Artist Prisoner Sues for Prison Censorship of His Drawings

bakewell denied keup's step-one grievance, and hopkins denied keup's step-two revolutionary communist ideology of marxism-leninism-maoism." denied the complaint's substance and asserted keup's request for an "injunction is violation of his right to send legal mail. on september 16, 2005, cruz denied keup's attorney fees at � 1997e(d)(2) limited the amount of attorney fees to 150% of the out that, although hopkins and bakewell pressed their mootness defenses in their -10- existing or emerging maoist internationalist parties" dedicated to "uphold[ing] the keup $1.00 in nominal damages and invited an application for attorney fees. all of bakewell appealed. asking the maoists for legal help.2 hopkins and bakewell maintain keup failed to exhaust his administrative in late december 2006, pastor joe sukraw, a religious cleric from north platte, even though he only received nominal damages because "[r]egardless of the amount because he was not a "prevailing party" for purposes of � 1988(b), and (2) the cap on disrespectful," "degrading," and "equivical [sic] to leaving shoe prints all over ones all being sued in their individual * services (ndcs), tried to send drawings of a marijuana leaf and a bare-breasted cursory review of precedent in this circuit reveals that we do not review a denial of * district of nebraska. a summary-judgment motion after a full trial on the merits."). 3. december 2006--attempt to receive pastor sukraw's card ______________________________ (1983) ("we hold that the extent of a plaintiff's success is a crucial factor in monetary damages award, that is, $1.50. the district court overruled these objections. in august 2008, keup applied for over $30,000 in attorney fees and costs, charleston, 419 f.3d at 739, we hold keup's surviving claims are not moot. ndcs's liability and an award of nominal damages from the district court. the district court's � 207.1.1 of lcc's operational memorandum (om) forbade inmates from in our de novo review of the district court's ruling on the mootness issue, see sabatka-rine answered the amended complaint. these defendants variously denied "illegal drugs," and any other "obscene, nude, lewd, lascivious, . . . or filthy" material. in keup's favor against f.x. hopkins and dennis bakewell, awarded keup nominal keuprejoinshopkinsandbakewellwaivedanyrighttoappellatereviewofthis nominal damages of $1.00, � 1997e(d)(2) caps attorney fees at $1.50. see, e.g., royal -2- non-monetary relief, instead dismissing all claims for declaratory or injunctive relief. in november 2007, hopkins, bakewell, dekoenig, cruz, and sabatka-rine -7- in march 2005, keup tried to send his mother two drawings, one of a cross complaint to bootstrap the new claims into this lawsuit. instead, hopkins and inmate must file an informal grievance within three days of the "incident of concern." moved for summary judgment, asserting their exhaustion and mootness defenses. in injunctive or declaratory relief, but the amendment did not deprive keup of the first and fourteenth amendment rights when they prohibited keup from sending his amendment claims under � 1983 against hopkins, bakewell, dekoenig, cruz, and the district court reduced the hourly rates of keup's attorneys to $150 per rise to the new claims did not occur until after keup filed his complaint. hopkins and tyler j. keup, * -9- not moot[] his claim for monetary damages"); see also lowry ex rel. crow v. watson hopkins and bakewell waived any right to appellate review of this issue. keup points (holding cap at � 1997e(d)(2) applied to a prisoner who was entitled to nominal 2. amended complaint where a request for equitable relief was mooted, any declaratory judgment would not keup's attorney fees award at a scant $1.50, we need not reach this argument. mootness defenses, (2) rejecting their exhaustion defenses, and (3) awarding attorney lcc's warden. salvador cruz, ty dekoenig,1 again requested monetary, declaratory, and injunctive relief. grievance in a timely manner because lcc personnel segregated him from the general plaintiff who wins nominal damages is a prevailing party under � 1988.")). 2. september 2005--attempt to mail photocopies to the maoists f.x. hopkins; dennis bakewell; * -11- drawings of marijuana and the bare-breasted woman to his mother. keup requested raise their exhaustion defenses at trial. unlike the issue of mootness, which is keup's remaining claims failed when the district court directed a verdict in the before riley, smith, and gruender, circuit judges. 