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Miniken v. Walter, Summary Judgement Ruling, Bulk Mail Ban on PLN Unconstitutional, 1997

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DONALD W. MINIKEN, Plaintiff, vs. KAY WALTER, and DAVID BUSS,
Defendants.
NO. CS-96-407-JLQ
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
WASHINGTON
978 F. Supp. 1356; 1997 U.S. Dist. LEXIS 16967
August 25, 1997, Decided
August 26, 1997, Filed and Entered

DISPOSITION: [**1] Plaintiff's Motion for Summary
Judgment GRANTED and Defendants' Motion for
Summary Judgment DENIED.

Plaintiff's Motion for Summary Judgment is GRANTED
and Defendants' Motion for Summary Judgment is
DENIED for the following reasons.

LexisNexis(R) Headnotes

[*1358]
FACTUAL AND PROCEDURAL
BACKGROUND

COUNSEL: For DONALD W MINIKEN, plaintiff:
Michael W Gendler, Bricklin & Gendler, Seattle, WA.
Donald W Miniken, plaintiff, Pro se, Airway Heights,
WA.
For KAY WALTER, DAVID BUSS, defendants:
Colleen B Evans, Attorney General of Washington,
Olympia, WA.
JUDGES: JUSTIN L. QUACKENBUSH, SENIOR
UNITED STATES DISTRICT JUDGE.
OPINIONBY: JUSTIN L. QUACKENBUSH
OPINION:
[*1357]
MEMORANDUM OPINION AND
ORDER GRANTING PLAINTIFF'S MOTION FOR
SUMMARY
JUDGMENT
AND
DENYING
DEFENDANTS'
MOTION
FOR
SUMMARY
JUDGMENT
BEFORE THE COURT are the parties' CrossMotions for Summary Judgment, heard without oral
argument on August 20, 1997. Michael W. Gendler
appeared on behalf of the Plaintiff. Colleen B. Evans
appeared on behalf of the Defendants. Having reviewed
the record, and being fully advised in this matter,

Plaintiff Donald Miniken is a prisoner incarcerated
at the Airway Heights Correction Center (AHCC). He
filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging
that the Defendants have violated his First and
Fourteenth Amendment rights by failing to deliver a
publication he subscribed to entitled "Prison Legal
News," without any notice of mail rejection, although he
had been receiving [**2] it while he was incarcerated at
the Washington State Penitentiary (WSP). The
Complaint seeks declaratory and injunctive relief, as well
as damages and attorney fees. Defendant Kay Walter is
the Superintendent of the Airway Heights Correction
Center and David Buss is the mail room sergeant at that
institution.
Plaintiff filed this complaint pro se, along with a
Motion for a temporary restraining order and/or
preliminary injunction. Subsequently Mr. Gendler
appeared on behalf of the Plaintiff, and it was determined
that this matter should be resolved by way of summary
judgment. The following facts are undisputed:
AHCC has a comprehensive mail regulation, AHCC
Field Instruction 450.100, which states in part that "bulk
mail will not be delivered." The institution treats the
publication called Prison Legal News as "bulk mail."
Defendants refuse to deliver Plaintiff's subscription of
Prison Legal News claiming that it is "bulk mail,"
destroy it, and when an issue is destroyed, no notice of
rejection is sent to either the publisher or the subscriber.

