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Nevada Inmates Lose Typewriter Ban Appeal

By Robyn Hagan Cain on August 19, 2011 | Last updated on March 21, 2019

In his 1839 play Richelieu, Edward Bulwer-Lytton wrote that "the pen is mightier than the sword." It seems that Nevada inmates at Ely State Prison (ESP) took their cues from Richelieu and started using their typewriters as weapons to attack correctional officers and fellow inmates.

Not surprisingly, the Nevada Department of Corrections (NDOC) responded by adopting a prison rule banning typewriters at ESP. Inmates who possessed typewriters had the option of shipping the typewriters out of the prison, donating the typewriters to charity, or having the typewriters destroyed.

The inmates, understandably upset at the prospect of losing their typewriters, sued. The district court ruled in favor of the NDOC, holding that it could implement a prison rule declaring typewriters unauthorized property and that the ban was constitutional. The Ninth Circuit affirmed.

The Ninth Circuit heard two different inmate claims on appeal: first, that the typewriter ban was retaliation against inmate lawsuits over prison conditions, and second, that the typewriter ban violated the Due Process Clause of the Fourteenth Amendment.

The court rejected the retaliation argument because a viable claim for retaliation requires, in part, that an inmate demonstrate that the prison officials' adverse action does not reasonably advance a legitimate correctional goal.

Here, the undisputed evidence showed that the ban was enacted after an inmate was murdered with a weapon fashioned from the roller pin of a typewriter. The court reasoned that no rational finder of fact could determine that the ban on typewriters did not reasonably advance the legitimate correctional goal of institutional safety.

The court also rejected the due process argument, finding that Nevada law provides for the regulation of inmates' personal property, and implicit in the regulation of inmate property is the authority to issue prison rules defining what an inmate can and cannot possess.

The NDOC did not seize the typewriters; instead it gave Nevada inmates the option to send their typewriters home or make other dispositions of them. Therefore the system-wide inmate typewriter ban did not violate the Due Process Clause.

Since the Ninth Circuit upheld the prison rule banning typewriters, Nevada inmates who want to use writing instruments as weapons will have to determine if the pen really is mightier than the sword.

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