                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 MARK ALAN LANE,                              Nos. 17-55578
      Petitioner-Appellant,                        17-55579
                                                   17-55582
                 v.
                                                D.C. Nos.
 CYNTHIA SWAIN,                          2:14-cv-01324-GW-PLA
     Respondent-Appellee.                2:13-cv-08448-GW-PLA
                                         2:14-cv-04876-GW-PLA


                                                  OPINION


        Appeals from the United States District Court
           for the Central District of California
          George H. Wu, District Judge, Presiding

           Argued and Submitted November 6, 2018
                      Portland, Oregon

                      Filed December 20, 2018

    Before: Ferdinand F. Fernandez and Sandra S. Ikuta,
        Circuit Judges, and William K. Sessions III,*
                       District Judge.

                      Opinion by Judge Sessions

     *
       The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
2                          LANE V. SWAIN

                            SUMMARY**


                           Habeas Corpus

   The panel affirmed the district court’s denial of three
28 U.S.C. § 2241 habeas corpus petitions in which Mark Alan
Lane challenged the revocation of good time credits.

    Lane was accused by the Bureau of Prisons of sending
threatening letters from prison and was disciplined under
BOP Prohibited Acts Code 203, which prohibits
“[t]hreatening another with bodily harm or any other
offense.” He contended that the term “another” and the
phrase “any other offense” are so broad and vague as to
violate his rights under the First Amendment. The panel held
that when read reasonably in the context of the prison setting,
and limiting the phrase “any other offense” to criminal
offenses or violations of BOP rules, Code 203 is sufficiently
narrow and clear to protect inmates’ First Amendment rights.


                             COUNSEL

Alyssa D. Bell (argued) and Ashfaq G. Chowdhury, Deputy
Federal Public Defenders; Hilary Potashner, Federal Public
Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      LANE V. SWAIN                        3

Sarah Marie Schuh Quist (argued), Assistant United States
Attorney; David M. Harris, Chief, Civil Division; Nicola T.
Hanna, United States Attorney; United States Attorney’s
Office, Los Angeles, California; for Respondent-Appellee.


                        OPINION

SESSIONS, District Judge:

    Federal inmate Mark Alan Lane appeals the denial of
three habeas corpus petitions, each filed pursuant to
28 U.S.C. § 2241, in which he challenged the revocation his
good conduct time credits. Lane was accused by the Bureau
of Prisons (“BOP”) of sending threatening letters from prison
and was disciplined under BOP Prohibited Acts Code 203.
Code 203 prohibits “[t]hreatening another with bodily harm
or any other offense.” 28 C.F.R. § 541.3, Table 1. On
appeal, Lane contends that the term “another” and the phrase
“any other offense” are so broad and vague as to violate his
rights under the First Amendment. We hold that when read
reasonably in the context of the prison setting, and limiting
the phrase “any other offense” to criminal offenses or
violations of BOP rules, Code 203 is sufficiently narrow and
clear to protect inmates’ First Amendment rights. We
therefore affirm.

                             I.

    On February 27, 2002, Lane was sentenced in the United
States District Court for the Southern District of Indiana to
360 months in prison for drug and money-laundering
offenses. The BOP lists his release date as January 23, 2028.
This Opinion addresses three § 2241 petitions filed by Lane
4                       LANE V. SWAIN

in the United States District Court for the Central District of
California. Although the cases have different underlying
facts, the appeals raise the same legal issues.

A. Lane v. Swain, Case No. 17-55579

    On March 18, 2012, Lane mailed a letter to the Assistant
Director in Charge of the Federal Bureau of Investigation to
request an investigation of a federal judge and a federal
prosecutor. The letter stated, “I want to make sure you, and
the proper authorit[ies] have what they need, in the event, I’m
forced to kill a prison guard.” A BOP Discipline Hearing
Officer (“DHO”) subsequently conducted a hearing and
concluded that Lane had violated Code 203. Based on that
finding, the DHO sanctioned Lane with lost good time
credits, disciplinary segregation, and the loss of telephone,
commissary, email, and visiting privileges.

