Daniel K. Lashbrook v. William Hyatte

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 7, 2019 *
Decided January 9, 2019
Before
DIANE P. WOOD, Chief Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-1903
DANIEL K. LASHBROOK,
Plaintiff-Appellant,
v.
WILLIAM HYATTE,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:17-cv-276-RLM-MGG
Robert L. Miller,
Judge.
O R D E R
Daniel Lashbrook, an Indiana inmate, alleged that the warden violated the First
Amendment by restricting his access to unmonitored telephone calls with his attorney.
The district court dismissed the complaint for failure to state a claim, concluding that
the prison policy was reasonably related to legitimate penological interests. Because we
conclude that this dismissal was premature, we vacate the judgment and remand for
further proceedings.
* We agreed to decide the case without oral argument because the appellate briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 18-1903 Page 2
We relay the facts as alleged in the complaint, giving Lashbrook the benefit of all
reasonable inferences. See Loja v. Main St. Acquisition Corp., 906 F.3d 680, 682 (7th Cir.
2018). Miami Correctional Facility (in Miami County, Indiana) used to maintain a policy
that allowed inmates to preschedule unmonitored telephone calls with their attorneys.
Inmates were escorted at a prearranged time to a private room for their call while
prison staff remained outside. That practice changed in December 2015. Citing
“resourcing concerns” (a phrase Lashbrook attributes to the prison), the prison
disallowed prescheduled attorney calls and eliminated the private rooms. The new
practice directs inmates to use a bank of telephones on the dormitory floor in common
spaces open to both inmates and correctional staff who can overhear the calls.
Moreover, because the new system prohibits prescheduled calls, inmates often have to
wait for a phone to become available, making it difficult to set a time to talk with
lawyers.
Lashbrook filed this action under 42 U.S.C. § 1983 against the warden, asserting
that the prison’s telephone practice unreasonably restricts his First Amendment right to
“freely and efficiently communicate” with his attorney. The warden promptly moved to
dismiss the complaint. Relying on the Supreme Court’s holding in Turner v. Safley,
482 U.S. 78, 89 (1987), he argued that the judge should defer to the prison because the
policy was reasonably related to a legitimate penological interest. Lashbrook countered
that based on Procunier v. Martinez, 416 U.S. 396, 413 (1974), the prison’s telephone
policy is unconstitutional because it does not further an important governmental
interest unrelated to the suppression of speech and the infringement of his right to
freedom of speech is greater than necessary to protect any governmental interest.
The judge dismissed Lashbrook’s claim with prejudice. In an oral ruling, the
judge determined that Martinez is inapplicable because it addresses only
“correspondence going out of the prison” and Lashbrook was contesting a policy that
regulates telephone conversations, which are “inherently two-way communications”
that need to be governed by different standards. Applying Turner, the judge ruled that
conserving prison resources is a legitimate governmental objective and Lashbrook had
alternative means of communicating privately with his attorney—through mail and in-
person visits. The judge further concluded that accommodating Lashbrook’s request for
private phone calls would “limit the protection that correction officers can provide to
the other inmates” and therefore does not present a “ready alternative” that the prison
could implement.