Page 2
978 F. Supp. 1356, *; 1997 U.S. Dist. LEXIS 16967, **

Plaintiff has been unable to obtain Prison Legal News
since his transfer to AHCC, although he has paid for the
publication with postage [**3] stamps, and did receive
the publication when he was incarcerated at the
Washington State Penitentiary (WSP).
Prison Legal News is published by a nonprofit
organization. Copies of the publication provided to the
court indicate that it is a newsletter setting forth
developments, summaries, and results of prisoner legal
actions across the country, as well as articles concerning
common prisoner complaints. As a nonprofit
organization, the publication is mailed via third class
non-profit mail, now called "standard mail" by the post
office. Each issue is individually addressed to the
prisoner subscribers and includes their proper address,
name of commitment, and DOC number, as required by
Field Instruction 450.100.
The publisher of Prison Legal News complies with
postal service regulations to send the publication to its
subscribers. The publication was previously sent by third
class mail pursuant to the Postal Service's Domestic Mail
Manual. Prison Legal News is currently sent as "standard
mail" pursuant to current Postal Service regulations.
The Washington Department of Corrections does not
have a statewide policy or definition for "bulk mail" or
for publications such as Prison Legal [**4] News. A
letter dated November 8, 1995 from Tom Rolfs, Director
Division of Prisons to Rollin Wright, the publisher of
Prison Legal News states that the Washington State
Penitentiary allows inmates to receive free publications
sent via bulk mail provided it has been approved in
advance, and does not otherwise violate DOC Field
Instruction 450.100. A letter dated October 21, 1996
from Jim Blodgett, Deputy Director Division of Prisons
to Rollin Wright states that "Prison Legal News is not
being allowed for inmates at WSP whose subscriptions
did not originate from their account at WSP, and that no
rejection notice is issued to the sender or intended
receiver of mail sent via standard class third or fourth
class with no endorsement." Although a statewide policy
banning "bulk mail" was proposed to go into effect on
January 15, 1997, no such statewide policy was issued.
Various correctional facilities across the State vary
greatly in their "bulk mail" policies.
AHCC Field Instruction 450.100 sets forth the
institution's mail policies, and regulations. The Field
Instruction is a detailed 21 page document setting forth
in detail the policies and applicable definitions. Item 2
lists 21 different [**5] justifications for rejecting
incoming prisoner mail. Item 4 states that the
Superintendent or designee may limit the number or
volume of publications an inmate may receive or retain
in his quarters for fire, sanitation or housekeeping

reasons. Item No. 5 provides that "bulk mail will not be
[*1359]
delivered." Item 6 provides that "mail
determined to be undeliverable will be left unopened and
returned to the sender." Item F 1. provides that if any
portion of an inmate's incoming or outgoing mail is
restricted for the reasons set forth in this Field
Instruction, written notification will be provided to the
inmate and the sender by the Mail Room staff. Item F 2
provides that the inmate and the sender shall be advised
in writing of the right to seek a review of any decision to
restrict mail.
At the time this lawsuit was filed, AHCC Field
Instruction 450.100 defined "bulk mail" as "mail which
is sent without endorsement (i.e. address correction
requested, forwarding, postage guaranteed, etc.) as
classified by the United States Postal Service." (emphasis
added). Prison Legal News bears the endorsement
"address correction requested."
Defendants have changed the definition of "bulk
mail" [**6] twice after this lawsuit was filed. First, the
AHCC field instruction was changed to define bulk mail
as "mail which is sent without endorsement (return
postage guaranteed), as classified by the United States
Postal Service." Page 8 of the Field Instruction, as
amended, effective April 7, 1997, reads "bulk mail will
not be delivered (exception - only bulk mail that has
return postage guarantee)." Then deciding that this was a
mistake,
Superintendent
Walter
issued
an
Administrative Bulletin dated April 21, 1997, defining
bulk mail as "mail which is clearly marked "non-profit"
or bulk mail."
No notice was given to either the Plaintiff or the
sender concerning the rejection and destruction of
Prisoner Legal News. Because there are no disputed
material facts, this case is appropriately resolved by way
of summary judgment.
42 U.S.C. § 1983
42 U.S.C. § 1983 requires a claimant to prove (1)
that a person acting under color of state law (2)
committed an act that deprived the claimant of some
right, privilege, or immunity protected by the
Constitution or laws of the United States. Leer v.
Murphy 844 F.2d 628, 632-33 (9th Cir. 1988). A person
deprives another of a constitutional [**7] right, if he
does an affirmative act, participates in another's
affirmative acts, or omits to perform an act which he is
legally required to do under the Constitution that causes
the deprivation of which the Plaintiff complains.
Redman v. County of San Diego, 942 F.2d 1435, 1439
(9th Cir. 1991), cert. denied, 502 U.S. 1074, 117 L. Ed.
2d 137, 112 S. Ct. 972 (1992). There is no dispute here
that Defendants were acting under color of State law, and

Page 3
978 F. Supp. 1356, *; 1997 U.S. Dist. LEXIS 16967, **

that they are responsible for the acts of which Plaintiff
complains.

protest, and review by someone other than the initial
decision-maker. Id. at 418-19.

