Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252) , a Washington
corporation; R OLLIN A. W RIGHT ,
Plaintiffs-Appellees, v.
J OSEPH L EHMAN , in his official and individual capacities; E LDON V AIL , in his official and individual
capacities; C AROL P ORTER , in her official and individual capacities; J AMES B LODGETT , Superintendent, in his official and individual No. 03-35608 capacities; K AY W ALTER , in her (cid:253) official and individual capacities; D.C. No. A LICE P AYNE , in her official and CV-01-01911-RSL individual capacities; M AGGIE M ILLER -S TOUT , in her official and individual capacities; R ICHARD
M ORGAN , in his official and
individual capacities; B OB M OORE , in his official and individual
capacities; J OHN L AMBERT , in his official and individual capacities; D OUG W ADDINGTON , in his official and individual capacities; B ELINDA D. S TEWART , in her official and individual capacities, (cid:254) Defendants-Appellants.
P RISON L EGAL N EWS (cid:252) L , a Washington corporation; R OLLIN A. W RIGHT ,
Plaintiffs-Appellants, v.
J OSEPH L EHMAN , in his official and individual capacities; E LDON V AIL , in his official and individual
capacities; C AROL P ORTER , in her official and individual capacities; J AMES B LODGETT , Superintendent, in his official and individual
capacities; K AY W ALTER , in her No. 04-35185 official and individual capacities; A LICE P AYNE , in her official and (cid:253) D.C. No. individual capacities; M AGGIE CV-01-01911-RSL M ILLER -S TOUT , in her official and OPINION individual capacities; R ICHARD M ORGAN , in his official and
individual capacities; B OB M OORE , in his official and individual
capacities; J OHN AMBERT , in his official and individual capacities; D OUG W ADDINGTON , in his official and individual capacities; B ELINDA D. S TEWART , in her official and individual capacities; S COTT
F RAKES , in his official and
individual capacities, (cid:254) Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding Argued and Submitted November 1, 2004—Seattle, Washington Filed February 1, 2005 Before: Arthur L. Alarcón, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Alarcón COUNSEL Shannon Elizabeth Inglis and Carol A. Murphy, Office of the Washington Attorney General, Olympia, Washington, for the defendants-appellants.
Jesse Andrew Wing, MacDonald, Hoague & Bayless, Seattle, Washington, for the plaintiffs-appellees.
Steven R. Powers, Office of the Oregon Attorney General, Salem, Oregon, for the amicus.
OPINION
ALARCÓN, Circuit Judge:
The Washington Department of Corrections (“DOC”) appeals from the grant of summary judgment and permanent injunctive relief on Prison Legal News and Rollin A. Wright’s (collectively “PLN”) claim that the DOC prohibition against the receipt by inmates of non-subscription bulk mail and cata- logs violates the First and Fourteenth Amendments. The thir- teen individual defendants (“prison officials”) appeal from the denial of their motion for summary judgment based on their defense of qualified immunity from damages as a result of restricting inmates from receiving third-party legal materials.
PLN has filed a cross-appeal from the order granting sum- mary judgment to the thirteen individuals based on their defense of qualified immunity regarding PLN’s claim that the defendants violated its constitutional rights.
We affirm the district court’s decision. Under the test laid
out in
Turner v. Safley,
I
Prison Legal News is a Washington nonprofit corporation that publishes and distributes publications regarding legal issues of interest to inmates, such as prisoners’ rights. It pub- lishes a monthly subscription magazine, which has 3,000 sub- scribers across the United States, including 120 who are inmates in Washington’s state correctional facilities. Its edi- tor, Paul Wright, is an inmate in a Washington state correc- tional facility.
The prison officials are policymaking employees in the DOC. The DOC operates fifteen Washington correctional institutions that house 16,000 inmates. The DOC employs approximately one mailroom staff person per 600 persons served at each institution, including inmates and staff.
This is the fourth case since 1996 brought by PLN against the DOC. The previous cases are Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash. 1997), MacFarlane v. Walter, No. 96-cv-03102-LRS (E.D. Wash. 1997), and Humanists of Washington v. Lehman, No. 97-cv-05499-FDB-JKA (W.D. Wash. 1999).
