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Keup v. Hopkins

March 4, 2010

TYLER J. KEUP, APPELLEE,
v.
F.X. HOPKINS; DENNIS BAKEWELL; ALL BEING SUED IN THEIR INDIVIDUAL CAPACITIES, APPELLANTS.



Appeal from the United States District Court for the District of Nebraska.

The opinion of the court was delivered by: Riley, Circuit Judge.

Submitted: October 22, 2009

Before RILEY, SMITH, and GRUENDER, Circuit Judges.

Tyler Keup, an artist in the custody of the Nebraska Department of Correctional Services (NDCS), tried to send drawings of a marijuana leaf and a bare-breasted woman to his mother and the Maoist Internationalist Movement (Maoists). When NDCS rebuffed Keup's efforts, Keup sued various NDCS officials under 42 U.S.C. § 1983 for violating his First Amendment rights. The district court directed a verdict in Keup's favor against F.X. Hopkins and Dennis Bakewell, awarded Keup nominal damages, and ordered Hopkins and Bakewell to pay approximately $25,000 in attorney fees and costs. Hopkins and Bakewell appeal. We affirm in part and reverse in part.

I. BACKGROUND

A. Parties

Keup is a prisoner in the custody of NDCS at the Lincoln Correctional Center (LCC). At all relevant times, Hopkins was one of NDCS's directors. Bakewell was LCC's warden. Salvador Cruz, Ty DeKoenig,*fn1 and Diane Sabatka-Rine were lower-level NDCS employees at LCC.

B. Keup's Grievances

While incarcerated, Keup challenged various restrictions upon his ability to send and receive mail. Keup availed himself of NDCS's three-level grievance procedure. To exhaust administrative remedies, a prisoner must file (1) an informal grievance, (2) a step-one grievance, and (3) a step-two grievance. 68 Neb. Admin. Code, ch. 2 § 004. See also 42 U.S.C. § 1997e; Neb. Rev. Stat. §§ 83-4,111 & 83-4,135-139.

Time limits apply at each level of the NDCS grievance process. A complaining inmate must file an informal grievance within three days of the "incident of concern." If the inmate is dissatisfied with NDCS's response, the inmate must file a step-one grievance within fifteen days. If the inmate remains dissatisfied, the inmate must file a step-two grievance within ten days of NDCS's response to the step-one grievance.

Four incidents are relevant to this appeal:

1. March 2005-Attempt to Mail Drawings to Mother

In March 2005, Keup tried to send his mother two drawings, one of a cross containing a small marijuana leaf and the other a bare-breasted woman. At the time, § 207.1.1 of LCC's Operational Memorandum (OM) forbade inmates from manufacturing, possessing, or distributing drawings of "[u]ncovered female breasts," "illegal drugs," and any other "obscene, nude, lewd, lascivious, . . . or filthy" material. LCC personnel accordingly refused to let Keup mail the drawings.

Keup timely grieved NDCS's refusal, alleging a violation of his free speech rights. Keup reasoned "it seems illogical that I can receive explicit porn magazines [and] books containing images of drugs but I can't use my artistic abilities to create certain drawings for a good cause!" Cruz denied Keup's informal grievance, Bakewell denied Keup's step-one grievance, and Hopkins denied Keup's step-two grievance.

2. September 2005-Attempt to Mail Photocopies to the Maoists

In September 2005, Keup tried to send photocopies of his drawings of the marijuana leaf and the bare-breasted woman to the Maoists. Apparently, Keup was asking the Maoists for legal help.*fn2 DeKoenig intercepted the photocopies.

Keup immediately grieved DeKoenig's seizure of the photocopies, asserting a violation of his right to send legal mail. On September 16, 2005, Cruz denied Keup's informal grievance. On November 3, 2005, Keup filed a step-one grievance, reasserting his right to "unrestricted/uncensored access for the conduction of legal ...


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