                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                               OCT 11, 2006
                                 No. 05-14738                THOMAS K. KAHN
                           ________________________              CLERK


                    D. C. Docket No. 04-00014-CV-J-16-TEM

PRISON LEGAL NEWS,
a not-for-profit, Washington charitable
corporation,

                                                              Plaintiff-Appellant,

                                      versus

JAMES MCDONOUGH, in his official capacity as
Secretary, Florida Department of Corrections,
PAUL DECKER, in his official capacity as Warden
at Union Correctional Institution, et al.,


                                                           Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                (October 11, 2006)

Before MARCUS, WILSON and COX, Circuit Judges.

PER CURIAM:
       Prison Legal News (“PLN”) sued for declaratory and injunctive relief under

42 U.S.C. § 1983, alleging that the Secretary of the Florida Department of

Corrections James McDonough 1 and three prison wardens (collectively, “the

FDOC”) violated its First Amendment rights. PLN sought to enjoin the FDOC

from prohibiting Florida inmates from receiving its magazine and from penalizing

inmates whom PLN paid for writing articles for publication. PLN also sought a

declaratory judgment that Fla. Admin. Code Ann. r. 33-602.207 [“Rule 33-

602.207"], which prohibited inmates from receiving compensation for writing

articles for publication, was unconstitutional. The district court granted the

FDOC’s motion for judgment as a matter of law. We affirm.

                                      I. Background

       PLN is a not-for-profit charitable corporation that publishes a monthly

magazine containing articles about prison legal issues written mostly by prison

inmates. PLN pays its inmate writers for published articles pursuant to a written

agreement. The magazine also contains advertisements for three-way calling

services, pen pal services, offers to purchase prisoner artwork, and offers to

purchase unused stamps. It is circulated to prisoners, attorneys, judges, and other



       1
        Appellee James McDonough, in his official capacity as Secretary, Florida Department of
Corrections, was substituted for James V. Crosby, former Secretary of the Florida Department of
Corrections.

                                               2
professionals in all 50 states. Approximately 181 subscribers of PLN are Florida

prisoners. PLN sends subscription renewal notices to its Florida inmate

subscribers and allows for several methods of payment including postage stamps.

      Only one Florida inmate, David Reutter, has been paid for submitting

articles to PLN. Several of his articles were published in issues from 2002 to 2005.

The FDOC disciplined him twice for receiving compensation for his submissions

in violation of Rule 33-602.207, which prohibits inmates from engaging in a

business or profession while incarcerated. This rule includes the submission of a

manuscript for publication if revenue is generated from the publication. After he

was disciplined, Reutter continued to submit articles to PLN for publication

without receiving compensation, which the FDOC permitted.

      The FDOC’s Admissible Reading Material Rule, Fla. Admin. Code Ann. r.

33-501.401, provides for the screening and impoundment of all incoming mail. All

incoming mail is initially screened for material barred under the Rule. If the mail

room official determines that a publication contains barred material, and the

warden agrees, the prison impounds the publication. The prison then notifies the

prisoner and the publisher of the impoundment and posts a notice of impoundment

on the FDOC’s electronic bulletin board. Thereafter, all Florida prisons must

impound that publication. Next, the literature review committee reviews the



                                          3
publication and makes the final decision on admissibility. If the committee

overturns the impoundment, the publication is issued to the prisoners. Otherwise,

it remains impounded and no prisoner is allowed to receive it.

      Over a two-year period, the FDOC changed its position several times as to

whether PLN’s magazine contained prohibited material. In early 2003, the FDOC

began impounding issues of PLN’s magazine because they contained ads for three-

way calling services, which are prohibited for Florida inmates because they pose a

threat to prison security. In November 2003, the FDOC reversed its decision and

allowed for delivery of eight issues that it had previously impounded. However, a

month later, in December 2003, the FDOC again decided to impound the magazine

for including three-way calling service ads due to ongoing security concerns. By

March 2004, the FDOC was satisfied that its telephone provider could properly

monitor prisoners’ calls and that the three-way calling service ads were no longer a

security concern. Therefore, the FDOC again approved delivery of the magazine.