The DOC’s Policy Directive 450.100, entitled “Mail for Offenders,” sets forth rules and procedures regarding mail delivery to inmates. The district court summarized the por- tions relevant to this appeal:
First, the directive prohibits inmates from receiving “bulk mail” unless that bulk mail is a subscription publication. In contrast to first and second class mail rejected due to prohibited content, “[n]o rejection notice is required for bulk mail that is not a subscrip- tion publication.” Additionally, inmates are not per- mitted to receive catalogs by mail, whether sent first class, second class, or at a “bulk mail” rate. If mail other than that constituting bulk mail is rejected for delivery, inmates receive notice of the rejection and may appeal the decision.
Prison Legal News v. Lehman, 272 F. Supp. 2d 1151, 1154 (W.D. Wash. 2003) (alterations in original) (citations omitted) (“ PLN II ”). The court further explained, “The Department defines bulk mail as [m]ail which is clearly marked non-profit or bulk rate. This type of mail is also referred to as bulk busi- ness mail or advertising mail and includes, but is not limited to, catalogs and circulars.” Id. at n.2 (alterations in original) (citations and quotations omitted). “The Department defines ‘catalog’ as ‘[a] publication which is predominantly or sub- stantially focused on offering items for sale.’ ” Id. at n.3 (alterations in original) (citations omitted). The court also explained the DOC’s policy regarding third-party legal mate- rial:
DOC 450.100 prohibits the delivery of “[m]ail con- taining information which, if communicated, could create a risk of violence and/or physical harm to any person . . . .
Third-party legal materials-Must meet the following requirements
a. Mail which consists of judicial opinions (pub- lished and unpublished), reports and recommenda- tions, orders, complaints or answers, settlement agreements, class action notices, legal briefs and memoranda, and motions, and b. Mail which otherwise complies with DOC Pol- icy 450.100 Mail for Offenders and has been stamped “approved third-party legal materials” by correctional staff.
Id. at 1161 (citations omitted).
PLN sued the DOC under 42 U.S.C. § 1983, arguing that these regulations violated its First and Fourteenth Amendment rights. The district court held that the DOC’s policies regard- ing non subscription bulk mail and catalogs violated PLN’s First Amendment rights, id. at 1159, but that the officials were entitled to qualified immunity for their decisions. Id. at 1163. The district court further concluded that summary judg- ment was not appropriate for the claim regarding third-party legal material, because “resolution of these issues requires highly fact-dependent inquiries that . . . are not amenable to summary determination.” Id. at 1162. Furthermore, the dis- trict court limited its finding of qualified immunity to the issues resolved on summary judgment, and expressed no opinion regarding whether the officials will be entitled to qualified immunity if PLN should ultimately prevail on its claim regarding third-party legal materials. Id. at 1163 n.14.
II
The district court had jurisdiction under 42 U.S.C. § 1983. We have jurisdiction to review the district court’s decision to grant summary judgment for PLN and its decision to grant qualified immunity to defendants regarding PLN’s claims under 28 U.S.C. § 1291. We have jurisdiction to review the grant of permanent injunctive relief to PLN relating to cata- logs and non-subscription bulk mail and notice under 28 U.S.C. § 1292(a)(1).
We have jurisdiction under 28 U.S.C. § 1291 over an inter-
locutory appeal regarding the issue of qualified immunity.
Wilkins v. City of Oakland,
The parties dispute whether we have jurisdiction over the officials’ assertion that the district court improperly denied qualified immunity from the claim relating to third-party legal materials. PLN argues that the officials waived their qualified immunity defense as to the third-party legal material claim because they only asserted qualified immunity with regard to the non-subscription bulk mail and catalog claims. We dis- agree. In their motion for summary judgment, the officials ask for qualified immunity, and do not specifically limit their request to the non-subscription bulk mail and catalog claims. The heading on that portion of their argument is “Defendants Should be Entitled to Qualified Immunity From Damages.” The section of their motion addressing qualified immunity reads in its entirety:
In the event that this Court determines plaintiffs’
constitutional rights were violated, defendants
should be entitled to qualified immunity from dam-
ages.
Saucier v. Katz
,
While the second sentence supports only their arguments based on the non-subscription bulk mail and catalog claims, the first sentence of the argument does not limit the request in any way. We are persuaded that the officials did not waive their argument that they are entitled to qualified immunity from the claim concerning third-party legal materials.