The Plaintiff's claim concerns Defendants' alleged
unconstitutional application of AHCC Field Instruction
450.100. Statutes( and regulations) may be challenged on
two grounds (1) either facially or (2) as applied.
Compassion in Dying v. State of Washington, 79 F.3d
790, 842 (9th Cir. 1996), rev'd on other grounds, U.S.
, 135 L. Ed. 2d 1128, 117 S. Ct. 37 (1997).

In Jones v. North Carolina Prisoners' Labor Union,
433 U.S. 119, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977),
the Court held that a prohibition against bulk mailings by
a prisoner's union was reasonable, given the availability
of alternative means to share the information. 433 U.S.
at 130-31. ("First Amendment speech rights are barely
implicated in this case" because only bulk mailings were
at issue, [**10] not "mail rights" themselves).

Mr. Miniken does not challenge the facial validity of
AHCC Field Instruction 450.100's ban against bulk mail,
but rather contends that the prohibition against bulk mail
has been unconstitutionally applied to his subscription of
Prison Legal News. The practical effect of holding a
statute unconstitutional [**8] as applied is to prevent its
future application in a similar context but not to render it
utterly inoperative. Id. The issue here is whether the
prohibition against "bulk mail" unconstitutionally
includes the prohibition of subscription publications
from non profit organizations such as Prison Legal
News.
FIRST AMENDMENT CLAIM
The Supreme Court has recognized that the First
Amendment plays an important, albeit somewhat limited,
role in the prison context. In Procunier v. Martinez, 416
U.S. 396, 406, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974),
the Court considered the proper standard of review for
prison regulations that restrict inmates' freedom of
speech. The Court specifically limited its consideration
to regulations of "direct personal correspondence
between inmates and those who have a particularized
interest in communicating with them," 416 U.S. at 408,
as opposed to "mass mailings," for which "different
[*1360] considerations may come into play." Id. at 408
n.11.
The Court found that censorship of inmate mail-whether the inmate writes or receives it-- "works a
consequential restriction on the First and Fourteenth
Amendment rights of those who are not prisoners. Id
[**9] . at 409. The Court held that censorship of
prisoner mail is justified if, first, "the regulation or
practice in question . . . further[s] an important or
substantial governmental interest unrelated to the
suppression of expression." Id. at 413. Second,
restrictions of First Amendment free speech must be "no
greater than is necessary or essential to the protection of
the particular governmental interest involved." Id. 424.
The Court further held that "the decision to censor or
withhold delivery of a particular letter must be
accompanied by minimum procedural safeguards." Id. at
417. The Court upheld the district court's requirements of
notice to the inmate, the opportunity for the author to

Jones is not controlling in this case for two reasons:
First, this case does not concern bulk mailings, but rather
the sending of a publication to those who have
specifically subscribed to it. Second, the Jones Court
simply held that the prisoners' loss of the ability to save
money by using bulk mail did not implicate the First
Amendment. In this case, the Plaintiff is completely
precluded from receiving the publication to which he has
subscribed and paid for.
The Supreme Court subsequently clarified the
standard to be applied when addressing the
constitutionality of prison rules in Turner v. Safley, 482
U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). The
Court held that "when a prison regulation impinges on
inmates' constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests."
Id. at 89. The Court specifically rejected the application
of strict scrutiny, in deference to the judgments of prison
administrators faced with difficult problems. Id.
Prison regulations alleged to infringe constitutional
rights are judged under a reasonableness test less
restrictive than that ordinarily [**11] applied to alleged
infringements of fundamental constitutional rights.
O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 96 L.
Ed. 2d 282, 107 S. Ct. 2400 (1987); Anderson v.
Angelone, 123 F.3d 1197, (9th Cir. 1997). Prison
regulations are thus upheld if they are "reasonably
related to legitimate penological interests." Id.; Turner v.
Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254
(1987). Relevant factors in determining the
reasonableness of a restriction include: (1) the
connection between the regulation and a legitimate
neutral government purpose, (2) the existence of
alternative means of exercising the right, (3) the impact
accommodation of the right would have on guards, other
inmates, and prison resources, and (4) the absence of
ready alternatives to the regulation. 482 U.S. at 89-91.
In 1989, the Supreme Court held that the Turner
reasonableness standard must be applied to publications
in the prison context and rejected the Martinez least
restrictive means test in that context. Thornburgh v.
Abbott, 490 U.S. 401, 413, 104 L. Ed. 2d 459, 109 S. Ct.
1874 (1989). At issue were federal regulations that

