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Cook County Jail’s book limit ruled as proper

Wednesday, September 18, 2019
Chicago Daily law Bulletin
by Patricia Manson


Update: Comments from Matthew Walberg, spokesman for the Cook County Sheriff’s Office, were added to the story.

Cook County Jail officials did not violate the constitutional rights of an inmate by confiscating more than 30 books from him, a federal judge ruled.

In a written opinion last week, U.S. Magistrate Judge Maria G. Valdez granted summary judgment in favor of Cook County and Sheriff Thomas J. Dart in a lawsuit filed by Gregory Koger.

Valdez rejected the argument that jail officials ran afoul of the First Amendment by allowing inmates to have only three books or magazines in their cells at a time.

Valdez acknowledged the First Amendment protects more than the right to speak.

“Freedom of speech is not merely freedom to speak; it is also freedom to read,” she wrote, quoting King v. Federal Bureau of Prisons, 415 F.3d 634 (7th Cir. 2005).

However, Valdez continued, the freedom to read is not absolute in a prison setting.

Prisons may impose restrictions on First Amendment rights if they are “reasonably related to legitimate penological interests” and are not an “exaggerated response” to those interests, Valdez wrote quoting Turner v. Safley, 482 U.S. 78 (1987).

And Koger, she wrote, has not shown that the three-book limit fails to serve jail officials’ legitimate interests in safety, sanitation and administrative convenience.

Beginning in July 2013, Koger served the final three months of a 300-day sentence in the jail. During that time, friends sent him 42 books and one magazine.

In October 2013, correctional officers searched the unit where Koger was housed. Koger alleges the officers confiscated more than 30 books from him and left him with only three.

The officers did not ask him which books he wanted to keep and never returned the ones they seized, Koger alleges.

He alleges officers confiscated books and magazines from other inmates housed on the same unit and did not return those items either.

The reading material was confiscated under a policy in the Inmate Information Handbook that limits the number of particular items — for example, one comb and four pairs of socks — inmates may possess at a time.

The three-book limit does not include religious material. Inmates also may keep unlimited legal papers, one study book and one Bible or Quran.

In addition to the numerical limits, the policy mandates that all of an inmate’s personal property, excluding shoes, must fit into a “property bag” that measures about 2 cubic feet.

Any property that exceeds the numerical limit or volume limit is considered contraband.

Jail officials maintain the three-book policy helps ensure safety by limiting the number of books that can be used to start fires, jam cell doors, send messages or become the subject of thefts or disputes among inmates.

The policy assists in keeping the jail sanitary by leaving inmates with fewer books to clog toilets, block vents or clutter cells, officials contend.

And they contend the policy promotes administrative convenience by limiting the amount of personal property correctional officers must search.

Koger and a woman who had sent him books when he was in jail filed a suit in August 2014 challenging the policy.

In September 2017, Valdez granted summary judgment in favor of Dart and the county. She held neither Koger nor the other plaintiff had standing to sue.

The 7th U.S. Circuit Court of Appeals issued a split decision in August 2018, ruling Koger had standing to pursue his First Amendment claim but that the three-book policy did not affect his fellow plaintiff’s interests.

In June, Valdez again granted summary judgment in favor of Dart and the county.

She held Koger’s release from jail before he filed the suit deprived him of standing to seek injunctive relief.

She also held Koger’s claim for nominal damages of $1 for the purported violation of his First Amendment rights was not enough by itself to meet the case-or-controversy requirement of U.S. Constitution’s Article III.

In her opinion last week, Valdez wrote she was not convinced she erred in her previous ruling.

But Valdez granted Koger’s motion for reconsideration in order to rule on his First Amendment claim on the merits.

She described that move as “an effort to eliminate at least one appealable issue and save some litigation costs in this [5]-year-old case alleging no actual damages from the constitutional issue.”

Valdez then ruled against Koger.

There is a “valid, rational connection” between three-book policy and the interests prison officials say underlies the policy, Valdez wrote.

She rejected the argument that inmates’ access to other paper items — including envelopes, paper bags, toilet paper and greeting cards — shows that books do not constitute a safety or sanitation threat.

“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 other paper products,” Valdez wrote.

She also rejected the argument that the policy left Koger with no alternative means to exercise his First Amendment right to read.

By his own account, Koger read 46 books and six to eight issues of The New Yorker magazine during his 90 days in the jail, Valdez wrote.

“The court therefore cannot conclude on this record,” she wrote, “that plaintiff’s First Amendment right to read was thwarted.”

Valdez also rejected the argument that Koger should have been allowed to possess as many books that could fit in his property bag along with his other personal property.

That solution would increase the burden on jail officials by increasing the number of books they would have to search page by page for contraband or messages, Valdez wrote.

She issued her opinion Sept. 9 in Gregory Koger v. Thomas J. Dart, et al., No. 14 C 6361.

Koger is represented by sole practitioner Mark G. Weinberg and Adele D. Nicholas of the Law Office of Adele D. Nicholas.

In an email, Weinberg said Koger will appeal to the 7th U.S. Circuit Court of Appeals.

“We think fair and reasonable access to reading materials in prisons and jails is an especially important issue, since reading is one of the few ways that people behind bars can escape their drudgery,” Weinberg wrote.

John M. Power of the Cook County State’s Attorney’s Office represents Dart.

“The Cook County Sheriff’s Office works diligently to provide detainees access to reading materials, including books and periodicals, while in custody,” spokesman Matthew Walberg said in an email. “We respect the court’s ruling and our need to manage, and at times limit, those reading materials to ensure safety and order within the jail.”

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