B. Lane v. Swain, Case No. 17-55578

    On or about June 26, 2013, Lane mailed a letter to the
United States Attorney’s Office in Portland, Oregon, in which
he wrote: “The Bureau of Prisons may have plans to exercise
authority, it does[ ]not have, and that could cause people to
get hurt, or even worse, killed.” In the last line of the letter,
he wrote, “Please take action before the Warden, gets cut
down to size.” Following an investigation, a DHO conducted
a hearing and concluded that Lane had violated Code 203.
Based on that finding, the DHO sanctioned Lane with the loss
of good conduct time credits and disciplinary segregation.
                       LANE V. SWAIN                         5

C. Lane v. Swain, Case No. 17-55582

    In July 2013, Lane mailed a second letter to the U.S.
Attorney’s Office in Portland, Oregon, in which he wrote:
“The letter that I sent June 25, 2013, did you forward to local
law enforcement? No matter what, my family has your name,
address, and phone number.” The U.S. Attorney’s office read
the letter as posing a threat, and sent it to Lane’s prison for
administrative action. A DHO conducted a hearing,
concluded that Lane had violated Code 203, and sanctioned
him with lost good conduct time credits and a $50 monetary
fine.

D. Lane’s Section 2241 Petitions

    In response to each of these three disciplinary actions,
Lane filed 28 U.S.C. § 2241 petitions in federal court. The
district court denied the petitions, finding that they were
supported by sufficient evidence. Lane appealed, and this
court vacated the district court’s judgment in light of Lane v.
Feather, 610 F. App’x 628 (9th Cir. 2015). Feather was a
consolidated appeal of three § 2241 petitions filed by Lane in
the United States District Court for the District of Oregon.
The panel in Feather remanded Lane’s petitions for a
determination of whether Code 203 is constitutional under
Procunier v. Martinez, 416 U.S. 396 (1974), overruled on
other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).
In the instant cases, the Magistrate Judge concluded on
remand that Code 203 satisfies Procunier, and therefore
recommended that Lane’s petitions be dismissed. The district
court adopted those recommendations, and these appeals
followed.
6                      LANE V. SWAIN

                              II.

    A district court’s denial of a petition for writ of habeas
corpus brought pursuant to 28 U.S.C. § 2241 is reviewed de
novo. McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003).
Purely legal questions, such as whether Code 203 violates the
First Amendment under Procunier, are also reviewed de
novo. Royse v. Superior Court of Wash., 779 F.2d 573, 575
(9th Cir. 1986).

    In Procunier, the Supreme Court struck down California
prison regulations allowing censorship of letters that “unduly
complain,” “magnify grievances,” or “expres[s] inflammatory
political, racial, religious or other views or beliefs” in
correspondence between inmates and non-inmates. 416 U.S.
at 399; see also id. at 415. The Court held that interference
with outgoing prisoner mail is only justified if the regulation
furthers “an important or substantial governmental interest
unrelated to the suppression of expression.” Id. at 413. The
Court further held that “the limitation of First Amendment
freedoms must be no greater than is necessary or essential to
the protection of the particular governmental interest
involved.” Id.

    With respect to the first requirement, the Supreme Court
identified three relevant governmental interests: “the
preservation of internal order and discipline, the maintenance
of institutional security against escape or unauthorized entry,
and the rehabilitation of the prisoners.” Id. at 412 (footnote
omitted).      “Prison officials may not censor inmate
correspondence simply to eliminate unflattering or
unwelcome opinions or factually inaccurate statements.
Rather, they must show that a regulation authorizing mail
censorship furthers one or more of the substantial
                        LANE V. SWAIN                          7

governmental interests of security, order, and rehabilitation.”
Id. at 413.

    The second prong requires the limitation to be “no greater
than is necessary” to protect such interests. Id. The Supreme
Court has made clear, however, that Procunier should not be
read “as subjecting the decisions of prison officials to a strict
‘least restrictive means’ test.” Abbott, 490 U.S. at 411.
Procunier “require[s] no more than that a challenged
regulation be ‘generally necessary’ to a legitimate
governmental interest,” and that the regulation provide “a
close fit between the challenged regulation and the interest it
purported to serve.” Id. (quoting Procunier, 416 U.S. at 414).