PLN also argues that because the officials dispute the fac-
tual merits of the third-party legal materials claim, rather than
the legal basis, that claim is outside the scope of this Court’s
interlocutory jurisdiction. We disagree. As noted above, cases
in this circuit establish that when disputed facts exist, we have
jurisdiction to decide the claim, but must assume that the ver-
sion of events offered by the nonmoving party is correct.
Wil-
kins,
III
We review de novo a district court’s decision to grant or deny summary judgment. Botosan v. Paul McNally Realty , 216 F.3d 827, 830 (9th Cir. 2000). We apply the same stan- dard used by the trial court under Rule 56 of the Federal Rules of Civil Procedure. Meade v. Cedarapids, Inc. , 164 F.3d 1218, 1221 (9th Cir. 1999). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant sub- stantive law. Lopez v. Smith , 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We also review a grant or denial of qualified immunity de novo. Bahrampour v. Lampert , 356 F.3d 969, 976 (9th Cir. 2004).
A We first consider whether the district court correctly
found that PLN was entitled to summary judgment on its
claims that the ban on non-subscription bulk mail and cata-
logs was unconstitutional. In
Prison Legal News v. Cook
, 238
F.3d 1145 (9th Cir. 2001) (“
PLN I
”), we held that publishers
and prisoners have a constitutionally protected right to receive
subscription non-profit bulk mail and that a ban on bulk mail
was unconstitutional as applied to such mail.
Id.
at 1152-53.
In
Morrison,
we held that a similar ban on subscription for-
profit bulk mail was likewise unconstitutional.
Morrison v.
Hall,
261 F.3d 896 (9th Cir. 2001). In this case, we are
squarely presented with the question of whether a ban on non-
subscription bulk mail and catalogs is also unconstitutional.
Publishers have a First Amendment right to communi-
cate with prisoners by mail, and inmates have a First Amend-
ment right to receive this mail.
PLN I
, 238 F.3d at 1149
(citing
Thornburgh v. Abbott,
In Turner , the Supreme Court laid out a four-factor test to determine whether a prison regulation is “reasonably related to legitimate penological interests”:
(1) whether the regulation is rationally related to a legitimate and neutral governmental objective, (2) whether there are alternative avenues that remain open to the inmates to exercise the right, (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allo- cation of prison resources; and (4) whether the exis- tence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.
PLN II
, 272 F. Supp. 2d at 1155 (citing
PLN I
, 238 F.3d at
1149 and
Turner
, 482 U.S. at 89). “The first factor of these
factors constitutes
sine qua non.
”
Walker
, 917 F.2d at 385.
Therefore, if a regulation is not rationally related to a legiti-
mate and neutral governmental objective, a court need not
reach the remaining three factors.
Id.
As in the previous cases
challenging restrictions on bulk mail, the district court in this
case found that because the ban on non-subscription bulk mail
was not rationally related to a neutral government objective,
it did not reach the remaining factors of the test.
PLN II,
272
F. Supp. 2d at 1159 (holding that the court need not consider
the other factors because the DOC had failed to demonstrate
the regulation was rationally related to a neutral government
objective);
see also PLN I
, 238 F.3d at 1151 (same);
Morri-
son
,
The DOC offered four penological goals which it claims justifies the ban on non-subscription bulk mail and catalogs: (1) reducing the volume of mail to be searched in order to increase the likelihood of mailroom staff preventing contra- band from entering the facility; (2) reducing the amount of mail coming into the jail generally in order to reduce the amount of work required to sort the mail and deliver it to inmates; (3) reducing the amount of clutter in each inmate’s cell to reduce the risk of fires; and (4) reducing the amount of clutter in each inmate’s cell to make searching the cell and enforcing limitations on personal property more efficient and effective.
The DOC offered the same arguments in the previous cases
challenging bans on subscription non-profit mail,
see PLN I
,
238 F.3d at 1150-51, and subscription for-profit mail,
see
Morrison,
reduce the volume of mail that may contain contraband, we believe that it is far more likely that contraband would be con- tained in first class mail than in bulk mail. The district court properly found that there is no rational relation between this regulation and the penological objective of reducing the amount of mail that may contain contraband.