1. march 2005--attempt to mail drawings to mother rulings created a sufficient "court-ordered `chang[e] [in] the legal relationship new claims. extent keup was asking for permission to send his drawings to his mother and the foulk v. charrier, 262 f.3d 687, 697 (8th cir. 2001) (citing randolph v. rogers, 253 nebraska, purchased a religious book and a greeting card for keup. the bookstore united states court of appeals threat?" cruz denied keup's informal grievance, sabatka-rine denied keup's step- again, hopkins and bakewell do not respond to keup's waiver argument. pursuant to 42 u.s.c. � 1988(b) and fed. r. civ. p. 54(d). hopkins and bakewell time limits apply at each level of the ndcs grievance process. a complaining orders and the terms of its formal judgments make clear the court did not award keup querying "how an art book containing various sketches of nude women could pose a 3. motion for summary judgment ordinarily we "will not review a district court's denial of a motion for summary level ndcs employees at lcc. trial. f.3d 342, 347 n.11 (8th cir. 2001)). by failing to reassert their exhaustion defenses of keup and against hopkins and bakewell for "prohibit[ing] the plaintiff from in august 2005, keup filed a complaint against hopkins, bakewell, and cruz non-monetary relief is ordered (whether with or without a monetary award), the riley, circuit judge. according to its now-defunct website, the maoists were a "collection of i. background attorney's fees cap . . . does not apply.") (citations omitted); see also dannenberg v. confined in any . . . prison . . . until such administrative remedies as are available are * between the'" parties to support an attorney fees award under � 1988. id. at 604 hopkins and bakewell argue a voluntary change in a defendant's behavior--such as woman to his mother and the maoist internationalist movement (maoists). when the maoists; seizing the greeting card and the bondage sketchbook; and allegedly remedies with respect to his request for monetary damages to remedy ndcs's refusal keup acknowledges this precedent but argues the cap should not apply because keup timely grieved the return of the card, claiming lcc personnel violated while incarcerated, keup challenged various restrictions upon his ability to rights. keup reasoned "it seems illogical that i can receive explicit porn magazines keup's step-two grievance as untimely and pointed out segregated prisoners have one grievance, and hopkins denied keup's step-two grievance. certain drawings for a good cause!" cruz denied keup's informal grievance, he obtained non-monetary relief. see foulk, 262 f.3d at 703 n.17 ("however, if the district court awarded keup approximately $25,000 in attorney fees even transcript, it appears hopkins and bakewell did not raise their mootness defenses at and awarded keup approximately $25,000 in attorney fees and costs.3 cir. 2007) (affirming the district court's holding that a plaintiff was a prevailing party appellants. * the court declined to reduce keup's attorney fees award for his lack of success at trial cases to 150% of the monetary damages awarded. when the plaintiff only receives from the district court's orders and judgments here would not affect the behavior of -8- his step-one and informal grievances. keup alleged he was unable to file his step-one calculating the amount of keup's attorney fees award. for example, hopkins and did so at all) until after he filed the complaint. indeed, the incidents of concern giving card to the sender, stapled a return notice to the book, and delivered the book to keup. "prevailing party." see buckhannon bd. & care home, inc. v. w. va. dep't of keup is a prisoner in the custody of ndcs at the lincoln correctional center iii. conclusion require plaintiffs to exhaust their administrative remedies with respect to all claims issue, because hopkins and bakewell did not press their exhaustion defenses at trial. of success at trial and his failure to win his complaints about the greeting card and pages of his book had staple holes in them. cruz denied keup's informal grievance, v. * district court for the mail his drawings to his mother and the maoists--were not moot. keup counters ___________ informal grievance. on november 3, 2005, keup filed a step-one grievance, to mail his drawings to the maoists. hopkins and bakewell interpret � 1997e to retaliating against keup for filing the complaint (collectively, the new claims). keup in august and september 2007, hopkins, bakewell, dekoenig, cruz, and compensatory and punitive damages, as well as declaratory and injunctive relief. capacities, * damages, and ordered hopkins and bakewell to pay approximately $25,000 in for judgment as a matter of law at the close of the plaintiff's case-in-chief and again [and] books containing images of drugs but i can't use my artistic abilities to create health & human res., 532 u.s. 598, 603 (2001). keup, however, won a finding of declaratory judgment, we hold such a declaratory judgment would be insufficient to black, 225 f.3d 36, 40-41 (1st cir. 2000) (similar). containing a small marijuana leaf and the other a bare-breasted woman. at the time, ___________ at 704 (similar); see also pearson v. welborn, 471 f.3d 732, 742-44 (7th cir. 2006) challenge our subject matter jurisdiction at any time. see borntrager v. cent. states be included in mailings from the bookstore/publisher." lcc personnel returned the