Page 4
978 F. Supp. 1356, *; 1997 U.S. Dist. LEXIS 16967, **

[**12]
allowed federal prisoners to subscribe to
publications, but allowed prison authorities to reject
publications deemed harmful to security, order, or
discipline. Id. at 404. The Court noted that the
regulations provided procedural protection, including
notice to both the sender and the intended recipient and
independent review. Id. at 406.
The Defendants contend that the prohibition of
delivery of "bulk mail" is reasonably [*1361] connected
to a legitimate, neutral government purpose and that
delivery of all bulk mail delivered to the institution
would work a great hardship on prison personnel and
resources. However, the constitutionality of the
prohibition against delivery of "bulk mail" is not the
issue before this court. Rather, the issue is whether the
definition of "bulk mail" at AHCC unconstitutionally
includes subscriptions from nonprofit organizations such
as Prison Legal News.
1. Prison Legal News is Not Bulk Mail
It is clear that Prison Legal News does not fall
within the definition of "bulk mail" prior to post lawsuit
changes in the definition contained in AHCC Field
Instruction 450.100 because it does carry an
endorsement. In fact it carries one of the specified [**13]
examples of endorsement "Address Correction
Requested." It is also clear that once Defendants realized
the definition did not cover Prison Legal News, they
twice changed the definition of "bulk mail" until it
covered Prison Legal News as a non-profit publication.
The contention that the three examples "address
correction
requested,"
"forwarding,"
"postage
guaranteed" in the former definition were meant to be
examples of "bulk mail" rather than examples of
endorsements belies credibility.
The court is reminded of Lewis Carroll's classic
advice on the construction of language: "When I use a
word," Humpty Dumpty said in rather a scornful tone, "it
means just what I chose it to mean." Through the
Looking Class, in the Complete Works of Lewis Carroll
196 (1939). This advice has been noted on several
occasions by the Supreme Court. See Tennessee Valley
Authority v. Hill, 437 U.S. 153, 57 L. Ed. 2d 117, 98 S.
Ct. 2279 (1978). No reasonable person could possibly
interpret the words of the definition of bulk mail as mail
sent without endorsement to include mail sent with the
endorsement "address correction requested."
Defendant Superintendent Walter testified during
deposition that [**14] the "bulk mail" prohibition is
intended to prohibit third class mail sent without an
endorsement, and that the policy is intended to treat
differently "bulk mail sent with an endorsement and bulk
mail sent without endorsement, the difference being the
endorsement issue." James Blodgett, the Deputy Director

of the Division of Prisons, also recognized the
significance of endorsements. He stated that "standard
class without an endorsement will not be processed into
the facility." Therefore, it is obvious that the original
definition of "bulk mail" did not cover the subscription to
Prison Legal News mailed with the endorsement
"address correction requested." The fact that the
Defendants changed the definition to cover the claim in
this case after it was filed does not change this finding.
2. There is No Connection to Legitimate Neutral
Purpose
Defendants contend that allowing all bulk mail
would create a tremendous influx of incoming prisoner
mail, presenting problems to the prison officials, in that
allowing bulk mail would double the workload of
mailroom personnel, and that by allowing bulk mail
inmates would solicit catalogs and flyers, and that names
would be sold on mailing [**15] lists, so that the
volume of mail would be impossible to process.
However, the issue is not whether the ban against "bulk
mail" is a legitimate regulation, but rather whether
subscription publications published by a nonprofit
organization such as Prison Legal News are reasonably
classified as "bulk mail."
The court is satisfied that the Defendants have set
forth a valid rational connection between the ban on
mass mailing types of truly bulk mail, such as unsolicited
catalogs addressed to "current occupant" and a legitimate
neutral purpose, but as previously noted, that is not the
issue. The cases cited by the Defendants deal with
exactly this type of bulk mail. Both Sheets v. Moore, 97
F.3d 164 (6th Cir. 1996), cert. denied, U.S. , 137 L.
Ed. 2d 339, 117 S. Ct. 1261 (1997) and Kalasho v.
Kapture, 868 F. Supp. 882 (E.D. Mich. 1994), involved
mass mailed catalogs. However, Defendants have set
forth no rational connection between the prohibition of
non profit paid subscription publications such as Prison
Legal News and any legitimate neutral penological
purpose.
[*1362] The court agrees with Plaintiff that cases
such as Brooks v. Seiter, 779 F.2d 1177 (6th Cir. [**16]
1985), and Montcalm Publishing Co. v. Beck, 80 F.3d
105 (4th Cir. 1996), cert. denied,
U.S. , 136 L. Ed.
2d 215, 117 S. Ct. 296 (1996) are more to the point.
Although both courts upheld prison regulations
prohibiting delivery of "bulk mail," both noted that a
personal subscription of a particular publication more
nearly resembles personal correspondence than a mass
mailing.
Like personal correspondence, a
subscription represents the exercise of
volition by both sender and recipient. The
sender's interest in communicating the

