnecessary constitutional
issues.’”) (quoting Hegwood v. City of Eau Claire, 676 F.3d 600, 603 (7th Cir. 2012)).
With that limited scope of review in mind, the Court turns to the question of
whether Plaintiff’s First Amendment rights were violated by CCJ’s three-book
policy when it resulted in the confiscation of thirty books from Plaintiff’s cell.
“Freedom of speech is not merely freedom to speak; it is also freedom to
read.” King v. Fed. Bureau of Prisons, 415 F.3d 634, 638 (7th Cir. 2005); see Martin
v. City of Struthers, 319 U.S. 141, 143 (1943) (holding that the right of freedom of
speech “necessarily protects the right to receive” literature). “[I]mprisonment does
not automatically deprive a prisoner of certain important constitutional protections,
including those of the First Amendment.” Beard v. Banks, 548 U.S. 521, 528 (2006)
(citing Turner v. Safley, 482 U.S. 78, 93 (1987)). Nevertheless, prisons are permitted
to impose First Amendment restrictions “if they are reasonably related to legitimate
penological interests . . . and are not an exaggerated response to such objectives.”
Id. (internal quotations omitted).
The Supreme Court in Turner offered four factors a court must consider when
determining whether a prison regulation is reasonable:
First, is there a valid, rational connection between the prison regulation
and the legitimate governmental interest put forward to justify it?
Second, are there alternative means of exercising the right that remain
open to prison inmates? Third, what impact will accommodation of the
asserted constitutional right have on guards and other inmates, and on

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the allocation of prison resources generally? And fourth, are ready
alternatives for furthering the governmental interest available?
Turner, 482 U.S. at 93; see also Beard, 548 U.S. at 533 (“The real task . . . is not
balancing these factors, but rather determining whether the [Defendant] shows
more than simply a logical relation, that is, whether he shows a reasonable
relation.”) (emphasis in original).
Although the burden of persuasion always remains on the prisoner
challenging a regulation, “defendants must still articulate their legitimate
governmental interest in the regulation.” Van den Bosch v. Raemisch, 658 F.3d 778,
786 (7th Cir. 2011); see Beard, 548 U.S. at 536 (“Turner requires prison authorities
to show more than a formalistic logical connection between a regulation and a
penological objective. A prisoner may be able to marshal substantial evidence that,
given the importance of the interest, the Policy is not a reasonable one.”).
Nevertheless, “[c]ourts are to 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.’” Van den Bosch, 658 F.3d at 786 (quoting
Overton v. Bazzetta, 539 U.S. 126, 132 (2003)).
1.

Legitimate Governmental Interest

“[A]nalysis under this factor requires consideration of ‘whether the
governmental objective underlying the policy is (1) legitimate, (2) neutral, and (3)
whether the policy is rationally related to that objective.’” Gray v. Cannon, 974 F.
Supp. 2d 1150, 1159 (N.D. Ill. 2013) (citation omitted). Plaintiff places Defendant’s
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various rationales for the three-book policy into three categories: (1) safety and
security (using books to start fires, conceal contraband, send messages, jam cell
doors, or as weapons or body armor; theft and disputes over books); (2) sanitation
(using books to clog toilets or block vents; cluttering cells); and (3) administrative
convenience (limiting the amount of property that must be searched), and then
argues that none of these reasons is rationally related to a legitimate penological
interest.
a.

Presence of other materials that pose identical risks

According to Plaintiff, the availability of other paper materials in cells, such
as paper bags, toilet paper, legal papers, religious texts, writing pads, envelopes,
greeting cards, and playing cards, undermines the validity of Defendant’s claim that
the paper composition of books poses a safety or sanitation threat. Plaintiff
maintains that a numerical limit on books is not rationally related to a penological
interest, given that inmates are also limited to keeping only that which will fit into
a property bag. Defendant counters that the mere fact that prisoners have access to
some materials with the potential for misuse does not mean they have to allow
inmates access to even more such materials.
The Court agrees that the mere availability of other materials made of paper
does not demonstrate the three-book policy is unjustified. Plaintiff has not
established that once a jail allows certain items that may pose risks into cells, the
facility has waived the right to restrict other such items in any way.