[4] The DOC also argues that the regulation is justified because it reduces the volume of mail generally. Our previous cases analyzing the efficient use of staff time argument also apply here. While the DOC’s mailroom staff may have to spend more time analyzing the content of non-subscription bulk rate mail and catalogs, such a ban on non-subscription bulk rate mail and catalogs is not rationally related to the goal of reducing contraband. As we explained in Morrison , “[P]rohibiting inmates from receiving mail based on the post- age rate at which the mail was sent is an arbitrary means of achieving the goal of volume control.” Morrison , 261 F 3d at 903-04.
[5]
The DOC also asserts that the restrictions help reduce
the risk of fire. While a greater volume of mail will enter
inmates’ cells as a result of our decision to void this regula-
tion, it is irrational to prohibit prisoners from receiving bulk
rate mail and catalogs on the theory that it reduces fire haz-
ards because the DOC already regulates the quantity of pos-
sessions that prisoners may have in their cells.
See Morrison
,
It should be noted that PLN was not sending mail to Wash-
ington’s correctional facilities to be distributed to all inmates,
regardless of whether they had expressed interest in receiving
it. This case is therefore distinguishable from
Jones v. North
Carolina Prisoners’ Labor Union, Inc.,
and
PLN I
is that the inmates in this case did not pay for the
mail that was sent to them. But it is the fact that a request was
made by the recipient, and not the fact that the recipient is
paying to receive the publication, that is important. As a
Washington district court explained in one of the previous
cases brought by PLN against the DOC, “[t]he sender’s inter-
est in communicating the ideas in the publication corresponds
to the recipient’s interest in reading what the sender has to say
. . . We can perceive no principled basis for distinguishing
publications specifically ordered by a prison inmate from let-
ters written to that inmate for purposes of first amendment
protection . . .”
Miniken v. Walter
, 978 F. Supp. 1356, 1362
(E.D. Wash. 1997) (quoting
Brooks v. Seiter
,
1298
This case is not a scenario in which a publisher has
attempted to flood a facility with publications sent to all
inmates, regardless of whether they requested the publication.
In fact, PLN submitted evidence that at one of the correctional
facilities, the mailroom received an average of only thirty-one
catalogs and non-subscription bulk rate mail per day. PLN
argues persuasively that this amount is virtually indistinguish-
able from the fifteen to thirty pieces of mail that were prohib-
ited by the ban at issue in
PLN I,
an amount which we held
was “minimal.”
PLN I,
[8] In addition to its First Amendment claim, PLN argues that the DOC’s practice of failing to provide notice and review of rejections of non-subscription bulk mail and cata- logs that are not delivered under the ban violates the Due Pro- cess clause as explained in Procunier v. Martinez, 416 U.S. 396 (1974). In Procunier , the Court held that prison officials must provide minimum procedural safeguards to protect inmates’ interest in receiving mail by notifying inmates of their decision not to deliver letters. Id. at 417-19. In PLN I, we held that as a consequence of our decision that inmates have a First Amendment right to receive subscription non- profit bulk mail, “it follows that such mail must be afforded the same procedural protections as first class and periodicals mail.” PLN I, 238 F.3d at 1152-53. The district court in this case correctly determined that because it was recognizing inmates’ First Amendment rights to receive non-subscription bulk mail and catalogs, the same procedural protections must be afforded to inmates with regard to this mail as with first class, periodical, or subscription bulk rate mail. PLN II, F. Supp. 2d at 1159.
B PLN challenges the district court’s decision that the
prison officials involved in banning non-subscription bulk
mail and catalogs were entitled to qualified immunity. In
Bahrampour v. Lampert
, 356 F.3d at 976, we recently set
forth the test to be applied in determining whether state actors
are entitled to qualified immunity. “The first step is to deter-
mine whether the alleged actions are unconstitutional as a
matter of law. If so, the next step is to analyze whether the
defendants are entitled to qualified immunity because the
rights asserted were not clearly established at the time.”
Id.