bakewell aver the district court should not have permitted keup to amend his grievance. c. attorney fees determining the proper amount of . . . attorney's fees[.]"). because � 1997e(d)(2) caps he seeks the injunction to do." in september 2005, ndcs amended the om to ban dekoenig intercepted the photocopies. hopkins and filed: march 4, 2010 c. prior proceedings b. exhaustion exhausted."). they point out keup did not exhaust his administrative remedies (if he (similar); walker v. bain, 257 f.3d 660, 667 (6th cir. 2001) (similar); boivin v. acts. keup timely grieved the interception of the bondage sketchbook, opining that ___________ the shipment. section 205.1.1 of the om provided that "[a]ll publications . . . must b. keup's grievances we affirm in part, reverse in part, and remand for reduction of the attorney fees sabatka-rine for their respective roles in blocking the mailing of the photocopies to tyler keup, an artist in the custody of the nebraska department of correctional decision to amend the om in september 2005 mooted any need for prospective the district court's ruling is contrary to governing precedent. section 1997e(d)(2) defendants' favor as to some claims and the jury rejected all others. hopkins and bakewell contend the district court erred in holding keup's to keup's request for monetary damages, but held keup's requests for prospective under 42 u.s.c. � 1983. keup claimed hopkins, bakewell, and cruz violated keup's sabatka-rinedeniedkeup'sstep-onegrievance,andhopkinsdeniedkeup'sstep-two a narrow exception to the general rule, however, applies in this case. prison population on september 24, 2005. on august 10, 2006, hopkins denied damages); robbins v. chronister, 435 f.3d 1238, 1239 (10th cir. 2006) (en banc) release from prison "mooted his claims for declaratory and injunctive relief but [did] award of attorney fees") (citing farrar v. hobby, 506 u.s. 103, 112 (1992) ("[a] hopkins and bakewell toward keup, keup is entitled to no more than $1.50 in objected on two alternative grounds: (1) keup was not entitled to any attorney fees in july 2008, the district court held a jury trial on keup's requests for damages. is that he did not obtain non-monetary relief. the district court's passing statement in august 2007, keup amended his complaint with leave of court. in addition -5- judgment after a trial on the merits." eeoc v. sw. bell tel., l.p., 550 f.3d 704, 708 of [the] judgment, [the plaintiff] was the prevailing party and, thus, is entitled to an code, ch. 2 � 004. see also 42 u.s.c. � 1997e; neb. rev. stat. �� 83-4,111 & no. 09-1079 february2008,thedistrictcourtrejectedthedefendants'exhaustiondefensesbecause, surviving claims--his requests for monetary damages to remedy ndcs's refusal to -3- ndcs rebuffed keup's efforts, keup sued various ndcs officials under 42 u.s.c. see, e.g., watts v. brewer, 588 f.2d 646, 648 (8th cir. 1978) (holding the plaintiff's ___________ 1 -6- grievance, (2) a step-one grievance, and (3) a step-two grievance. 68 neb. admin. [sic] mail before delivery." keup asked for a new book, because the first fourteen submitted: october 22, 2009 if the inmate is dissatisfied with ndcs's response, the inmate must file a step-one judgment, the excess shall be paid by the defendant." we have repeatedly construed at the conclusion of keup's case-in-chief, the district court directed a verdict in favor bakewell point out the district court failed to reduce keup's attorney fees for his lack "awkwardly worded" and affirming an attorney fees award of $1.50); foulk, 262 f.3d ndcs's decision to amend the om--standing alone does not qualify a plaintiff as a in part. 2. section 1997e(d)(2) cap applies injunctive and declaratory relief were moot because ndcs had amended the om. shall be brought with respect to prison conditions under [�] 1983 . . . by a prisoner marijuana leaf and the bare-breasted woman to the maoists. apparently, keup was send and receive mail. keup availed himself of ndcs's three-level grievance __________ chapel sch. dist., 540 f.3d 752, 761 n.8 (8th cir. 2008) (discussing the voluntary reasserting his right to "unrestricted/uncensored access for the conduction of legal "bondage is a sexual fetish and is not of a violent nature or an illegal nature" and cessation exception to the mootness doctrine), cert. denied, 129 s. ct. 1526 (2009). only drawings that "advocate or are likely to incite violent or illegal activity." in september 2005, keup tried to send photocopies of his drawings of the to the claims in the complaint, keup lodged additional first and fourteenth the substance of the amended complaint, asserted keup's claims were moot to the � 1983 for violating his first amendment rights. the district court directed a verdict keup immediately grieved dekoenig's seizure of the photocopies, asserting a housing auth. v. usda, 419 f.3d 729, 739 (8th cir. 2005). a defendant may asserted in a lawsuit before filing the lawsuit. see 42 u.s.c. � 1997e(a) ("no action se. & sw. areas pension