Page 5
978 F. Supp. 1356, *; 1997 U.S. Dist. LEXIS 16967, **

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 letters written to that inmate for
purposes of first amendment protection. . .

Brooks, supra, 779 F.2d at 1180.
Brooks was decided prior to Turner v. Safley, 482
U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987), and
Thornburgh v. Abbott, 490 U.S. 401, 104 L. Ed. 2d 459,
109 S. Ct. 1874 (1989), and used the least restrictive
analysis of Martinez, which the Supreme Court expressly
rejected in Abbott as it [**17] applies to incoming
prisoner publications. See also, Pepperling v. Crist, 678
F.2d 787 (9th Cir. 1982), decided prior to these Supreme
Court cases, where the Ninth Circuit stated that the
blanket prohibition against receipt of a publication by
any prisoner carries a heavy presumption of
unconstitutionality.
However, even after the Supreme Court rejection of
the Martinez least restrictive test in favor of the Abbott
reasonableness test, courts have recognized a stronger
first amendment right of prisoners to receive a
subscription publication, than any right to a mass
mailing. In Montcalm Publishing Corp. v. Hodges, supra,
80 F.3d 105, the court stated:
The Supreme Court has clearly
recognized a First Amendment interest in
those who wish to communicate with
prison inmates, although it has expressly
reserved the question of how that interest
operates in the case of "mass mailings."
We do not believe, however, that mass
mailings are at issue. Although Montcalm
mails Gallery to thousands of subscribers
nationwide, this case involves only the
relationship between Montcalm and
particular inmate-subscribers. Despite the
First Amendment's somewhat limited
reach in the prison [**18] context, it
cannot fairly be said that Montcalm has
no First Amendment interest at stake.

Id. at 109. "In contrast, a publisher who wished to send a
particular publication to each and every inmate at a given
institution could be said to be undertaking a mass
mailing." Id. n.2. Here it is undisputed that there are no

more than 8 to 20 subscribers to Prison Legal News at
the AHCC.
Defendants have set forth no rational connection
between banning the delivery of subscription
publications from a nonprofit organization such as Prison
Legal News and any legitimate penological purpose.
Defendant Buss contends that such mail takes an
inordinate amount of time to ensure it gets to the
subscriber because it often does not reflect a complete
address. However, under the AHCC mail regulation,
mail that does not bear a complete address is already
excluded from delivery to the inmates. Additionally, it is
not disputed that the issues of Prison Legal News
addressed to the Plaintiff had complete addresses,
including his proper address, committed name, and DOC
number.
Moreover, the latest change to the AHCC Field
Instruction 450.100 definition of "bulk mail" has
changed the definition [**19] from a neutral one to a
definition that discriminates against nonprofit
publications.
The court finds that the prohibition of delivery of
subscription publications from nonprofit organizations as
"bulk mail" is not reasonably related to a legitimate
neutral prison objective.
3. No Reasonable Alternative Means for Plaintiff
Defendants contend that the Plaintiff has a
reasonable alternative means in that he can have the
publisher send him Prison Legal [*1363] News by way
of first or second class mail. However, this is no
alternative because the publisher of Prison Legal News
states that the publication is printed and mailed third
class by a printer, and that the entire nonprofit operation
is centered on mailing the publication third class as an
economic and logistical matter. There is no way
subscribers such as Mr. Miniken can force the publisher
to spend more money to send the publication by first or
second class mail.
4. No Effect on Prison Personnel or Resources
As before, Defendants have established that
allowing delivery of all mass mailing true bulk mail at
the prison would have a significant impact on mailroom
personnel and other prison officials. However, there
[**20] is no evidence that the delivery of 8 to 20 fully
and correctly addressed copies of Prison Legal News to
subscribing inmates at AHCC would have a significant
impact on any prison personnel or resources. Defendant
Buss has stated that delivery of a properly addressed
copy of a subscription publication takes no longer than
delivery of a piece of first class mail.