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The nature of books implicates a number of different penological concerns
across different categories. Thus, Plaintiff’s efforts to equate books with other items
made of paper are misplaced. Unlike writing paper and playing cards, books can be
hollowed out and used to secrete contraband, and because they are bound, they can
be fashioned into stronger weapons or body armor than can other paper products.
Plaintiff has failed to show that these are not legitimate institutional problems. See
Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (holding that the legitimacy of
regulations relating to prison security is “beyond question,” because security is
“‘central to all other corrections goals’”) (quoting Pell v. Procunier, 417 U.S. 817, 823
(1974)).
Moreover, if CCJ limited possession of the other paper materials described by
Plaintiff – such as articles needed for hygiene and comfort, legal and religious texts,
and paper necessary for communication – that would implicate greater
constitutional concerns. Defendant’s decision to instead limit the amount of paper in
cells by placing a numerical restriction on books read for pleasure is therefore not
unreasonable. See Munson, 673 F.3d at 637 (“Allowing reduced access does not
mean that barring unfettered access is illegitimate, even if restricted access creates
an appearance of inconsistency.”). “[T]he deference we afford prisons permits such
seeming inconsistencies.” Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009)
(upholding a policy of censoring magazine pages about prison riots while allowing
access to writings and television shows describing the same topic).

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b.

Other comparable institutions impose no such restriction

Plaintiff cites to policies of several institutions under the umbrella of the
Illinois Department of Corrections as well as those administered by the Federal
Bureau of Prisons that do not impose numerical limits on books. He notes that
Defendant’s expert witnesses acknowledged that the three-book plus property box
limit policy is an outlier, and that federal facilities generally impose either a
numerical limit or a total volume limit, but not both. Moreover, the DOJ monitor
overseeing health and safety matter in CCJ from 2010 to 2017 endorsed the use of
the property bag as a means to control the volume of personal property in cells and
did not recommend imposing a numerical restriction on books. However, the fact
that other institutions have chosen to address these concerns in other ways does not
by itself show that the three-book policy is unreasonable.
c.

Lax enforcement of the policy

CCJ administrators have acknowledged that enforcement of the three-book
policy is lax, and the decision whether to strictly enforce it is an issue left to the
discretion of jail personnel, including division superintendents and shift
supervisors. Plaintiff contends that if the stated rationales for the three-book policy
were true, enforcement would be more stringent.
Defendant responds that while CCJ has been subject to federal monitoring,
the jail has been more strictly enforcing the limits in the Inmate Information
Handbook. Any lax enforcement has operated as a behavioral management tool, i.e.,
a privilege given as a reward for following rules. Plaintiff acknowledges that CCJ’s

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lax enforcement policy is driven in part as a means to “‘placate’ the most ‘dangerous’
inmates and to focus on ‘more important things, more risks as – security and safety
risks.’” (Pl.’s Mot. at 6). Plaintiff contends, however, that this rationale undermines
the three-book policy’s logic, because if the limit is truly intended to reduce hazards
and disruptions, it is illogical to relax the rule for high-risk inmates.
Plaintiff’s suggestion that selective enforcement of the rule negates any
penological interest is unpersuasive. As Defendant analogizes, selective
enforcement of speed limits does not mean there is no rational public interest in
reducing highway speed. Furthermore, “providing increased incentives for better
prison behavior” is by itself a valid justification for allowing prisoners to retain
varying amounts of reading materials. See Beard, 548 U.S. at 530.
d.

Policy won’t achieve stated objectives

Plaintiff argues that Defendant has failed to offer sufficient evidence to
support the notion that security and sanitation concerns justify the three-book
policy, or that the policy has made CCJ more secure and less prone to fires.
According to Plaintiff, CCJ’s records demonstrate that reading materials have
rarely been used to fuel fires and have not caused any serious problems. The Court,
however, cannot conclude that the absence of safety problems while the policy is in
effect demonstrates that the policy is unnecessary, even though the policy may have
been inconsistently enforced.

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e.

Based only on abstract logic

Plaintiff believes that Defendant’s policy is based solely on the theory that
more paper equals more problems, rather than any concrete facts. He claims that
there is no factual basis to believe that books cause any hazards other than some
“squabbling” among inmates. (Pl.’s Mot. at 24.) However, the issue is not whether
the perceived threats actually resulted in harm, but instead “whether plaintiff has
shown that it was not reasonable for defendants to perceive the [banned
publication] as a potential threat to rehabilitation and security.” Van den Bosch,
658 F.3d at 788. Plaintiff has not done so here.
2.

Alternative Means of Exercising the Right

“Where other avenues remain available for the exercise of the asserted right,
courts should be particularly conscious of the measure of judicial deference owed to
corrections officials in gauging the validity of the regulation.” Turner, 482 U.S. at 90
(quotations, alterations, and citations omitted). Plaintiff contends that the threebook policy does not allow adequate alternative means for exercising his First
Amendment right to read, as it severely limits “inmates’ ability to freely read nonreligious materials,” (Pl.’s Mot. at 24), due to the number of hours they are
restricted to their cells. For example, Plaintiff was in CCJ for ninety days and in
that time, “he read forty-six books, six to eight issues of The New Yorker magazine,
and a few comic books.” (Pl.’s Mot. at 24.) Plaintiff also complains that the policy
made it a practical impossibility for him to keep a book containing an inscription
from a friend, because that book was confiscated.