fund, 577 f.3d 913, 919 (8th cir. 2009). ii. discussion hopkins and bakewell argue the district court erred in (1) rejecting their even if the district court's orders somehow could be construed as awarding keup a after reviewing the trial transcript, it appears hopkins and bakewell failed to 2 avoid the cap in � 1997e(d)(2). see, e.g., pearson, 471 f.3d at 743 (holding that, hopkins and bakewell do not respond to keup's waiver argument. amended complaint. v. kautzky, 375 f.3d 720, 725-26 (8th cir. 2004) (referring to the statute as (citation omitted); see, e.g., ollis v. hearthstone homes, inc., 495 f.3d 570, 576 (8th hour, pursuant to 42 u.s.c. � 1997e(d)(3), because keup's attorneys sought payment 4. jury trial though the court determined keup was entitled to only $1.00 in nominal damages. moot since changes have been made in the [om] that allow the plaintiff to do what injunctive relief he sought" lacks support in the record. the district court's other unfettered access to ndcs's grievance procedure. 3. lack of success maoists, and maintained keup failed to exhaust his administrative remedies as to his for the eighth circuit at a rate in excess of 150% of the hourly rate established for court-appointed counsel. 83-4,135-139. sent keup the book and the card in a single mailing, and lcc personnel intercepted � 1983 claims, he is a "prevailing party" entitled to attorney fees under � 1988. grievance within fifteen days. if the inmate remains dissatisfied, the inmate must file lcc personnel accordingly refused to let keup mail the drawings. after the jury's verdict. see eaddy, 317 f.3d at 916. after scouring the trial procedure. to exhaust administrative remedies, a prisoner must file (1) an informal 1. complaint a. parties the spelling of dekoenig's name is unclear. we adopt the spelling in keup's at trial, hopkins and bakewell waived them. see eaddy, 317 f.3d at 916 ("even a "questions of mootness are matters of subject matter jurisdiction[.]" charleston 4. february 2007--attempt to receive a bondage sketchbook because the district court directed a verdict in keup's favor as to some of his four incidents are relevant to this appeal: attorney fees and costs. hopkins and bakewell appeal. we affirm in part and reverse appellee, * -4- mail, because the om forbade prisoners from possessing depictions of violent sexual this "awkwardly worded" statute to cap awards of attorney fees in prisoner rights affairs." ondecember22,2005,bakewelldeniedthestep-onegrievanceasuntimely. a step-two grievance within ten days of ndcs's response to the step-one grievance. in its order awarding attorney fees that it "grant[ed keup] the declaratory and attorney fees. see id. 1. keup is a prevailing party the om. keup complained the stapling of the return notice to the book was "highly * "will constitute relief, for purposes of � 1988, if, and only if, it affects the behavior a. mootness rhodes v. stewart, 488 u.s. 1, 4 (1988) (per curiam) (stating a declaratory judgment 257 f.3d at 667 n.2 (same); boivin, 225 f.3d at 41 n.4 (same). the problem for keup (lcc). at all relevant times, hopkins was one of ndcs's directors. bakewell was manufacturing, possessing, or distributing drawings of "[u]ncovered female breasts," * appeal from the united states award to $1.50. fees. we consider each assignment of error, in turn. valadez,338f.3d1070,1073-75(9thcir.2003)(acknowledgingexception);walker, of the defendant toward the plaintiff")). because any declaratory judgment inferred in february 2007, lcc personnel intercepted a bondage sketchbook in keup's jurisdictional, "reliance on [� 1997e(a)'s] exhaustion requirement can be waived." constitute "other relief" distinct from nominal damages to dodge the cap) (citing 5. attorney fees on july 6, 2006, keup filed a step-two grievance, in which he repeated the claims in provides, "if the award of attorney's fees is not greater than 150 percent of the hopkins and bakewell argue the district court abused its discretion in opportunity to seek monetary damages for prior violations of his constitutional rights. general rule, a litigant must renew summary judgment arguments in rule 50 motions summary judgment motion, they failed to reassert their mootness defenses at trial. bondage sketchbook incidents. see, e.g., hensley v. eckerhart, 461 u.s. 424, 440 keup timely grieved ndcs's refusal, alleging a violation of his free speech and diane sabatka-rine were lower- (8th cir. 2008) (citing eaddy v. yancey, 317 f.3d 914, 916 (8th cir. 2003)). as a be prepaid and sent to the inmate directly from the publisher" but "cards . . . can not in its view, dismissal of keup's new claims would result in another lawsuit and foster 3 judicial inefficiency. the district court rejected the defendants' mootness defenses as bakewell insist keup should have filed a second lawsuit. grievance. in may 2006, hopkins, bakewell, and cruz answered the complaint. they mailing his drawings . . . to his mother and the [maoists]." the district court awarded