Page 6
978 F. Supp. 1356, *; 1997 U.S. Dist. LEXIS 16967, **

5. Ready
Defendants

Alternatives

Are

Available

to

AHCC Field Instruction 450.100 allows prison
officials to deny inmates access to certain written
publications, including those that have not been received
in accordance with the specified procedure, or when their
content may be detrimental to the security, good order or
discipline of the institution; or if a publication contains
threats of physical harm, violence or terrorist activities,
multiple copies of anything, and for numerous other
reasons specified in 21 listed reasons for mail rejection.
Additionally, under Field Instruction 450.100 item 4,
"The Superintendent . . . may limit the number, or
volume of, publications an inmate may receive or retain
in his quarters for fire, sanitation or housekeeping
reasons." Therefore, the court finds that the prison has
readily [**21] available alternatives to the prison to the
total prohibition of subscription non-profit publications
such as Prison Legal News to alleviate Defendants'
concerns.
The court concludes that although the prohibition
against delivery of bulk mail to inmates may not be
unconstitutional, without a finding either way, Plaintiff's
First Amendment right to receive his personal
subscription to Prison Legal News has been violated.
DUE PROCESS CLAIM
Plaintiff also alleges that his due process rights
under the Fourteenth Amendment were violated because
the prison officials did not give him or the publisher any
notice of the rejection of Prison Legal News, or any right
to independent review. The Supreme Court has clearly
established that any restriction of prisoner mail must be
accompanied by procedural protections. Procunier v.
Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800
(1974). The Court in Abbott Court did not reject that
finding, and in fact explicitly pointed out that the
regulations at issue in that case established procedural
protection, including providing the publisher or sender of
rejected publications a copy of the rejection letter and
allowing the publisher [**22] to obtain independent
review of the decision.
Additionally, AHCC Field Instruction 450.100
provides for these very same procedural protections.
Section F of the Field Instruction provides that if any
portion of an inmate's incoming or outgoing mail is
restricted for the reasons set forth in the Field
Instruction, written notification will be provided to the
inmate and the sender, including the reason for the
rejection and advising them of their rights to seek a
review of the decision to restrict the mail.
Defendant Buss filed an affidavit in this case stating
that "bulk mail is junk mail" not entitled to any process

at AHCC. He later recanted his testimony that "bulk
mail" is always "junk mail." However, Defendants
continue to claim that no process is due for bulk mail.
AHCC Field Instruction 450.100 clearly provide for
notice and opportunity to be heard for all mail rejected
under the Field Instruction. In any event, having found
that Prison Legal News is not "bulk mail," the court finds
that Plaintiff's due process rights [*1364] under the
Fourteenth Amendment have also been violated by
Defendants' failure to notify either the Plaintiff or the
publisher of Prison Legal News of its rejection. [**23]
QUALIFIED IMMUNITY
Defendants contend that even if Plaintiff's
constitutional rights were violated by prohibiting the
delivery of Prison Legal News, they are immune from
liability for damages.
A state official is entitled to qualified immunity to
the extent that his conduct "does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S.
Ct. 2727 (1982). In determining whether an official is
entitled to qualified immunity, the court must consider
(1) whether the Plaintiff has identified a specific
constitutional right that has been allegedly violated, (2)
whether that right was so clearly established as to alert a
reasonable official to its parameters, and (3) whether a
reasonable officer could have believed his or her conduct
was lawful. Newell v. Sauser, 79 F.3d 115, 117 (9th Cir.
1996).
The Plaintiff bears the initial burden of proving that
the right was clearly established. Romero v. Kitsap
County, 931 F.2d 624, 627 (9th Cir. 1991). To be clearly
established, "the contours of the right must be
sufficiently clear that a reasonable official [**24] would
understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d
523, 107 S. Ct. 3034 (1987). Further, the right asserted
must be "clearly established at the time of the challenged
action." Mitchell v. Forsyth, 472 U.S. 511, 528, 86 L.
Ed. 2d 411, 105 S. Ct. 2806 (1985). Under this test, the
Plaintiff must "offer more than general conclusory
allegations" that the Defendants violated a constitutional
right. Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th
Cir. 1985). Thus, to support a judgment, the Plaintiff
"must show that the particular facts of his case support a
claim of clearly established right." Id.
However, the absence of any authority directly on
point is not fatal to a section 1983 claim. A right is
clearly established if the only reasonable conclusion
from binding authority was that the disputed right
existed. Sweaney v. ADA County, Idaho, 119 F.3d