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Defendant maintains that inmates’ First Amendment rights are adequately
protected because the jail’s policy allows them access to a wide variety of reading
materials, including one study book and an unlimited number of legal and religious
materials, as well as the ability to rotate out the three other books every day.
This factor strongly weighs against Plaintiff. There is no suggestion that the
existence of the policy limited Plaintiff’s rights in any demonstrable way. By
Plaintiff’s own account, he was allowed to read an average of more than two books
or magazines every single day he was incarcerated at CCJ, and he does not contend
the content of the books was unconstitutionally restricted. The Court therefore
cannot conclude on this record that Plaintiff’s First Amendment right to read was
thwarted. See Thornburgh, 490 U.S. at 417-18 (“‘[T]he right’ in question must be
viewed sensibly and expansively. . . . As the regulations at issue in the present case
permit a broad range of publications to be sent, received, and read, this factor is
clearly satisfied.”); see also Tarpley v. Allen County, 312 F.3d 895, 899 (7th Cir.
2002) (upholding jail regulation forbidding inmates from retaining any personally
owned reading materials); cf. King, 415 F.3d at 638 (“Forbid a person to read and
you shut him out of the marketplace of ideas and opinions that it is the purpose of
the free-speech clause to protect.”).
3.

Existence of Alternatives/Impact of Accommodation on
Others

“[T]he absence of ready alternatives is evidence of the reasonableness of a
prison regulation. . . . By the same token, the existence of obvious, easy alternatives
may be evidence that the regulation is not reasonable, but is an ‘exaggerated
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response’ to prison concerns. . . . [I]f an inmate claimant can point to an alternative
that fully accommodates the prisoner’s rights at de minimis cost to valid penological
interests, a court may consider that as evidence that the regulation does not satisfy
the reasonable relationship standard.” Turner, 482 U.S. at 90 (citation omitted).
Plaintiff emphasizes that he is not claiming a right to an unlimited number of
books, but rather that he should have been allowed to have as many books or
magazines as would fit into his property bag along with any other possessions
required to be stored there. Plaintiff asserts that the volume restriction is an
obvious, easy alternative to the numerical restriction on books which would have
been simple for jail personnel to monitor.
Defendant counters that removing the numerical restriction would add a
significant burden on CCJ staff because it would increase security and safety risks.
The physical amount of property is not the jail administrators’ only concern, and
thus it is not enough for a guard to visually determine that an inmate’s property is
all contained within the bag. The possibility of contraband and passed messages
means that books must be individually searched page by page, a process that is
more time-consuming than inspecting other forms of property. A numerical
restriction lessens the burden of conducting this type of inspection.
In addition, Defendant maintains that Plaintiff’s suggested alternative of a
volume restriction is actually CCJ’s policy as practiced, since inmates are allowed
more than three total books as a behavior management tool. That behavior

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incentive would be removed if as a matter of course inmates were allowed an
unlimited number of books as long as they fit into the property bag.
Defendant has sufficiently shown that it has reasonably rejected the
alternate of a volume restriction for reasons of safety and administrate convenience.
“[W]hen prison officials are able to demonstrate that they have rejected a less
restrictive alternative because of reasonably founded fears that it will lead to
greater harm, they succeed in demonstrating that the alternative they in fact
selected was not an ‘exaggerated response’ under Turner.” Thornburgh, 490 U.S. at
419 (“[T]he administrative inconvenience of this proposed alternative is also a factor
to be considered . . .”).
The Court notes Plaintiff’s implicit admission that a volume-based policy
would be constitutional. However, there is no argument or evidence in the record
establishing that the thirty-plus books Plaintiff claims were unlawfully seized
would have fit into his property bag. Thus, this alternative would not have
addressed his claims that his books were unconstitutionally confiscated.
Because Plaintiff has failed to show that the three-book policy is not
reasonably related to CCJ’s legitimate penological interests, Defendants’ motion for
summary judgment must be granted, and Plaintiff’s motion for summary judgment
is denied.

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CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Reconsideration of Denial of
Plaintiff’s Motion for Summary Judgment [Doc. No. 175] is granted, and the Court’s
prior order [Doc. No. 171] is vacated. Plaintiff’s Motion for Summary Judgment
[Doc. No. 115] is denied, and Defendants’ Motion for Summary Judgment [Doc. No.
118] is granted.
SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

September 9, 2019

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