      In March 2005, the FDOC amended the Admissible Reading Material Rule

to state that publications will not be rejected for containing ads for prohibited

products or services, as long as those ads are “merely incidental to, rather than

being the focus of, the publication.” Fla. Admin. Code. Ann. r. 33-501.401. The

Rule now delineates that a publication may not be prohibited because it contains



                                           4
advertisements for three-way calling services, for pen-pal services, for the purchase

of products with postage stamps, and for conducting a business while incarcerated.

Id. Since this amendment, the FDOC has not impounded issues of PLN based

solely on the advertisement content areas.

      PLN filed a § 1983 suit, alleging violations of its First Amendment rights.

After a three-day bench trial, the court entered judgment as a matter of law in favor

of the FDOC. PLN now appeals. The Southern Poverty Law Center, the Southern

Center for Human Rights, and the Society of Professional Journalists filed an amici

curiae brief on behalf of PLN.

                               II. Standard of Review

      On appeal from a district court order after a bench trial, we review the

district court’s conclusions of law de novo and its findings of fact for clear error.

HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir. 2005). A

finding of fact is clearly erroneous “when although there is evidence to support it,

the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” Anderson v. City of Bessemer City,

470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985) (quotation

omitted).

                                   III. Discussion



                                           5
      PLN raises two issues on appeal: (1) whether the FDOC’s prohibition

against inmates receiving compensation for their writing violates PLN’s First

Amendment rights as a publisher; and (2) whether the district court erred in

denying PLN’s request for a permanent injunction prohibiting the FDOC from

impounding PLN’s publications based on their advertising content.

A.    The FDOC’s Prohibition on Inmate Compensation

      PLN argues that the district court erred in ruling that Rule 33-602.207 of the

Florida Administrative Code, which prohibits prisoners from receiving

compensation for writing for publication, does not infringe on PLN’s First

Amendment rights as a publisher. It argues that the rule is an improper “financial

disincentive” to inmates’ expressive activity and that it has been injured because

Reutter has less incentive and ability to write for PLN now that he is not

compensated.

      However, PLN has failed to show that it suffered a sufficient constitutional

injury to justify relief under section 1983. PLN presented no evidence to show that

the rule had any impact on its ability to publish the magazine. See The Pitt News

v. Fisher, 215 F.3d 354, 366 (3d Cir. 2000) (denying injunctive relief because the

newspaper merely showed that the challenged rule negatively impacted its

profitability, but failed to show how the rule infringed on its First Amendment



                                          6
right) cert. denied, 531 U.S. 1113, 121 S. Ct. 857, 148 L. Ed. 2d 771 (2001) . Its

argument that the rule improperly dissuades inmates from expressing the truth

about prison conditions is belied by the fact that Reutter continued to write for

publication, despite not having the incentive of compensation. PLN has continued

to publish on its traditional monthly schedule and Reutter has continued to submit

numerous quality articles for publication, despite not having the incentive of

compensation. Even taking the evidence in the light most favorable to PLN, there

is simply no evidence that the Rule has had any impact at all on PLN’s ability to

publish its magazine and distribute the publication to inmates nationwide.

      Moreover, to the extent that Rule 33-602.207 infringes on the First

Amendment rights of inmates, the FDOC has a legitimate penological interest in

preventing inmates from receiving compensation from outside business activities.

In Turner v. Safley, 482 U.S. 78, 89, 91 107 S. Ct. 2254, 2261, 2263, 96 L. Ed. 2d

64 (1987), the Supreme Court stated that a prison’s restriction on First Amendment

rights is permissible if it is “reasonably related” to legitimate penological interests

and is not an “exaggerated response” to such objectives. The Supreme Court

reasoned that, although imprisonment does not automatically deprive a prisoner of