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No. 18-1903 Page 3
The First Amendment protects a prisoner’s right to consult with an attorney,
and an important part of the right to legal advice is confidentiality. Denius v. Dunlap,
209 F.3d 944, 954 (7th Cir. 2000) (citing Swidler & Berlin v. United States, 524 U.S. 399, 403
(1998)). But the First Amendment does not mandate “unrestricted and unlimited private
contacts” with counsel, and prisons may restrict prisoner contact with counsel so long
as the restrictions reasonably relate to legitimate penological interests. See Turner, 482
U.S. at 89; Massey v. Wheeler, 221 F.3d 1030, 1036 (7th Cir. 2000). No additional
constitutional protection is afforded prisoners’ communication involving legal advice
because that would require a valuation of the communication’s content. Shaw v.
Murphy, 532 U.S. 223, 230 (2001).
On appeal Lashbrook challenges the dismissal of his complaint on grounds that
the judge wrongly applied Turner rather than Martinez to evaluate his First Amendment
claim. (Lashbrook now proceeds pro se, his lawyer having withdrawn after filing the
appellate brief.) He contends that Turner is inapplicable because it concerns regulated
activity (inmate-to-inmate correspondence) that threatens prison security and order,
and no such security interest is implicated here—a case involving only telephone calls
with an attorney. Because this case more closely resembles Martinez in which the
regulated activity (outgoing personal correspondence from prisoners) did not pose a
threat to prison order, Lashbrook maintains that Martinez supplies the more appropriate
standard.
This contention reads Turner too narrowly. Turner is not limited to regulations
implicating prison security: the prison might have a legitimate penological interest in
restricting activity that affects prison security, but a security concern is never required.
See Jackson v. Frank, 509 F.3d 389, 391 (7th Cir. 2007) (concluding that a prison’s
economic interest in saving staff resources is legitimate under Turner). Turner holds that
prisoners’ constitutional claims must be reviewed under a “unitary, deferential
standard,” Shaw, 532 U.S. at 228–29, under which four factors are relevant: (1) whether
the restriction is rationally related to a legitimate governmental interest; (2) whether
alternative means are open to inmates to exercise the asserted right; (3) what impact an
accommodation of the right would have on guards, inmates, and prison resources; and
(4) whether there are “ready alternatives” to the regulation. Turner, 482 U.S. at 89–91.
The first of these four factors (the rational relation to a legitimate interest) is the
principal factor. See Riker v. Lemmon, 798 F.3d 546, 553 (7th Cir. 2015). The Supreme
Court has since clarified that Martinez should be “limited to regulations concerning
outgoing correspondence.” Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); see also Koutnik
v. Brown, 456 F.3d 777, 784 (7th Cir. 2006) (recognizing that Martinez was overturned in

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No. 18-1903 Page 4
part but remains the standard for cases involving outgoing mail); Massey, 221 F.3d
at 1037 (applying Turner’s reasonableness inquiry to restrictions on a prisoner’s private
phone contacts with counsel).
Recognizing that Turner provides the appropriate analytical framework here, we
turn to the judge’s application of the Turner factors—and specifically the judge’s
conclusion that the prison’s telephone policy is reasonably related to a legitimate
penological interest. At the outset we note that the application of the Turner factors may
require defendants to produce evidence that justifies the policies. See Ortiz v. Downey,
561 F.3d 664, 669 (7th Cir. 2009); see also Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011)
(concluding that it was premature at the pleading stage to assess whether the prison’s
budgetary reasons justified the restrictions on religious practice). Based only on
Lashbrook’s complaint, the judge assumed that the prison had a legitimate penological
reason to restrict his confidential calls with his attorney and that he had alternative
means to communicate with counsel. But at this prediscovery stage, there is no
evidentiary record from which the judge could evaluate the prison’s resource concerns,
the impact on prison staff of Lashbrook’s request for confidential attorney–client calls,
or the viability of other means of communicating with his attorney. See Ortiz, 561 F.3d at
669.
We are not persuaded by the warden’s assertion that Lashbrook’s complaint
alone is a sufficient basis on which to resolve the Turner inquiry. The cases that he relies
on were all decided at the summary-judgment stage. See Jackson, 509 F.3d at 391–92
(“[G]iven the uncontested evidence,” the prison’s ban of commercial photographs was
rationally related to preserving prison resources.); see also Lindell v. Frank, 377 F.3d 655,
659 (7th Cir. 2004) (determining that a prison’s ban on publication clippings was
reasonably related to a legitimate interest in saving staff resources to screen for hidden
messages). “Specific facts are not necessary” at the pleading stage. Erickson v. Pardus,
551 U.S. 89, 93 (2007). In support of one of the judge’s key determinations, the warden
also posits that Lashbrook must have adequate alternative means of communicating
with his attorney (e.g., written correspondence and in-person visits) because he did not
allege otherwise. But that argument obscures the meaning of notice pleading, which
requires only that a complaint contain facts sufficient to state a claim that is plausible on
its face. Skinner v. Switzer, 562 U.S. 521, 530 (2011); Alexander v. United States, 721 F.3d
418, 422 (7th Cir. 2013).
We offer no view of the ultimate merits of Lashbrook’s claim but conclude only
that his complaint states a claim that is “plausible on its face.” Therefore, the case

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should not have been dismissed. See Ortiz, 561 F.3d at 670; Doss v. Clearwater Title Co.,
551 F.3d 634, 639 (7th Cir. 2008).
We VACATE the dismissal of Lashbrook’s complaint and REMAND the case for
proceedings consistent with this order.

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