Page 7
978 F. Supp. 1356, *; 1997 U.S. Dist. LEXIS 16967, **

1385, 1997 WL 39076 (9th Cir. 1997); Blueford v.
Prunty, 108 F.3d 251, 255 (9th Cir. 1997).
"This is not to say that an official action is protected
by qualified immunity unless the very action has
previously been held unlawful, [**25] but it is to say
that in light of the pre-existing law, the unlawfulness
must be apparent." Anderson v. Creighton, supra, 483
U.S. at 640.
The court agrees with Defendants that it was not
clearly established that a prohibition against "bulk mail"
violated a prisoner's constitutional rights. However, it
was clearly established law held that the Turner
reasonableness standard for prison regulations that
infringe on the prisoners' First Amendment rights must
be applied to publications since the Supreme Court so
held in 1989. Thornburgh v. Abbott, 490 U.S. 401, 413,
104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989). Therefore, no
reasonable prison official could have believed that an
absolute prohibition of a paid-for subscription, without
any reasonable connection to a legitimate, neutral prison
policy, did not violate a prisoner's First Amendment
rights.
It was also clearly established law since the 1974
Procunier v. Martinez case that rejection of mail sent to a
prisoner must meet procedural due process requirements.
No reasonable prison official could have believed that
destroying a paid-for subscription mailed to a prison
inmate without any notice to anyone was constitutional.
[**26]
For the foregoing reasons, the court concludes that
Plaintiff's Motion for Summary Judgment must be and is
GRANTED and Defendants' Motion for Summary
Judgment is DENIED. The Court is satisfied that
Plaintiff is entitled to declaratory and injunctive relief as
well as damages. However, neither party has addressed
what would be an appropriate damage award.
IT IS FURTHER ORDERED:
1. Defendants are HEREBY PERMANENTLY
ENJOINED from prohibiting delivery [*1365] of an
inmate's paid-for subscription to a profit or nonprofit

publication based only on the fact that it is mailed to the
inmate by "standard mail." This injunction in no way
prohibits Defendants from prohibiting mass mailings or
other truly "bulk mail" that are mailed to the institution
by "standard mail."
2. On or before September 12, 1997 the parties shall
serve and file any statement concerning an appropriate
damage award. Plaintiff is also entitled to recover his
reasonable attorney fees. On or before September 12,
1997, counsel for Plaintiff shall serve and file a
statement setting forth the hours expended and the
reasonable fee per hour to litigate this case. Defendants
shall serve and file any objections [**27] on or before
September 19, 1997. The court will then direct entry of a
Final Judgment including an appropriate award of
damages and a reasonable award of attorney fees.
IT IS SO ORDERED. The Clerk is directed to
enter this Opinion and Order and forward a copy to
counsel.
DATED this 25th day of August, 1997.
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE
JUDGMENT IN A CIVIL CASE - FILED OCT
15 1997
DECISION BY COURT:
This action came to hearing before the
Court. The issues have been heard and a
decision has been rendered.
IT IS HEREBY ORDERED: 1. The Clerk is
directed to enter a Judgment in favor of the Plaintiff
against the Defendants awarding Plaintiff $ 31.00 in
damages and $ 4,339.00 in reasonable attorney and
paralegal fees for a total judgment of $ 4,370.00. 2.
Plaintiff's request for punitive damages is STAYED
pending the appeal filed by the Defendants with the
Ninth Circuit Court of Appeals.
Date: October 15, 1997



 

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