First Amendment protections, the Constitution sometimes permits greater

restriction on First Amendment rights in the prison context than it would allow



                                            7
elsewhere. Id. at 84-85, 107 S. Ct. at 2259-60. To determine whether a prison

restriction on First Amendment rights is reasonable, the Court set out four relevant

factors: (1) whether there is a valid rational connection between the prison

regulation and the legitimate governmental interest offered to justify the

regulation; (2) whether alternative means exist to exercise the right; (3) what effect

there will be on guards, inmates, and prison resources if the right is

accommodated; and (4) whether the regulation is an exaggerated response to prison

concerns because ready alternatives exists at a de minimis cost. Id. at 89-91, 107

S. Ct. at 2262. In Turner, the Court upheld a Missouri prison rule barring some

inmate-to-inmate correspondence, ruling that it was reasonably related to

legitimate security interests and did not unconstitutionally abridge the prisoners’

First Amendment rights. Id. at 91, 107 S. Ct. at 2262-63. However, the Court

struck down a prison rule prohibiting inmates from marrying unless there are

compelling reasons to do so because it constituted an exaggerated response to

rehabilitation and security concerns. Id.

      Here, the district court found that the FDOC has legitimate penological

interests in preventing inmates from receiving compensation for writing for

publication: that the FDOC would become entangled in inmate business activities;

that such business activities would perpetuate fraud, extortion, and disputes among



                                            8
inmates and the public; that there would be increased administrative costs

associated with increased business activity; and that the FDOC would be unable to

effectively control the inmates’ interactions. The court was “not willing to

override these legitimate penological concerns.” We agree and affirm the decision

of the district court.

       As noted by the Turner Court, “courts are ill equipped to deal with the

increasingly urgent problems of prison administration and reform,” and therefore,

we must “accord deference to the appropriate prison authorities” to manage the

prisons. Turner, 482 U.S. at 84-85, 107 S. Ct. at 2259; see also Overton v.

Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003) (ruling that

courts owe “substantial deference to the professional judgment of prison

administrators”). Thus, because PLN did not present sufficient evidence of a

constitutional injury to justify relief, and because the FDOC rule was reasonably

related to legitimate penological concerns, the FDOC was free to invoke the rule

preventing inmates from receiving compensation from outside business activities

in this situation.

B.     Impoundment of PLN’s Magazine

       Next, PLN argues that the district court erred in denying its request for a

permanent injunction prohibiting the FDOC from impounding its publication based



                                           9
on its advertising content. PLN does not challenge FDOC’s rules and procedures

for impounding and reviewing publications on their face. Rather, PLN argues that

FDOC’s practice of impounding publications based on advertising content violated

its First Amendment rights and that an injunction is required to prevent further

censorship.

      We find that this argument is moot because of the 2005 amendment to the

Admissible Reading Material Rule. We agree with the district court’s finding that,

although the FDOC previously wavered on its decision to impound the magazine,

it presented sufficient evidence to show that it has “no intent to ban PLN based

solely on the advertising content at issue in this case” in the future. The FDOC

demonstrated that its current impoundment rule does allow for distribution of PLN

in its current format and that the magazine will not be rejected based on its

advertising content. The FDOC officially revised its impoundment rule and has

not refused to deliver issues of the magazine since this amendment. See Tawwab v.

Metz, 554 F.2d 22, 24 (2d Cir. 1977) (per curiam) (ruling that a claim for

injunctive relief is moot when a change in official policy rectifies the alleged

injustice); see also, United States v. Concentrated Phosphate Export Ass’n, 393

U.S. 199, 203, 89 S. Ct. 361, 364, 21 L. Ed. 2d 344 (1968) (ruling that an

injunction should not issue when “the likelihood of further violations is sufficiently



                                          10
remote to make injunctive relief unnecessary”).

      We have no expectation that FDOC will resume the practice of impounding

publications based on incidental advertisements. As to the current rule, we offer

no opinion on its constitutionality.

                                   IV. Conclusion

      We find that PLN failed to show it suffered sufficient constitutional injury

because of Rule 33-602.207 to justify relief under section 1983 and we find that

the Rule is reasonably related to legitimate penological concerns. Further, PLN’s

petition to enjoin FDOC from impounding publications based on advertising

content is mooted by the FDOC’s amendment to its policies and procedures.

Therefore, we affirm the decision of the district court.

      AFFIRMED.




                                          11
