
USCA1 Opinion

	




          March 31, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1869                                               WESTON J. STOW,                                 Plaintiff Appellant,                                          v.                           WARDEN, NH STATE PRISON, ET AL.,                                Defendant, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Weston J. Stow on brief pro se.               ______________               Jeffrey  R. Howard,  Attorney  General, and  Christopher  P.               __________________                           _______________          Reid, Attorney, Civil Bureau, on brief for appellees.          ____                                  __________________                                  __________________                      Per  Curiam.     Weston Stow  appeals the  district                      ___________            court's decision dismissing his action under 42 U.S.C.   1983            against New Hampshire corrections officials.  We affirm.1                      Stow  is  presently  in  prison  in  Massachusetts.            Previously, he  had been  confined in  a New  Hampshire state            prison.    While  in  prison  in  New  Hampshire,  Stow  sued            corrections  officials in  state court,  alleging that  a new            prison policy  permitting the removal and  destruction of all            newsclippings   in  incoming   letters  violated   the  state            constitution.  Under the policy, prison officials had removed            and destroyed a newsclipping sent to Stow in a family letter,            and Stow sought damages and an injunction against enforcement            of the policy.   After  a hearing, the  state superior  court            determined that  the no-newsclipping policy was  invalid, but            denied Stow money damages.                        Soon after  bringing his  state suit, Stow  filed a            section  1983  suit  in  the federal  district  court  in New            Hampshire,  seeking  declaratory  and injunctive  relief  and            damages.2    Stow  alleged   that  the  New  Hampshire  state            prison's publishers only rule "as it appl[ies] to the receipt                                            ____________________            1.  Because  the facts  and  legal arguments  are  adequately            presented  in   the  briefs  and  record,   and  because  our            decisional process would  not be aided  by oral argument,  we            deny the defendants' request for oral argument.  See 1st Cir.                                                             ___            Loc. R. 34.1(a).            2.  Stow's  federal complaint  named the  same defendants  as            were  named in  the  state suit,  as  well as  an  additional            defendant.                                         -1-            of both hardcover and  softcover as well as  looseleaf papers            from sources other than a publisher" was unconstitutional and            that defendants  had illegally seized  his personal property.            On three occasions, Stow said that he had not been allowed to            keep specific  printed material contained in incoming letters            or dropped off for him by visiting  family members.  One such            occasion  involved  the same  incident  and  policy on  which            Stow's state suit was  based.  In an amended  complaint, Stow            further alleged  that the  rule prevented him  from receiving            newspapers  and periodicals  from his  Massachusetts hometown            which  he  could not  afford to  subscribe  to and  which the            prison library did not have.                           In granting  judgment on  the pleadings,  the court            determined  first that  Stow could  not litigate  his section            1983  claim based  on the  no-newsclipping policy  in federal            court.  Under  state law,  Stow would have  been barred  from            litigating that claim since he could have presented it to the            court in the  state action he brought, but  had not.  Because            state  law  would not  have  permitted Stow  to  litigate his            section 1983 claim  in state court, the court  concluded that            Stow was  also barred from  litigating that claim  in federal            court, citing  Migra v. Warren City School  District Board of                           _____    _____________________________________            Education, 465 U.S. 75  (1984).  In Migra, the  Supreme Court            _________                           _____            held  that a  federal  court must  give  the same  preclusive            effect to  a state court  judgment as  the law of  that state                                         -2-            would give to that judgment, and it affirmed a district court            decision dismissing  a section 1983 action  brought after the            plaintiff had  successfully sued  in state court  under state            law  on the same claim, because the plaintiff could have, but            did not, present the section 1983 issue to the state court in            the  state  action.   Id.  at 81,  83-85.   Under  Migra, the                                  ___                          _____            district court's ruling was clearly correct.  On appeal, Stow            contends  that  the  court  gave  the  state  court  decision            preclusive effect with respect  to his other claims as  well,            but the court's decision belies that contention.                      The  district  court  also  correctly  decided that            Stow's claims for declaratory and injunctive relief regarding            the publishers only rule were moot.  Plaintiff's own  filings            establish that he is no longer confined in New Hampshire, but            is  presently  housed  in  Massachusetts.   Accordingly,  the            district  court  permissibly relied  on  the  fact of  Stow's            transfer  out of New  Hampshire in  granting judgment  on the            pleadings.     On   appeal,  Stow  says   that  Massachusetts            corrections officials review his  case annually to  determine            whether he  may be paroled, and that he will be returned to a            New Hampshire prison to begin serving his sentence there once            he is paroled.   He claims that his requests  for declaratory            and injunctive relief are not moot because he may  be back in            a New Hampshire prison soon.  We have no basis for evaluating            the validity  of that claim  on the  present record.   In any                                         -3-            event, his eventual parole in Massachusetts is a contingency,            which itself  is subject  to other contingencies  (e.g., what            the standards for  parole are in Massachusetts  and how close            Stow  comes  to meeting  them).   Therefore,  his  claims for            declaratory and injunctive  relief are moot.   Cf. Super Tire                                                           ___ __________            Engineering  Co.  v.  