Timothy B. Wilks v. Welcome Rose

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 16, 2018*
Decided March 16, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-1874
TIMOTHY B. WILKS,
Plaintiff-Appellant,
v.
WELCOME ROSE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 15-C-1053
C.N. Clevert, Jr.,
Judge.
O R D E R
Timothy Wilks, a Wisconsin inmate, principally argues in this appeal that prison
officials violated the First Amendment when they banned him from using his cell to
market a book that he has published. The district judge entered summary judgment for
the defendants, ruling that penological interests justify the restriction. We agree and
thus affirm the judgment.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See F ED. 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NONPRECEDENTIAL DISPOSITION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. 17-1874 Page 2
Ten years ago Wilks sued officials at Waupun Correctional Institution for barring
him from publishing religious books. The parties settled the case, and the Wisconsin
Department of Corrections set out rules under which prisoners may publish books that
they write while incarcerated. With the approval of Waupun’s administration, Wilks
then contracted with an outside company to publish at least one religious book.
This case involves a dispute over Wilks’s plan to market his book from his cell.
His publisher mailed him 100 marketing postcards that displayed the book’s cover
image, biographical information about Wilks, and instructions for ordering the book
from the publisher. A property officer told Wilks that the postcards were contraband.
Wilks replied that he would mail the postcards to a family member, but he later asked
the prison’s property department to hold his postcards while he contested their
classification as contraband. A prison supervisor has since explained that Wilks could
not keep the postcards in his cell because he risked violating two prison regulations:
soliciting inmates to buy his book and retaining in his cell more than 25 pieces of
personal correspondence. (Wilks does not contest either regulation.) The supervisor
proposed as a compromise that the prison’s mail staff store the postcards and mail them
individually in prepaid envelopes that Wilks would supply. Although the prison’s
security director tentatively approved that proposal, Wilks rejected it. The director has
since explained that the proposal is unworkable because mail staff would be diverted
from their necessary work of screening all prison mail. He further explained that
allowing inmates to market from their cells risks defrauding the public, “spawning
disputes between inmates and members of the public[,] and entangling the prison in
inmate business activities.”
Wilks filed a grievance accusing the prison of violating his “rights to perfect [his]
book publishing interests.” He wanted to keep the postcards in his cell and mail them
directly to potential customers. Waupun’s warden dismissed Wilks’s grievance, and a
complaint examiner recommended dismissing his administrative appeal. The examiner
also rejected the proposed compromise that Wilks too had rejected: It “cannot be
implemented” because “[t]here is no authority granted in the administrative rules to
allow an inmate permission to market a publication while in prison if the publication
(the enterprise) did not exist prior to the inmate’s sentencing.” The Secretary of the
Department of Corrections dismissed the appeal. At this point, Wilks could have mailed
the postcards to someone outside the prison to promote sales. But he opted to have the
postcards destroyed. Wilks was permitted to keep one in his cell, however.

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No. 17-1874 Page 3
This litigation under 42 U.S.C § 1983 followed. The district judge allowed Wilks
to proceed on a claim that prison officials violated the First Amendment by barring
mailings from his cell to market his book. The judge dismissed a due-process claim
about the disposal of his postcards, reasoning that Wilks had asked for their disposal.
(Wilks also raised a claim for breach of the settlement contract but he does not contest
that claim’s dismissal on appeal.) The district judge then entered summary judgment
for the defendants because they had identified legitimate penological interests that
justified restrictions on Wilks’s marketing activities. The judge added that the
defendants would be entitled to qualified immunity even if they violated Wilks’s rights
because he pointed to “no case establishing an inmate’s constitutional right to market or
sell his published works.”
On appeal Wilks principally challenges the dismissal of his claim that prison
officials have violated the First Amendment by restricting how he may commercially
market his book. The parties debate the standards that govern our analysis. We usually
analyze the constitutionality of prison regulations using the standard in Turner v. Safley,
482 U.S. 78, 89–91 (1987), but we scrutinize the censorship of an inmate’s outgoing mail
under the less-deferential standard in Procunier v. Martinez, 416 U.S. 396, 413 (1974).
Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); see Koutnik v. Brown, 456 F.3d 777, 784
(7th Cir. 2006). Because the parties disagree about whether the prison has “censored”
Wilks’s outgoing mail, they also disagree about which standard applies. We need not
resolve this debate, however, because Wilks cannot prevail even under the Martinez
standard.
Martinez holds that a prison regulation that censors outgoing mail is permissible
if the regulation (1) furthers an important governmental interest “unrelated to the
suppression of expression” and (2) is no greater than necessary to accomplish that
interest. 416 U.S. at 413. Waupun’s regulation restricts Wilks by requiring that he have
someone outside the prison mail the postcards to market the book. But Wilks has not
created a triable question that this restriction fails under these two elements.
First, Wilks offers no evidence that reasonably questions the importance of the
prison’s identified interests in prohibiting marketing from an inmate’s cell. These are
the interests of preserving the resources of the mail room’s staff, who must screen the
mail of all of the inmates, and ensuring that the prison protects the public from
inmate-generated mail fraud. We have recognized both of these interests as substantial.
See Woods v. Comm’r of the Ind. Dep’t. of Corr., 652 F.3d 745, 749 (7th Cir. 2011)
(recognizing that prison officials have legitimate interest in preventing fraud by

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No. 17-1874 Page 4
banning prisoners from advertising to the public for pen pals); Jackson v. Frank, 509 F.3d
389, 391 (7th Cir. 2007) (prison officials are constitutionally permitted to save resources
by limiting the types of mail staff must process).
Second, Wilks offers no evidence that the restriction is greater than necessary to
further these interests. He argues that the compromise (that both he and the prison staff
rejected) of having the mail room’s staff market the book for him is such evidence. As
he sees it, that compromise is workable; otherwise administrators would not have
proposed it. But the current regulation is not materially more restrictive than the
rejected compromise. Under the current regulation, Wilks may ask anyone outside the
prison (including the publisher) to send out his mailings. Wilks replies that he lacks
funds to pay someone to help market the book. But he offers no evidence that an
outsider requires payment from him. And even if outsiders do require payment, that fact
does not imply that Wilks may commandeer the prison’s staff to help him market his
book for his commercial gain. For prisons may permissibly bar an inmate from using
the prison’s resources to enhance an inmate’s business operations. See King v. Federal
Bureau of Prison, 415 F.3d 634, 636 (7th Cir. 2005). Thus because the restriction is no
greater than necessary to serve the prison’s legitimate interests, the First Amendment
claim fails.
We have one final matter. Wilks also challenges the dismissal of his due-process
claim at screening. To the extent that Wilks contends that he did not receive proper
procedural protections before the staff destroyed his postcards, his claim fails because
Wilks admits that he directed the destruction of the postcards. And to the extent that
Wilks suggests that the restriction on his marketing activities violated his right to
substantive due process, that argument amounts to little more than a futile repackaging
of Wilks’s First Amendment claim. When “a particular Amendment provides an explicit
textual source of constitutional protection against a particular sort of government
behavior, that amendment, not the more generalized notion of substantive due process,
must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994)
(internal quotation marks omitted); see also Koutnik, 456 F.3d at 781 n.2.
We have considered Wilks’s remaining arguments, and none merits discussion.
AFFIRMED

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