    With regard to legitimate governmental interests, Lane
highlights the Supreme Court’s observation in Abbott that
“outgoing personal correspondence from prisoners—did not,
by its very nature, pose a serious threat to prison order and
security,” 490 U.S. at 411, and this Court’s comment that
there is a “low security risk posed by written material not
addressed to prison officials.” Bradley v. Hall, 64 F.3d 1276,
1281 n.2 (9th Cir. 1995), overruled on other grounds by Shaw
v. Murphy, 532 U.S. 223, 230 n.2 (2001)). In Abbott,
however, the Supreme Court specifically preserved the
holding in Procunier as it applies to outgoing prisoner mail.
490 U.S. at 413 (limiting Procunier “to regulations
concerning outgoing correspondence”). Here, the district
court concluded that Code 203 addresses both prison security
and prisoner rehabilitation, and Lane does not contest those
specific findings.

   Lane instead focuses his attack on the second prong of the
Procunier test: that the regulation be no greater than
necessary to protect those legitimate governmental interests.
8                           LANE V. SWAIN

Lane questions the broad scope of the regulation, arguing first
that it prohibits all threatening statements regardless of their
context. This argument ignores the setting in which Code
203 is applied: a federal prison. Seen in that light, the
regulation prohibits communications in a context where
threats by inmates may give rise to reasonable concerns about
institutional security and individual rehabilitation.

     More specifically, Lane submits that Code 203 is overly
broad because it does not narrowly define the prohibited
targets of threats beyond the term “another.” He suggests that
an inmate could therefore be disciplined under Code 203 for
threatening, for example, fictional or historical characters
such as Superman or Joseph Stalin. To discipline an inmate
for threatening those types of characters would defy common
sense. There is no indication in the record that the BOP has
ever taken such a broad view of Code 203, and we are
reluctant to invalidate a rule based upon such hypotheticals.
The term “another” as set forth in Code 203 is commonly
understood to be another living person, and is not
impermissibly broad.1

    Lane’s next attack on Code 203 submits that the phrase
“any other offense” is without limitation. His examples of
potentially punishable offenses include threats of frivolous


     1
       We note that the term “another” is widely used in statutes that
prohibit threatening conduct. See, e.g., 18 Pa. Cons. Stat. § 3701(a)(1)(ii)
(2014) (Pennsylvania robbery statute imposing punishment when accused
“threatens another with or intentionally puts him in fear of immediate
serious bodily injury”); N.M. Stat. Ann. § 30-3-2 (1978) (New Mexico
aggravated assault statute prohibiting “assault by threatening or menacing
another”); Tex. Penal Code Ann. § 22.01(a)(2) (2017) (Texas assault
statute prohibiting conduct that “intentionally or knowingly threatens
another with imminent bodily injury”).
                       LANE V. SWAIN                         9

lawsuits, copyright infringement, or defamatory language.
Again applying common sense, threatening an “offense”
cannot mean posing a threat of civil suit. Rather, the
regulation is reasonably construed as threatening either a
criminal violation or an offense punishable under BOP
regulations.

    Procunier supports that construction. Footnote 15 of the
Supreme Court’s decision commented on a set of revised
regulations, drafted while that case was on appeal, that “are
indicative of one solution to the [First Amendment] problem”
posed in that case. Procunier, 416 U.S. at 416 n.15. The
revised regulations included a provision allowing disapproval
of outgoing inmate mail containing “threats of physical harm
against any person or threats of criminal activity.” Id. The
cited provision nearly mirrors the language in Code 203, with
“criminal activity” being the parallel to “any other offense.”
Although the legitimacy of that specific provision was not
before the Supreme Court, its commentary provides useful
guidance for this case.

     In Procunier, the Supreme Court acknowledged that
“[t]raditionally, federal courts have adopted a broad hands-off
attitude toward problems of prison administration” because
“courts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform.” 416 U.S. at
404–05. Accordingly, courts afford “deference to the
appropriate prison authorities,” but will nonetheless
“discharge their duty to protect constitutional rights” when a
prison regulation “offends a fundamental constitutional
guarantee.” Id. at 405–06. The regulation in Procunier was
impermissible because it infringed on inmates’ First
Amendment rights to air complaints and grievances. The
10                     LANE V. SWAIN

language of Code 203 is clearly distinguishable, curbing
threats of harm and other offenses.

    As Lane’s own cases illustrate, legitimate governmental
interests are at stake, since allowing inmates to threaten a
warden, prison guard, or any other person with bodily harm
or other criminal conduct is clearly unacceptable. In light of
the regulation’s limited language, read reasonably in the
context of federal prisons, we find that Code 203 is a
sufficiently “close fit” with those legitimate interests to pass
the Procunier test.

     AFFIRMED.