McCorkle,  416  U.S.  115,  123  (1974)            ________________      ________            (declaratory  relief  was   warranted  where  the   allegedly            injurious  governmental  action  did  not  rest  on  "distant            contingencies"); see Johnson v. Moore, 948 F.2d 517, 520 (9th                             ___ _______    _____            Cir.  1991) (per  curiam)  (prisoner's claims  for injunctive            relief  from publishers only rule were mooted by his transfer            to a different facility).  Although Stow also argues that his            case  comes  within the  capable  of  repetition yet  evading            review exception to  the mootness doctrine, we  have no basis            for evaluating that claim.  The record does not show (nor has            Stow said) how  long his  sentence in New  Hampshire will  be            once he returns.   Cf.  Super Tire,  supra, 416  U.S. at  126                               ___  __________   _____            (capable of repetition  yet evading review  exception applies            where   the   potentially    recurring   situation   is    of            "comparatively short duration").                        Finally,   the  district   court  found   that  New            Hampshire's  publishers only  rule was valid  as a  matter of            law.   We affirm its  decision on the basis  of the qualified            immunity defense asserted by  defendants on appeal, which, in            this case, may be resolved as a question of law.   See Febus-                                                               ___ ______                                         -4-            Rodriguez  v. Betancourt-Lebron,  14  F.3d 87,  90 (1st  Cir.            _________     _________________            1994)  (qualified immunity is  a question of  law where there            are no  disputed fact issues).   Although defendants  did not            argue  their  qualified  immunity  below,  we  may  affirm  a            judgment on "any independently  sufficient ground."  Horta v.                                                                 _____            Sullivan, 4 F.3d 2, 9 (1st Cir. 1993).              ________                      Here,  Stow's  only  remaining  claim  is  one  for            damages allegedly suffered by defendants'  application of the            state prison's publishers  only rule.   But he  may only  sue            defendants  for damages  if  their conduct  violated "clearly            established . . . constitutional rights of which a reasonable            person would have known."  Febus-Rodriguez, supra, 14 F.3d at                                       _______________  _____            91.    The  question  for  us,  therefore,  is  not   whether            defendants' conduct was "clearly constitutional,  but whether            it [was]  clearly unconstitutional."   Knox v.  McGinnis, 998                                                   ____     ________            F.2d 1405, 1409 (7th Cir. 1993).                        The   publishers  only  rule   challenged  by  Stow            permitted  prisoners to receive published materials only from            publishers.    Stow  argued  on  appeal  that  the  rule  was            unconstitutional  because  it  did not  permit  prisoners  to            obtain  materials  from  visitors  or  to  seek  case-by-case            exceptions  to  the rule's  outright  prohibition  of printed            materials  from  nonpublisher  sources.    Moreover,  in  his            complaint, he  had alleged a complete  deprivation of certain            materials which he  could not afford  to buy from  publishers                                         -5-            and which were not available in the prison library.  Although            this court has sustained a publishers only rule which covered            both  hardbound and softbound materials as a matter of law in            part  on the  ground that the  rule permitted  exceptions for            certain printed  materials brought by visitors,  see Kines v.                                                             ___ _____            Day, 754 F.2d 28  (1st Cir. 1985), there is nothing  in Kines            ___                                                     _____            which  suggested that a rule  without such an exception would            be  per se unlawful.   Moreover, in Ward  v. Washtenaw County                ___ __                          ____     ________________            Sheriff's Department, 881 F.2d 325 (6th Cir. 1989), the Sixth            ____________________            Circuit  sustained a  publishers only  rule which  applied to            both  hardcover   and   softcover  publications   and   which            specifically forbade inmates from receiving publications from            visitors.  There is authority that suggests a publishers only            rule would not be unconstitutional merely because it prevents            an inmate  from receiving the particular  materials he seeks,            as  long  as  inmates  have  access  to  a  "broad  range  of            publications."  See Bell v. Wolfish, 441 U.S. 520, 552 (1979)                            ___ ____    _______            ("where 'other  avenues' remain available for  the receipt of            materials by inmates, the  loss of 'cost advantages  does not            fundamentally  implicate free  speech values'")  (emphasis in                                     ____  ______            original; citation omitted); Hurd  v. Williams, 755 F.2d 306,                                         ____     ________            308 (3d  Cir. 1985) (rejecting an argument  that the prison's            publishers only rule fell "inequitably" on the poor where the            plaintiff  had not disputed that he had access to a library);            compare  Thornburgh  v.  Abbott,  490 U.S.  401,  418  (1989)            _______  __________      ______                                         -6-            (sustaining regulations impinging  on First Amendment  rights            where  the   regulations   permitted  "a   broad   range   of            publications  to  be  sent,  received,  and  read"  and  thus            afforded inmates sufficient  alternative means of  exercising            those rights).   Thus,  we cannot  say that,  when defendants            applied  their publishers  only  rule to  Stow, the  rule was            "clearly unconstitutional" because it did not provide for the            exceptions  suggested by Stow  or because Stow  was unable to            afford to buy particular materials not otherwise available in            the prison library.  Accordingly, defendants are protected by            qualified immunity, and Stow's claim for compensatory damages            was  properly dismissed.  See Johnson, supra, 948 F.2d at 520                                      ___ _______  _____            (inmate's claim for damages was held preempted by defendants'            qualified  immunity where  circuit  law had  not yet  clearly            established  that  a  publishers  only   rule  covering  both            hardcover and softcover materials was unconstitutional).                      Affirmed.                      _________                                         -7-