(citing
Saucier v. Katz,
PLN argues that after Morrison, PLN I, and Bahrampour , a reasonable official could not conclude that this ban on bulk mail and catalogs was constitutional. PLN points to language from Bahrampour , in which the Court explained its holding in PLN I by saying, “[W]e held that prohibiting inmates’ receipt of non-profit bulk mail was unconstitutional.” Bahrampour, 356 F.3d at 977 (emphasis in original). PLN also points out that the district court cases within the Ninth Circuit that the officials rely on to show that the law was not clearly established predate PLN I and Morrison. PLN argues that the officials’ reliance upon these cases was unreasonable. It further argues that because the law of other circuits con- flicts with the law of this circuit, it was not reasonable for the officials to look to other circuits in light of binding precedent. The prison officials argue that a ban in this case is suf- ficiently different from the bans that the Court struck down in PLN I and Morrison, that the law was not clearly established, and that the officials did not act unreasonably. One paragraph from the Court’s decision in Morrison is sufficient to demon- strate how the officials could have reasonably thought that the ban in this case was constitutional:
Moreover, prisons can and have adopted policies permitting prisoners to receive for-profit, commer- cial publications, while at the same time, prohibiting prisoners from receiving unsolicited junk mail. For example, the California Department of Corrections (“CDC”) adopted a regulation that prohibits prison- ers from “possessing . . . catalogues, advertisements, brochures, and materials whose primary purpose is to sell a product(s) or service(s) and when taken as a whole, lacks serious literary, artistic, political, edu- cational, or scientific value.” 15 Cal. Admin. Code § 30006(c)(11). Unlike the [the regulation at issue in Morrison ], the CDC regulation is specifically tai- lored to permit inmates to receive for-profit, sub- scription publications such as The New York Times , while at the same time prohibiting the receipt of unsolicited junk mail.
PLN also argues that the grant of summary judgment was improper in light of the fact that PLN submitted evidence to suggest that prison officials acted with “a specific intent to interdict the information it offered prisoners about their legal rights.” The prison officials correctly point out, however, that “a defense of qualified immunity may not be rebutted by evi- dence that the defendant’s conduct was malicious or other- wise improperly motivated.” Crawford-El v. Britton , 523 U.S. 574, 588 (1998). We may properly decide whether the prison 1301 officials are entitled to qualified immunity without consider- ing PLN’s evidence that they acted with impure motives.
C
We must consider whether the district court erred in refus-
ing to grant qualified immunity to the prison officials regard-
ing PLN’s claim that the DOC’s policy for handling third-
party legal materials violates PLN’s constitutional rights.
There is considerable dispute about the facts surrounding the
third-party legal materials claim. The district court declined to
grant summary judgment on this claim to either party pre-
cisely because of the differing pertinent factual questions that
need to be resolved at trial. In evaluating whether the district
court improperly failed to grant qualified immunity to the
officials regarding this claim, we must assume that the version
of events offered by the nonmoving party is correct.
Wilkins
v. City of Oakland,
a. consists of judicial opinions (published and unpublished), reports and recommendations, orders, complaints or answers, settlement agreements, class action notices, legal briefs and memoranda, and motions, and
b. otherwise complies with DOC Policy 450.100 Mail for Offenders and has been stamped “approved third-party legal materials” by correctional staff.
The district court correctly held that the DOC regulation pro- hibiting mail that could create a risk of violence and physical harm to any person is constitutional on its face. PLN II, F. Supp. 2d at 1162. The question presented in this case is whether the prison officials applied this rule in a fashion that is unconstitutional. Because we must, for purposes of this appeal, accept the facts as laid out by PLN, we cannot deter- mine on this record whether the prison officials are entitled to qualified immunity. PLN contends that the DOC’s policy was applied by the prison officials in a manner that singled out PLN for discriminatory treatment, while allowing other pub- lishers to deliver similar material. PLN challenges the DOC’s refusal to deliver more than one hundred specific legal docu- ments. PLN suggests that the real motive of the prison offi-
cials who prevented third-party legal materials from being
delivered was to suppress materials that embarrass the DOC
and educate inmates on how to file their claims. Although an
improper motive ordinarily will not defeat a request for quali-
fied immunity,
see Crawford-El
,
Conclusion
The district court properly granted summary judgment to PLN regarding the ban on non-subscription bulk mail and cat- alogs, because the ban is not rationally related to a legitimate penological objective. It also properly granted qualified immunity to the prison officials on this claim because their actions did not violate clearly established law. We further conclude that the district court must be affirmed on its deci- sion to deny the prison officials’ motion for summary judg- ment based on qualified immunity regarding PLN’s third- party legal materials claim, because we must accept as true its allegations that the prison officials applied the policy in a way that discriminated against PLN on the basis of the content of the legal materials.
AFFIRMED.